[Senate Hearing 110-1170]
[From the U.S. Government Publishing Office]


                                                       S. Hrg. 110-1170
 
      OVERSIGHT OF TELEMARKETING PRACTICES AND THE CREDIT REPAIR 
                        ORGANIZATIONS ACT (CROA) 

=======================================================================

                                HEARING

                               before the

                         COMMITTEE ON COMMERCE,
                      SCIENCE, AND TRANSPORTATION
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                             JULY 31, 2007

                               __________

    Printed for the use of the Committee on Commerce, Science, and 
                             Transportation


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       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                   DANIEL K. INOUYE, Hawaii, Chairman
JOHN D. ROCKEFELLER IV, West         TED STEVENS, Alaska, Vice Chairman
    Virginia                         JOHN McCAIN, Arizona
JOHN F. KERRY, Massachusetts         TRENT LOTT, Mississippi
BYRON L. DORGAN, North Dakota        KAY BAILEY HUTCHISON, Texas
BARBARA BOXER, California            OLYMPIA J. SNOWE, Maine
BILL NELSON, Florida                 GORDON H. SMITH, Oregon
MARIA CANTWELL, Washington           JOHN ENSIGN, Nevada
FRANK R. LAUTENBERG, New Jersey      JOHN E. SUNUNU, New Hampshire
MARK PRYOR, Arkansas                 JIM DeMINT, South Carolina
THOMAS R. CARPER, Delaware           DAVID VITTER, Louisiana
CLAIRE McCASKILL, Missouri           JOHN THUNE, South Dakota
AMY KLOBUCHAR, Minnesota
   Margaret L. Cummisky, Democratic Staff Director and Chief Counsel
Lila Harper Helms, Democratic Deputy Staff Director and Policy Director
   Christine D. Kurth, Republican Staff Director and General Counsel
Kenneth R. Nahigian, Republican Deputy Staff Director and Chief Counsel



                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on July 31, 2007....................................     1
Statement of Senator Klobuchar...................................    42
Statement of Senator Pryor.......................................     1
Statement of Senator Thune.......................................    46

                               Witnesses

Cerasale, Jerry, Senior Vice President, Government Affairs, 
  Direct Marketing Association, Inc..............................    20
    Prepared statement...........................................    21
Faulkner, Joanne S., Attorney, on Behalf of National Association 
  of Consumer Advocates, National Consumer Law Center, U.S. PIRG, 
  Consumer Federation of America.................................    28
    Prepared statement...........................................    30
Holland, Robin, Senior Vice President, Global Operations, Equifax 
  Inc............................................................    25
    Prepared statement...........................................    26
Johnson, Richard, Member, Board of Directors, AARP...............    15
    Prepared statement...........................................    17
Parnes, Lydia B., Director, Bureau of Consumer Protection, 
  Federal Trade Commission.......................................     2
    Prepared statement...........................................     3
St. Clair, Steve, Assistant Attorney General, State of Iowa......    37
    Prepared statement...........................................    39

                                Appendix

Faulkner, Joanne S., Attorney, National Association of Consumer 
  Advocates, supplemental statement..............................    55
Holland, Robin, Senior Vice President, Global Operations, Equifax 
  Inc., supplemental statement...................................    53
Response to written questions submitted by Hon. Frank R. 
  Lautenberg to:
    Jerry Cerasale...............................................    57
    Richard Johnson..............................................    57
    Lydia B. Parnes..............................................    55


      OVERSIGHT OF TELEMARKETING PRACTICES AND THE CREDIT REPAIR 
                        ORGANIZATIONS ACT (CROA)

                              ----------                              


                         TUESDAY, JULY 31, 2007

                                       U.S. Senate,
        Committee on Commerce, Science, and Transportation,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:35 p.m. in room 
SR-253, Russell Senate Office Building, Hon. Mark Pryor, 
presiding.

             OPENING STATEMENT OF HON. MARK PRYOR, 
                   U.S. SENATOR FROM ARKANSAS

    Senator Pryor. I'll go ahead and call the meeting to order, 
and I want to thank our witnesses for being here.
    We're going to have some other Senators join us. I 
understand we're going to have a number of Senators that will 
be coming and going throughout the hearing, and I'd like to 
thank Chairman Inouye and Co-Chairman Stevens for holding this 
hearing and allowing me to chair this hearing on telemarketing 
practices and the Credit Repair Organizations Act, or CROA, 
under the FTC.
    I'd also like to thank them for their past leadership on 
this issue, in allowing these issues to come before the 
Committee on previous occasions. Both of these topics are very 
important to American consumers and important in the American 
marketplace.
    I'm a sponsor of the legislation to reauthorize the Do Not 
Call Registry, I'm particularly interested in the testimony of 
the witnesses that are here today to offer insight into the 
efficacy of the program and how to try to improve that program, 
if possible. I'm also concerned about whether CROA is achieving 
the intended protections Congress created in 1993, and whether 
the Act is preventing consumer access to needed financial tools 
and resources.
    By analyzing the important issues of these laws and 
regulations, I'm optimistic that Congress can create 
legislation that is forward-thinking to--and considerate of--
the interested and impacted parties. I believe Congress has a 
duty to protect the most vulnerable Americans from scams and 
other actions of unscrupulous businesses, and I hope through 
careful consideration of the testimony today, and emerging 
issues, we can protect consumers from identity theft, and undue 
intrusion, while ensuring the stream of commerce as efficiently 
as possible.
    So, I'd like to go ahead and open the discussion, we may 
have other Senators join us here in a few moments, and we may 
allow them to make opening statements when they come.
    But first, on our panel today--I guess we'll do 5-minute 
rounds? We'll allow each of the panelists to have opening 
statements of up to 5 minutes. We'll do this in two panels. 
Then we'll ask questions of the two panels separately. We'll do 
panel one first, and then we'll do panel two and have questions 
after each panel.
    First, let me introduce Ms. Lydia Parnes; she's the 
Director of Bureau of Consumer Protection at the Federal Trade 
Commission here in Washington, D.C.
    Ms. Parnes?

  STATEMENT OF LYDIA B. PARNES, DIRECTOR, BUREAU OF CONSUMER 
              PROTECTION, FEDERAL TRADE COMMISSION

    Ms. Parnes. Chairman Pryor, thank you. I appreciate the 
opportunity to appear here today to discuss three of the 
Commission's important consumer protection initiatives: Our 
longstanding commitment to fight telemarketing fraud, the FTC's 
widely used and highly regarded Do Not Call Registry, and our 
aggressive enforcement of the Credit Repair Organizations Act.
    As part of its mandate to protect consumers, the Commission 
devotes significant resources to combating fraudulent, 
deceptive and abusive telemarketing practices. We do this by 
enforcing Section 5 of the FTC Act, and the Commission's 
Telemarketing Sales Rule, both of which prohibit false and 
misleading claims, unauthorized billing, and other practices 
used by fraudsters to steal money from consumers.
    The Commission also implements and enforces the Do Not Call 
Registry, which protects the privacy of Americans who have 
expressed their wish not to receive telemarketing calls.
    The Commission has been pursuing fraudulent telemarketers 
for more than 20 years. Since 1991, we have filed more than 350 
telemarketing cases, challenging an array of scams, including 
bogus investment schemes, business opportunities, and 
sweepstakes pitches.
    In addition to the strong injunctive relief we obtained in 
these cases, the Commission has secured orders providing for 
more than $500 million in consumer redress, or disgorgement.
    We share your concern about telemarketers targeting the 
elderly. The May 20 New York Times article on this issue, 
highlighted the role that third parties play in facilitating 
telemarketing fraud. Fraudulent telemarketers have always 
required the participation of third-party businesses. Lead list 
generators and brokers, third-party telemarketing firms, 
fulfillment houses, money transmitters, payment processors, 
banks and telephone companies are just some of the entities 
that telemarketers need to run their business. That is why 
Congress, in the Telemarketing Act, gave the Commission the 
authority to regulate and challenge practices that assist and 
facilitate fraudulent telemarketing, and the Commission has 
used that authority.
    In addition to its anti-fraud work in the telemarketing 
area, the Commission administers the National Do Not Call 
Registry. Since its implementation in June 2003, consumers have 
registered more than 146 million telephone numbers. The 
humorist, Dave Barry, called it ``the most popular Government 
program since the Elvis stamp.''
    According to a Harris Interactive Survey released last 
year, 92 percent of those polled reported receiving fewer 
telemarketing calls. The success of the Registry is due, in 
part, to vigorous enforcement, and a high rate of industry 
compliance. The Commission has brought 27 cases to enforce the 
Do Not Call rule, resulting in orders for $17.4 million in 
civil penalties and disgorgement.
    Reauthorizing the Do Not Call Implementation Act, and with 
it, our ability to collect fees from those who access the 
Registry, will ensure the continued success of the Do Not Call 
Program, and underscore our collective commitment to this 
important privacy protection.
    We do believe the bill can be strengthened, by statutorily 
mandating the fees charged to telemarketers accessing the 
registry, and look forward to working with you on this matter.
    The Commission also enforces the Credit Repair 
Organizations Act by aggressively pursuing businesses engaged 
in fraudulent credit repair. CROA was enacted to protect the 
public from unfair and deceptive practices by credit repair 
organizations.
    Together with its Federal and State law enforcement 
partners, the Commission has conducted several law enforcement 
sweeps against fraudulent credit repair outfits, resulting in 
over 100 enforcement actions. We've also engaged in outreach to 
businesses and consumers, and have published numerous 
educational materials designed to educate both consumers and 
businesses about their respective rights and obligations in the 
credit area.
    The Commission will continue to take aggressive action to 
enforce CROA, combat fraudulent, deceptive and abusive 
telemarketing practices, and to continue the success of the Do 
Not Call Registry.
    Again, I appreciate the opportunity to appear before the 
Committee, and would be pleased to take any questions you may 
have.
    [The prepared statement of Ms. Parnes follows:]

  Prepared Statement of Lydia B. Parnes, Director, Bureau of Consumer 
                  Protection, Federal Trade Commission
    Chairman Inouye, Ranking Member Stevens, and Members of the 
Committee, I am Lydia Parnes, Director of the Bureau of Consumer 
Protection at the Federal Trade Commission (``Commission'' or 
``FTC'').\1\ I appreciate the opportunity to appear before you today to 
tell you about the Commission's law enforcement program \2\ to fight 
telemarketing fraud and protect consumers' privacy from unwanted 
telemarketing calls, as well as our enforcement of the Credit Repair 
Organizations Act (``CROA'').
I. Anti-fraud and Privacy Initiatives Under the Telemarketing Sales 
        Rule
    An article in the May 20 issue of The New York Times,\3\ which 
included some disturbing allegations about telemarketing fraud 
targeting the elderly, has prompted a number of inquiries from Members 
of Congress. This article focused on the alleged practices of infoUSA, 
a leading purveyor of compiled consumer data. According to the article, 
the company marketed lists of elderly consumers and failed to implement 
safeguards to ensure that only legitimate companies could purchase its 
data. Deplorable actions like the ones described in this article are 
among the types of fraudulent practices targeted by the Commission's 
telemarketing law enforcement program. The Commission has an extensive 
program to battle fraudulent and abusive telemarketing practices 
through its vigorous enforcement of the Telemarketing Sales Rule 
(``TSR''). The FTC's telemarketing enforcement has two components. 
First, the Commission focuses strongly on the anti-fraud provisions of 
the TSR. Second, the FTC implements and enforces the requirements of 
the National Do Not Call Registry, which protects the privacy of 
Americans who have expressed their wish not to receive telemarketing 
calls by entering their numbers in the Registry.
A. The Commission's Enforcement of the Telemarketing Sales Rule's Anti-
        Fraud 
        Provisions
    The Commission has a strong commitment to rooting out telemarketing 
fraud. From 1991 to the present, the FTC has brought more than 350 
telemarketing cases. The vast majority of these cases involved 
fraudulent marketing of investment schemes, business opportunities, 
sweepstakes pitches, and the sales of various goods and services, 
including health care products. Prior to 1994, these cases were brought 
pursuant to Section 5 of the FTC Act, which prohibits ``unfair or 
deceptive acts or practices in or affecting commerce.'' \4\
    In 1994, Congress enhanced the Commission's enforcement arsenal by 
enacting the Telemarketing and Consumer Fraud and Abuse Prevention Act 
(the ``Telemarketing Act'').\5\ This legislation directed the 
Commission to issue a trade regulation rule defining and prohibiting 
deceptive or abusive telemarketing acts or practices. The Commission 
promulgated the TSR in 1995. Since 1996, the Commission has filed more 
than 240 cases under the TSR. In most of these cases, the Commission 
sought preliminary relief to bring an immediate halt to ongoing law 
violations, and in virtually every case ultimately obtained permanent 
injunctions to prevent future misconduct. In addition to injunctive 
relief, the Commission has secured orders providing for more than $500 
million in consumer restitution or, where restitution was not 
practicable, disgorgement to the U.S. Treasury. During this same 
period, the Commission, through cases filed on its behalf by the U.S. 
Department of Justice (``DOJ''),\6\ has obtained civil penalty orders 
totaling nearly $17 million.
    As an example, just last week the FTC halted the allegedly unlawful 
telemarketing operations of Suntasia Marketing,\7\ which, according to 
the FTC's complaint, took millions of dollars directly out of tens of 
thousands of consumers' bank accounts without their knowledge or 
authorization. Suntasia allegedly tricked consumers into divulging 
their bank account numbers by pretending to be affiliated with the 
consumers' banks and offering a purportedly ``free gift'' to consumers 
who accepted a ``free trial'' of Suntasia's products. Once the consumer 
divulged his or her bank account number, Suntasia allegedly was able to 
debit each consumer's account for initial fees ranging from $40 to 
$149. Often, charges between $19.95 and $49.95 recurred on a monthly 
basis, and Suntasia allegedly frustrated consumers' attempts to stop 
them. According to the complaint, some of Suntasia's calls were 
directed to consumers listed in ``full-data leads,'' which already 
included consumers' bank account numbers. Practical Marketing, a 
company from whom Suntasia purchased such leads, was investigated and 
prosecuted by the U.S. Postal Inspection Service and the U.S. Attorney 
for the Southern District of Illinois, and pled guilty to one count of 
identity theft on November 6, 2006.\8\
    Working in cooperation with the U.S. Postal Inspection Service and 
state and local law enforcement, the Commission moved aggressively to 
stop Suntasia's allegedly unlawful practices. Last week, the Commission 
sought and obtained an ex parte court order. At the Commission's 
request, the U.S. District Court for the Middle District of Florida 
halted the scheme, appointed a receiver, and froze the assets of the 
nine corporate defendants and six individual defendants. The 
defendants' assets are frozen to preserve the agency's ability to 
obtain funds for injured consumers, should the Commission prevail in 
this litigation. The Suntasia case is just one example of the FTC's 
vigorous law enforcement program--a key feature of which is partnering 
with other law enforcement agencies whenever possible--to protect 
American consumers from the pernicious practices of fraudulent 
telemarketers.
    By no means does the Suntasia case stand alone. The FTC frequently 
works with various Federal, state, local, and foreign partners to 
conduct law enforcement ``sweeps''--multiple simultaneous law 
enforcement actions--that focus on specific types of telemarketing 
fraud,\9\ and works to promote joint filing of telemarketing actions 
with the states.\10\ When the Commission files a lawsuit in Federal 
district court, we seek every appropriate equitable civil remedy a 
court can grant it to stop telemarketing fraud.\11\ Remedies may 
include freezing the defendants' personal and corporate assets, 
appointing receivers over the corporate defendants, issuing temporary 
and permanent injunctions, and ordering consumer redress and 
disgorgement of ill-gotten gains.
    A sample of the FTC's recent cases illustrates the range of the 
FTC's enforcement program. For instance, one case resulted in a 
judgment of more than $8 million against Canadian telemarketers of 
advance-fee credit cards.\12\ Another yielded a contempt order banning 
a seller of bogus business opportunities from all telemarketing.\13\ 
Still another case resulted in a permanent injunction against a Canada-
based operation that allegedly telemarketed fraudulent ``credit card 
loss protection'' and bogus discount medical and prescription drug 
packages.\14\ In one of the Commission's largest actions, which 
involved an international ring that allegedly sold advance-fee credit 
cards, the agency obtained an order banning 13 individuals and entities 
from telemarketing.\15\
    Although the Commission does not have criminal law enforcement 
authority, it recognizes the importance of criminal prosecution to 
deterrence and consumer confidence. Accordingly, the Commission 
routinely refers matters appropriate for criminal prosecution to 
Federal and state prosecutors through its Criminal Liaison Unit 
(``CLU''). Since October 1, 2002, 214 people have been indicted \16\ in 
criminal cases involving telemarketing fraud that arose from referrals 
made by CLU, including cases where an FTC attorney was designated a 
Special Assistant U.S. Attorney to help with the criminal prosecution. 
Of those 214 charged, 111 were convicted or pleaded guilty. The rest 
are awaiting trial, in the process of extradition from a foreign 
county, or fugitives from justice.\17\
    As in the Suntasia case, the Commission targets telemarketers who 
obtain consumers' personal information under false pretenses. For 
example, in Xtel Marketing, the FTC sued telemarketers that masqueraded 
as Social Security Administration representatives and claimed that call 
recipients risked losing their Social Security payments if they did not 
provide their bank account information.\18\ Just last month, based on 
information provided by the FTC, a Federal judge sentenced one of the 
principals in this scheme to 5 years in prison.
    Telemarketers' deceptive and abusive practices often are aided or 
made possible by third parties, such as list brokers, who sell personal 
information about consumers to disreputable telemarketers, or by 
unscrupulous payment processors that enable fraudulent telemarketers to 
reach into consumers' bank accounts.
    The May 20 New York Times article highlighted the role list brokers 
can play in facilitating such fraud. The article described the alleged 
practices of infoUSA, leading purveyor of compiled consumer data. 
According to the article, the company marketed lists of information 
about elderly consumers and failed to implement safeguards to ensure 
that only legitimate companies could purchase its data. The FTC has 
brought a number of cases challenging the sale of such lists to 
fraudulent telemarketers. In 2002, the FTC sued three information 
brokers that allegedly knew or consciously avoided knowing that they 
supplied lists of consumers to telemarketers acting in violation of the 
TSR. The FTC charged that Listdata Computer Services, Inc., Guidestar 
Direct Corporation, and NeWorld Marketing LLC knowingly supplied lists 
to telemarketers that were engaging in per se violations of the TSR by 
engaging in advance-fee loan scams.\19\ Misuse of lists is a practice 
specifically addressed in the permanent injunctions the FTC seeks in 
its enforcement actions against fraudulent telemarketers. A standard 
provision of the FTC's proposed orders bans or severely restricts 
telemarketing defendants from selling, renting, leasing, transferring, 
or otherwise disclosing their customer lists. The FTC continues to 
monitor the practices of list brokers in this area through ongoing, 
non-public investigations.\20\
    The FTC also has challenged other third-party actors such as 
payment processors, without whose assistance telemarketers would not be 
able to gain access to consumers' bank accounts.\21\ Generally, the FTC 
has alleged that these payment processors knew or consciously avoided 
knowing that they were facilitating fraudulent telemarketing operations 
in violation of the TSR \22\ and, where appropriate, also has alleged 
direct violations of Section 5 of the FTC Act. Two cases brought this 
past December illustrate Commission enforcement in this area. In the 
first case, FTC v. Interbill,\23\ the FTC alleged that Interbill 
debited money from consumer accounts without their authorization, in 
violation of the FTC Act.\24\ In the second, FTC v. Global Marketing 
Group, Inc.,\25\ the FTC obtained a preliminary injunction to shut down 
a payment processor that allegedly provided services to at least nine 
advance-fee loan telemarketers.\26\
    The Commission's consumer and business education efforts complement 
our law enforcement initiatives. The FTC not only publishes compliance 
guides for business, but also a wealth of information in English and 
Spanish for consumers, including brochures and fact sheets on 
telemarketing fraud, sweepstakes and lotteries, work-at-home schemes, 
and advance-fee loans, as well as phishing and other Internet-based 
frauds. This information is available in print and online. The FTC and 
its partners also distribute consumer education information to seniors 
groups and other community organizations.\27\ In addition to providing 
educational resources to consumers and organizations nationwide, the 
FTC partners with other organizations and people who regularly meet 
with seniors and send representatives to community events.
B. Enforcement of the Do Not Call Provisions of the TSR
    In addition to its anti-fraud work in the telemarketing arena, the 
Commission amended the TSR in 2003 to strengthen its privacy protection 
provisions by, among other things, establishing the National Do Not 
Call Registry.\28\ Consumers have registered more than 146 million 
telephone numbers since the Registry became operational in June 2003, 
and the Do Not Call program has been tremendously successful in 
protecting consumers' privacy from unwanted telemarketing calls. A 
Harris Interactive Survey released in January 2006 showed that 94 
percent of American adults have heard of the Registry and 76 percent 
have signed up for it.\29\ Ninety-two percent of those polled reported 
receiving fewer telemarketing calls.\30\ Similarly, an independent 
survey by the Customer Care Alliance demonstrates that the National 
Registry has been an effective means for consumers to limit unwanted 
telemarketing calls.\31\
    While the Commission appreciates the high rate of compliance with 
the TSR's Do Not Call provisions, it vigorously enforces compliance to 
ensure the program's ongoing effectiveness. Violating the Do Not Call 
requirements subjects telemarketers to civil penalties of up to $11,000 
per violation.\32\ Twenty-seven of the Commission's telemarketing cases 
have alleged Do Not Call violations, resulting in $8.8 million in civil 
penalties and $8.6 million in redress or disgorgement ordered.\33\
    A recent case against The Broadcast Team, filed by DOJ on behalf of 
the FTC, illustrates the enforcement of the TSR's Do Not Call 
provisions.\34\ The Broadcast Team allegedly used ``voice 
broadcasting'' to make tens of millions of illegal automated 
telemarketing calls, often to numbers on the National Do Not Call 
Registry. The complaint alleged that the company used an automated 
phone dialing service to call and deliver pre-recorded telemarketing 
messages. When a live person picked up the phone, The Broadcast Team 
allegedly hung up immediately or, in other instances, played a 
recording. Either course of conduct violates the TSR's restriction on 
``abandoning calls''--that is, failing to connect a consumer to a live 
sales representative within 2 seconds after the consumer answers the 
telephone.\35\ The Broadcast Team agreed to pay a $1 million civil 
penalty to settle the charges.\36\
    The largest Do Not Call case to date involved satellite television 
subscription seller DIRECTV and a number of companies that telemarketed 
on behalf of DIRECTV. DIRECTV paid over $5.3 million to settle Do Not 
Call and call abandonment charges,\37\ one of the largest civil 
penalties the Commission has obtained in any case enforcing a consumer 
protection law.
II. Re-Authorization of the Do Not Call Implementation Act
    The Do Not Call Implementation Act (``DNCIA''), passed by Congress 
on March 11, 2003, authorized the FTC to promulgate regulations 
establishing fees sufficient to implement and enforce the Do Not Call 
provisions of the TSR. This section first describes generally how the 
Do Not Call program works for consumers, telemarketers, and law 
enforcement agencies. It then discusses the grant of authority in the 
DNCIA for the Commission to charge fees for access to the National 
Registry, and the Commission's use of such fees to maintain the 
effectiveness of the TSR's Do Not Call provisions. Finally, it 
addresses legislative improvements to the DNCIA that would ensure the 
continued success of the National Registry and strengthen the 
Commission's telemarketing enforcement operations.
A. How the National Do Not Call Registry Works
    The National Registry is a comprehensive, automated system used by 
consumers, telemarketers, and law enforcement agencies. The Registry 
was built to accomplish four primary tasks:

        1. To allow consumers to register their preferences not to 
        receive telemarketing calls at registered telephone numbers;

        2. To allow telemarketers and sellers to access the telephone 
        numbers included in the National Registry and to pay the 
        appropriate fees for such access;

        3. To gather consumer complaint information concerning alleged 
        Do Not Call violations automatically over the telephone and the 
        Internet; and

        4. To allow FTC, state, and other law enforcement personnel 
        access to consumer registration information, telemarketer 
        access information, and complaint information maintained in the 
        Registry.

    Consumers can register their telephone numbers through two methods: 
by calling a toll-free number from the telephone number they wish to 
register, or over the Internet. The process is fully automated, takes 
only a few minutes, and requires consumers to provide minimal 
personally identifying information.\38\
    Telemarketers and sellers can access registered telephone numbers, 
and pay the appropriate fee for that access, if any, through an 
Internet website dedicated to that purpose. The only information about 
consumers that companies receive from the National Registry is the 
registered telephone number with no name attached. Those numbers are 
sorted and available for download by area code. Companies may also 
check a small number of telephone numbers at a time via interactive 
Internet pages.
    Consumers who receive unwanted telemarketing calls can register a 
complaint via either a toll-free telephone number, an interactive voice 
response system, or the Internet. To conduct investigations, law 
enforcement officials also can access data in the National Registry, 
including consumer registration information, telemarketer access 
information, and consumer complaints. Such access is provided to the 
law enforcement community throughout the United States, Canada, and 
Australia through Consumer Sentinel, a secure Internet website 
maintained by the FTC.
B. Fees Collected and Used Pursuant to the DNCIA
    The DNCIA gave the Commission the specific authority to 
``promulgate regulations establishing fees sufficient to implement and 
enforce the provisions relating to the `Do-Not-Call' Registry of the 
Telemarketing Sales Rule (``TSR'').'' \39\ It also provided that ``[n]o 
amounts shall be collected as fees pursuant to this section for such 
fiscal years except to the extent provided in advance in appropriations 
Acts. Such amounts shall be available . . . to offset the costs of 
activities and services related to the implementation and enforcement 
of the [TSR], and other activities resulting from such implementation 
and enforcement.'' \40\ Pursuant to the DNCIA and the appropriations 
Acts, the Commission has conducted annual rulemaking proceedings to 
establish the appropriate level of fees to charge telemarketers for 
access to the Registry.
    The fees collected are intended to offset costs in three areas. 
First, funds are required to operate the Registry. As described above, 
the development and ongoing operation of the Do Not Call Registry 
involves significant resources and effort.
    Second, funds are required for law enforcement and deterrence 
efforts, including identifying targets, coordinating domestic and 
international initiatives, challenging alleged violators, and engaging 
in consumer and business education efforts, which are critical to 
securing compliance with the TSR. As with all TSR enforcement, the 
agency coordinates with its state partners and DOJ, thereby leveraging 
resources and maximizing deterrence. Further, given the fact that 
various telemarketing operations are moving offshore, international 
coordination is especially important. These law enforcement efforts are 
a significant component of the total costs, given the large number of 
investigations conducted by the agency and the substantial effort 
necessary to complete such investigations.
    As noted previously, the Commission considers consumer and business 
education efforts important complements to enforcement in securing 
compliance with the TSR. Because the amendments to the TSR were 
substantial, and the National Registry was an entirely new feature, 
educating consumers and businesses helped to reduce confusion, enhance 
consumers' privacy, and ensure the overall effectiveness of the system. 
Based on the Commission's experience, this substantial outreach effort 
was necessary, constructive, and effective in ensuring the success of 
the program.
    Third, funds are required to cover ongoing agency infrastructure 
and administration costs associated with operating and enforcing the 
Registry, including information technology structural supports and 
distributed mission overhead support costs for staff and non-personnel 
expenses, such as office space, utilities, and supplies. In this 
regard, the FTC has made substantial investments in technology and 
infrastructure in response to the significantly increased capacity 
required by the National Registry.
    Under the current fee structure, telemarketers are charged $62 per 
area code of data, starting with the sixth area code, up to a maximum 
of $17,050 for the entire Registry.\41\ Telemarketers are prohibited 
from entering into fee-sharing arrangements, including any arrangement 
with any telemarketer or service provider to divide the fees amongst 
its various clients.
    Telemarketers receive the first five area codes of data at no cost. 
The Commission allows such free access to limit the burden placed on 
small businesses that only require access to a small portion of the 
Registry. The National Registry also allows organizations exempt from 
the Registry requirements to access the Registry at no cost.\42\ While 
these entities are not required by law to access the Registry, many do 
so voluntarily in order to avoid calling consumers who have expressed 
their preferences not to receive telemarketing calls. The Commission 
determined that such entities should not be charged access fees when 
they are under no legal obligation to comply with the Do Not Call 
requirements of the TSR because it may make them less likely to obtain 
access to the Registry, which would result in an increase in the number 
of unwanted calls to consumers.
C. Legislative Modifications of the DNCIA
    As noted above, the DNCIA allowed the FTC to promulgate regulations 
to collect fees for the Do Not Call Registry. The Commission believes 
that reauthorizing the DNCIA will demonstrate Congress' continued 
commitment to protecting consumers from unwanted intrusions into the 
privacy of their homes, and appreciates Senator Pryor's proposed 
reauthorizing legislation. The Commission believes that the bill can be 
strengthened by statutorily mandating the fees to be charged to 
telemarketers accessing the National Registry, and specifically by 
mandating such fees in an amount sufficient to enable the Commission to 
enforce the TSR. The Commission believes that such an amendment to the 
DNCIA would ensure the continued success of the National Registry by 
providing the Commission with a stable funding source for its TSR 
enforcement activities. The Commission also believes a stable fee 
structure would benefit telemarketers, sellers, and service providers 
who access the Registry. The Commission looks forward to working with 
you on this matter.
III. Credit Repair Organizations Act
    The Commission also enforces the Credit Repair Organizations Act 
(``CROA'' ) \43\ by aggressively pursuing businesses engaging in 
fraudulent ``credit repair.'' CROA was enacted to protect the public 
from unfair or deceptive advertising and business practices by credit 
repair organizations. In addition to prohibiting false or misleading 
statements about credit repair services,\44\ CROA includes a number of 
other important requirements to protect consumers, including a ban on 
collecting payment before the service is fully performed and a 
requirement to provide consumers with a written disclosure statement 
before any agreement is executed.\45\
    The Commission has conducted several sweeps of fraudulent credit 
repair operations, including Project Credit Despair (twenty enforcement 
actions brought by the FTC, U.S. Postal Inspection Service, and eight 
state attorneys general in 2006); \46\ Operation New ID--Bad Idea I and 
II (52 actions brought by the FTC and other law enforcement agencies in 
1999); \47\ and Operation Eraser (32 actions brought by the FTC, state 
attorneys general, and DOJ in 1998).\48\
    The Commission also educates businesses and consumers about credit 
repair. Among other outreach efforts, the Commission publishes a large 
volume of educational materials designed to educate both consumers and 
businesses about their respective rights and obligations in the credit 
area. The agency's publications include: Credit Repair: Self Help May 
Be Best,\49\ which explains how consumers can improve their 
creditworthiness and lists legitimate resources for low or no cost 
help; and How to Dispute Credit Report Errors,\50\ which explains how 
to dispute and correct inaccurate information on a consumer report and 
includes a sample dispute letter.
    One issue that has arisen recently is whether CROA should be 
amended to exempt credit monitoring services, which are offered by 
consumer reporting agencies, banks, and others.\51\ As a matter of 
policy, the Commission sees little basis on which to subject the sale 
of legitimate credit monitoring and similar educational products and 
services to CROA's specific prohibitions and requirements, which were 
intended to address deceptive and abusive credit repair business 
practices. Credit monitoring services, if promoted and sold in a 
truthful manner, can help consumers maintain an accurate credit file 
and provide them with valuable information for combating identity 
theft.\52\ However, any amendment intended to provide an exemption for 
legitimate credit monitoring services must be carefully considered and 
narrowly drawn. Drafting an appropriate legislative clarification is 
difficult and poses challenges for effective law enforcement. If an 
exemption is drafted too broadly, it could provide an avenue for credit 
repair firms to evade CROA. Indeed, in enforcing CROA, the Commission 
has encountered many allegedly fraudulent credit repair operations that 
aggressively find and exploit existing exemptions in an attempt to 
escape the strictures of the current statute.\53\ Because of the 
drafting difficulties, the Commission urges Congress to continue to 
reach out to stakeholders in developing any amendments to CROA.
Endnotes
    \1\ While the views expressed in this statement represent the views 
of the Commission, my oral presentation and responses to questions are 
my own and do not necessarily reflect the views of the Commission or 
any individual Commissioner.
    \2\ The FTC has broad law enforcement responsibilities under the 
Federal Trade Commission Act, 15 U.S.C. 41, et seq. With certain 
exceptions, the statute provides the agency with jurisdiction over 
nearly every economic sector. Certain entities, such as depository 
institutions and common carriers, as well as the business of insurance, 
are wholly or partly exempt from FTC jurisdiction. In addition to the 
FTC Act, the agency has enforcement responsibilities under more than 50 
other statutes and more than 30 rules governing specific industries and 
practices.
    \3\ Charles Duhigg, Bilking the Elderly, With a Corporate Assist, 
N.Y. Times, May 20, 2007 at A1.
    \4\ 15 U.S.C.  45(a).
    \5\ 15 U.S.C.  6101-6108. Among the principal ways the 
Telemarketing Act, as implemented by the Telemarketing Sales Rule, 
strengthened the Commission's hand is that it provides a predicate for 
the Commission, through the Department of Justice, to seek civil 
penalties for violations. The Commission is not empowered to seek civil 
penalties for deceptive or unfair practices in violation of Section 5 
of the FTC Act.
    \6\ Civil penalty actions are filed by DOJ on behalf of the FTC. In 
general, for those statutes or rules for which the Commission is 
authorized to seek civil penalties, under the FTC Act, the Commission 
must notify the Attorney General of its intention to commence, defend, 
or intervene in any civil penalty action under the Act. 15 U.S.C.  
56(a)(1). DOJ then has 45 days, from the date of the receipt of 
notification by the Attorney General, in which to commence, defend or 
intervene in the suit. Id. If DOJ does not act within the 45-day 
period, the FTC may file the case in its own name, using its own 
attorneys. Id.
    \7\ FTC v. FTN Promotions, Inc., 8:07-cv-1279-T-30TGW (M.D. Fla. 
July 23, 2007).
    \8\ 18 U.S.C.  1028(a)(7). The plea agreement included a fine in 
an amount to be determined at sentencing, a payment of $100,000 to the 
U.S. Postal Inspection Service Consumer Fraud Fund, and other costs and 
assessments totaling about $13,000. At the sentencing on February 9, 
2007, the court imposed a fine of $10,000.
    \9\ Some of the sweeps in which the FTC and its law-enforcement 
partners have engaged over the past several years include: ``Dialing 
for Deception'' http://www.ftc.gov/opa/2002/04/dialing.shtm (a sweep by 
the FTC that targeted telemarketing fraud in connections with in-bound 
telephone calls); ``Ditch the Pitch'' http://www.ftc.gov/opa/2001/10/
ditch.shtm (a sweep targeting fraudulent out-bound telemarketing 
brought by the FTC and 6 States); ``Operation No Credit,'' http://
www.ftc.gov/opa/2002/09/opnocredit.shtm (43 law-enforcement actions, 
including criminal indictments, targeting a wide range of credit-
related frauds brought by the FTC, the DOJ, the U.S. Postal Inspection 
Service, and 11 State and local authorities); ``Operation Protection 
Deception'' http://www.ftc.gov/opa/2000/10/protectdecpt.shtm (a sweep 
against telemarketers of fraudulent ``credit card protection'' services 
with extensive assistance from 5 States and the Federal Bureau of 
Investigation (``FBI'')); ``Senior Sentinel'' http://www.ftc.gov/opa/
1995/12/sen.shtm (a sweep targeting telemarketers who defraud the 
elderly coordinated by the DOJ and FBI, with 5 civil cases brought by 
the FTC, that led to hundreds of arrests and indictments across the 
country); ``Project Telesweep'' http://www.ftc.gov/opa/1995/07/
scam.shtm (nearly 100 cases filed by the FTC, DOJ and 20 States 
targeting business opportunity fraud often promoted through slick 
telemarketing).
    \10\ See, e.g., FTC and State of Maryland v. Accent Marketing, 
Inc., No. 02-0405 (S.D. Ala. 2002); FTC and State of Washington v. 
Westcal Equipment, Inc., No. C02-1783 (W.D. Wash. 2002); FTC and State 
of Illinois v. Membership Services, Inc., No. 01-CV-1868 (S.D. Cal. 
2001); FTC, Commonwealth of Virginia, State of North Carolina, and 
State of Wisconsin v. The Tungsten Group, Inc., No. 2:01cv773 (E.D. Va. 
2001); FTC and State of Nevada v. Consumer Credit Services, Inc., No. 
CV-S-98-00741 (D. Nev. 1998); FTC and State of New Jersey v. National 
Scholastic Society, Inc., No. 97-2423 (D.N.J. 1997).
    \11\ When the Commission seeks relief in its own right, the 
Commission's remedies are limited to equitable relief. As noted above, 
if the Commission chooses instead to seek a civil penalty for 
violations of the TSR, the Commission must refer the matter to DOJ.
    \12\ FTC v. 120194 Canada, Ltd., No. 1:04-cv-07204 (N.D. Ill., 
permanent injunction order entered Mar. 8, 2007).
    \13\ FTC v. Neiswonger, No. 4:96-cv-2225 (E.D. Mo., second 
permanent injunction entered Apr. 23, 2007).
    \14\ FTC v. STF Group, Inc., No. 03 C 0977 (N.D. Ill., stipulated 
permanent injunction entered Jul. 21, 2006).
    \15\ See http://www.ftc.gov/os/caselist/assail/assail.shtm (seven 
permanent injunctions entered on various dates in FTC v. Assail, Inc., 
No. W03CA007 (W.D. Tex.)).
    \16\ Eight of these indictments are under seal; staff does not know 
the precise date of the indictments.
    \17\ One defendant was granted a mistrial after suffering a stroke. 
He has been reindicted.
    \18\ FTC v. XTel Marketing, No. 04c-7238 (N.D. Ill. 2005).
    \19\ Section 310.4(a)(4) of the Rule expressly prohibits 
``requesting or receiving payment of any fee or consideration in 
advance of obtaining a loan or other extension of credit when the 
seller or telemarketer has guaranteed or represented a high likelihood 
of success in obtaining or arranging a loan or of extension of credit 
for a person.'' The orders obtained by the FTC permanently barred the 
list brokers from providing lists to telemarketers engaging in illegal 
business practices and required them to pay nearly $200,000 combined in 
consumer redress. FTC v. Listdata Computer Services, Inc., No. 04-61062 
(S.D. Fla., stipulated final order entered Aug. 17, 2004); FTC v. 
Guidestar Direct Corp., No. CV04-6671 (C.D. Cal., stipulated final 
order entered Aug. 13, 2004); FTC v. NeWorld Marketing LLC, No. 
1:04cv159 (W.D. N. Car., stipulated final order entered Aug. 12, 2004); 
see also http://www.ftc.gov/opa/2004/08/guidestar.shtm.
    \20\ The Commission also has challenged the practice of brokers 
selling sensitive customer information to third parties without having 
reasonable procedures in place to verify the legitimacy of these third 
parties. Last year, the FTC brought a lawsuit against ChoicePoint, 
Inc., one of the Nation's largest data brokers, alleging that it 
violated the Fair Credit Reporting Act and the FTC Act by failing to 
screen prospective subscribers before selling them sensitive consumer 
information. U.S. v. ChoicePoint, Inc., CV-0198 (N.D. Ga., consent 
decree entered Jan. 30, 2006). The Commission alleged that ChoicePoint 
approved as customers identity thieves who lied about their credentials 
and whose applications should have raised obvious red flags. Under the 
terms of a settlement, ChoicePoint paid $10 million in civil penalties 
and $5 million in consumer redress, and agreed to implement new 
procedures to ensure that it provides sensitive data only to legitimate 
businesses for lawful purposes.
    \21\ See, e.g., FTC v. Global Marketing Group, Inc., No. 8:06CV-
02272 (JSM) (M.D. Fla., filed Dec. 11, 2006) (litigation ongoing); FTC 
v. First American Payment Processing, Inc., No. CV-04-0074 (PHX) (D. 
Ariz, stipulated final order entered Nov. 23, 2004); FTC v. Electronic 
Financial Group, No. W-03-CA-211 (W.D. Tex., stipulated final order 
entered Mar. 23, 2004); FTC v. Windward Marketing, Ltd., No. 1:06-CV-
615 (FMH) (N.D. Ga., stipulated final order against certain payment-
processors entered Jun. 25, 1996, summary judgment order against 
remaining payment-processors entered Sep. 30, 1997).
    \22\ 16 C.F.R. 310.3(b).
    \23\ No. CV-S-06 (D. Nev., filed Dec. 26, 2006).
    \24\ Although the FTC does not have jurisdiction over banks, the 
FTC coordinates with the Federal Reserve Board and the other banking 
agencies concerning efforts to help banks avoid accepting fraudulent 
checks. These entities generally are regulated by the Federal banking 
regulatory agencies--the Federal Reserve System, the Office of the 
Comptroller of the Currency, the Office of Thrift Supervision, the 
Federal Deposit Insurance Corporation, and the National Credit Union 
Administration. Notably, the Commission recently authorized FTC staff 
to issue an opinion letter to NACHA-The Electronic Payments Association 
in support of that organization's proposed rule changes to strengthen 
safeguards against fraudulent transactions in the payment processing 
industry. The letter is available at http://www.ftc.gov/os/opinions/
070423staffcommenttonacha.pdf.
    \25\ No. 8:06CV-02272 (JSM) (M.D. Fla., filed Dec. 11, 2006).
    \26\ As noted above, advance-fee loan schemes are per se illegal 
under the TSR. 16 C.F.R. 310.4(a)(4).
    \27\ While the Commission remains deeply concerned about fraud 
affecting older consumers, the FTC's consumer complaint data and the 
results of its 2003 fraud survey indicate that the experience of older 
consumers is not substantially different than that of the general 
population. See http://www.ftc.gov/opa/2004/08/fraudsurvey.shtm. The 
results of this 2003 survey indicated that consumers age 65 or older 
did not experience more fraud than younger consumers.
    \28\ The FTC promulgated the Do Not Call provisions and other 
substantial amendments to the TSR under the express authority granted 
to the Commission by the Telemarketing Act. Specifically, the 
Telemarketing Act mandated that the rule--now known as the TSR--include 
prohibitions against any pattern of unsolicited telemarketing calls 
``which the reasonable consumer would consider coercive or abusive of 
such consumer's right to privacy,'' as well as restrictions on the 
hours unsolicited telephone calls can be made to consumers.
    \29\ See http://www.harrisinteractive.com/harris_poll/
index.asp?PID=627.
    \30\ Id. Discussing the effectiveness of the National Registry just 
1 year after the inception of the program, the chairman of Harris Poll, 
Harris Interactive stated, ``In my experience, these results are 
remarkable. It is rare to find so many people benefit so quickly from a 
relatively inexpensive government program.'' http://www.ftc.gov/opa/
2004/02/dncstats0204.shtm.
    \31\ See National Do Not Call Study Preliminary Findings, Customer 
Care Alliance, June 2004. Customer Care Alliance is a consortium of 
companies involved in customer service, dispute resolution, and related 
activities. See www.ccareall.org.
    \32\ As noted above, civil penalty actions are filed by DOJ on 
behalf of the FTC. The Commission's ability to protect consumers from 
unfair or deceptive acts or practices would be substantially improved 
by legislation, all of which is currently under consideration by 
Congress, that provides the agency with civil penalty authority in the 
areas of data security, telephone records pretexting, and spyware, 
similar to that provided under the Telemarketing Act. Civil penalties 
are especially important in these areas because the Commission's 
traditional remedies, including equitable consumer restitution and 
disgorgement, may be impracticable or not optimally effective in 
deterring unlawful acts.
    \33\ These Do Not Call cases are included in the 240 TSR cases 
noted above.
    \34\ United States v. The Broadcast Team, Inc., Case 6:05-cv-01920-
PCF-JGG (M.D. Fla. 2005).
    \35\ 16 C.F.R. 310.4(b)(1)(iv).
    \36\ See http://www.ftc.gov/opa/2007/02/broadcastteam.shtm.
    \37\ United States of America (for the Federal Trade Commission) v. 
DirecTV, File No. 042 3039, Civil Action No. SACV05 1211 (C.D. Cal. 
Dec. 12, 2005). See also http://www.ftc.gov/opa/2005/12/directv.shtm.
    \38\ In the case of registration by telephone, the only personal 
information provided is the telephone number to be registered. In the 
case of Internet registration, a consumer must provide, in addition to 
the telephone number(s) to be registered, a valid e-mail address to 
which a confirmation e-mail message is sent. Once the confirmation is 
complete, however, the e-mail address is hashed and made unusable. 
Thus, only consumers' telephone numbers are maintained in the database.
    \39\ Pub. L. No. 108-10, 117 Stat. 557 (2003).
    \40\ Id.
    \41\ The Commission set the initial fees at $25 per area code of 
data with a maximum annual fee of $7,375. See 68 Fed. Reg. 45134 (July 
31, 2003). The fees have increased each year to its current level. See 
69 Fed. Reg. 45580 (July 30, 2004); 70 Fed. Reg. 43273 (July 27, 2005); 
and 71 Fed. Reg. 43048 (July 31, 2006).
    \42\ Such exempt organizations include entities that engage in 
outbound telephone calls to consumers to induce charitable 
contributions, for political fund raising, or to conduct surveys. They 
also include entities engaged solely in calls to persons with whom they 
have an established business relationship or from whom they have 
obtained express written agreement to call, as defined by the Rule, and 
who do not access the National Registry for any other purpose.
    \43\ 15 U.S.C.  1679 et seq.
    \44\ CROA prohibits persons from advising a consumer to make false 
and misleading statements about a consumer's credit worthiness or 
credit standing to a consumer reporting agency. 15 U.S.C.  
1679b(a)(1).
    \45\ The written disclosure must explain consumers' right to 
dispute inaccurate credit information directly to a credit reporting 
agency and to obtain a copy of their credit reports. It also must state 
that neither the credit repair organization nor the consumer can remove 
accurate, negative information from his or her report. 15 U.S.C.  
1679(c). It also requires credit repair organizations to use written 
contracts that include the terms and conditions of payment and other 
specified information. 15 U.S.C.  1679(d).
    \46\ See http://www.ftc.gov/opa/2006/02/badcreditbgone.shtm.
    \47\ See http://www.ftc.gov/opa/1999/10/badidea.shtm.
    \48\ See http://www.ftc.gov/opa/1998/07/erasstl.shtm.
    \49\ Available at www.ftc.gov/bcp/conline/pubs/credit/repair.shtm 
(English);
http://www.ftc.gov/bcp/conline/spanish/credit/s-repair.shtm (Spanish).
    \50\ Available at www.ftc.gov/bcp/edu/pubs/consumer/credit/
cre21.shtm.
    \51\ Legislation introduced in the U.S. House of Representatives 
would exempt from CROA's coverage those who provide a broad range of 
credit-related services, including credit monitoring, credit scores or 
scoring tools, any analysis or explanations of actual or hypothetical 
scores or tools. See, ``A Bill to Amend the Credit Repair Organizations 
Act to Clarify the Applicability of Certain Provisions to Credit 
Monitoring Services, and For Other Purposes'' (H.R. 2885), currently 
before the House Financial Services Committee. A previous set of 
proposed amendments to CROA, included in the Financial Data Protection 
Act of 2006, Sec. 6 (H.R. 3997), was passed by the House Financial 
Services Committee on March 16, 2006, but was not passed by the Senate.
    \52\ Of course, these services are not the only way for consumers 
to monitor their credit file. The Fair and Accurate Credit Transactions 
Act gives every consumer the right to a free credit report from each of 
the three major credit reporting agencies once every 12 months.
    \53\ See, e.g., FTC v. ICR Services, Inc., No. 03C 5532 (N.D. Ill. 
Aug. 8, 2003) (consent decree) (complaint alleged that defendant 
falsely organized as 501(c)(3) tax-exempt organization to take 
advantage of CROA exemption for nonprofits); and United States v. Jack 
Schrold, No. 98-6212-CIV-ZLOCH (S.D. Fla. 1998) (stipulated judgment 
and order for permanent injunction) (complaint alleged that defendant 
attempted to circumvent CROA's prohibition against ``credit repair 
organizations'' charging money for services before the services are 
performed fully).

    Senator Pryor. Thank you, Ms. Parnes, and let me apologize 
for mispronouncing your name earlier.
    But, let me go ahead and start with Do Not Call questions. 
You talk about how the program has been a great success--I'd 
like to put some quantifications on that, if I can. How many 
people have signed up for it and what can we do to improve it?
    Ms. Parnes. Well, there are 146 million separate telephone 
numbers that have been registered on the Do Not Call list. Our 
experience is that it really is, it really is working, it's 
working well. There are--we believe that we have the 
legislative tools to pursue those who are violating Do Not 
Call, and as I indicated, compliance is generally high. And I 
think part of the reason it's high, is because legitimate 
businesses know how strongly consumers feel about receiving 
unwanted telemarketing calls.
    Senator Pryor. You say compliance is ``generally'' high--
have you had some problems on the enforcement side?
    Ms. Parnes. We have engaged in some enforcement, 
absolutely. We've--since the Do Not Call Registry was adopted, 
I believe--I believe we've brought 17 cases, challenging Do Not 
Call violations.
    Senator Pryor. And have those been concluded successfully, 
for the most part?
    Ms. Parnes. They have been. They have been. One of the 
cases against a telemarketers, DIRECTV, involved--at the time--
the largest civil penalty that we had obtained in the consumer 
protection area.
    Senator Pryor. Let me ask about Do Not Call, and the 
structure of it.
    With the advent, and the explosion, really, of cell phone 
usage, and Voice-over-Internet Protocol phones, VoIP, service--
are those included in the current Do Not Call Registry, and if 
so, are all of those phone numbers included?
    Ms. Parnes. Well, cell phones are interesting--every so 
often there is an e-mail that goes around on the Internet, 
encouraging everybody to register their cell phones on the Do 
Not Call List. In fact, telemarketing calls to cell phones 
really shouldn't be a problem. The FCC rule prohibits 
telemarketers from using automated dialers to call cell phones, 
and automated dialers are really the standard in the industry. 
So, as a practical matter, telemarketers can't call cell 
phones.
    But, we do register any phone. So, if a consumer is 
concerned, they can go ahead and register their cell phone on 
the Registry.
    In terms of VoIP, one of the things we find generally, is 
that convergence of technologies--Internet and telephone 
services, I mean, that poses challenges in the consumer 
protection area. We held 4 days of hearings at the Commission 
last November, to look at convergence and other emerging issues 
in the consumer protection area. So far we haven't seen a 
problem, we've actually brought one telemarketing case 
involving VoIP technology. But certainly, if we see a problem, 
we would--and it raises legislative issues, we would come to 
the Committee with that.
    Senator Pryor. Thank you.
    Ms. Parnes, as you know, the Committee and my staff, and 
the Committee staff and the Senators and their staffs have been 
working to reauthorize the Do Not Call Registry, and I want to 
thank you and your staff for being available, and for helping 
in that endeavor. Because you all have provided some very 
valuable insight, and I want to thank you for that.
    And also, I think you know the reauthorization bill is on 
this week's calendar for the Thursday markup in this Committee, 
so I want to thank the Chairman and the co-Chairman again for 
their assistance on that. And, I understand that you've had a 
chance to look at the legislation?
    Ms. Parnes. I have looked at it, yes.
    Senator Pryor. Do you think it meets the needs of the 
program? Do you think it is good legislation?
    Ms. Parnes. Well, we--the one recommendation that we had is 
that the reauthorization should statutorily set the fees for 
accessing the Registry. As the system stands right now, the 
Commission engages in an annual rulemaking to set the fees, and 
it just seems as if--from the perspective of the industry, as 
well as the Commission--having the certainty of a set fee would 
be very useful.
    Senator Pryor. OK, thank you for that.
    Let me also ask this: with the laws that currently exist 
there--when you register, you register for 5 years, is that 
right?
    Ms. Parnes. Yes.
    Senator Pryor. So, you're going to start to see the people 
who registered initially to sunset here soon. Do you have a 
sense of how many will sunset in the first year? Do you know 
that number off the top of your head?
    Ms. Parnes. I don't.
    Senator Pryor. OK.
    Ms. Parnes. But I'm certain--I'm actually certain that we 
can easily get that----
    Senator Pryor. That's really more of a background for my 
question----
    Ms. Parnes.--for you.
    Senator Pryor.--and that is, what will the Federal Trade 
Commission do to try to educate consumers that their 
registration will expire and that they need to re-register. Do 
we have any plans for that?
    Ms. Parnes. We do. We were very sensitive to the need to 
roll out the Do Not Call Registry very carefully when it was 
just implemented. And we--I think--did a very good job of 
explaining the Registry, and getting the word out to 
consumers--I believe in the first two or 3 days, before people 
even, you know, knew how well this was going to work, we 
registered over 10 million phones. So, we will put together a 
consumer education campaign, and we will definitely reach out 
to the media, both local and national, to get the word out 
about re-registration.
    Senator Pryor. Great. Well, thank you because on that type 
of program, consumer information is very critical.
    Let me ask now, let me change gears and ask about CROA. I 
know that this is something that you're also very familiar 
with, and you've been very helpful in providing your insights 
to the Committee, and to my staff, and I appreciate that.
    You may not know off the top of your head, but how many 
cases have you brought under CROA, do you know?
    Ms. Parnes. I believe that the FTC alone has brought about 
60 cases in the last 9 or 10 years, but working together with 
our law enforcement partners on the Federal and State level, 
we've participated in sweeps, and in total, we've brought over 
100 cases.
    Senator Pryor. All right, now, many people--including 
yourself--have expressed reservations about credit monitoring 
services being subject to specific requirements under CROA. A 
number of proposals have been suggested and offered to amend 
this aspect of CROA, including carve-outs for specific entities 
and carve-outs for specific practices. In this debate, tell us 
where you are on those issues, and why?
    Ms. Parnes. Of course credit monitoring services, as you 
mentioned, can be very useful for consumers. And we understand 
the credit reporting agencies have offered these services, and 
have expressed concern about coverage under CROA. And while we 
are--and have been--very sympathetic about this, it's been very 
difficult to come up with some way of crafting an exemption.
    We would not favor a status-based exemption for the credit 
reporting agencies, because it would certainly give them an 
unfair competitive advantage over others that offer credit 
monitoring services, and would have to comply with CROA.
    And in terms of defining credit monitoring services alone 
and just carving that out from the statute--our experience with 
credit repair outfits is that they use every exemption to try 
and evade the law.
    And so, I could easily see your typical fraudulent credit 
repair guy, you know, setting up a scam that would take 
advantage of a credit monitoring exemption, and that's really 
our concern.
    Senator Pryor. So tell me what you think the best approach 
would be for the new law.
    Ms. Parnes. I think that, over the years as we have, as 
we've really thought about this, we just, you know--so far we 
have not been able to come up with anything that we could 
really recommend as carving out an appropriate exemption, and 
still providing adequate protection to consumers.
    Senator Pryor. OK.
    Let's see--you mentioned in your testimony that Congress 
should continue to reach out to stakeholders in developing any 
amendments to CROA--do you think that we've found some common 
ground on changing CROA, or--?
    Ms. Parnes. I think the common ground is that, you know, we 
all agree that--that credit monitoring offered by--I think we 
all agree with the general principles: Credit monitoring 
offered by the CRAs doesn't particularly pose a risk to 
consumers.
    I don't think that we've come up with a solution to carve 
out an exemption from the statute. And, it's something that we 
will--we would be happy to kind of head to, yet again. But, but 
we've certainly tried to--and haven't yet--come up with a fix 
there.
    Senator Pryor. OK, great.
    I'd like to move onto the second panel. I want to thank you 
for your responses to questions. I want to leave the record 
open for 2 weeks and allow my colleagues to submit questions in 
writing. And so, don't be shocked if you receive some written 
questions from the Committee. I know that we have a hectic day 
in the Senate today, with a lot of things happening on the 
floor and other Committees meeting. So, my colleagues are 
trying to get here as best they can.
    But, thank you. Your statement will be made part of the 
record. You're free to go.
    Ms. Parnes. Thank you very much.
    Senator Pryor. We'll get the second panel up here.
    Thank you. Thank you for your time and your testimony.
    Now, I'd like to go ahead and introduce the second panel 
and call everyone's name. And I'd like to put them in this 
order, if possible: Mr. Richard Johnson, Member of the Board of 
Directors at AARP; Mr. Jerry Cerasale, Senior Vice President, 
Governmental Affairs, Direct Marketing Association; Ms. Robin 
Holland, Senior Vice President of Global Operations, Equifax; 
Ms. Joanne Faulkner, testifying on behalf of the National 
Association of Consumer Advocates; and Mr. Steve St. Clair, 
Assistant Attorney General for the State of Iowa.
    I want to welcome all of you all to the Committee.
    I would like to start with Mr. Johnson and Mr. Cerasale. 
We're going to have 5 minutes to make opening statements, and 
then we'll have some questions for you. Go ahead.

             STATEMENT OF RICHARD JOHNSON, MEMBER, 
                    BOARD OF DIRECTORS, AARP

    Mr. Johnson. Thank you. Chairman Pryor, thank you so much 
for the opportunity to testify at this important matter.
    AARP strongly supported the establishment of the Do Not 
Call Registry, or the DNCR. And we thank you for your efforts 
in this area. And we also commend the regulators for their 
implementation and enforcement of this important consumer 
protection.
    The DNCR is highly successful. The public overwhelmingly 
views telemarketing sales calls as an invasion of privacy. It 
is not surprising, then, that as of now, there are 146 million 
phone numbers registered with the DNCR. Yet, despite the 
success of the program, more can be done to protect the 
consumers.
    For example, in a 2005 AARP study, 62 percent of the 
respondents with telephone numbers registered with the DNCR 
indicated that they still receive more telemarketing calls than 
they would like.
    We urge Congress and regulators do the following:
    First, ensure that the DNCR continues to be funded by the 
telemarketing industry. Taxpayers and consumers should not have 
to pay for the cost of operating the system.
    Second, prohibit all unsolicited, pre-recorded 
telemarketing calls, including those to establish business 
customers. AARP surveys show that customers and consumers 
consider pre-recorded telemarketing calls particularly coercive 
or abusive.
    Third, strengthen call-abandonment rules. Telemarketers 
typically abandon calls when predictive dialing reaches more 
than one person at the same time. Consumers pick up and hear a 
click, and older consumers are especially concerned about who 
was trying to call them. Abandoned calls should include 
identifying information, in order to remove some of the 
uncertainty that currently exists when older persons hear the 
click.
    Fourth, narrow the definition of established business 
relationships. The current definition is too broad. For 
example, the consumer who simply inquires about a company's 
products and services, should not have to deal with incessant 
telemarketing calls from that company. Regulators should change 
the definition to require that the relationship be ongoing.
    Unfortunately, even these consumer protections cannot stop 
thieves from committing telemarketing fraud, which is already 
illegal. In our written testimony, we provided statistics to 
show that telemarketing fraud is largely targeted at older 
Americans, who have a lifetime of savings that the thieves go 
after.
    Real people behind the statistics bear the burden of this 
fraud. Consider a few examples: Richard Guthrie was a 92-year-
old Army veteran, living on just $800 in Social Security 
benefits each month. InfoUSA, a company which compiles vast 
databases of consumer information, sold Mr. Guthrie's 
information to thieves, who defrauded him of $100,000 in a 
telemarketing fraud.
    In another case, 86-year-old Claire Wilson was desperate 
for money when her son-in-law needed a liver transplant. She 
was conned out of $8,000 in savings, after receiving a call 
that she had won $100,000 in a Canadian lottery.
    These are just a few of the thousands of examples of older 
Americans who have suffered because of telemarketing fraud.
    There are clearly many issues for Congress, regulators and 
the states to address. One of the key areas for Congress to 
investigate and potentially take action on, relates to how 
thieves get money from the victims' bank accounts. Often, this 
happens through demand drafts, unsigned paper checks.
    Demand drafts are so often connected to fraudulent 
transactions, that Attorneys General in 35 states, plus the 
District of Columbia and American Samoa, have called for an 
outright ban on them. AARP also believes that the FTC should 
strengthen the Telemarketing Sales Rule to address problems 
that remain, including unauthorized access to consumer bank 
accounts, disclosures regarding premiums, and prize promotions, 
repeat calling of telemarketing fraud victims, and the 
contacting of consumers who have placed their telephone numbers 
on the DNCR. Additional civil and criminal penalties should be 
imposed for violations of telemarketing laws and regulations, 
including prison terms for those who knowingly deceive 
consumers.
    In summary, the Do Not Call Registry has been largely 
successful. But consumers still receive unwanted telemarketing 
calls. AARP recommends strengthening the DNCR with additional 
consumer protections. Federal and State lawmakers should work 
together to establish a strong set of anti-telemarketing fraud 
laws and regulations to bring enforcement action against 
thieves. Thank you.
    [The prepared statement of Mr. Johnson follows:

Prepared Statement of Richard Johnson, Member, Board of Directors, AARP
    Chairman Pryor, Ranking Member Sununu, and Members of the 
Subcommittee, on behalf of AARP's 39 million members, thank you for the 
opportunity to testify on the Do Not Call Registry (DNCR) and 
telemarketing fraud.
Do Not Call Registry
    AARP's members are among the millions of Americans who have taken 
the initiative to place their phone numbers (over 132 million as of 
2006) \1\ into the DNCR in an effort to reduce the number of unwanted 
telemarketing calls. Survey results show that the Registry has been 
very successful from the consumer standpoint. A December 2005 Harris 
Interactive survey \2\ found that 76 percent of respondents had signed 
up for the Registry, and 92 percent of them had received fewer 
telemarketing calls.
---------------------------------------------------------------------------
    \1\ ``FTC Annual report to Congress for FY 2006 pursuant to the Do 
Not Call Implementation Act on the National Do Not Call Registry,'' 
page 4. See http://www.ftc.gov/os/2007/04/P034305FY2006RptOnDNC.pdf.
    \2\ Note that the survey was conducted online, which may limit the 
survey's ability to generalize to the entire (online and offline) 
population. For more information on the survey, see http://
www.harrisinteractive.com/harris_poll/index.asp?PID=627.
---------------------------------------------------------------------------
    AARP's own surveys indicate that an overwhelming number of people 
view telemarketing sales calls as an invasion of privacy and have 
supported the creation of ``do not call'' lists as a way to stop these 
unwanted intrusions.\3\ The DNCR is considered one of the best consumer 
programs ever implemented, and regulators should be commended for their 
capable implementation and enforcement of this important consumer 
protection. There is more that can be done to enhance the protections 
of the DNCR, and AARP believes that it should continue to be funded by 
the telemarketing industry, rather than by taxpayers or consumers who 
place their name on the DNCR.
---------------------------------------------------------------------------
    \3\ 2005 AARP Public Policy Institute survey.
---------------------------------------------------------------------------
    Notwithstanding the success of the DNCR, consumers still believe 
they receive too many telemarketing calls. For example, in a 2005 study 
conducted by AARP, 62 percent of respondents with telephone numbers 
registered with the DNCR indicated that they still received more 
telemarketing calls than they would like. In order to make the DNCR an 
even bigger success for consumers, the FTC should adopt additional 
rules to further decrease the number of telemarketing calls.
    AARP is pleased that the FTC is considering changes in two areas 
that could help achieve this outcome: (1) prohibiting all unsolicited 
prerecorded telemarketing calls, including those from sellers to 
established business customers, and (2) retaining and strengthening 
call abandonment measures. AARP recommends that the FTC act to further 
relieve consumers of unwanted telemarketing calls from companies with 
which they have an established business relationship.
Prerecorded Telemarketing Calls
    AARP believes that all unsolicited prerecorded telemarketing calls, 
including those from sellers to established business customers should 
be prohibited. Consumers consider prerecorded telemarketing calls a 
particularly ``coercive or abusive'' infringement on their right to 
privacy.\4\
---------------------------------------------------------------------------
    \4\ 2005 AARP Public Policy Institute survey.
---------------------------------------------------------------------------
    AARP believes that the prohibition on prerecorded telemarketing 
calls should apply whether the calls are received by a person, an 
answering machine, or a voice mail system. A simple prohibition on 
prerecorded telemarketing calls is the best course for consumers. AARP 
has submitted comments to this effect to the FTC in its ongoing 
proceeding reviewing the Telemarketing Sales Rule.
Retaining and Strengthening Call Abandonment Measures
    Telemarketers typically abandon calls when predictive dialing 
techniques reach more than one person at the same time; they speak to 
one person and drop the call to the others who pick up. Unfortunately, 
in far too many cases, the consumer rushes to pick up the phone only to 
hear dead air or a click as the phone call is terminated with these 
``abandoned'' calls.
    For mid-life and older Americans, these calls are more than just a 
nuisance. In addition to the inconvenience and risk associated with 
rushing to answer the telephone, there is the uncertainty and concern 
of the consumer, especially for women living alone. When no one is on 
the other end of the line, or a consumer hears a ``click'' when 
answering the telephone, a number of different scenarios may begin to 
play out in the individual's mind. Is the caller attempting to know if 
the consumer is home alone or away from the home? Was this an important 
call that the consumer just missed answering? For these reasons, 
abandoned calls should be required to include some identifying 
information conveyed to consumers in order to remove some of the 
uncertainty that currently exists when older persons answer abandoned 
calls.
    AARP is concerned with proposals by industry to change the rules in 
a way that could increase the number of calls abandoned by 
telemarketers. A change in the measure for abandoned calls could 
provide an opportunity for telemarketers to ``game'' the system and 
alter call abandonment rates over the course of each calling campaign. 
Instead, we reiterate our recommendation that the rule be retained and 
strengthened to provide stronger consumer protections outlined above.
Established Business Relationship Calls
    AARP has continually expressed the concern that the current 
definition of an ``established business relationship'' is too broad, 
increasing the likelihood that consumers get unwanted telemarketing 
calls. Specifically, we do not believe every contact between a consumer 
and a business should establish a business relationship between them. 
For example, a consumer who merely inquires or provides an opinion 
about a company's products and services should not be subjected to 
subsequent telemarketing calls from the company.
    We suggest that the FTC change the definition of ``established'' to 
require that the relationship be ongoing, i.e., where the consumer has 
completed a transaction (making a purchase or a payment) with a company 
within the 12 consecutive months prior to the call. In addition, if a 
consumer requests placement on a company's Do Not Call list, that 
request should be extended to all of the company's affiliates with whom 
the consumer does not have an ongoing relationship.
Telemarketing Fraud
    Despite the success of the Registry, and the requirement that 
telemarketers review their lists against the DNCR every month, 
telemarketing fraud--in particular, fraud targeting older Americans--
remains a major problem. Thieves continue to evade the law to commit 
fraud that can potentially wipe out the lifetime savings of 
unsuspecting older Americans.
    According to the National Consumer League,\5\ 50 percent of 
telemarketing fraud victims were 50 or older and 32 percent were 60 or 
older. At the other end of the spectrum, people under 30 represented 
just 15 percent of all telemarketing fraud reports, and those under 20 
just 1 percent. The NCL statistics also show that 46 percent of thieves 
initially target people by phone, suggesting that even in the age of 
the Internet, telemarketing fraud remains a significant problem. AARP 
research sheds light on part of the reason that seniors are targeted in 
telemarketing fraud schemes: most older victims do not realize that the 
voice on the phone could belong to someone who is trying to steal their 
money.\6\
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    \5\ See http://fraud.org/stats/2006/telemarketing.pdf.
    \6\ Off the Hook: Reducing Participation in Telemarketing Fraud, 
AARP Foundation, 2003. See http://assets.aarp.org/rgcenter/consume/
d17812_fraud.pdf.
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    In 2005, the average reported loss for telemarketing fraud was 
$2,892.\7\ The Federal Trade Commission estimates that consumers lose 
$40 billion a year in telemarketing fraud, and the FBI estimates that 
there are 14,000 illegal telephone sales operations active each day.\8\ 
But behind the statistics are real people who are scammed--sometimes 
out of their entire life savings. Consider the following:
---------------------------------------------------------------------------
    \7\ See http://www.fraud.org/toolbox/2005_Telemarketing_Fraud 
Report.pdf.
    \8\ See http://www.ftc.gov/os/comments/dncpapercomments/04/
lsap3.pdf.

   A recent New York Times story highlighted telemarketing 
        fraud against Richard Guthrie, a 92-year-old Army veteran 
        living off of approximately $800 in Social Security benefits 
        each month. He said that he once enjoyed telemarketing calls 
        because they helped stem the loneliness he had felt since his 
        wife's death.\9\ infoUSA, a company which compiles vast 
        databases of consumer information, sold Mr. Guthrie's 
        information to thieves who defrauded him of $100,000 through 
        telemarketing.
---------------------------------------------------------------------------
    \9\ ``Bilking the Elderly, With a Corporate Assist,'' by Charles 
Duhigg, New York Times, May 20, 2007. See http://www.nytimes.com/2007/
05/20/business/20tele.html?ex=1337313600&en=
38f9ae54aac348d4&ei=5090.

   86-year-old Claire Wilson, desperate for money when her son-
        in-law needed a liver transplant, was conned out of $8,000 in 
        savings after receiving a call that she had ``won'' $100,000 in 
        a Canadian lottery.\10\ The Canadian lottery scam is one of the 
        Federal Trade Commission's top two scams, costing unsuspecting 
        Americans $120 million each year.\11\
---------------------------------------------------------------------------
    \10\ ``Can't Win for Losing,'' By Carole Fleck, AARP Bulletin, 
December 2004. See http://www.aarp.org/bulletin/consumer/a2004-12-09-
cantwin.html.
    \11\ For more information on this scam, see http://www.ftc.gov/bcp/
conline/pubs/alerts/intlalrt.pdf.

   Patricia Candelaria, 83, fell prey to a similar scam, paying 
        nearly $200,000 on supposed taxes and insurance for a 
        sweepstakes prize that did not exist.\12\ The supposed contest 
        representative, who identified himself as David Sommers of the 
        National Contest Association, called Ms. Candelaria incessantly 
        and sent her invoices for past due payments.
---------------------------------------------------------------------------
    \12\ ``Scam Alert: Misplaced Trust,'' by Sid Kirchheimer, AARP 
Bulletin, July August 2007. See http://www.aarp.org/bulletin/consumer/
scam_alert_misplaced_trust.html.

   50-year-old Yvette Jones, a single mother and office worker, 
        was scammed by someone who identified herself as Lisa James of 
        the Department of Housing and Urban Development.\13\ Jones had 
        submitted several applications for what she thought were 
        government grants to cover the cost of her new roof, and the 
        fraudster told Ms. Jones that she had been awarded a $5,500 
        grant that required a $349 application fee. Ms. Jones paid it 
        but of course never received the grant. She later found out 
        that she had visited bogus websites that had put her 
        information into ``sucker lists.''
---------------------------------------------------------------------------
    \13\ ``Scam Alert: Uncle Sham Wants you,'' by Sid Kirchheimer, AARP 
Bulletin, December 2006.

    Telemarketing fraud is already illegal, but more can and should be 
done. One of the issues we recommend Congress study and potentially 
take action on relates to how thieves are able to take money out of 
their victims' bank accounts. Often, this happens through ``demand 
drafts,'' unsigned paper checks that state ``authorized by drawer'' or 
``signature on file'' in lieu of the signature. The FTC addressed the 
use of demand drafts to commit fraud in testimony before the Senate 
---------------------------------------------------------------------------
Banking Committee:

        Demand draft fraud, or the unauthorized debiting of a 
        consumer's checking account, is a growing problem. Currently, 
        it is the favorite method of fraudulent actors for taking 
        consumers' money through fraudulent telemarketing and other 
        scams. . . .

        Many fraudulent actors persuade consumers, either over the 
        telephone or through the mail, to divulge their checking 
        account numbers by telling them that their bank account numbers 
        are needed to verify prizes or to deposit prize money directly 
        into consumers' bank accounts. In other cases, fraudulent 
        actors tell consumers that only a small amount will be 
        withdrawn, but in fact withdraw huge amounts of money from the 
        consumer's checking account. As a further insult, the 
        unauthorized demand draft may generate significant overdraft 
        charges to the consumer if the consumer does not have the 
        additional money in the first instance or has written 
        subsequent checks. Little do consumers know that once they give 
        fraudulent actors access to their bank account information, 
        their money will disappear.\14\
---------------------------------------------------------------------------
    \14\ Prepared Statement of Jodie Bernstein, Director, Bureau of 
Consumer Protection, FTC, before the Senate Banking Committee on 4/15/
06. See http://www.ftc.gov/speeches/other/ddraft.shtm.

    Demand drafts are currently the subject of a case against Payment 
Processing Center (PPC) brought by the U.S. attorney in Philadelphia. 
According to this lawsuit, fraudulent telemarketers deposited $142 
million in demand drafts from PPC into their bank accounts.\15\
---------------------------------------------------------------------------
    \15\ ``Bilking the Elderly, With a Corporate Assist,'' by Charles 
Duhigg, New York Times, May 20, 2007, at http://www.nytimes.com/2007/
05/20/business/20tele.html?ex=1337313600&en=
38f9ae54aac348d4&ei=5090.
---------------------------------------------------------------------------
    Demand drafts, unlike Automated Clearing House (ACH) debits, are 
not subject to the rules of the National Automated Clearing House 
Association (NACHA). Attorneys General in 35 states plus the District 
of Columbia and American Samoa have called for an outright ban on 
demand drafts because they are so frequently used to commit fraud 
against consumers.\16\ This is clearly an issue ripe for further 
consideration by Congress.
---------------------------------------------------------------------------
    \16\ See complaint in Mary Faloney v. Wachovia Bank, U.S. District 
Court for the Eastern District of Pennsylvania, at http://
www.langergrogan.com/LangerGrogan/home.nsf/wachovia.pdf.
---------------------------------------------------------------------------
    AARP believes that the FTC should strengthen the Telemarketing 
Sales Rule. Rulemaking and enforcement efforts should address problems 
that remain in the telemarketing industry, such as online fraud, 
unauthorized access to consumer bank accounts, disclosures regarding 
premiums and prize promotions, repeat calling of telemarketing fraud 
victims, and the contacting of consumers who have placed themselves on 
the DNCR. The Department of Justice should also be vigorous in 
enforcing efforts to combat telemarketing fraud.
    Civil and criminal penalties should be imposed for violations of 
telemarketing laws and regulations, including prison terms for those 
who knowingly deceive consumers. These penalties should be assessed 
based on the degree of fraud committed, regardless of the actual dollar 
amount lost. Appropriate investigative and enforcement tools should 
also be available to regulators.
    States are also key players in this area. Because of the serious 
gap in consumer protections in the area of telemarketing, states play 
an invaluable role in preventing, deterring, and prosecuting 
telemarketing fraud. Reducing the pervasiveness of telemarketing fraud 
and obtaining restitution for victims requires strong enforcement by 
all levels of government.
Summary
    In summary, the Do Not Call Registry has been largely successful, 
but AARP recommends additional consumer protections. Such protections 
include the prohibition of all unsolicited prerecorded telemarketing 
calls and narrowing of the definition of ``established business 
relationship.'' We also believe that industry should continue to fund 
the DNCR; this cost should not be borne by taxpayers or consumers who 
place their name on the Registry.
    Despite the success of the DNCR, telemarketing fraud remains a 
significant problem for older Americans, who are targeted because of 
their higher level of savings than the general population. Federal and 
state lawmakers need to work together to establish a strong set of 
anti-telemarketing fraud laws and regulations and to bring enforcement 
actions against thieves.

    Senator Pryor. Thank you.
    Mr. Cerasale?

                  STATEMENT OF JERRY CERASALE,

           SENIOR VICE PRESIDENT, GOVERNMENT AFFAIRS,

               DIRECT MARKETING ASSOCIATION, INC.

    Mr. Cerasale. Thank you, Chairman Pryor. Thank you very 
much for inviting us here, the Direct Marketing Association is 
an association of multi-channel marketers, their suppliers, use 
the mail, the Internet, television, radio and telephone to 
reach customers, and potential customers. These issues today 
are important to them, as they try and reach those customers.
    We thank you for your leadership concerning the fees for 
the Do Not Call list, which has been very, very successful. 
Since its inception in October of 2003, when there were 56 
million phone numbers on the list at that time--less than 4 
years ago--fees grew from $7,300-plus to $17,000--about 263 
percent. If you look at 2002, with the estimated $3,000 fee, 
the increase is double that 263 percent.
    The DMA has run a Do Not Call Registry, and still does it 
for three States, with a cost of $700 a year. Now, granted it 
has a smaller number of phone numbers on it. But that $700 
would include a supplier purchasing it for all of its 
customers, not each customer having to purchase that $700. We 
believe that the fees should cover the cost of running the Do 
Not Call Registry. It should not be a tax on marketers, to 
cover other Federal Trade Commission programs. And we support 
your efforts to put a cap--set the fee with a cost-of-living, 
or CPI index increase.
    Moreover, one other problem with the list is the hygiene of 
the list. Our members tell us that 30 to 40 percent of the 
phone numbers on the list are not usable--meaning they are 
business numbers, they are fax numbers, they are abandoned 
telephone numbers that have not been removed from the list, and 
they also--as Ms. Parnes said--include cell phone numbers, 
which are covered by the TCPA, and can be added on here, but 
increase the size of the list, increase the cost of the list to 
marketers, to the Government, and increase the probability of 
errors, as you have more and more numbers. So, we hope that we 
can do something to try and increase the hygiene of this list.
    We don't know the specifics underlying the article in The 
New York Times which promoted--prompted Senator McCaskill to 
write her letter to the Federal Trade Commission. But the DMA 
has a longstanding, self-regulatory program, which looks toward 
correction--correction of errors in trying to fix it. If there 
is no cooperation, the DMA will then publicize the name of the 
company, take other corrective actions, such as removing them 
from the DMA membership publicly, transferring the information 
to the appropriate authorities.
    Two years ago, the DMA was concerned with the issue of list 
compilers, and trying to clarify its guidelines for them, and 
we started a revision process, which we have since completed. 
In the area of sensitive information, which we define as 
including seniors, we now require--for DMA membership and all 
list compilers--examine the promotion for appropriateness, so 
that we ensure that the compiler themselves has a duty--an 
affirmative duty, in sensitive information--to take a look at 
what the offer is. We hope that this will strengthen our 
guidelines, and clarify the guidelines for compilers, and try 
and help reduce fraud initially, right away, in this process.
    These individuals are the customers of our members--or 
potential customers of our members. They have to treat them as 
such, and that's what our guidelines are meant to do, and try 
and push forward ethical business practices.
    Thank you, and we're ready for any questions.
    [The prepared statement of Mr. Cerasale follows:]

     Prepared Statement of Jerry Cerasale, Senior Vice President, 
         Government Affairs, Direct Marketing Association, Inc.
I. Introduction and Summary
    Good morning, Mr. Chairman and Members of the Committee. I am Jerry 
Cerasale, Senior Vice President for Government Affairs of the Direct 
Marketing Association, and I thank you for the opportunity to appear 
before the Committee today to discuss telemarketing registry fees and 
responsible practices for compilers of marketing lists.
    The Direct Marketing Association, Inc. (``DMA,'' www.the-dma.org) 
is the leading global trade association of businesses and nonprofit 
organizations using and supporting multichannel direct marketing tools 
and techniques. DMA advocates industry standards for responsible 
marketing, promotes relevance as the key to reaching consumers with 
desirable offers, and provides cutting-edge research, education, and 
networking opportunities to improve results throughout the end-to-end 
direct marketing process. Founded in 1917, DMA today represents more 
than 3,600 companies from dozens of vertical industries in the U.S. and 
50 other nations, including a majority of the Fortune 100 companies, as 
well as nonprofit organizations. Included are catalogers, financial 
services, book and magazine publishers, retail stores, industrial 
manufacturers, Internet-based businesses, and a host of other segments, 
as well as the service industries that support them.
    DMA and our members appreciate the opportunity to present our views 
as the Committee considers permanently funding the do-not-call 
registry, setting fees for telemarketers to access the registry, and 
issues related to the operation of the registry. In addition, we would 
like to address issues relating to list compilers raised by Senator 
McCaskill and, in that context, describe DMA's list compiler 
guidelines.
II. Fees Paid by Telemarketers to Access the Do-Not-Call Registry
    DMA strongly supports capping fees imposed on telemarketers to 
access the do-not-call registry. We thank Senator Pryor for his 
leadership in this area. Current fees are sufficient and, in fact, we 
believe, higher than necessary to administer the do-not-call registry. 
Fees collected from telemarketers should be used to operate the 
registry and not for broader enforcement of the telemarketing rules or 
other purposes. Finally, we believe that the operator of the registry 
should improve the hygiene of the list to ensure it does not include 
changed telephone numbers.
A. Current Fees are Sufficient and, in Fact, Higher than Necessary to 
        Administer the Do-Not-Call Registry and Should be Capped
    The level of increase in do-not-call registry access fees seen in 
the last few years makes it clear that Congress needs to establish a 
cap on the cost for access. In addition, any necessary fee adjustments 
should be tied to a fixed index such as the consumer price index or the 
rate of inflation. The Federal Trade Commission (``FTC'' or 
``Commission''), in 2002, proposed to cap the maximum annual fee per 
telemarketer to obtain access to the entire registry at $3,000.\1\ By 
the time the Commission made the registry available in 2003, the cost 
for access had already increased to $7,375, a 145 percent increase.\2\ 
Less than a year later, the Commission increased fees 67 percent to 
$11,000.\3\ The following year, the Commission increased fees by 40 
percent to $15,400.\4\ In 2006, the Commission increased fees to 
$17,050.\5\ That was an 11 percent increase. This amounts to a 263 
percent increase in 4 years.
---------------------------------------------------------------------------
    \1\ Telemarketing Sales Rule User Fees, Notice of Proposed 
Rulemaking, 67 Fed. Reg. 37362, at 37364 (May 29, 2002).
    \2\ Telemarketing Sales Rule Fees, Final Rule, 68 Fed. Reg. 45134, 
at 45141 (July 31, 2003).
    \3\ Telemarketing Sales Rule Fees, Final Rule, 69 Fed. Reg. 45580, 
at 45584 (July 30, 2004).
    \4\ Telemarketing Sales Rule Fees, Final Rule, 70 Fed. Reg. 43273, 
at 43275 (July 27, 2005).
    \5\ Telemarketing Sales Rule Fees, Final Rule, 71 Fed. Reg. 43048 
(July 31, 2006).
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    DMA has a great deal of experience in operating its own 
telemarketing suppression list, the Telephone Preference Service 
(``TPS''), as well as in administering the state lists of Pennsylvania, 
Maine, and Wyoming.\6\ This experience also indicates a much less 
costly means of running a registry. DMA's entire list was available for 
entities to purchase for $700 per year. While the Commission's registry 
contains many more numbers than does the TPS, we do not believe that 
the $17,050 fee--more than 24 times the cost of the TPS--is justified 
by the incremental costs that correspond to the increased amount of 
numbers on the registry.
---------------------------------------------------------------------------
    \6\ While DMA no longer adds new names to the TPS list, we will 
continue to operate the list for five more years. DMA, however, does 
continue to administer the state lists for Pennsylvania, Maine, and 
Wyoming.
---------------------------------------------------------------------------
B. Fees Collected from Telemarketers should be Used Solely to Operate 
        the Registry and not for Broader Enforcement of the 
        Telemarketing Rules or Other Purposes
    DMA believes that fees collected for providing access to the 
registry should be used solely to administer the operations of do-not-
call registry. An analysis of the costs to run the registry and the 
amounts collected by the Commission suggest that a significant amount 
of the money spent is on enforcement and other costs. DMA does not 
believe that the registry fees should be used for telemarketing 
enforcement based on fraud or other violations of the Telemarketing 
Sales Rule, even where there may also be an incidental violation of the 
registry. Prior to the establishment of the registry, such enforcement 
actions were funded from the Commission's general appropriations. DMA 
does not believe that legitimate, law-abiding telemarketers should bear 
the burden of funding enforcement against bad actors. This is not the 
case for other laws administered by the FTC. For example, Internet 
sites that are targeted to children, which are subject to the 
Children's Online Privacy Protection Act, do not fund the Commission's 
enforcement against entities that violate that law. We are very 
supportive of increased budgets for enforcement by the FTC in 
telemarketing, as well as other areas such as spam and identity theft. 
We believe, however, that such additional funding should come from the 
normal FTC appropriations and not in fees collected from users of the 
registry.
C. The Operator of the Registry Should Improve the Hygiene of the List 
        to Ensure it does not Include Changed Telephone Numbers
    Finally, DMA would like to bring one additional issue regarding the 
``hygiene,'' or accuracy, of the do-not-call registry to the 
Committee's attention. We are told by our members that 30 percent to 40 
percent of the telephone numbers on the registry are included 
incorrectly, such as dropped numbers, fax numbers, and wireless 
numbers. We believe that this, in part, results from the fact that 
there is a significant time lag from when an individual moves and 
changes their telephone number to the time when that number is removed 
from the registry. This time period is longer than the amount of time 
it takes for the phone company to reassign the number. As a result, 
there are telephone numbers on the registry for households that did not 
register to be included on it.
    This is particularly problematic because many reassigned telephone 
numbers are given to subscribers who recently have moved to new 
geographic regions and are, therefore, most likely to respond to 
telemarketing calls for items such as home security systems, home 
insurance, lawn care, and newspaper delivery. For this reason, DMA 
believes that telephone numbers should be removed from the registry as 
soon as they are dropped by the consumer and before they are 
reassigned. This would make for a much more accurate list recognizing 
the desires of consumers and preserving the ability to call households 
that have not placed their numbers on the registry. We have raised this 
issue with the FTC and believe that they understand and appreciate our 
concern. We hope that this concern can be addressed going forward.
III. Responsibilities of List Compilers
    The Committee has asked us to discuss issues related to list 
compilers. In particular, the Committee requested testimony on this 
issue in response to a May 23, 2007 letter that Senator McCaskill sent 
to the Chairman regarding a May 20, 2007 New York Times article 
entitled ``Bilking the Elderly, With a Corporate Assist.'' We 
completely agree with the Senator's concerns about the types of 
practices alleged in the article.
    DMA fully supports responsible practices by compilers of marketing 
lists, and has long been a leader in establishing comprehensive self-
regulatory guidelines for its members on important issues related to 
telemarketing, among many others. Understanding the importance of 
standards and best practices in protecting consumer welfare, DMA, in 
June 2007, working with its members, adopted guidelines for database 
compilers as part of our Guidelines for Ethical Business Practice 
(``Guidelines'').\7\
---------------------------------------------------------------------------
    \7\ Responsibilities of Database Compilers, DMA Guidelines for 
Ethical Business Practice, Article #36, (attached).
---------------------------------------------------------------------------
    These guidelines were developed over the course of the past year 
through the DMA process for guideline establishment. We believe that 
these guidelines will go a long way to prevent illegitimate marketing 
practices that threaten to undermine relationships between consumers 
and marketers. In our experience, industry guidelines are the most 
effective way to address evolving marketing practices while being 
sensitive to consumer welfare. Such guidelines are flexible and 
adaptable in a timely manner so as to address bad practices and not 
unintentionally or unnecessarily cover legitimate actors.
    In her letter, Senator McCaskill expressed concern about the use of 
seniors' personal information for fraudulent purposes to exploit 
seniors for financial gain. We could not agree more with the Senator 
that seniors and other groups of individuals should not be exploited 
based on such vulnerabilities. Our guidelines have always prohibited 
such conduct, and we believe that our list compiler guidelines directly 
address concerns about seniors by further clarifying that such lists 
must only be used for appropriate purposes and defining new duties for 
list compilers.
    Specifically, as I will describe in more detail below, these 
guidelines require that for sensitive marketing data, which includes 
data pertaining to children, older adults, health care or treatment, 
account numbers, or financial transactions, compilers should review 
materials to be used in promotions to help ensure that their customers' 
use of the data is both appropriate and in accordance with their stated 
purpose.
    This list compiler guidelines define additional appropriate 
standards for companies that assemble personally identifiable 
information about customers for the purpose of facilitating renting, 
selling, or exchanging information to non-affiliated third-party 
organizations for marketing purposes. These guidelines require, among 
other things, as a condition of DMA membership, that companies that 
compile and sell marketing lists adhere to the following practices:

   establish contractual agreements with customers that define 
        the rights and responsibilities of the compiler and customer 
        with respect to the use of marketing data;

   suppress the consumer's information, upon request, from the 
        compiler's database;

   prohibit an end-user marketer from not divulging the 
        database compiler as the source of the marketer's information;

   explain to consumers the nature and types of sources they 
        use to compile marketing databases;

   include language in their contractual agreements that 
        requires compliance with applicable laws and DMA guidelines;

   require customers to state the purpose for which the data 
        will be used;

   use marketing data only for marketing purposes; and

   monitor, through seeding or other means, the use of their 
        marketing databases to ensure that customers use them in 
        accordance with their stated purpose.
          * * * * * * *
    Thank you for your time and the opportunity to speak before the 
Committee. I look forward to your questions, and to working with the 
Committee on these issues.
                                 ______
                                 
                               Attachment
Responsibilities of Database Compilers
Article #36
    For purposes of this guideline, a database compiler is a company 
that assembles personally identifiable information about consumers 
(with whom the compiler has no direct relationship) for the purpose of 
facilitating renting, selling, or exchanging the information to non-
affiliated third party organizations for marketing purposes. Customer 
refers to those marketers that use the database compiler's data. 
Consumer refers to the subject of the data.
    Database compilers should:

   Establish written (or electronic) agreements with customers 
        that define the rights and responsibilities of the compiler and 
        customer with respect to the use of marketing data.

   Upon a consumer's request, and within a reasonable time, 
        suppress the consumer's information from the compiler's and/or 
        the applicable customer's database made available to customers 
        for prospecting.

   Not prohibit an end-user marketer from divulging the 
        database compiler as the source of the marketer's information.

   At a minimum, explain to consumers, upon their request for 
        source information, the nature and types of sources they use to 
        compile marketing databases.

   Include language in their written (or electronic) agreements 
        with DMA member customers that requires compliance with 
        applicable laws and DMA guidelines. For non-DMA member 
        customers they should require compliance with applicable laws 
        and encourage compliance with DMA's guidelines. In both 
        instances, customers should agree before using the marketing 
        data.

   Require customers to state the purpose for which the data 
        will be used.

   Use marketing data only for marketing purposes. If the data 
        are non-marketing data but are used for marketing purposes, 
        they should be treated as marketing data for purposes of this 
        guideline.

   For sensitive marketing data, compilers should review 
        materials to be used in promotions to help ensure that their 
        customers' use of the data is both appropriate and in 
        accordance with their stated purpose. Sensitive marketing data 
        include data pertaining to children, older adults, health care 
        or treatment, account numbers, or financial transactions.

   Randomly monitor, through seeding or other means, the use of 
        their marketing databases to ensure that customers use them in 
        accordance with their stated purpose.

   If a database compiler is or becomes aware that a customer 
        is using consumer data in a way that violates the law and/or 
        DMA's ethics guidelines, it should contact the customer and 
        require compliance for any continued data usage, or refuse to 
        sell the data and/or refer the matter to the DMA and/or a law 
        enforcement agency.

    Senator Pryor. Thank you.
    Ms. Holland?

   STATEMENT OF ROBIN HOLLAND, SENIOR VICE PRESIDENT, GLOBAL 
                    OPERATIONS, EQUIFAX INC.

    Ms. Holland. Thank you for the opportunity to testify on 
behalf of Equifax, and in support of the reform of the Credit 
Repair Organizations Act, or CROA. We have submitted written 
testimony for the record, but I'd like to take a few minutes to 
highlight that testimony.
    Let me first say a quick word about Equifax. Equifax is the 
oldest, the largest, and the only domestically publicly traded 
national credit bureau. Equifax is proud of its history, and 
proud of its services, including its credit monitoring 
services. We are proud of these services, because they have 
proven to help consumers to understand their credit score and 
their credit report, to better manage their use of credit, and 
to help consumers guard against identity fraud.
    Let me emphasize at the outset that Equifax very much 
supports CROA and its comprehensive and strict regulation of 
credit repair organizations. These organizations routinely make 
promises to consumers that they cannot deliver on. They tell 
consumers they will help them to improve their credit score, or 
their credit report, by removing adverse--but nonetheless, 
accurate and timely--information from their reports. This is a 
deceptive and fraudulent, and ultimately quite incorrect, 
representation, and the victims are both the consumers and the 
national credit bureaus, including Equifax.
    Ironically, however, CROA has been used wrongly and 
inappropriately to attempt to punish consumer reporting 
agencies for offering credit monitoring products. Let me be 
very clear about the difference between credit monitoring 
products and so-called ``credit repair services.''
    Credit monitoring products--including the product offered 
by Equifax--allow consumers access to their credit reports and 
credit scores, provide proactive notifications of changes in 
their reports and scores, provide an explanation of scoring 
algorithms, and provide consumers with a number of credit 
score-related tools. Simply stated, monitoring products are the 
very best strategy to promote consumer financial literacy, and 
they are also consumers' very best strategy to prevent and 
mitigate the cruel impact of identity theft.
    CROA's definition of a credit repair service is so broad, 
that it can arguably, but wrongly, be interpreted as covering 
any of these vital credit monitoring services, because these 
services, directly or indirectly, can be used to improve a 
consumer's credit record, credit history, or credit score.
    CROA defines a ``credit repair organization'' as an entity 
which purports--directly or indirectly--to help consumers 
improve their credit record. For this reason, Equifax urges the 
Senate to enact legislation to make absolutely clear that 
credit monitoring is not credit repair.
    The FTC has expressed the same sentiment--that there is no 
basis for applying CROA to credit monitoring services. If CROA 
were to be misapplied to credit monitoring services, it would 
mean that consumers would be unable to buy these services on a 
subscription basis; that consumers would receive notices and 
warnings which are appropriate for consumers faced with sales 
pitches for credit repair services, but entirely 
inappropriate--indeed, confusing and deceptive--when applied to 
credit monitoring service; and it would mean that entities 
offering credit monitoring services would potentially be faced 
with liability that could include the disgorgement of all 
monies paid by all persons in a class action suit, at least. 
Quite frankly, this would virtually drive credit monitoring 
services out of the marketplace. It is for this reason that we, 
very much, appreciate this Committee's interest in CROA reform.
    We also appreciate efforts in the House, where bipartisan 
legislation has been introduced that makes clear that credit 
monitoring activities are not credit repair activities. The 
House bill also provides consumers with additional protection, 
including a very detailed description of their free report 
rights, and ID fraud protections under FACTA and the Fair 
Credit Reporting Act. And it further gives the consumer the 
ability to cancel a credit monitoring contract with a right to 
a pro rata refund.
    This is a time when concerns about identity theft are at an 
all-time high, and when the need to improve consumers' credit 
and financial literacy has never been greater. This is the 
time--now is the time--to enact CROA reform.
    Thank you for the opportunity to testify, and I'd be happy 
to answer any questions.
    [The prepared statement of Ms. Holland follows:

      Prepared Statement of Robin Holland, Senior Vice President, 
                    Global Operations, Equifax Inc.
Introduction
    Mr. Chairman and Members of the Committee, I am Robin Holland, 
Senior Vice President, Global Operations for Equifax. I want to thank 
you for this opportunity to testify regarding the Credit Repair 
Organizations Act, frequently referred to as CROA. I commend your 
efforts, Mr. Chairman, the Members of the Committee and your excellent 
staff for taking up the long-overdue issue of CROA reform.
    In this statement, I briefly describe Equifax; the original reasons 
for CROA's enactment; the credit monitoring products that Equifax has 
developed since the passage of CROA to assist consumers to understand 
their credit histories and to protect their credit histories from fraud 
and identity theft; and the CROA reforms that, we believe, should be 
put into place to protect these vital credit monitoring services and to 
protect consumers.
Equifax
    Founded in 1899, Equifax is the oldest, the largest, and the only 
publicly traded of the national companies that provide consumer 
information for credit and other risk assessment decisions. As one of 
the three ``national'' credit bureaus, Equifax's activities are highly 
regulated under the Fair Credit Reporting Act (FCRA) and dozens of 
other related Federal and state statutes. Equifax is a responsible 
steward of sensitive consumer information and, as such, is committed to 
consumer privacy. We have been steadfast in working with governments, 
consumers, and businesses to forge effective solutions to complex 
information and privacy issues. Equifax believes that the marketplace 
can offer solutions that enlighten, enable and empower consumers. 
Equifax has developed products, such as credit monitoring products, 
which directly assist consumers in understanding their credit files and 
in empowering them to prevent identity theft and to manage their 
financial health.
The Credit Repair Organizations Act (CROA)
    In 1996, Congress enacted CROA to address the consumer threat posed 
by credit repair organizations, commercial entities which charge 
consumers for providing services that purportedly would improve a 
consumer's credit record, credit history or credit rating. In our view, 
promising to alter or remove negative, but accurate and timely, 
information from a consumer's credit report constitutes an unfair and 
deceptive practice that ultimately undermines consumer confidence in 
the credit reporting system. In order to protect the integrity of the 
credit reporting system, consumer reporting agencies, including Equifax 
and the other national credit bureaus, urged Congress to enact CROA to 
attempt to stop these entities from making false promises to consumers 
about their ability to change or alter accurate and timely data 
contained in credit reports. CROA imposed a number of appropriately 
harsh requirements on credit repair organizations, including consumer 
disclosures about the limits of any possible changes to a credit file.
    Thus, CROA's intent is to protect consumers from paying money for a 
service which, almost by definition, cannot be provided and indirectly, 
at least, protect consumer reporting agencies and legitimate consumer 
reporting activities from the deceptive and fraudulent actions of 
credit repair organizations. Ironically, by crafting an intentionally 
broad definition of ``credit repair organization'', CROA' s definition 
of a credit repair organization (any entity which, directly or 
indirectly, purports to ``improve'' a consumer's credit record) has bee 
misread to cover credit monitoring products offered by consumer 
reporting agencies--the very entities that originally sought passage of 
the legislation.
Credit Monitoring
    Accurate credit reports are important to individual consumers and 
to the economy. Individual consumers who fall victim to identity theft 
can be denied employment or credit and may be forced to expend 
significant resources correcting fraudulent credit report information. 
Further, identity theft ends up costing financial institutions, 
including the national credit bureaus, well in excess of $1 billion 
annually. The Federal Trade Commission (FTC) recommends that consumers 
regularly review their credit report files to help guard against 
identity theft.
    As public awareness and concern grows over the risk of identity 
theft, the national credit bureaus have developed products to assist 
consumers to monitor their credit files and to detect and to prevent 
identity theft.
    The market for providing credit monitoring products is highly 
competitive in both product features and price. Credit monitoring 
products offered by the national credit bureaus are widely popular with 
consumers and recognized as a highly effective consumer protection 
service by Federal and state consumer protection agencies. These 
products give consumers a first line of defense against identity theft, 
and are routinely made available to victims of security breaches. 
Indeed, credit monitoring has become a staple requirement of most state 
security breach notification laws. The FTC has explicitly endorsed 
credit monitoring as part of a consumer strategy to protect against 
identity theft.
    Equifax offers several credit monitoring products, including:

   Equifax Credit Watch Silver: provides consumers with weekly 
        credit monitoring of their Equifax credit file, one copy of 
        their Equifax Credit ReportTM, and identity theft 
        insurance in the amount of $2,500 per consumer, with a $250 
        deductible (not available to consumers in New York), to cover 
        injuries arising from an occurrence of identity theft (subject 
        to limitations and exclusions).

   Equifax Credit Watch Gold: provides consumers with daily 
        credit monitoring of their Equifax credit file, unlimited 
        copies of their Equifax Credit ReportTM, and 
        identity theft insurance in the amount of $20,000 per consumer 
        (not available to consumers in New York) to cover injuries 
        arising from an occurrence of identity theft (subject to 
        limitations and exclusions).

   Equifax Credit Watch Gold with 3-in-1 Monitoring: provides 
        consumers with daily credit monitoring of their Equifax, 
        Experian and Trans Union credit files, unlimited copies of 
        their Equifax Credit ReportTM, a 3-in-1 Credit 
        Report which provides consumers with their credit history as 
        reported by the three major credit reporting agencies, and 
        identity theft insurance in the amount of $20,000 per consumer 
        (not available to consumers in New York) to cover injuries 
        arising from an occurrence of identity theft (subject to 
        limitations and exclusions).

   Score WatchTM: provides consumers with continuous 
        monitoring of their FICO credit score and notification when a 
        change in their FICO score impacts the interest rate they are 
        likely to receive, detailed explanations for key score changes 
        and specific tips for understanding their score, daily credit 
        monitoring of their Equifax credit file, and two free Score 
        Power (which include the consumer's Equifax Credit 
        ReportTM and FICO credit score).
The Need for CROA Reform
    CROA was enacted before any of these recently developed positive 
and popular consumer education and credit file monitoring products were 
created. Unfortunately, a broad (and, ultimately, incorrect) 
interpretation of CROA could include consumer reporting agencies and 
their credit monitoring products under the definition of credit repair 
organizations. Inclusion of consumer reporting agencies under CROA 
restrictions would inappropriately restrict and complicate consumer 
access to credit file monitoring products and to the beneficial 
features offered by these products.
    Without CROA reform, plaintiffs' class action suits threaten the 
viability of credit monitoring products. Under CROA, these suits could 
require the disgorgement of all revenues from the sale of the 
monitoring products. Several of the first wave of these kinds of 
lawsuits has been settled, but this kind of litigation is an ongoing 
threat and, if successful, could drive credit monitoring products from 
the marketplace or, at the very least, adversely distort their pricing 
and delivery.
    CROA, quite rightly, prohibits the collection of fees before 
completing the promised service. This requirement is appropriate for 
credit repair organizations but inappropriate for credit monitoring 
products which customarily are sold through instant online delivery and 
an annual subscription.
    Further, CROA requires that covered entities provide prospective 
consumer subscribers with notices that address the inability of credit 
repair organizations to remove adverse, but accurate, data from a 
credit report. Warnings against the deceptive practices of credit 
repair organizations would be confusing and inappropriate if given to a 
consumer seeking credit monitoring products.
    Further, credit repair organizations are subject to a number of 
appropriately harsh and specific penalties, including a requirement to 
disgorge all revenues if CROA is violated. These penalties are not 
appropriate for credit monitoring products.
Proposed Legislation to Reform CROA
    Enforcement authority under CROA was placed with the Federal Trade 
Commission (FTC). The FTC staff states that it sees no basis for 
subjecting the sale of credit monitoring and similar educational 
products and services to CROA.
    As you know, the bipartisan House bill (H.R. 2885) being offered by 
Representatives Paul E. Kanjorski (D-PA) and Ed Royce (R-CA) provides 
that an entity providing legitimate credit monitoring products, and not 
credit repair services, would not fall within the definition of a 
credit repair organization and, therefore, would not be subject to 
CROA. The bill would also provide for a complete and detailed notice to 
be sent to consumers on their rights under the Fair Credit Reporting 
Act, including a right to a free report.
    In addition, the House bill guarantees subscribers to credit 
monitoring products a pro rata refund in the event that they cancel 
their service.
Conclusion
    CROA reform is straight-forward and narrowly tailored to simply 
effectuate Congress' intent to apply CROA to credit repair 
organizations and not to other products and services that did not even 
exist in 1996 and which benefit, rather than harm, consumers. The 
fraudulent efforts of credit repair agencies harm consumers and the 
safety and soundness of the credit system. The objective of CROA always 
was and is to target companies which engage in fraudulent practices 
such as promising to delete accurate information from a consumer's 
credit report.
    CROA reform, as proposed in the House bill, does not provide a per 
se exemption from CROA for consumer reporting agencies, based simply on 
their status as consumer reporting agencies. Rather, entities are 
exempt from CROA only if they do not engage in credit repair 
activities. Thus, CROA reform does not, in any way, weaken consumers' 
protections from deceptive practices enforced by the FTC and State 
Attorneys General which address the activities of credit repair 
organizations or address unfair or deceptive practices involving credit 
repair services.

    Senator Pryor. Thank you.
    Ms. Faulkner?

         STATEMENT OF JOANNE S. FAULKNER, ATTORNEY ON 
   BEHALF OF THE NATIONAL ASSOCIATION OF CONSUMER ADVOCATES, 
NATIONAL CONSUMER LAW CENTER, U.S. PIRG, CONSUMER FEDERATION OF 
                            AMERICA

    Ms. Faulkner. Good afternoon, Mr. Chairman. I'm pleased to 
have the opportunity to testify this afternoon about the Credit 
Repair Organizations Act for the National Association of 
Consumer Advocates and our testimony is joined by the National 
Consumer Law Center, on behalf of its low-income clients, by 
U.S. PIRG, and by the Consumer Federation of America.
    Credit repair clinics prey on consumers with false promises 
that they can remove accurate adverse items, such as 
bankruptcies, chargeoffs, late payments. It cannot be done. 
Based on publicly available information, we estimate that 
credit repair clinics are submitting about 4 million meritless 
disputes per year to the credit bureaus. That means consumers 
are tossing money down the drain based on false promises, it 
also means the credit bureaus are diverted from investigating 
the real disputes, such as identity theft, or mixed files.
    The credit repair scam is over two decades old. I attach to 
my testimony an article from 1988, from The New York Times, 
involving a scam that is still in use today, and that is, 
flooding the bureaus with meritless disputes.
    The strong law that was enacted in 1996, the CROA, was 
subject to the credit repair clinics immediately looking for 
loopholes. We have recommended eight improvements in the Act, 
I'm only going to discuss three of them.
    The first loophole is in the Act itself, and that is, the 
Act says you cannot charge for the credit repair services, 
until they have been fully performed. What the credit clinics 
are doing is breaking these services down into baby steps, so 
that they will charge $75 for a setup file, they will charge 
$40 for a monthly report--even though nothing has been done 
during that month. So, I think that the CROA needs to be 
changed to make it clear that the clinic cannot charge for the 
repair services until the requested improvement has taken 
place.
    The second and third changes we need are external to the 
statute, so that consumers can enforce the law better. Like 
other scams, many credit repair organizations are inserting 
mandatory pre-dispute arbitration clauses in their contracts. 
That means, whenever there's wrongdoing, and the consumer wants 
to rectify it, it's swept under the rug, because it's in secret 
proceedings before some arbitration forum.
    The other thing they're doing is imposing distant forum 
clauses, which means that a consumer from Connecticut, for 
instance, would have to go to Washington State in order to 
enforce his or her rights. Those two things are external to the 
statute, the statute needs to be amended to protect consumers 
to limit those.
    Credit monitoring from the consumer perspective should not 
be exempt. Credit bureaus already have the grave responsibility 
to monitor credit reports, to make sure they are accurate, and 
to prevent mixed files and identity theft.
    What credit monitoring services do is make the consumer pay 
for monitoring their own credit report, even though credit 
bureaus are supposed to be doing that for free. We think credit 
monitoring should not be exempted, because, mainly because the 
credit repair clinics will find another loophole, as sure as 
can be.
    And second, in my testimony, there are examples of the 
Federal Trade Commission going after some of these credit 
monitoring services for deceptive practices. No one should be 
exempt from the deceptive practices prohibited by CROA.
    The credit reporting system is largely broken. And one of 
the reasons is the drain on consumer resources, and on credit 
bureau resources, caused by these credit clinics. They must be 
stopped.
    We urge you to strengthen the laws to prevent exploitation 
of both consumers, and credit bureaus. Thank you.
    [The prepared statement of Ms. Faulkner follows:]

  Prepared Statement of Joanne S. Faulkner, Attorney on Behalf of the 
   National Association of Consumer Advocates, National Consumer Law 
           Center, U.S. PIRG, Consumer Federation of America
    Chairman Inouye, Vice Chairman Stevens and other distinguished 
Members of the Commerce, Science, and Transportation Committee, thank 
you for inviting me to testify today in this important hearing to 
consider the improvements necessary for the effective implementation of 
the Credit Repair Organizations Act. I offer this testimony today on 
behalf of the National Association of Consumer Advocates, the low 
income clients of the National Consumer Law Center, U.S. PIRG, and 
Consumer Federation of America. We oppose changing the Act to protect 
credit monitoring services since the proposed changes instead 
facilitate evasion of the Act's salutary protections by credit repair 
organizations. Instead, we offer suggestions for improving the Act to 
strengthen its protections against deceptive credit repair services.
    I am Joanne Faulkner, a founding member of NACA. A brief 
description of my background in consumer protection law, and a 
description of the consumer organizations named above, is appended.
    I have first hand experience in trying to enforce the Credit Repair 
Organizations Act, 15 U.S.C.  1679 et seq. (CROA). Enforcing the CROA 
is frustrating, not because of what has been enacted, but because the 
targets of the law have devised methods of evasion. While the Federal 
Trade Commission has enforcement power, it does not have the resources 
to address the burgeoning and emboldened number of entities that prey 
on already financially overburdened consumers with false promises of 
credit repair.
    The law desperately needs to be strengthened to prevent evasive 
tactics. If Congress considers watering down the Act by exempting 
credit monitoring services, the exemption will simply provide a roadmap 
that will be exploited by those seeking to avoid CROA's protections 
against deceptive practices.
    In order to prevent evasion, and encourage private attorneys to 
effectively participate in stemming the abuses and dislocations caused 
by credit repair entities, the CROA should be strengthened. The Act 
needs:

        1. An express prohibition on pre-dispute arbitration clauses, 
        commonly inserted by credit repair organizations (CROs) both to 
        insulate them from liability as well as to keep their deceptive 
        practices out of the public eye and under the rug.

        2. A prohibition on distant forum clauses, commonly imposed by 
        CROs to deter consumer enforcement of their rights under the 
        CROA.

        3. A provision affirmatively allowing the consumer to sue the 
        CRO in the Federal or state judicial district where the 
        consumer resides irrespective of any contractual provision to 
        the contrary.

        4. A provision that the consumer may obtain injunctive relief.

        5. A prohibition on any contract provision that prevents class 
        actions, particularly important here because an individual's 
        damages may not be sufficient to interest competent attorney 
        representation.

        6. An amendment to  1679b(4) of the CROA to effectuate the 
        intent of Congress to bar unfair and deceptive practices. 
        Because the word ``fraud'' is used in that subsection only, 
        some courts are demanding a higher burden of proof and pleading 
        than normally imposed for unfair or deceptive practices.

        7. A provision preventing CROs from evading  1679b(b) by 
        charging for discrete services (``set up file''; ``monthly 
        report on progress'' and the like).

        8. Non-profits should not be exempt. CROs have set up elaborate 
        structures whereby the consumer contracts with a non-profit 
        ``educational'' entity but that entity outsources books and 
        services to profit-making friends, relatives and associates.

    Moreover, as discussed below, we strongly oppose weakening the CROA 
by enacting the deceptively named ``Credit Monitoring Clarification 
Act,'' H.R. 2885, which is virtually identical to last year's Senate 
companion bill, S. 3662. This bill would allow almost any business 
currently covered by CROA to escape the Act's important protections. 
Even a slight change in description from promising to ``improve 
credit'' to providing ``access to credit reports, credit monitoring 
notifications, credit scores . . ., any analysis, evaluation or 
explanation of credit scores . . .'' would mean that CROA's current 
strict prohibition against deception would no longer apply to entities 
abusing the consumer, deceiving the credit bureaus, and harming the 
economy.
Abuses by the Credit Repair Industry continue and cry out for a 
        stronger CROA
    Congress has found that ``the banking system is dependent upon fair 
and accurate credit reporting. Inaccurate credit reports directly 
impair the efficiency of the banking system, and unfair credit 
reporting methods undermine the public confidence which is essential to 
the continued functioning of the banking system.'' Fair Credit 
Reporting Act, 15 U.S.C.  1681(a)(a). To further that purpose, 
Congress enacted the CROA, 15 U.S.C.  1679, finding that ``Certain 
advertising and business practices of some companies engaged in the 
business of credit repair services have worked a financial hardship 
upon consumers, particularly those of limited economic means and who 
are inexperienced in credit matters.'' 15 U.S.C.  1679(a)(2). The CROA 
was enacted ``to protect the public from unfair or deceptive 
advertising and business practices by credit repair organizations.''  
1679(b)(2).
    ``As Americans' reliance on credit has increased, so-called `credit 
repair clinics' have emerged, preying on individuals desperate to 
improve their credit records. These organizations typically promise 
they can have any negative information removed permanently from any 
credit report . . . for a fee.'' FTC v. Gill, 265 F.3d 944, 947 (9th 
Cir. 2001) (sanctions against lawyer operating credit repair clinic in 
violation of CROA). Because of well-known abuses, thirty eight states 
have also enacted laws restricting credit repair operations, including 
my state of Connecticut, Conn. Gen. Stat  36a-700.
    CROs are designed to undermine accurate credit reporting. Despite 
the CROA, the CROs have established elaborate ruses to intentionally 
profit from obtaining payment before credit repair services are fully 
performed. Some intentionally solicit consumers on the representation 
that a law firm is involved, and that consumers will benefit by being 
represented by a law firm. CROs intentionally and systematically 
deceive credit bureaus about the source and nature of the dispute 
correspondence, and intentionally deceive consumers before and during 
the course of their representation.
    The CROs' volume of mailings to the credit bureaus causes harm to 
the credit reporting system because of the resources of bureau staff 
and time devoted to responding to the volume of letters generated by 
CROs, as well as the dislocation of bureau efforts from the disputes of 
individuals who have legitimate accuracy complaints, such as victims of 
identity theft or of mixed files (similar names). The volume and 
spurious nature of the disputes sent by CROs intentionally interferes 
with the credit bureaus' business of providing accurate reports. These 
practices ultimately cause creditors to extend credit in reliance on 
credit bureau reports that are not accurate because the CROs' dispute 
volume is intended to force bureaus to delete tradelines that they 
cannot investigate within thirty days. The CROs' systematic deception 
of the credit bureaus and of consumers undermines the banking system 
and harms consumers and creditors alike. Appended to this testimony is 
a 1988 New York Times article recognizing the type of abusive practices 
that are still taking place today.
    Let me quote from the testimony of Stuart K. Pratt, President of 
the Consumer Data Industry Association, before the House Committee on 
Financial Services (June 19, 2007), showing credit repair is an ongoing 
and still significant problem:

          Historically credit repair operators would promise to delete 
        accurate but negative data from a consumer's file for fees that 
        in some cases exceeded $1,000. Their primary tactic was to 
        flood the reinvestigation system with repeated disputes of the 
        same negative data in an effort to ``break'' the system and 
        cause the data furnisher to both give up and not respond or to 
        simply direct the consumer reporting agency to delete the data. 
        Today, operators are savvier and often avoid making false 
        promises but even now they suggest that they will assist the 
        consumer with disputing inaccurate or unverifiable information. 
        In many cases ``unverifiable'' equates to the same practice of 
        flooding the system and trying to have accurate, predictive 
        derogatory data removed.

          Our members estimate that on average across our members 
        operating as nationwide consumer reporting agencies, no less 
        than 30 percent of disputes filed are tied to credit repair. 
        Repetitive disputes can be particularly harmful to smaller data 
        furnishers such as community banks, thrifts, credit unions and 
        retailers. These data sources are often a key to ensuring full 
        and complete data on all credit-active consumers, but their 
        ability to absorb costs is limited. In extreme cases, small-
        business data sources may simply choose not to report at all if 
        costs of responding to disputes are too high.

          Thankfully, no one data source is usually the target of a 
        credit repair operator and credit repair efforts most often end 
        up in failure. But this failure is at a cost to our members and 
        to consumers. Consumers spend money on a service that cannot 
        deliver. Industry incurs costs as well when it has to dedicate 
        resources which could be used to service legitimate disputes, 
        to disputes that are not likely to be valid.

    Thus, consumers and credit bureaus alike are eager to strengthen 
the CROA.
    The present credit reporting system is broken. Every analysis or 
study in this decade, including the FACTA authorized FTC Pilot Study 
has found inaccuracies in a significant percentage of the reports 
considered. The CROs are one cause of the inaccuracies. The amendments 
we suggest are essential to stop them, or at least provide a more 
effective means of deterring noncompliance than we have now.
CROA has successfully deterred other deceptive credit services
    The CROA should not be watered down because it has also proved 
useful against entities other than traditional credit repair 
organizations when those entities have made deceptive claims about 
improvement of credit history. The Act has been held to apply to:

   Credit counseling agencies that promise to improve 
        participants' credit ratings;

   Debt collectors who offer improvement of the debtor's credit 
        rating in return for payment of the debt (even when the effect 
        is actually to worsen the credit rating);

   A company that generated subprime auto financing leads by 
        advertising that it could restore consumers' credit.

    Payday lenders have also operated under the guise of credit 
services organizations in order to evade state interest rate caps.
Strengthen CROA By Adding Important Protections
    Rather than weakening the CROA, the Act should be strengthened to 
ensure that it will protect consumers from deceptive credit repair 
practices.
1. Pre-dispute Arbitration Clauses must Be Prohibited
    Arbitration clauses are commonly inserted in contracts by credit 
repair organizations to insulate them from liability as well as to keep 
their deceptive practices out of the public eye and under the rug. One 
court mastered this issue, Alexander v. U.S. Credit Management, Inc., 
384 F. Supp. 2d 1003, 1014 (N.D. Tex. 2005), but others have endorsed 
arbitration clauses. Congress can reduce the volume of litigation over 
the effectiveness of unilaterally imposed arbitration clauses by 
prohibiting them in the CROA.
    Mandatory pre-dispute arbitration clauses unilaterally imposed by 
creditors and scam artists alike cause significant harm to consumers, 
deter and indeed eliminate effective enforcement and keep corporate 
wrongdoing under the rug and out of the public's scrutiny.
    Although arbitration can be a fair and efficient way to resolve a 
dispute when both parties choose it after the dispute arises, 
arbitration is particularly hostile to individuals attempting to assert 
their rights. High administrative fees, and a lack of discovery 
proceedings, jury trials and other civil due process protections, and 
meaningful judicial review of arbitrators' decisions all act as 
barriers to the fair and just resolution of an individual's claim. When 
arbitration is required rather than voluntarily chosen, the likelihood 
that these problems will occur and that arbitrators will favor repeat 
corporate players over individual claimants is increased.
2. Distant Forum Clauses must Be Prohibited
    CROs commonly include a clause in their contracts requiring that 
any suit or arbitration be brought in some location distant from the 
consumer and expensive to travel to. Plainly, this type of provision 
effectively precludes any effort to enforce the CROA. ``Distant forum 
abuse is `unconscionable' and `insidious' conduct employing `an 
ostensibly legitimate legal process to deprive consumers of basic 
opportunities which should be afforded all litigants.' '' Yu v. Signet 
Bank/Virginia, 69 Cal. App. 4th 1377, 1389 (1999) (citations omitted). 
``[M]isuse of the courts in this manner contributes to an undermining 
of confidence in the judiciary by reinforcing the unfortunate image of 
courts as `distant' entities, available only to wealthy or large 
interests,'' and leads consumers ``to conclude that the legal system is 
merely a `rubber stamp' for the improper practices utilized by 
predatory agencies.'' Barquis v. Merchants Collection Assn., 7 Cal. 3d 
94, 108, 101 Cal. Rptr. 745, 496 P.2d 817 (1972) (filing in a distant 
venue for the ulterior purpose of impairing consumer's rights to defend 
the suits to coerce inequitable settlements or default judgments is 
abuse of process).
    In Spiegel, Inc. v. FTC, 540 F.2d 287 (7th Cir. 1976), the practice 
of filing collection lawsuits in distant forums was held unfair and 
unconscionable. This practice has been attacked successfully in both 
private and public enforcement actions. E.g., Schubach v. Household 
Finance Corporation, 376 N.E.2d 140, 141-142 (Sup. Jud. Ct. Mass. 1978) 
(practice unfair or deceptive even when permitted by venue statute); 
Celebrezze v. United Research, Inc., 482 N.E.2d 1260, 1262 (Ohio App. 
1984); Zanni v. Lippold, 119 F.R.D. 32 (C.D. Ill. 1988) (class composed 
of defendants subject to distant forum abuse certified).
    The CRO should not be allowed to sue the consumer in a distant 
forum. The consumer should not be required to sue the CRO in a distant 
forum.
3. Venue must Be Local
    Lack of a venue provision is one obvious gap in the provisions of 
the CROA. Venue is the locale where the consumer can sue or be sued. 
The CROA should have an affirmative provision, like other subtitles of 
the Consumer Credit Protection Act, placing the location of lawsuits at 
the consumer's residence, such as: ``An action to enforce any liability 
credited by this subchapter may be brought in any appropriate United 
States District Court without regard to the amount in controversy, or 
in any other court of competent jurisdiction, located in the judicial 
district or similar legal entity in which the consumer resides at the 
commencement of the action.''
4. Injunctive Relief Is Essential
    The CROA allows States and the FTC to obtain injunctive relief. By 
omission, there may be an implication that United States District 
Courts do not retain their normal injunctive power in individual CROA 
cases. While it is likely that Congress did not intend to so divest 
Federal courts of their injunctive powers, any judicial confusion can 
be corrected with a short addition to the statute expressly 
acknowledging such a remedy. This would provide a faster and less 
burdensome remedy for consumers and facilitate their ``private 
attorneys general'' in obtaining effective relief.
5. Class Action Waivers Should Be Explicitly Disallowed
    Another way the CROs reduce their exposure to wrongdoing is by 
inserting a clause prohibiting class actions, or prohibiting the 
individual consumer from participating in a class action against the 
CRO. The CROA allows class actions; it should also override any effort 
by the CRO to undermine this salutary provision by attempting to 
preclude class litigation.
    The Supreme Court has long recognized that without class actions, 
claimants with small claims would not be able to obtain relief. See 
Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985). ``Class actions 
. . . may permit the plaintiffs to pool claims which would be 
uneconomical to litigate individually. For example, this lawsuit 
involves claims averaging about $100 per plaintiff; most of the 
plaintiffs would have no realistic day in court if a class action were 
not available.'' Id. at 809. The 1966 Advisory Committee Notes to Rule 
23 echo this concern: ``These interests [in individual litigation] may 
be theoretical rather than practical: . . . the amounts at stake for 
individuals may be so small that separate suits would be 
impracticable.'' Similarly, the leading treatise on class actions has 
stated:

          The desirability of providing recourse for the injured 
        consumer who would otherwise be financially incapable of 
        bringing suit and the deterrent value of class litigation 
        clearly render the class action a viable and important 
        mechanism in challenging fraud on the public.

    Newberg, Class Actions at  21.30. See also Watkins v. Simmons and 
Clark, Inc. 618 F. 2d 398, 404 (6th Cir. 1980) (class action 
certifications to enforce compliance with consumer protection laws are 
``desirable and should be encouraged.'')
6. The Word ``Fraud'' Should Be Deleted from  1679b(4)
    The CROA is a broadly worded enactment, a uniquely potent consumer 
protection statute that both provides for punitive damages and voids 
the violative contract. The type of intentional conduct required by a 
fraud standard is taken into account only in determining the amount of 
punitive damages. Yet, courts unfortunately have been drawn by the word 
``fraud'' in  1679b(4) to impose a higher burden of pleading and proof 
on the consumer.
    What Congress actually said, and notably the only place the word 
``fraud'' was used, does not require a CROA plaintiff to exclusively 
plead fraud; the plain language encompasses fraud, but is much broader 
than that:

          (4) engage, directly or indirectly, in any act, practice, or 
        course of business that constitutes or results in the 
        commission of, or an attempt to commit, a fraud or deception on 
        any person in connection with the offer or sale of the services 
        of the credit repair organization.

    The legislative history shows that the section was meant to 
prohibit deceptive and unfair practices, even if they do not amount to 
fraud.\1\ The subsection should be reworded to clarify that intent. We 
suggest the following:
---------------------------------------------------------------------------
    \1\ Section 404, as described in H.R. Rep. 104-486, 103d Cong. 2d 
Sess., 1994 WL 164513 *57-58.
    Section 404 prohibits credit repair organizations from (1) making 
untrue or misleading statements or advising consumers to make such 
statements with respect to a consumer's credit worthiness, credit 
standing, or credit capacity to a consumer reporting agency or to a 
person extending credit to the consumer; (2) making statements or 
advising consumers to make statements to consumer reporting agencies or 
a person extending credit to the consumer that are intended to alter 
the consumer's identification to prevent the display of adverse credit 
information that is accurate and not obsolete; (3) making or using 
untrue or misleading representations of the services the credit repair 
organization can provide; (4) engaging in deceptive acts; and (5) 
charging or receiving payment in advance of fully performing services 
for the consumer.

          (4) engage, directly or indirectly, in any act, practice, or 
        course of business that INVOLVES ANY FALSE, DECEPTIVE OR 
        MISLEADING REPRESENTATION OR MEANS constitutes or results in 
        the commission of, or an attempt to commit, a fraud or 
        deception on any person in connection with the offer or sale of 
        the services of the credit repair organization.
7. Close the ``services'' loophole
    CROs contract to perform credit repair. However, in order to evade 
the statutory prohibition on charging before services are rendered, 
they break services down into each step. They separately charge a set-
up fee (setting up the file is a ``service'') and a monthly report fee 
(mindlessly transmitted by computer). Another charge is described as 
for ``time and expense for commencing the representation of the 
client.'' There is a ``rush fee'' for expedited services. This breakout 
of each small step in the ultimate service should be prohibited. No 
money should change hands, in escrow or otherwise, until the credit 
repair itself is actually performed. We request the following 
amendment.

          1679b(b) Payment in advance.--No credit repair organization 
        may charge or receive any money or other valuable consideration 
        for the performance of any service FOR THE EXPRESS OR IMPLIED 
        PURPOSE OF IMPROVEMENT IN ANY CONSUMER'S CREDIT RECORD, CREDIT 
        HISTORY OR CREDIT RATING which the credit repair organization 
        has agreed to perform for any consumer before such service 
        IMPROVEMENT is fully performed.
8. Non-Profits Should Not Be Exempt
    The FTC has sued ``educational'' entities that have nonprofit 
status but are structured so that founders and their family and friends 
have high-price contracts for goods or services sold to the nonprofit. 
Section 1679a should be amended to at least add a qualifying phrase, 
``and is not for its own profit or that of any person directly or 
indirectly associated with the organization.'' The change would endorse 
the thoughtful interpretation limiting the section's exemption to true 
nonprofits by the First Circuit Court of Appeals in Zimmerman v. 
Cambridge Credit Counseling Corp., 409 F.3d 473 (1st Cir. 2005).
Deceptive Credit Monitoring Services
    Although the national credit bureaus are victims of many credit 
repair scams, they themselves have also engaged in deceptive practices. 
The national credit bureaus have developed another new and lucrative 
profit center based on consumer fear of inaccuracies in credit reports. 
Each agency markets a credit-monitoring product directly to consumers. 
As the agency reported to its shareholders on May 23, 2007:

        Consumer Direct [online credit reports, scores and monitoring 
        Services] delivered excellent growth throughout the period, 
        with strong demand from consumers for credit monitoring 
        services, which led to higher membership rates.

    In its most recent quarterly filing, the agency reported that its 
sale of these reports and its credit monitoring products directly to 
consumers had generated no less than 10 percent of its operating 
revenue and one-sixth of its credit reporting revenue.
    Whether or not their credit monitoring services offer any benefit 
to consumers, these services have been marketed in a deceptive way to 
induce consumers to pay for reports they are legally entitled to 
receive for free, and for fraud monitoring services that the CRAs are 
already legally obligated to perform. For example, Experian has branded 
and marketed its misnamed service www.freecreditreport.com.
    Concerns over these services must be kept in mind because the CRAs 
are pushing for an exemption from CROA. We strongly oppose such an 
exemption.
    Experian has been penalized twice by the Federal Trade Commission 
for deceptively linking subscription-based credit monitoring offers to 
the Federal free annual credit report on request right established by 
the 2003 FACT Act. In August 2005, Consumerinfo.com paid $950,000 to 
settle charges by the FTC that Experian offered consumers a free copy 
of their credit report and ``30 FREE days of Credit Check Monitoring'' 
without adequately explaining that after the free trial period for the 
credit-monitoring service expired, consumers automatically would be 
charged a $79.95 annual membership unless they notified the defendant 
within 30 days to cancel the service. Consumerinfo.com billed the 
credit cards that it had told consumers were ``required only to 
establish your account'' and, in some cases, automatically renewed 
memberships by re-billing consumers without notice. The settlement 
required Consumerinfo to pay redress to deceived consumers, barred 
deceptive and misleading claims about ``free'' offers, and required 
clear and conspicuous disclosure of terms and conditions of any 
``free'' offer.
    Experian then violated this settlement agreement, and in February 
2007 was fined a second time by the FTC for $300,000 to settle charges 
that its ads for a ``free credit report'' continued to fail to disclose 
adequately that consumers who signed up would be automatically enrolled 
in a credit-monitoring program and charged $79.95.
    Although Consumerinfo.com now contains the disclosures, they are in 
fine print, and the website implies that the truly free report is not 
``user-friendly'' like the free one that comes with the monitoring 
service.
    Moreover, the main Equifax, TransUnion and Experian websites all 
are worse. All prominently mention free credit reports with links that 
lead to a sign up for their paid monitoring service. Although they each 
have disclosures somewhere about the price and the distinction between 
the truly free report, they are obscure and easy to overlook. All three 
websites make it very difficult to learn about how to get a truly free 
report, and very easy to respond to a prominent ``get my free report'' 
link and inadvertently sign up for a paid services.
    Beyond the free report, it is not clear what these credit 
monitoring services offer beyond the CRA's existing legal duties. The 
bureaus have been charged by Congress with maintaining ``maximum 
possible accuracy'' in consumers' credit reports. Yet, their credit 
monitoring services ask the consumer to pay to review the accuracy of 
their credit files. The bureaus should be preventing identity theft, 
mixed files, and other errors on their own and without charging the 
consumer for so doing.
Resist Efforts to Weaken CROA
    The variety of forms that deception can take, the creativity of 
those who would exploit consumer's concern for their credit rating, and 
the variety of actors involved, are all a strong warning against 
creating any loopholes in CROA's protections against deceptive 
practices. I have seen a draft of a proposal whose short title is the 
``Credit Monitoring Clarification Act,'' (H.R. 2885). NACA, NCLC and 
U.S. PIRG and other consumer organizations oppose the bill. The line 
between an offer to help ensure that credit reports ``are accurate and 
free of fraud,'' as on Equifax's website, and offers to improve a 
credit report or credit score, covered by CROA, is a fine one. We 
believe that credit monitoring services should comply with CROA's 
protections against deception just like other credit repair services.
    Unfortunately, H.R. 2885 opens wide, wide loopholes for CROs as 
well. The proposed amendment to CROA for credit monitoring activities 
includes broad and sweeping exemptions. Anyone who characterizes their 
services as providing ``access to credit reports, credit monitoring 
notifications, credit scores . . ., any analysis, evaluation or 
explanation of credit scores  . . .'' would be exempted from coverage 
under CROA as long as they provide a new disclosure and cancellation 
rights for credit monitoring services. In fact, the business would 
remain exempt even if it offered to improve credit scores or modify 
credit reports, as long as the offer did not promise to remove accurate 
items that are not obsolete.
    Yet as Stuart Pratt of the Consumer Data Industry Association noted 
in the testimony quoted above, ``Today, operators are savvier and often 
avoid making false promises but even now they suggest that they will 
assist the consumer with disputing inaccurate or unverifiable 
information. In many cases `unverifiable' equates to the same practice 
of flooding the system and trying to have accurate, predictive 
derogatory data removed.''
    In other words, any business that is currently defined to be a 
credit repair organization under CROA could simply escape the coverage 
of CROA by slightly changing the description of what they do and 
offering, for example, to provide analyses and projections of a 
person's credit score. CROA's current strict prohibition against 
deception and fraud would no longer apply to that business.
    Below are some examples of the consumer protections in the current 
law that would not be available under H.R. 2885.

   When run-of-the-mill credit repair businesses deceptively 
        advertise their ability to improve consumers' credit scores by 
        exaggerating what they can accomplish, CROA offers protections 
        against this deception.

   When debt collectors collect debts by deceptively promising 
        improvement of a consumer's credit rating, CROA's prohibition 
        against deception can be brought to bear.

   Some payday lenders are now advertising themselves as credit 
        repair specialists to evade state restrictions on interest 
        rates; activities to which CROA's protections clearly apply.

    Moreover, credit monitoring services--which themselves have been 
marketed in a deceptive manner--would be completely exempt from CROA's 
prohibition against untruthful or deceptive practices. In fact, it is 
not even clear that the CRA's need an exemption from CROA. See Hillis 
v. Equifax Consumer Servs., 237 F.R.D. 491, 515 (D. Ga. 2006) 
(discussing why credit monitoring services do not seem to be within 
CROA, but stating ``if a credit reporting firm decides to offer a 
service that falls within the purview of the CROA, there is no reason 
that the CROA should not apply'').
    Thank you for the opportunity to testify. Please feel free to 
contact me for any additional information.
                                 ______
                                 

                   The New York Times--July 23, 1988

             Need Credit? Be Wary Of Clinics Offering Help

                           By Leonard Sloane

    It was the most extreme case of credit-repair abuse ever uncovered: 
9,000 people around the Nation defrauded of about $2 million they had 
paid Credit-Rite Inc. to restore their eligibility for various forms of 
credit. Two of the operators of Credit-Rite, a New Jersey concern, were 
sentenced to prison terms this week in Federal District Court in 
Trenton, and the third received a suspended sentence.
    Credit-repair clinics are profit-making ventures that, by their 
very nature, often operate at the edge of the law, thwarting the 
maintenance of orderly credit records in behalf of clients who have bad 
credit histories.
    The clinics promise to help remove derogatory information from 
individuals' credit files, and charge as much as $2,000 for the 
service. They take advantage of a provision of the Fair Credit 
Reporting Act that gives consumers the right to challenge the 
information about them that credit bureaus have on file. This provision 
requires a credit bureau to verify the information upon request, 
generally within 30 days. If verification is not completed on time, the 
disputed data must be deleted.
Company Guaranteed Results
    Charlie Mae McCray of Cleveland testified at the Credit-Rite trial 
that she had paid more than $500 to clear up her credit record. The 
company had guaranteed results, but nothing was done. ``I complained, I 
wrote letters, but I didn't get any response to my satisfaction,'' she 
said. ``I still haven't received any money back.''
    Anne C. Singer, the Assistant United States Attorney in New Jersey 
who handled the Credit-Rite case, said: ``It's impossible to perform 
this service as promised if someone's credit history is correct. The 
people involved in running these businesses raise the hopes of low- and 
moderate-income people, and then their hopes are dashed.''
    In another credit-repair clinic case this week in Los Angeles, the 
operator of Wise Credit Counselors was convicted and sentenced to 
probation and community service by a Municipal Court judge, who also 
ordered full restitution to the 13 victims.
Corrections Without Fees
    Individuals who feel their credit records have inaccuracies can go 
directly to a local credit bureau and ask that they be corrected. There 
are also nonprofit credit counseling services around the country that 
will help consumers develop workable budgets and pay off their bills.
    Many credit-repair clinics also promise to obtain credit cards for 
people who have been refused by card issuers. There are about 30 
million such people in the United States, cutoff from such basic 
transactions as renting a car or making travel reservations because 
they do not have a card. Cards provided through credit-repair clinics 
are usually secured by a deposit made by the card holder in the bank 
that issues the card.
    But some banks offer secured cards directly to consumers without 
charging the hundreds of dollars in application and membership fees 
exacted by many credit-repair clinics. Beyond that, only 4 out of every 
10 applicants who pay fees for secured cards eventually get cards, 
according to H. Spencer Nilson, the publisher of the Nilson Report, a 
credit-card newsletter in Los Angeles.
    But the blizzard of challenges to credit bureaus is the essential 
operating method of credit-repair clinics.
    ``The objective is to overwhelm the established system,'' said 
Walter R. Kurth, the president of Associated Credit Bureaus, a trade 
association.
    Credit-repair operators do not necessarily disagree. ``The credit 
bureaus have exercised too much power,'' said Paul Turk, general 
manager of City Wide Financial Services, a clinic in Los Angeles.
    TRW Information Services, a credit-bureau chain based in Orange, 
Calif., refuses to do business with credit clinics. ``We have a 
procedure in place when we feel consumers have been involved with a 
credit clinic, whereby we notify them we don't deal with third-party 
contacts,'' said Delia Fernandez, a spokeswoman. This policy is being 
contested in a lawsuit by the American Association of Credit, a 
Glendale, Calif., clinic. The case is pending. Equifax Inc., which owns 
a chain of credit bureaus, also makes ``every effort to circumvent 
dealing with clinics,'' said Annette Aurrecoecher, a vice president of 
the Atlanta company. ``But if a clinic has a notarized letter from a 
consumer, we feel there is an obligation to deal with it.''
`Fly-by-night' Companies
    Bills were proposed in both houses of Congress early last year to 
restrict the practices of credit-repair clinics, but no hearings have 
been scheduled. Seventeen states have passed laws regulating the 
clinics' advertising and business practices, yet residents of those 
states are often solicited by clinics in nearby states.
    ``We continue to be very concerned,'' said Kathleen V. Buffon, the 
Federal Trade Commission's assistant director of credit practices. 
``These companies tend to be fly-by-night.''
    Whether or not consumers use a credit-repair clinic, information 
that has been correctly recorded in a credit bureau file cannot be 
permanently removed until the problem is corrected or until the time 
provided by law has elapsed.
    ``The only way to acquire a good credit record is to straighten up 
your act,'' said Jeanne Hogarth, an assistant professor of consumer 
economics and housing at Cornell University. ``There is no magic wand 
that these repair clinics can raise.''

    Senator Pryor. Thank you.
    Mr. St. Clair?

                 STATEMENT OF STEVE ST. CLAIR, 
           ASSISTANT ATTORNEY GENERAL, STATE OF IOWA

    Mr. St. Clair. Thank you.
    I've been asked to address law enforcement efforts 
directed----
    Senator Pryor. Is your microphone on?
    Mr. St. Clair. It should--I think it is.
    Senator Pryor. OK, thank you.
    Mr. St. Clair. I've been asked to address law enforcement 
efforts directed at the facilitators of telemarketing fraud.
    Fraudulent telemarketers have been cheating--stealing from 
Americans, elderly Americans, in particular--for many years. 
That much, sadly, is a constant. But what has evolved are the 
techniques, methods, operational details that characterize the 
particular scams and schemes of the day. It's been something of 
an arms race with law enforcement. The authorities develop 
techniques for preventing, detecting, addressing, apprehending 
the scammers, and the scammers develop new variations on old 
themes, in an effort--a continuing effort--to avoid being 
brought to justice.
    Now, about 15 years ago, the Iowa Attorney General's office 
developed some very effective techniques for capturing on tape 
some of the fraudulent pitches that were being directed at 
various elderly citizens of our State, and those pitches were 
typically being--emanating from other States--Iowa generally 
supplies the victims, and other States have--used to supply--
the telemarketers that would harvest the Iowa victims.
    But, things have changed, and since then the predatory 
telemarketers have moved across international boundaries. So--
where before we could capture pitches on tape, and use those 
tapes to charge, extradite, prosecute, and very seriously deter 
the telemarketers--fraudulent telemarketers that were calling 
from other States, now we've been dealing with international 
boundaries, and the challenges in dealing with international 
boundaries by State law enforcement, in terms of investigation 
and prosecution are pronounced, to say the least.
    So, increasingly, we tried to focus our attention on the 
stable, U.S.-based operations that provide something of a 
platform--or the necessary infrastructure for the telemarketers 
to operate. The thinking is that by making the facilitators 
answer for the frauds to which they provide support, they will 
withdraw that support--in part or in whole--from the dubious 
operators, and thus make it more difficult for the perpetrators 
to complete their frauds, to claim their victims.
    So, attention has been directed, for example, to banks and 
to third-party processors that provide the means through which 
the fraudulent telemarketers can extract money from the 
accounts of victims. And, attention has also been paid to the 
list builders, list brokers, list managers that--in effect--
help scammers to identify elderly Americans who would be 
especially vulnerable to being cheated by a stranger over the 
phone.
    List building--list builders, are operations that actually 
create lists of people vulnerable to being scammed. And, they 
may do it by sending prospecting mailings, screening mailings, 
to tens--or hundreds of thousands--of individuals, and they 
uniformly, in our experience, these mailings promote vague and 
misleading opportunities to win prizes, sweepstakes, and the 
like.
    So, the prize-oriented mailings ask the consumer to send 
back to the mailer, a small check--it might be $20 or so, as an 
administrative fee, or an acquisition fee, a transfer fee--
often a fee they designate in such a way as to suggest that 
you're paying for processing the prize.
    The people who send a check in response to such mailings 
are prime candidates for further victimization, which is the 
whole point. They're typically older, and they've demonstrated 
a willingness to send money to a stranger in a distant place in 
response to vague representations regarding a sweepstakes or a 
prize--that is the ideal profile, for a fraudulent telemarketer 
to pursue.
    List-building mailings often ask for information just to 
enhance the value of the list in the wrong hands--information 
such as telephone numbers and credit card numbers.
    And--I see my time is out, so I'll conclude my remarks. 
We've continued to focus our attention, as much as possible, as 
has the FTC, on these facilitating structures, and we'll take 
any questions. Thank you.
    [The prepared statement of Mr. St. Clair follows:]

  Prepared Statement of Steve St. Clair, Assistant Attorney General, 
                             State of Iowa
    Fraudulent telemarketers have been stealing from Americans, 
particularly elderly Americans, for many years. That much is constant. 
But techniques and operational details have changed over time. It's 
been an arms race with the authorities. Law enforcement develops 
techniques for catching the scammers, and they in turn develop new ways 
to work the scams and avoid being caught.
    About 15 years ago the Iowa Attorney General's Office developed an 
effective method for capturing fraudulent phone pitches on tape and 
criminally prosecuting the telemarketers, who were typically calling 
Iowans from another state. But since then, the predatory telemarketers 
have moved their operations across international boundaries--to Canada, 
Costa Rica, and elsewhere--which makes investigation and prosecution by 
state authorities extremely challenging.
    So increasingly we've focused our attention on the stable, U.S.-
based operations that facilitate the telemarketing scams. The thinking 
is that by making the facilitators answer for the frauds to which they 
provide support, they'll withdraw that support from dubious operators 
and make it more difficult for the perpetrators to claim victims.
    So attention has been directed to banks and payment processing 
operations that provide the means for scammers to extract money from 
the bank accounts of victims. And attention has also been directed to 
the list builders, list brokers, and list managers that help scammers 
identify elderly Americans who would be especially susceptible to being 
cheated by a stranger over the phone.
    List builders are operations that actually create lists of people 
vulnerable to being scammed. They may do prospecting mailings to tens 
or hundreds of thousands of individuals, promoting vague and misleading 
opportunities to win prizes or cash in on a sweepstakes. These prize-
oriented mailings ask the consumer to send back a small check, say $20, 
as an ``administrative fee'' or the like.
    People who send a check in response to such mailings are prime 
candidates for further victimization. They are typically older, and 
have demonstrated a willingness to send money to a stranger in a 
distant place in response to vague claims regarding a sweepstakes or a 
prize.
    These list building mailings often ask for information that will 
make it easier for fraudulent telemarketers later. They may ask for the 
consumer's telephone number, and credit card information. And, of 
course, they also obtain access to the consumer's bank account, because 
the routing numbers appear at the bottom of the small check the 
consumer is asked to send in.
    These lists of responsive, sweepstakes-oriented elderly may then be 
rented out through the efforts of list brokers and list managers. These 
list brokers and managers may be stable, well-established businesses 
that deal in a wide variety of customer and prospect lists. Too often 
such dealers in lists may exhibit little or no interest in how the 
lists were made--that is, whether the people on the list are fraud 
victims--and how someone obtaining the list plans to use it.
    In summary, law enforcement attention on the facilitators is 
continuing, on the part of the FTC, enforcing the Telemarketing Sales 
Rule (TSR), and on the part of states, enforcing the TSR as well as 
state law counterparts to the FTC Act. We believe that these efforts 
are making it harder for scammers to claim victims, elderly and 
otherwise, by making needed support structures less available.
Possible Legislative Approaches
Broadly address the standard for imposing liability on facilitators
    Under the Telemarketing Sales Rule, a person who is providing 
``substantial assistance or support'' to a telemarketer can be held 
responsible when that person ``knows or consciously avoids knowing'' 
that the telemarketer is violating the law. That involves establishing 
the mental state of the facilitator, which is very challenging. A 
better approach would be to hold a facilitator responsible if he or she 
``knows or should know'' that the telemarketer is violating the law. 
This is more in the nature of an objective standard--what a reasonable 
person should be expected to conclude from the surrounding 
circumstances--and would be a helpful change.
Address payment systems and banking abuses
    Eliminate ``demand drafts,'' a.k.a. ``remotely created checks,'' 
which are used by many telemarketing scammers to reach directly into 
the bank accounts of their elderly victims--victims who may not know 
what happened or know what to do about it.
    Lift the preemption constraints that hinder state attorneys general 
from enforcing laws against national banks. Some national banks have 
neglected any semblance of a gate-keeping function by making their 
banking services available to fraudulent operators. Banks in that 
position should not be shielded from having to answer to state law 
enforcement authorities, as well as to Federal banking authorities.
Addressing the creation and exchange of victim lists
    The broadest approach, and perhaps the least realistic in terms of 
legislative feasibility, would be to require solicitors that intend to 
market their lists to expressly inform consumers, before the 
transaction is consummated, that by responding the consumer's name and 
other information will be made available to other phone and mail 
solicitors. Consumers for whom that was an important consideration 
could simply choose not to enter into the transaction, and could thus 
stay off the list.
    A narrower and presumably more realistic approach would be to 
create additional safeguards that apply to lists of the elderly. List 
brokers and list managers could be required to make it their business 
whether a given list contains a disproportionate number of older 
consumers, and, if it does, they should have to determine how the list 
was compiled and how it will be used. This would require list dealers 
to perform a limited but meaningful gate-keeping function, rather than 
turning a blind eye, or worse.
    Yet another approach worthy of consideration is the creation of a 
``Do Not Mail'' database, a counterpart to the ``Do Not Call'' registry 
that has been so popular with consumers. Differences in the two 
contexts--receiving mail and receiving phone calls--may require 
significant differences in scope and implementation. However, consumers 
would likely be grateful for a means of controlling the flow of 
unsolicited mail, and it could serve to impede exploitive efforts to 
identify and prey upon vulnerable consumers.

    Senator Pryor. Thank you.
    Mr. Johnson, let me start with you if I may. In general 
terms on the Do Not Call Registry--has it made things better 
for your members?
    Mr. Johnson. I think it's a great improvement, and I think 
the Do Not Call Registry has been a great success.
    Senator Pryor. Well, thank you for saying that. And does 
your organization have an emphasis on educating your members 
about the availability of the Registry and the fact that they 
will have to re-register?
    Mr. Johnson. We've made a great emphasis on the Do Not Call 
Registry. We have not started to tell people about the need to 
re-register, I think that's something that needs to be done.
    Senator Pryor. You know, you probably heard me talk to the 
witness from the Federal Trade Commission a few moments ago. In 
hearing her answers to this, did you have any concerns about 
the FTC's initiative to educate consumers?
    Mr. Johnson. I'm not sure that I recall what she said, but 
the need for education is something that we're really, always 
in favor of.
    Senator Pryor. OK, and do you think we should strengthen 
the current law that we have on the books?
    Mr. Johnson. I think it needs to be strengthened to the 
extent that the ability to have fraud perpetrated can be 
limited, or removed.
    Senator Pryor. OK, let me ask this--I think in your opening 
statement, you mentioned the established business relationship 
exception, and you expressed some concerns here. Could you run 
through that again for the Committee?
    Mr. Johnson. What we have found is the business 
relationship has to be strengthened, and better identified. 
Because if someone merely responds, or asks for information 
about a product, that puts them in, in effect, as being in a 
business relationship. And so, the relationship has to be 
something that's ongoing, rather than just a mere close call.
    Senator Pryor. Mr. Cerasale--am I pronouncing your name 
right?
    Mr. Cerasale. You are correct.
    Senator Pryor. Thank you.
    I believe in your testimony, I want to make sure I heard 
this correctly, but I believe in your testimony you said that 
the Do Not Call program had been very, very successful with--?
    Mr. Cerasale. Yes, it has been very successful. The FTC has 
said it's been overwhelmingly successful.
    Senator Pryor. OK, could you explain the impact the Do Not 
Call Registry has had on your industry?
    Mr. Cerasale. There has been, clearly, closure of some call 
centers. So that has changed, changed the industry that way. 
Looking for a prospect, trying to find somebody with an offer, 
is generally not, cannot be done as well through the telephone. 
But all of our members have gone--have gone before, and are 
continuing to go forward--with being multi-channel, including 
potentially, opening retail stores, but reaching out through 
the Internet, reaching out through the telephone, reaching out 
through the mail, and coordination with--like that.
    For example, you could get a telephone call with--when a 
mail piece is supposed to be received. So, there's a greater 
emphasis on being multi-channel, with less emphasis on outgoing 
telephone calls. This is a significant increase, however, in 
telephone calls coming back to companies. And going to consumer 
representations, and so forth, increase on the companies.
    So that has really, I would say, exploded during this time. 
But outgoing telemarketing has had a significant, if not, 
dramatic turn.
    Senator Pryor. Let me ask this--on the fee structure of the 
Federal Do Not Call Registry--tell me how that has impacted the 
industry, and how you all deal with that, and how it should be 
structured in your view. I think you've touched on this in your 
opening statement, but if you could elaborate a little bit.
    Mr. Cerasale. Sure. The fees have gone up, significantly. 
And we don't have any complaints about how the fee structure is 
applied. In other words, if I am a marketer, I have to obtain 
the registry. If I'm doing it nationwide, I get a national 
list. Also, if I'm a supplier, someone who does calling for 
another company--I have to obtain the list, as well as ensure 
that my client has, also has permission to use the list. We 
have no trouble, problem with that.
    What's happened is, that we believe that, the cost of the 
contract with AT&T to run the Do Not Call Registry, I think, is 
$3.5 million. The fees that are coming into the Federal Trade 
Commission amount to approximately $18 million. So, we think 
that that's too much. Our view is that we should use the fees 
to cover the cost of the Government running the list, and that, 
that's where it should be. But, in any event, going up 263 
percent, since 2000--October 2003, is a little bit too high an 
increase. So, therefore we support your efforts to put a--to 
set the fee, statutorily--so the FTC doesn't have to go 
forward, every year, with rulemaking, and to them put--we 
agree--cost go--sadly, costs go up not down, to put an CPI 
index to it.
    Senator Pryor. Thank you.
    Senator Klobuchar?

               STATEMENT OF HON. AMY KLOBUCHAR, 
                  U.S. SENATOR FROM MINNESOTA

    Senator Klobuchar. Thank you very much, Senator Pryor. 
Thank you for the work, chairing this Committee, and for your 
work in guiding us as we go forward with these important 
issues. I must say, that I was involved in these issues as a 
prosecutor and, in fact, worked with AARP on a State level. We 
did a series of forums for seniors around the State on identity 
theft and fraud that were very successful.
    I most remember, Mr. Johnson, one of your most diligent 
members in Rochester, Minnesota, in front of 400 seniors, 
suggesting to them that it's not just enough to shred 
documents, that he took his dog out for a walk, and then placed 
the dog droppings on top of the shreddings in the garbage can--
--
    [Laughter.]
    Senator Klobuchar.--so potential thieves would not break 
in. I then said, at that moment, ``You're not suggesting, sir, 
that everyone in this room,'' as they diligently took notes, 
``do that?'' It's an example of how people make their own 
decisions in their own lives? And he said, ``Well, 
unfortunately, Senator, my dog is no longer with us, but I now 
use maple syrup.''
    [Laughter.]
    Senator Klobuchar. That memory is strong in my mind, as we 
have these discussions in terms of making sure that we make 
things available, Mr. Cerasale, and at the same time, that we 
protect people. I'm a big fan of the Do Not Call List, and I 
appreciate the work that's been done in the Senate before my 
time, and I believe that we need to do everything we can to 
keep that in place, and make it stronger than ever.
    And I guess, I'm first interested, Mr. Johnson, in any 
ideas that you would have about involving more seniors in this, 
in the Do Not Call List. I know that we encountered some issues 
of people not knowing how to get on the registry, and that was 
a lower--correct me if I'm wrong--a lower percentage of some of 
them registering on the Do Not Call list than other demographic 
age groups?
    Mr. Johnson. The thing that we've established is the 
original emphasis on the Do Not Call Registry, and the Do Not 
Call listing. We now have State offices, in every one of the 
States in the United States, and the Virgin Islands, and so we 
have an ability to get a better emphasis through to our 
members, and we will do this again through the members' 
gatherings and forums, and utilization of our State offices.
    Senator Klobuchar. OK, thank you.
    And, Mr. St. Clair, in your prepared remarks, you talked 
about how some of the telemarketing issues that are plaguing 
seniors and others have, in fact, become a global enterprise. 
And, I certainly encountered that, where we would have people--
either by e-mail or by phone--calling from all over the world, 
and it was very hard, as a local prosecutor, to go after those 
cases.
    Could you talk a little bit about your experiences, and 
what law enforcement tools are available for you to investigate 
these offshore criminals, and how you think it best be done?
    Mr. St. Clair. Well, it is extremely difficult for local, 
State law enforcement authorities to deal with international 
boundaries. And we have certainly cooperated, passed 
information to Federal authorities, who may be better situated, 
and we've worked closely, as far as passing information to the 
Canadian authorities. And, I think, when the telemarketing 
fraud was just getting started in Canada, for example, it was a 
little slow--the authorities there, I dare say, were a little 
slow--in recognizing the scope of the problem, and for the most 
part, victims were not being claimed within Canada.
    But after, perhaps, this slow start, we've seen great work 
by Canadian authorities, and what--part of what we've had to 
do, given the limitations for an Attorney General's office in a 
state like Iowa, dealing with international boundaries, is 
again to turn our attention to the U.S.-based facilitators to 
try to make a difference there.
    Senator Klobuchar. Thank you.
    I know one of the things we would always recommend for 
victims of identity theft is that they check with the credit 
bureaus. So, I am concerned about what I hear about them being 
overburdened and not being able to get at some of the major 
issues here because I always thought of identity theft as the 
crime that keeps on giving. Once your identity's stolen, 
because you've given the Social Security number out to someone, 
it takes you, sometimes years, to get it back, and to correct 
your credit rating.
    And so I was listening to Ms. Faulkner, and my question for 
you, Ms. Holland, is about what this difference is, between the 
free credit reports that you're required to provide and the 
company's paid monitoring service?
    Ms. Holland. The free credit report, which is available 
through annualcreditreport.com, is simply a copy of their 
report that outlines all of the items in their credit report.
    A credit monitoring service, or credit monitoring product, 
is a bit different. The credit monitoring product sends them 
alerts as soon as there's a change in their credit report.
    So, for example, you obtain your credit report, the free 
report from annualcreditreport.com, and that's just a one-time 
snapshot based upon the time you picked it up. When you 
subscribe to a monitoring service, you're going to be alerted 
every single time that there is a change to your credit report, 
and that has proven to be beneficial to detect and guard 
against identity theft.
    So, what would happen is, if there's a change in my file, I 
would be alerted--depending upon the service or the product 
that I purchased. And it would say that there has been a change 
in my report, and then I would be able to investigate what that 
change is. So, there is a clear distinction between just 
getting a free report, at that one period in time, versus 
having a monitoring service that's going to look at that 
report, and notify you every time there's a change.
    Senator Klobuchar. And again, my interest is making sure 
that consumers have easy access to these credit reports since 
we kept telling them you can just easily use one of these 
credit agencies. If I were to access your website right now, 
would it be easy for me to see where I could access my credit 
report for free without a fee? Or would I be directed directly 
to your company's fee-based credit monitoring?
    Ms. Holland. You would be--it would, it would--up front, 
you would know that you could get a free report, because it 
states it there, and we actually link you to the free credit 
report site, at annualcreditreport.com. So you are keenly aware 
that you can get the free report. And in our educational 
portion of our website, we talk a lot about being able to 
obtain that free credit report.
    Senator Klobuchar. Ms. Faulkner, do you want to add 
anything to this?
    Ms. Faulkner. I disagree that the credit monitoring service 
is useful to consumers. And, basically it's because credit 
reports change almost every day, as creditors report. So, I had 
one client with, actually, Equifax's credit monitoring service, 
and she was a nervous wreck, because every third day, she would 
get a notice that something had changed on her credit report. 
And she was making me a nervous wreck, because I had to tell 
her, ``Well, this is just a creditor updating something, nobody 
is stealing your credit, there's no more adverse information 
than there was before in it.
    So, I think that the consumers are, perhaps, overwhelmed by 
the credit monitoring services, and I think checking once or 
twice a year is sufficient. Particularly when, in Connecticut, 
you can get a copy of your credit report for $7.00. Whereas, if 
you're paying nine or ten dollars a month for your credit 
monitoring service, that's costing a lot more.
    Senator Klobuchar. Ms. Holland?
    Ms. Holland. Yes, I'd just like to state, in my role at 
Equifax, I talk to consumers every single day. That's my job, 
and I'm very passionate about making sure consumers are aware 
of what they can do to protect themselves. And I would simply 
say to you that I--we see, we get numerous accolades about 
consumers thanking us for being vigilant, alerting them when 
they subscribe to those services. They're very thankful that 
they were alerted, because they realize by being notified early 
that there has been a change. And remember--they can look at 
that change. If that change is simply an update to their 
balance, there's no problem there, and they close--they log 
off, and they go on about their business. So, I don't know that 
I--I don't agree with Ms. Faulkner's characterization, because 
we have consumers--and I talk to them--and they say that the 
credit monitoring product has been very, very helpful to them.
    Senator Klobuchar. All right. Thank you very much. Does 
anyone want to add anything to that discussion?
    [No response.]
    Senator Klobuchar. All right, well thank you. We look 
forward to working with you as we go ahead with both of these 
areas, in terms of perfecting the legislation, and making it 
easier for consumers to access their information.
    Senator Pryor. Thank you, Senator Klobuchar.
    Let me go ahead and ask you a few more questions, if I may.
    Mr. Cerasale, are there any changes out there in the 
marketplace, or changes occurring in your industry that we need 
to know about as we're crafting a new Do Not Call law? In other 
words, we talked a little bit about Voice-over-Internet 
Protocol phones, we talked a little bit about cellular phones. 
Are there changes in the industry or changes in the marketplace 
that we need to take into consideration?
    Mr. Cerasale. Well, I think that the first one, of course, 
is that one-eighth of the American public does not have a 
landline that they--their only form of telephone is a cell 
phone. The FCC--the Federal Communications Commission, under 
the Telephone Consumer Protection Act--it is, you cannot use 
those predictive dialers to make any solicitation call to them, 
unless you have express permission. So that, I think, if you 
look at the Do Not Call Registry, and the idea of having cell 
numbers on it, that's a repeat. That's a cost to the 
Government, and eventually a cost to the marketer that's 
already covered through another--even greater than the Do Not 
Call Registry, through the Telephone Consumer Protection Act. 
Because, even if you have an established business relationship, 
you cannot call someone on a cell phone, unless you get their 
permission.
    Looking at--I think the idea of being able to contact your 
customers is an important one to preserve. And, so the 
established business relationship has worked, and works well. 
And there is a difference between someone who has purchased 
something, or someone who has made an inquiry. Even under the 
current law, an inquiry--you have 3 months to try and contact 
someone, and then that business relationship expires, whereas 
you have 18 months from the time that you completed the 
transaction, if you have a subscription to Sports Illustrated, 
for example, when the subscription ended is when the 18 months 
clock starts. That is a difference between a customer, and 
someone who has made an inquiry, and that has worked. I mean, 
overwhelmingly, the Federal Trade Commission thinks that this 
is a product that has worked well.
    Senator Pryor. Thank you.
    Let me move, if I may, very quickly. I want to acknowledge 
Senator Thune here, in just one moment, but let me move, if I 
can, to Mr. St. Clair. First I want you to please tell your 
boss I said hello. I served with him as Attorney General, and 
he's great. Tell him I said hello.
    But second, let me ask about something you said in your 
opening statement about list builders. Can you explain to the 
Committee what they do, who they are, how the lists are built, 
and how they're used?
    Mr. St. Clair. Well, perhaps--perhaps one of the better 
ways to do that would be an example. In Iowa, we discovered 
that a local commercial mail drop was receiving about, 
ultimately, it was about 20,000 pieces of mail, all addressed 
to different--some nine different businesses. And we ultimately 
seized the mail, and upon examining it, we determined that it 
was coming all from a place in South Carolina, and what they 
were doing, basically, is mass-mailing to a very extensive 
list, mailers that were on their, on their face--in our view--
on their face, deceptive, and they were focused on winning 
prizes, winning sweepstakes, and so forth. And, they asked the 
person to send a small check, as small as, say, sometimes, $10, 
or $20. And, what this permitted the recipient, in South 
Carolina--of course all of the mail was ultimately just to be 
forwarded to South Carolina--what this would have permitted the 
recipient of all of the mail to do, is--in addition to 
receiving the modest checks, which was undoubtedly welcome, and 
helped pay for the mailing--is to create a very hot list of 
highly vulnerable people. The people we checked with that were 
responding to these mailings were predominantly elderly. And 
again, they were self-selecting for their vulnerability, in 
effect, as willing to send off money at a distance, to a 
stranger in response to vague representations about winning 
prizes.
    And, we ultimately determined, in that case, that some of 
the same mailings were later followed by telemarketing calls 
that referred back to the mailings. And, so some of the same 
people who had responded, you know, sent off only $10 or $20, 
you know, not a great loss, had, in effect, put themselves on 
the list, and then that list was made available to predatory 
telemarketers, who were after thousands of dollars.
    So, that's what we mean by list builders, and there are a 
lot of enterprises out there, right now, that appear to be 
engaged in those sorts of activities.
    Senator Pryor. Senator Thune?

                 STATEMENT OF HON. JOHN THUNE, 
                 U.S. SENATOR FROM SOUTH DAKOTA

    Senator Thune. Thank you, Mr. Chairman. And I want to thank 
the witnesses for being here today, and sharing your insights.
    We've got 146 million telephone numbers that were 
registered with the Do Not Call list which has been, I think, 
by and large a win for consumers. Families now can choose to 
rid themselves of many of those calls that all seem to come 
during dinnertime, but there are, of course, still millions of 
Americans who are not listed, and still receive telemarketing 
calls for one reason or another, and as some have already 
pointed out--often lonely, elderly Americans enjoy receiving 
telemarketing phone calls during the day. It's important, Mr. 
Chairman, that this Committee continue in its oversight duties 
to ensure that telemarketing regulations and policies we have 
in place are effective.
    I just have a couple of, I guess, quick questions, if I 
might, for Mr. Cerasale, is that--did I say that correctly?
    Mr. Cerasale. You said it correctly, Senator.
    Senator Thune. All right. It's my understanding that list 
brokers--those companies who collect and sell lists of names 
and phone numbers, that are members of the Direct Marketing 
Association are required by DMA to screen list buyers for 
suspicious activity. And, I guess I'm just--maybe if you could 
explain to us what that entails, and if you think there is more 
that could be done to stop bad actors from getting these lists 
to begin with?
    Mr. Cerasale. The--the members of DMA--the list builders 
that Mr. St. Clair talked about, that's illegal from the start. 
I mean, these are people getting names, and with that mailing, 
and asking for a check on a sweepstakes, which is illegal under 
postal regs, and I'm sure illegal under most State regulations, 
making it a lottery, as opposed to a sweepstakes--anyway. So, 
that's illegal activity. So, I want to just make a change, a 
switch from that, from a list broker, someone who obtains 
information from public records, from purchased records, and 
compiles those lists. Or even the list of--I subscribe to one 
magazine, and therefore I exchange or share my list with 
another magazine. Or, for example, a maker of a golf ball, 
who's trying to get the list of subscribers to Golf Magazine to 
try and send out an offer.
    If our--we've clarified our guidelines in the testimony. If 
you're a list compiler--someone who gathers the list together, 
you have sensitive information--that would be financial 
information, also defined as seniors. You have to screen the--
as a compiler--screen the promotion that the list is going to 
be used for, for appropriateness.
    For example, let's use the example that Mr. St. Clair 
raised. If you get the script of the telemarketing, or the 
piece that was sent through the mail that says, ``Here's a 
chance to win some money, and please send us a $10 check.'' 
Well, you don't do that, that's illegal. So, that kind of 
obligation is now upon those list compilers, to know with whom 
they are dealing. And, I think that's the important part in 
making--it's a stronger guideline, is to ensure that our 
members know with whom they're dealing. In other words, know 
the reputation of those with whom you're dealing. And, if it's 
sensitive information, absolutely ensure that you've seen the 
script. You see the piece of mail, you see the e-mail.
    Senator Thune. Mr. Johnson?
    Mr. Johnson. The only information I have about list 
builders is the article in The New York Times which referred to 
infoUSA. And some of the things that they've cited were that 
these lists are comprised of names that they've obtained--as 
Mr. Cerasale has said--by various means, magazine 
subscriptions, or whatever. But they've compiled these, and put 
them into categories, which are particularly aimed at seniors. 
And, not only seniors, but groups. There's a listing that is 
headed as ``oldies but goodies.'' And these are folks that they 
found were gamblers, and that they would send them out, to 
people with the recommendation that ``these folks are 
gullible.''
    Now, I think that it's something that must be done to say 
that these list compilers, who put this kind of a caveat, it's 
almost targeting the seniors, who have already been found that 
50 percent of the folks that are subject to this kind of fraud, 
are over 50 years of age.
    Senator Thune. Just as a followup, if I might, Mr. Johnson, 
we've got a high percentage of elderly citizens in South 
Dakota, many of whom live in rural parts of the state, and may 
enjoy receiving calls from telemarketers, and therefore not 
want to put their name or their number on a Do Not Call list. 
Do you have any suggestions for what we can do to help protect 
these elderly Americans who want to continue receiving 
telemarketing calls?
    Mr. Johnson. I think the only thing we can do is try to 
educate them that this is not a friendly call. We've had 
reverse border rooms, when we've tried to put these things in 
evidence, and that gives a ``chump list'' that we receive from 
the Attorney General's office. And we call those folks to alert 
them that they're on a list of folks that have been designated 
to receive telemarketing calls--and principally, telemarketing 
fraudulent calls.
    So, the only thing I can suggest, is what we used to do. We 
would make a lot of effort to tell the folks that, just hang up 
when you get this. It's not a person on the other end that's 
trying to be your friend, it's someone that's trying to take 
your livelihood.
    Mr. Cerasale. Enforcement. Most of this stuff is illegal. 
As a senior, many times you are more of a shut-in, can't get 
out as much, so that there, these are means to keep you in 
touch with commerce, in part too. So, it's not all--I think the 
impression here might be that every call to a senior, every 
piece of mail that comes to a senior is fraudulent--there are 
many, many legitimate marketers out there, and this is the, the 
touch for many seniors to reach commerce in the United States.
    The key is to go after enforcement. The fraud--it's illegal 
already. And we need more enforcement--both on the State level, 
the local level, the Federal level, to go after and protect. I 
think the laws are there, and the choices are there, I mean, 
even on the Do Not Call Registry, as seniors go further and 
further--I mean, I'm one of them. As they say, as you go 
further and further down the way, maybe my children can come in 
and take over, too. And there are means for that, there's--to 
try and keep my dignity, but also allow children guardians to 
try and come in and protect, if that's necessary.
    And, so I think the key is, is laws--not the laws, but the 
enforcement of current laws. And, we're--we encourage that.
    Senator Thune. Is that primarily a State function, law 
enforcement--we've got a former Attorney General here?
    Senator Pryor. I think to a large extent it is. We have an 
Assistant Attorney General here who might want to take a stab 
at that. But I think States generally will enforce those types 
of laws.
    Mr. St. Clair. Yes, I believe--well, as I think was 
mentioned, postal authorities have a lottery prohibition, but I 
think each State has some version of a lottery prohibition. 
Sometimes the sort of mail building efforts, or list building 
efforts we were talking about are not clear lottery cases. It's 
not a matter, always, of just sending $10 in order to be buying 
the equivalent of a ticket in a lottery. If it were, that would 
be a fairly straightforward lottery violation.
    But, sometimes what they are selling are, for example, 
sweepstakes reports. So that, that permits the mailer to talk 
heavily about sweepstakes, and prizes, and large amounts of 
money, in a confusing fashion, and then ask for an 
administrative, or a transfer fee. But the fee, in fact, is 
just--they would say, the mailer would say--is just a payment, 
a straight-up payment for a sweepstakes report, that they then 
send out, and the sweepstakes report just identifies different 
publicly accessible sweepstakes.
    And so, so it wouldn't be so easy to just simply go after 
them as a lottery. But, it still has the intended list building 
function, and some of the deceptive aspects are fairly subtle.
    But yes, it's often a State function.
    Senator Thune. Thank you, Mr. Chairman.
    Thank you all very much.
    Senator Pryor. Thank you.
    And to follow up on that, the Arkansas law is called the 
Deceptive Trade Practices Act, which is just a big umbrella law 
that we use. We had other, more specific, acts, but it seems 
like you could always plug something into the Deceptive Trade 
Practices Act.
    Let me ask, if I may, Ms. Holland, about CROA. I understand 
that you and Ms. Faulkner disagree, or your organizations 
disagree on some of this.
    But, for clarification, Ms. Holland from your standpoint, 
how does credit monitoring safeguard against identify theft, or 
mitigate the impact of identity theft?
    Ms. Holland. Well, credit monitoring products provide 
consumers with a proactive first line of defense against 
identity theft. And so, depending on the product, notices and 
alerts can be sent directly to that consumer, whenever changes 
are made to the consumer's credit report. So, this early 
detection of a problem through credit monitoring can save a 
consumer the time and expense that otherwise is spent trying to 
correct fraudulent activity after the fact, or fraudulent 
credit reporting information. So, what it does is that, instead 
of you checking your credit report annually, at Equifax, we 
recommend you check your credit report three or four time a 
year. But at the end of the day, fraudsters are always looking 
to commit fraud. So, a consumer who has a monitoring service 
that's going to alert them every time that change comes, 
they're going to be more aware of a change versus someone who 
gets a report three or four times a year.
    And so, we believe that's the biggest distinction, in that 
you are notified every time there's a change to the report, a 
relevant change.
    Senator Pryor. Right, again, for clarification, we've 
talked about repair services and monitoring products, which are 
two distinct products, or two distinct services, I guess you 
might say,----
    Ms. Holland. Correct.
    Senator Pryor.--that can be offered to consumers. Do you 
think that these should be treated differently under the law? 
Or should they both be under CROA?
    Ms. Holland. Well, I think if you behave like a credit 
repair organization, then you should be subject to CROA. The 
heart of a credit repair scam, Chairman Pryor, is to remove 
accurate and timely--but adverse--credit information from a 
credit report. Well, that not only harms the individual 
integrity of the credit report, but it has the potential to 
undermine the entire credit reporting system.
    So, if you're going out as a credit repair organization, 
making promises about how you're going to have accurate 
information removed, then you should be subject to CROA. A 
credit monitoring service is a benefit to a consumer, as it 
helps them not only have a defense against identity theft, but 
it also gives them the tools and gives them the ability to 
manage their credit report themselves, and helps them learn and 
change behaviors about improving their credit score through 
personal management of their financial health. And that's the 
key about empowering, enlightening, and enabling consumers, to 
take control of their credit. A credit repair organization 
simply behaves and tells consumers untruths about being able to 
remove information, and they should obviously be subject to the 
harsh penalties of CROA.
    Senator Pryor. Let me ask you another question, Ms. 
Holland. It's my understanding that the credit bureaus, the 
consumer groups and the Federal Trade Commission have been 
working together for some time to address this issue. And, it 
seems that, as much as you've tried, recent efforts have not 
been able to create a legislative product that everybody is 
happy with. Is that a fair assessment?
    Ms. Holland. I believe that is a fair assessment, Chairman.
    Senator Pryor. And does your organization have language 
that you would like to see in legislation? Have you all--has 
your organization gotten that far?
    Ms. Holland. Well, I think we've worked very closely--and I 
think that's an important question, and rather than speculate, 
I'd like to get back to you and give you that in writing.
    Senator Pryor. Great, I appreciate that.
    Ms. Faulkner, I know that, again, you disagree with some of 
the answers you just heard just a moment ago, but have either 
you personally, or your organization, been part of these 
discussions to try to find language that we can put in a bill 
that will satisfy all of the parties? Have you been part of 
that?
    Ms. Faulkner. I have. And we have been literally wracking 
our brains, and we have not been able to come up with something 
that would exempt just credit monitoring, without making a 
loophole for credit repair.
    I can tell you there has been case law recently, in 
particular, the Hillis case, where one of the Federal judges 
made a really good distinction between credit improvement--
credit monitoring, and credit repair organizations, just based 
on the language of the statute. So, it may be that no amendment 
is needed for the distinction to be made between credit 
monitoring and credit repair. But, we would just hate to see 
anything done that gives the credit clinics one more way to 
scam consumers.
    Senator Pryor. OK.
    Ms. Faulkner, let me ask you another last question, and 
that is something that you mentioned in your opening statement, 
but you didn't really dwell on it, and it's not the subject of 
this hearing, but you mentioned arbitration clauses----
    Ms. Faulkner. I did.
    Senator Pryor.and distant forum clauses. Is it your 
experience that you see arbitration clauses, and distant forum 
clauses in--what did you say--in credit monitoring?
    Ms. Faulkner. In the credit clinics.
    Senator Pryor. OK.
    Ms. Faulkner. In the credit clinics, yes.
    Senator Pryor. And from your standpoint, how do those 
disadvantage consumers?
    Ms. Faulkner. With arbitration clauses, it means the 
consumer cannot go to court to get his or her rights, and to 
enforce his rights under the CROA. It means they have to go to 
a private arbitration organization. It means that the hearing 
is secret. It means that the wrongdoing never gets publicized. 
So, the wrongdoing is swept under the rug in a private manner.
    And, the distant forum clauses are just to make it more 
expensive for the consumer to do anything at all. If you have 
to go from Connecticut to California, in other words, even for 
arbitration, it's cost-prohibitive. So, essentially what these 
two clauses do is evade liability completely, because no 
consumer can afford either arbitration, or going to a distance 
forum. We would like to see a local, Federal--right to go to 
your local Federal court.
    Senator Pryor. All right, now, I know this is a little bit 
beyond the scope of the hearing, but while we're on that 
subject, are you seeing these type of clauses in other consumer 
contracts?
    Ms. Faulkner. Yes. Yes, they are spreading like the plague.
    Senator Pryor. Then, from your standpoint, they're 
increasing out there in the----
    Ms. Faulkner. Yes, definitely.
    Senator Pryor. With that, hold on, let me ask the staff if 
I missed anything. Are we square?
    What we'll do is, we'll keep the record open for 14 days, 
for 2 weeks. And I just want to thank everybody for being here. 
Your testimony was appreciated and very helpful.
    And with that, like I said, we'll leave the record open for 
Senators, if they choose, to submit questions in writing, and 
the Commerce Committee staff will forward them to you. And, if 
you all have opening statements, et cetera, that you want to 
submit for the record, we'll take care of that, just let us 
know.
    But again, thank you all for being here, and thank you for 
being involved in the process.
    The hearing is adjourned.
    [Whereupon, at 4 p.m., the hearing was adjourned.]
                            A P P E N D I X

    Supplemental Statement of Robin Holland, Senior Vice President, 
                    Global Operations, Equifax Inc.
Introduction
    I want to thank you for this opportunity to respond to a question 
raised by Chairman Pryor during the recent hearing on the Credit Repair 
Organizations Act (CROA) reform. Specifically, this Supplemental 
Statement will address the type of CROA reform necessary to combat 
credit repair organizations, while protecting legitimate credit 
monitoring products and services.
    Subsequent to the enactment of CROA, credit monitoring has been 
developed to give consumers a first line of defense against identity 
theft and to increase consumer literacy regarding credit matters. The 
credit bureaus seek statutory reforms that conclusively establish that 
credit monitoring and similar credit information products and services 
are not subject to CROA. As indicated by Joanne Faulkner's testimony at 
the hearing, consumer groups fear that such reforms would open the door 
for credit repair organizations (CROs) to evade the requirements of 
CROA. For the reasons set forth below, Equifax believes that such fears 
are unfounded.
Defining Credit Repair
    CROs are defined as entities that use any instrumentality of 
interstate commerce to sell, provide, or perform (or represent that 
they can perform) services or advice for the express or implied purpose 
of improving a consumer's credit record, credit history, or credit 
rating in return for a fee.\1\ As noted by Ms. Faulkner in her written 
statement, CROs intentionally and systematically deceive not only 
consumers, but the credit bureaus. In contrast, credit monitoring and 
similar credit information products and services were developed to help 
improve consumer understanding about their credit history.
---------------------------------------------------------------------------
    \1\ Sec. 403(3) of the Credit Repair Organizations Act, Public Law 
90-321, 82 Stat. 164, 15 U.S.C. S.  1679a (2006).
---------------------------------------------------------------------------
    CROA was originally enacted to stop CROs from harming consumers and 
the credit reporting system through credit repair activities. Looking 
to the legislative history,\2\ Congress did not seek to place 
limitations on all products and services that pertain to credit, but 
instead sought to target narrowly those specific harmful activities 
performed by CROs. Congress did not intend for the definition of a CRO 
to sweep in products that offer only prospective credit advice to 
consumers or provide information to consumers so that the consumers can 
take steps on their own to improve their credit in the future. Credit 
monitoring and similar credit information products and services should 
not be swept into the definition of CRO, because such products provide 
information that empowers rather than harms consumers.
---------------------------------------------------------------------------
    \2\ See H.R. Rep. No. 103-486, at 57 (Apr. 28, 1994), and see also 
Hearing on the Credit Repair Organizations Act (H.R. 458) Before the 
Subcommittee on Consumer Affairs and Coinage of the House Committee on 
Banking, Finance, and Urban Affairs, 100th Congress (Sept. 15, 1988).
---------------------------------------------------------------------------
    CROA is enforced by the Federal Trade Commission (FTC). The FTC 
staff has stated that there is no basis to subject the sale of credit 
monitoring and similar educational products to CROA's specific 
prohibitions and requirements, which were intended to rein in 
fraudulent credit repair. The FTC staff has even commended credit 
monitoring products--if promoted and sold in a truthful manner--as a 
way to help consumers maintain an accurate credit file and provide them 
with valuable information for combating identity theft.
A Behavior-based Solution
    CROA can be amended to prevent the type of abusive practices that 
Congress originally intended to address by taking a behavior-based 
approach to the application of CROA's requirements. By applying CROA to 
only those entities engaged in the potentially fraudulent activities 
known as credit repair, CROA can be reformed in a way that continues to 
protect consumers from those activities and permits the provision of 
legitimate credit monitoring products and similar credit information 
products and services outside of the technical provisions of CROA. The 
nature of the activity performed by the entity would trigger 
application of CROA, rather than the characterization those entities 
assign to their products and services. An example of this approach can 
be seen in a House bill (H.R. 2885), introduced by Rep. Paul Kanjorski, 
which sets out in detail the type of credit monitoring activities that 
would not be covered by CROA.
    Through this behavior-based approach, CROA would be able to reach 
credit repair services regardless of whether the entity claims to be a 
CRO or a provider of credit monitoring. Improperly characterizing 
either the product being sold or the entity making the offer will not 
achieve the purpose of evading CROA. Credit repair organizations that 
purport to offer legitimate services, but actually engage in credit 
repair operations will still be subject to CROA. Conversely, if an 
entity offers legitimate and beneficial products, such as credit 
monitoring, then the activity-based approach to CROA enforcement would 
permit such activities to continue without being subject to CROA. 
Through such reforms, no entity could escape the consumer protection 
requirements of CROA, but consumers would benefit from the increased 
availability of other legitimate products, such as credit monitoring.
    To the benefit of consumers, the FTC has developed extensive 
expertise in investigating entities engaged in unfair or deceptive 
trade practices through Section 5 of the FTC Act. See 15 U.S.C.  
45(a). The FTC specializes in distinguishing between what companies say 
they do and what those companies actually do. Given a clearly 
established definition of credit repair activity, with specific 
exceptions in place for credit information products and services such 
as credit monitoring products, and the FTC's expertise with respect to 
deceptive practices, the FTC should easily be able to recognize any 
attempt to mischaracterize an illegal credit repair service as a 
legitimate credit monitoring product. To the extent a credit repair 
organization falsely purported to offer CROA-exempt products or 
services to evade CROA coverage, they could be in violation of both 
CROA and Section 5 of the FTC Act.
The Hillis Case
    Ms. Faulkner suggested during the hearing that reforms to CROA are 
unnecessary because a judge in a recent case, Hillis v. Equifax 
Consumer Services, Inc., 237 F.R.D. 491 (N.D. Ga. 2006), was able to 
distinguish between credit repair and credit monitoring under existing 
law. The judge in the Hillis case rejected a broad interpretation of 
the definition of CRO, and concluded that ``Congress could not have 
intended these terms to encompass all credit-related advice.'' Hillis, 
p. 512.
    However, Ms. Faulkner's argument that taking no legislation action 
is the proper solution in light of this decision misses the mark. The 
court in Hillis recognized that if providers of credit monitoring are 
considered CROs, it will be highly impractical for those entities to 
comply with the technical provisions of the CROA and still provide the 
type of credit information being sought by consumers. Not every court 
is the same, and not all judges will necessarily have the wisdom of the 
Hillis judge. Without reforming CROA to definitively establish that 
credit monitoring and similar credit information products and services 
are not credit repair activities, similar litigation could result in 
significant harm to companies that offer credit monitoring.
    The total cost of the Hillis settlement will be well over $4 
million. Equifax and Fair Isaac will pay up to $4 million in attorney's 
fees and costs to the Hillis class counsel, and the two named 
plaintiffs will each receive up to $7,500. Additionally, the more than 
6 million putative members of the Hillis class are eligible to receive 
either three or six free months of Score WatchTM (depending 
on whether they purchased an eligible product from only one or both of 
Equifax and Fair Isaac), a product which provides monitoring of the 
consumer's FICO Credit Score and two free Score Power reports. The 
retail value to each putative class member of this free product benefit 
is at least $24 (for 3 months) or $48 (for 6 months). Equifax and Fair 
Isaac also agreed to pay for the costs of printing and mailing postcard 
notices to class members, a settlement website with the terms of the 
agreement, a telephone assistance program, as well as other settlement 
administrative expenses. Without CROA reform, new lawsuits could be 
brought which would push litigation costs even higher.
    Ironically, the Hillis court approved the settlement in part 
because Equifax and Fair Isaac agreed to provide a disclaimer stating 
that it is not a credit repair organization and that Equifax does not 
offer credit repair advice to consumers. This has always been the 
position of Equifax, a position we seek to have established 
conclusively through reform of the CROA statute.
Conclusion
    CROA should be reformed so that it is clear that entities that 
offer credit monitoring and similar credit information products and 
services are not subject to the requirements and restrictions placed on 
CROs. These products and services benefit consumers in a way that can 
be easily distinguished from the harmful credit repair activities 
performed by CROs. By reforming the CROA statute to take a behavior-
based look at an entity's activities, credit monitoring and similar 
credit information products and services can remain available to 
consumers without throwing open the door for CROs to evade the consumer 
protections put into place by CROA.
                                 ______
                                 
 Supplemental Statement of Joanne S. Faulkner, Attorney, on Behalf of 
             the National Association of Consumer Advocates
    Senator Pryor left the record open for 2 weeks. At the end of the 
hearing, he asked whether I had seen mandatory predispute arbitration 
clauses and distant forum clauses in credit monitoring services. I now 
have.
    My own bank, Bank of America, offered Bank of America Privacy 
Assist PremierTM (Trademark of FIA, Inc.). The service 
includes ``automatic alerts when certain changes occur in your credit 
files from 3 major credit reporting agencies; unlimited online access 
to your 3 credit reports; ID theft recovery assistance from trained 
specialists, and identity theft insurance.''
    The agreement also includes binding arbitration before the American 
Arbitration Association in Washington, DC, together with other clauses 
limiting consumer remedies.
    The Equifax website would not reveal the terms of the contract 
until after I filled out an enrollment form including much personal 
information (which I would not do). However, a report on the Internet 
reveals that an Equifax credit monitoring service ``agreement also 
specifies that users are forced into binding arbitration if they have 
any disputes with the service, rather than pursue litigation, except in 
small claims court.'' http://www.consumeraffairs.com/news04/2006/05/
paypal_equifax.html.
    Contrary to the testimony of Ms. Holland, the website for Equifax 
Personal Solutions does not mention the free credit report. It may be 
found by typing Equifax Credit Monitoring into a search engine and 
selecting Personal Solutions, or at 
http://www.equifax.com/cs
                                 ______
                                 
 Response to Written Question Submitted by Hon. Frank R. Lautenberg to 
                            Lydia B. Parnes
    Question 1. Do Not Call telephone number registrations will expire 
during the summer of 2008 for all consumers who registered their 
telephone numbers in 2003. At the hearing, you indicated that the 
Commission will conduct a consumer education campaign to inform 
consumers of the need to re-register. Can you please provide more 
details about the Commission's plans for educating consumers about the 
need to re-register and how to do so?
    Answer. The FTC will conduct a consumer education campaign 
beginning in early 2008 to explain the registry and that some numbers 
will need to be re-registered. The campaign will be modeled on the 
highly successful, award-winning marketing campaign for the registry in 
2003. The FTC will provide focused messages for consumers and the 
media, as well as products such as web buttons and banners, articles, 
and short videos that can be disseminated by the agency's 
communications partners--including industry associations, non-profit 
groups, government agencies, and congressional offices. There is a high 
level of interest in the registry among consumers and the media, and 
the FTC will provide plain-language information for consumers about how 
to take advantage of the registry.

    Question 2. The need to re-register could lead to confusion among 
consumers who do not know when they registered for the Do Not Call 
list, and, as a result, will not know whether they need to re-register 
in 2008 or at some later date. How can consumers determine when they 
need to re-register?
    Answer. Consumers can access the National Registry at any time to 
confirm that their telephone numbers are registered and when the 
registrations will expire by visiting our website at www.donotcall.gov 
or calling our toll-free numbers 888-382-1222 (TTY 866-290-4236). 
Consumers also can re-register their telephone numbers at any time 
through the same website or toll-free numbers. They do not need to wait 
until their registration expires. Telephone numbers remain on the 
registry for 5 years from the date of the most recent registration. We 
will include this information in our consumer education campaign 
planned for early 2008.

    Question 3. Some credit monitoring companies advertise ``free 
credit reports'' to consumers who subscribe to their pay credit 
monitoring services. Often, these companies' websites have only a 
small-print link to information about receiving the free annual credit 
report to which every consumer is entitled by law. Has the FTC received 
complaints from consumers who unwittingly subscribed to pay credit 
monitoring services when all they wanted was to get their free credit 
report?
    Answer. Since the annual free credit report program went into 
effect in September 2004, the FTC has received a number of complaints 
from consumers about ``imposter'' free report websites that mimic the 
FACT Act-required website, www.annualcreditreport.com. These sites 
typically use URLs that are common misspellings of 
annualcreditreport.com or are sound-alike names. In many cases, the 
imposter sites offer free reports in conjunction with the purchase of a 
credit monitoring service. The credit monitoring typically is sold on a 
``free-to-pay conversion'' basis, i.e., the service is free for a short 
period, but converts to an automatically-renewing paid service unless 
the consumer affirmatively cancels within the free period. This type of 
promotion is a variation on the more general category of ``continuity'' 
or ``negative option'' plans, whereby consumers are automatically sent 
products and billed on a periodic basis until they cancel.
    The FTC carefully monitors impostor sites and has sent warning 
letters to operators of more than 130 such sites explaining that 
attempts to mislead consumers are illegal.\1\ Most of these sites have 
been taken down. The FTC also takes enforcement action in appropriate 
cases.
---------------------------------------------------------------------------
    \1\ Press Release, Federal Trade Commission, Marketer of ``Free 
Credit Reports'' Settles FTC Charges (Aug. 16, 2005), available at 
http://www.ftc.gov/opa/2005/08/consumerinfo.shtm.
---------------------------------------------------------------------------
    For example, in 2005, the Commission charged Consumerinfo.com, a 
subsidiary of Experian and the operator of the ``freecreditreport.com'' 
site, with deceptively marketing ``free credit reports.\2\ The 
Commission alleged that Consumerinfo deceived consumers by not 
adequately disclosing that consumers who took advantage of the free 
credit report offer automatically would be signed up for a credit 
monitoring service and charged $79.95 if they did not cancel within 30 
days. The Commission's complaint further alleged that Consumerinfo 
misled consumers by promoting its ``free reports'' without disclosing 
that it was not associated with the official annual free credit report 
program. In settlement of those charges, the FTC required Consumerinfo 
to pay redress to deceived consumers, barred deceptive and misleading 
claims about ``free'' offers, required clear and prominent disclosures 
of the terms and conditions of any ``free'' offers, required clear and 
prominent disclosures that its promotion is not affiliated with the 
FACT Act free report program, and required the defendant to disgorge 
$950,000.
---------------------------------------------------------------------------
    \2\ Id.
---------------------------------------------------------------------------
    Earlier this year, the FTC charged Consumerinfo with disseminating 
advertisements after entry of the settlement that violated the 
disclosure requirements.\3\ Consumerinfo was required to pay $300,000 
in additional ill-gotten gains.
---------------------------------------------------------------------------
    \3\ Press Release, Federal Trade Commission, Consumerinfo.com 
Settles FTC Charges (Feb. 21, 2007), available at http://wwwftc.gov/
opa/2007/02/cic.shtm.
---------------------------------------------------------------------------
    The FTC also has engaged in extensive outreach efforts to warn 
consumers about imposter free credit report promotions. The Commission 
maintains a micro-site on its website devoted to the free annual credit 
report program.\4\ The micro-site links directly to 
annualcreditreport.com so that consumers can be sure they are not 
misdirected to an imposter site. The micro-site also links to 
educational materials for consumers about the free annual report 
program and how to avoid imposters.\5\ Additional materials available 
through the micro-site advise consumers about avoiding deceptive 
``trial offers'' and other types of continuity promotions.\6\ The FTC 
also has produced radio public service announcements warning about 
imposter free report sites.\7\ In addition, the FTC mails copies of its 
education materials to consumers who call the FTC's toll-free complaint 
hotline.
---------------------------------------------------------------------------
    \4\ Free Annual Credit Reports, http://www.ftc.gov/bcp/conline/
edcams/freereports/index.html.
    \5\ FTC Consumer Alert, Want a Free Annual Credit Report? (May 
2006), available at 
http://www.ftc.gov/bcp/edu/pubs/consumer/alerts/alt156.shtm; Facts for 
Consumers, Your Access to Free Credit Reports (Sept. 2005), available 
at http://www.ftc.gov/bcp/conline/pubs/credit/freereports.shtm.
    \6\ Facts for Consumers, Trial Offers: The Deal is in the Details 
(June 2001) available at 
http://www.ftc.gov/bcp/conline/pubs/products/trialoffers.shtm.
    \7\ Free Annual Credit Reports, Radio PSAs, available at http://
www.ftc.gov/bcp/conline/edcams/freereports/psa.html#onesource; Free 
Annual Credit Reports, Radio PSAs, available at http://www.ftc.gov/bcp/
conline/edcams/freereports/psa.html#solicitations. 
---------------------------------------------------------------------------
                                 ______
                                 
 Response to Written Question Submitted by Hon. Frank R. Lautenberg to 
                            Richard Johnson
    Question. Next summer, every consumer who registered on the Do Not 
Call list in 2003 will have to re-register. What is your organization 
doing to prepare for the re-registration?
    Answer. AARP shares the concern of Members of Congress regarding 
consumers' need to re-register for the Do Not Call Registry next year. 
The DNCR is one of the most successful consumer programs initiated by 
the government. With over 140 million telephone numbers registered on 
the list, consumers have realized a substantial decrease in the number 
of unwanted telemarketing calls they receive in their homes. Consumers 
will most certainly want to continue to participate in this valuable 
program.
    AARP will use its resources to inform its 39 million members about 
the re-registration process through a number of communication avenues 
that could include AARP publications, outreach materials, the Web, our 
call center, and AARP's state offices and volunteer network. AARP will 
work closely with the Federal Trade Commission and the Federal 
Communications Commission to ensure that consumer information about 
this process is clear and non-misleading.
                                 ______
                                 
 Response to Written Question Submitted by Hon. Frank R. Lautenberg to 
                             Jerry Cerasale
    Question. Next summer, every consumer who registered on the Do Not 
Call list in 2003 will have to re-register. What is your organization 
doing to prepare for the re-registration?
    Answer. Approximately one third of the numbers on the National Do 
Not Call Registry will need to be re-registered by October 2008. The 
remaining two thirds of the numbers will need to re-register over the 
course of the next 5 years. As in 2003, the Federal Trade Commission 
will be using publicity, mainly through the press, but also on its 
publications, on its website and in its announcements, to promote the 
need for citizens to re-register their telephone numbers after 5 years. 
Since the initial publicity in 2003 was very successful, the DMA 
expects the 2008 campaign to meet similar success.
    As I testified, 30 percent to 40 percent of the telephone numbers 
on the Registry are not useful for marketers following either the 
Federal Trade Commission or Federal Communications Commission 
regulations. They are abandoned numbers, business numbers, cell numbers 
and fax numbers that clutter the registry increasing costs to all. We 
hope that the new contractor for the Do Not Call Registry will take 
advantage of the 5 year timing to improve the hygiene of the list--
making it more effective and less costly.
    DMA is telling its members to be mindful that the telephone numbers 
placed on the Registry in 2003 were done so by consumers wanting to 
limit telephone solicitations. Therefore, after the 5-year period ends, 
many of those consumers may want to re-register their telephone 
numbers, and marketers should provide them the time to do so before 
presenting any marketing offers via telephone.

                                  
