[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]



 
          H.R. 3035, THE MOBILE INFORMATIONAL CALL ACT OF 2011 

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

                                HEARING

                               BEFORE THE

             SUBCOMMITTEE ON COMMUNICATIONS AND TECHNOLOGY

                                 OF THE

                    COMMITTEE ON ENERGY AND COMMERCE
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                            NOVEMBER 4, 2011

                               __________

                           Serial No. 112-103



      Printed for the use of the Committee on Energy and Commerce

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                    COMMITTEE ON ENERGY AND COMMERCE

                          FRED UPTON, Michigan
                                 Chairman

JOE BARTON, Texas                    HENRY A. WAXMAN, California
  Chairman Emeritus                    Ranking Member
CLIFF STEARNS, Florida               JOHN D. DINGELL, Michigan
ED WHITFIELD, Kentucky                 Chairman Emeritus
JOHN SHIMKUS, Illinois               EDWARD J. MARKEY, Massachusetts
JOSEPH R. PITTS, Pennsylvania        EDOLPHUS TOWNS, New York
MARY BONO MACK, California           FRANK PALLONE, Jr., New Jersey
GREG WALDEN, Oregon                  BOBBY L. RUSH, Illinois
LEE TERRY, Nebraska                  ANNA G. ESHOO, California
MIKE ROGERS, Michigan                ELIOT L. ENGEL, New York
SUE WILKINS MYRICK, North Carolina   GENE GREEN, Texas
  Vice Chairman                      DIANA DeGETTE, Colorado
JOHN SULLIVAN, Oklahoma              LOIS CAPPS, California
TIM MURPHY, Pennsylvania             MICHAEL F. DOYLE, Pennsylvania
MICHAEL C. BURGESS, Texas            JANICE D. SCHAKOWSKY, Illinois
MARSHA BLACKBURN, Tennessee          CHARLES A. GONZALEZ, Texas
BRIAN P. BILBRAY, California         JAY INSLEE, Washington
CHARLES F. BASS, New Hampshire       TAMMY BALDWIN, Wisconsin
PHIL GINGREY, Georgia                MIKE ROSS, Arkansas
STEVE SCALISE, Louisiana             JIM MATHESON, Utah
ROBERT E. LATTA, Ohio                G.K. BUTTERFIELD, North Carolina
CATHY McMORRIS RODGERS, Washington   JOHN BARROW, Georgia
GREGG HARPER, Mississippi            DORIS O. MATSUI, California
LEONARD LANCE, New Jersey            DONNA M. CHRISTENSEN, Virgin 
BILL CASSIDY, Louisiana              Islands
BRETT GUTHRIE, Kentucky              KATHY CASTOR, Florida
PETE OLSON, Texas
DAVID B. McKINLEY, West Virginia
CORY GARDNER, Colorado
MIKE POMPEO, Kansas
ADAM KINZINGER, Illinois
H. MORGAN GRIFFITH, Virginia

                                 _____

             Subcommittee on Communications and Technology

                          GREG WALDEN, Oregon
                                 Chairman
LEE TERRY, Nebraska                  ANNA G. ESHOO, California
  Vice Chairman                        Ranking Member
CLIFF STEARNS, Florida               EDWARD J. MARKEY, Massachusetts
JOHN SHIMKUS, Illinois               MICHAEL F. DOYLE, Pennsylvania
MARY BONO MACK, California           DORIS O. MATSUI, California
MIKE ROGERS, Michigan                JOHN BARROW, Georgia
MARSHA BLACKBURN, Tennessee          DONNA M. CHRISTENSEN, Virgin 
BRIAN P. BILBRAY, California             Islands
CHARLES F. BASS, New Hampshire       EDOLPHUS TOWNS, New York
PHIL GINGREY, Georgia                FRANK PALLONE, Jr., New Jersey
STEVE SCALISE, Louisiana             BOBBY L. RUSH, Illinois
ROBERT E. LATTA, Ohio                DIANA DeGETTE, Colorado
BRETT GUTHRIE, Kentucky              JOHN D. DINGELL, Michigan
ADAM KINZINGER, Illinois             HENRY A. WAXMAN, California (ex 
JOE BARTON, Texas                        officio)
FRED UPTON, Michigan (ex officio)

                                  (ii)



                             C O N T E N T S

                              ----------                              
                                                                   Page
Hon. Greg Walden, a Representative in Congress from the State of 
  Oregon, opening statement......................................     1
    Prepared statement...........................................     3
Hon. Marsha Blackburn, a Representative in Congress from the 
  State of Tennessee, opening statement..........................     6
Hon. Anna G. Eshoo, a Representative in Congress from the State 
  of California, opening statement...............................     6
Hon. Michael F. Doyle, a Representative in Congress from the 
  Commonwealth of Pennsylvania, opening statement................    14
Hon. Lee Terry, a Representative in Congress from the State of 
  Nebraska, opening statement....................................    14
Hon. Joe Barton, a Representative in Congress from the State of 
  Texas, opening statement.......................................    15
    Prepared statement...........................................    17
Hon. Henry A. Waxman, a Representative in Congress from the State 
  of California, opening statement...............................    19
    Prepared statement...........................................    21
Hon. Edolphus Towns, a Representative in Congress from the State 
  of New York, opening statement.................................    23
Hon. John D. Dingell, a Representative in Congress from the State 
  of Michigan, prepared statement................................   141

                               Witnesses

Faith Schwartz, Executive Director, Hope Now Alliance............    68
    Prepared statement...........................................    70
    Answers to submitted questions...............................   142
Stephen A. Alterman, President, Cargo Airline Association........    80
    Prepared statement...........................................    82
    Answers to submitted questions...............................   143
Delicia Reynolds Hand, Legislative Director, National Association 
  of Consumer Advocates..........................................    87
    Prepared statement...........................................    89
    Answers to submitted questions...............................   144
Gregory F. Zoeller, Attorney General, State of Indiana...........   104
    Prepared statement...........................................   106
    Answers to submitted questions...............................   147
Michael Altschul, Senior Vice President and General Counsel, 
  CTIA--The Wireless Association.................................   122
    Prepared statement...........................................   124
    Answers to submitted questions...............................   149

                           Submitted Material

Letter, dated November 3, 2011, from Ioana Rusu, Regulatory 
  Counsel, Consumers Union, to Mr. Walden and Ms. Eshoo, 
  submitted by Ms. Eshoo.........................................     8
Letter, dated October 27, 2011, from Americans for Financial 
  Reform, et al., to Mr. Upton and Mr. Waxman, submitted by Ms. 
  Eshoo..........................................................    11
Letter, dated November 2, 2011, from Jane Thielen, Collections, 
  Bethel University, to Mr. Walden and Ms. Eshoo, submitted by 
  Mr. Terry......................................................    24
Letter, dated November 3, 2011, from Judy Renschler, Perkins Loan 
  Manager, Butler University, to Mr. Walden and Ms. Eshoo, 
  submitted by Mr. Terry.........................................    25
Letter, dated November 3, 2011, from Donna Chrestay, Assistant 
  Director, Student Accounts, Carnegie Mellon University, to Mr. 
  Walden and Ms. Eshoo, submitted by Mr. Terry...................    26
Letter, dated November 3, 2011, from R. Bruce Josten, Executive 
  Vice President, Government Affairs, Chamber of Commerce of the 
  United States of America, to Mr. Walden and Ms. Eshoo, 
  submitted by Mr. Terry.........................................    27
Letter, dated November 2, 2011, from Marianne Riddle, Bursar, 
  Georgetown University, to Mr. Walden and Ms. Eshoo, submitted 
  by Mr. Terry...................................................    28
Letter, dated November 3, 2011, from Floyd E. Stoner, Executive 
  Vice President, Congressional Relations and Public Policy, 
  American Bankers Association, to Mr. Walden and Ms. Eshoo, 
  submitted by Mr. Terry.........................................    29
Letter, dated November 3, 2011, from Tony Williams, Executive 
  Director, Arkansas Student Loan Authority, to Mr. Upton and Mr. 
  Waxman, submitted by Mr. Terry.................................    31
Letter, dated November 2, 2011, from Erin Klarer, Vice President, 
  Government Relations, Finance and Administration Cabinet, 
  Kentucky Higher Education Assistance Authority, to Mr. Guthrie, 
  submitted by Mr. Terry.........................................    33
Letter, dated November 2, 2011, from David A. Feitz, Executive 
  Director, Utah Higher Education Assistance Authority, to Mr. 
  Upton and Mr. Waxman, submitted by Mr. Terry...................    35
Letter, dated November 2, 2011, from Kimberley A. Kercheval, 
  Executive Associate Bursar, Indiana University, to Mr. Walden 
  and Ms. Eshoo, submitted by Mr. Terry..........................    36
Letter, dated November 2, 2011, from Jean Schloemer, Federal 
  Perkins Loan Coordinator, Wartburg College, to Mr. Walden and 
  Ms. Eshoo, submitted by Mr. Terry..............................    37
Letter, dated November 2, 2011, from Larry Rock, Director of 
  Student Loan Repayment, Concordia College, to Mr. Walden and 
  Ms. Eshoo, submitted by Mr. Terry..............................    38
Letter, dated November 3, 2011, from William P. Killmer, Senior 
  Vice President, Legislative and Political Affairs, Mortgage 
  Bankers Association, to Mr. Upton, Mr. Waxman, Mr. Walden, and 
  Ms. Eshoo, submitted by Mr. Terry..............................    39
Letter, dated November 3, 2011, from Jonathan M. Weisgall, Vice 
  President, Legislative and Regulatory Affairs, MidAmerican 
  Energy Holdings Company, to Mr. Upton and Mr. Waxman, submitted 
  by Mr. Terry...................................................    41
Letter, dated September 23, 2011, from American Bankers 
  Association, et al., to Mr. Upton and Mr. Waxman, submitted by 
  Mr. Terry......................................................    45
Letter, dated November 2, 2011, from Karla Sanderson, Loan 
  Coordinator, Oberlin College and Conservatory, to Mr. Walden 
  and Ms. Eshoo, submitted by Mr. Terry..........................    47
Letter, dated November 3, 2011, from Suzanne Dominick, Accounts 
  Receivable Supervisor, Seton Hill University, to Mr. Walden and 
  Ms. Eshoo, submitted by Mr. Terry..............................    48
Letter, dated November 2, 2011, from Sharie Palmer, Director of 
  Collection/Planned Giving Coordinator, Valparaiso University, 
  to Mr. Walden and Ms. Eshoo, submitted by Mr. Terry............    49
Letter, dated November 3, 2011, from Thomas R. Kuhn, President, 
  Edison Electric Institute, to Mr. Terry and Mr. Towns, 
  submitted by Mr. Terry.........................................    50
Letter, dated November 2, 2011, from Tony Bordeaux, Associate 
  Director, Loans Receivable and Collections, The University of 
  Alabama, to Mr. Walden and Ms. Eshoo, submitted by Mr. Terry...    52
Letter, dated November 3, 2011, from Dennis J. DeSantis, 
  Associate Vice Chancellor, Student Financial Services, 
  University of Pittsburgh, to Mr. Doyle, submitted by Mr. Terry.    54
Letter, dated November 2, 2011, from Susan Rose, Treasurer, 
  University of St. Thomas, to Mr. Walden and Ms. Eshoo, 
  submitted by Mr. Terry.........................................    56
Letter, dated November 4, 2011, from Sharon Gardner, Office of 
  Financial Services, Student Loan Collections, University of 
  South Carolina, to Mr. Walden and Ms. Eshoo, submitted by Mr. 
  Terry..........................................................    57
Letter, dated November 2, 2011, from Vicky Degen, Otterbein 
  University, to Mr. Walden and Ms. Eshoo, submitted by Mr. Terry    58
Letter, dated November 2, 2011, from Belinda Higginbotham, 
  Bursar, Western Kentucky University, to Mr. Walden and Ms. 
  Eshoo, submitted by Mr. Terry..................................    59
Letter, dated November 4, 2011, from Steve Bartlett, President 
  and Chief Executive Officer, The Financial Services Roundtable, 
  and John Dalton, President, The Housing Policy Council, to Mr. 
  Walden and Ms. Eshoo, submitted by Mr. Terry...................    60
Letter, dated November 3, 2011, from Dave McCurdy, President and 
  Chief Executive Officer, American Gas Association, to Mr. 
  Walden and Ms. Eshoo, submitted by Mr. Terry...................    61
Letter, dated November 2, 2011, from Melanee Gallina, Educational 
  Loan Specialist, Biola University, to Mr. Walden and Ms. Eshoo, 
  submitted by Mr. Terry.........................................    62
Statement, dated November 4, 2011, of Consumer Bankers 
  Association, submitted by Mr. Terry............................    63
Letter, dated November 3, 2011, from Robert A. Bergman, Vice 
  President, Public Affairs, UPS, to Mr. Upton and Mr. Waxman, 
  submitted by Mr. Terry.........................................    67


          H.R. 3035, THE MOBILE INFORMATIONAL CALL ACT OF 2011

                              ----------                              


                        FRIDAY, NOVEMBER 4, 2011

                  House of Representatives,
     Subcommittee on Communications and Technology,
                          Committee on Energy and Commerce,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 9:01 a.m., in 
room 2123, Rayburn House Office Building, Hon. Greg Walden 
(chairman of the subcommittee) presiding.
    Members present: Representatives Walden, Terry, Stearns, 
Shimkus, Blackburn, Bilbray, Bass, Gingrey, Scalise, Latta, 
Guthrie, Barton, Eshoo, Markey, Doyle, Barrow, Towns, and 
Waxman (ex officio).
    Staff present: Ray Baum, Senior Policy Advisor/Director of 
Coalitions; Nicholas Degani, FCC Detailee; Neil Fried, Chief 
Counsel, Communications and Technology; Kirby Howard, 
Legislative Clerk; Debbee Keller, Press Secretary; David Redl, 
Counsel, Communications and Technology; Alex Yergin, 
Legislative Clerk; Shawn Chang, Minority Counsel; Jeff Cohen, 
Minority Counsel; Roger Sherman, Minority Counsel; and Will 
Wallace, Minority Policy Analyst.

  OPENING STATEMENT OF HON. GREG WALDEN, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF OREGON

    Mr.Walden. I am going to call to order the Subcommittee on 
Communications and Technology, as we open this hearing on H.R. 
3035, the Mobile Informational Call Act of 2011.
    Today's hearing is an opportunity for our subcommittee to 
explore an age-old problem with legislation: How do we ensure 
the laws on the books makes sense, given new technologies and 
the evolving marketplace? I welcome that opportunity, and I 
want to thank our vice chairman of the committee, Lee Terry, 
and I want to thank Mr. Towns for bringing us their bipartisan 
legislation, the Mobile Informational Call Act of 2011.
    The bill would update the Telephone Consumer Protection 
Act, which aimed to protect telephone customers from intrusive 
telephone marketing while balancing those protections against 
the needs of business and nonprofits to communicate and inform 
consumers. It did so, among other ways, by restricting the 
ability of telemarketers to make telephone solicitations and by 
prohibiting all use of automatic-dialing equipment and 
prerecorded voice messages for calls to wireless phones.
    But it has been 20 years since Congress passed TCPA, and 
the world of telecommunications has changed. Back then, the 
only person with a cell phone was probably Gordon Gekko. Today, 
many Americans households have given up the landline and rely 
exclusively on wireless services. Back then, wireless customers 
paid higher per-minute rates to receive calls. Now, most 
customers have bucket of minutes so that receiving an 
additional call costs them nothing. Given these changes to the 
marketplace, now seems like a good time to revisit some of the 
rules the TCPA put in place.
    The thrust of the TCPA was to help protect consumers from 
unwanted telemarketing calls. The question now, however, is 
whether the TCPA is inadvertently preventing consumers from the 
convenience of getting other information that consumers do want 
and while they are on the go with their mobile phones. And if 
so, how can we address that? Does the TCPA prevent consumers 
from receiving informational calls from their banks, like fraud 
or low-balance alerts? Do the strictures of the TCPA and the 
FCC's implementation of it make it too difficult for businesses 
to engage their customers and provide them with valuable 
services? What is the proper role for States in protecting the 
privacy of telephone subscribers?
    Reasonable people can disagree on the answers to all of 
these questions, and I imagine we will, but I think we can all 
agree that any legislation should not subject consumers to 
unwanted telephone solicitations. Surely we can figure out a 
way to allow consumers to receive useful informational calls 
without unleashing the telemarketers. I think that is exactly 
the needle that this legislation is aiming to thread.
    We have before us several experts that will help us explore 
these issues, and I hope we will learn something about the 
consumer benefits of mobile informational calls, something 
about the concerns of consumer advocates and our States' 
attorney generals, and something about today's wireless 
marketplace.
    I think this can be a very productive discussion about ways 
to improve our country's laws for the benefit of all Americans, 
and I expect we will have some vigorous debate on how to do 
that. That is what hearings are all about.
    And I thank, again, our colleagues who have brought this 
legislation forward.
    And I would now yield to--well, we didn't start the clock, 
so I don't know how much time I have to yield. Looks like I 
have 89 minutes and 43 seconds. Since there was no objection 
from my--yes.
    I would yield to my colleague from Tennessee, Ms. 
Blackburn, the remaining 1 minute I apparently had.
    [The prepared statement of Mr. Walden follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
OPENING STATEMENT OF HON. MARSHA BLACKBURN, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF TENNESSEE

    Mrs.Blackburn. Thank you, Mr. Chairman, and that is about 
all I need.
    I do want to let you all know that I appreciate so much 
your work and Mr. Terry's work, the work of our staff, on the 
Mobile Informational Call Act. I am a cosponsor of this, and I 
think it does strike a reasonable balance that protects 
consumers while also allowing companies to provide beneficial 
information.
    An example of that, when FedEx, one of our Tennessee 
constituent companies, is able to provide automated 
informational calls to their customers using cell phones about 
future deliveries, they are able to increase their delivery 
rates on a first attempt by as much as 30 percent. That is a 
good thing because it reduces cost, helps the customers, and 
makes things more efficient. Under current law, FedEx is 
restricted in its ability to make automated calls about 
deliveries to customers, and we need a commonsense way to fix 
this.
    I appreciate your good work, and yield back.
    Mr.Walden. I thank the gentlelady.
    And all time has expired on our side. I turn now to my 
ranking member and friend, Ms. Eshoo from California, for 89-1/
2 minutes.

 OPENING STATEMENT OF HON. ANNA G. ESHOO, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Ms.Eshoo. Thank you, Mr. Chairman.
    And good morning, everyone. Good morning to the witnesses, 
and thank you for being here.
    Today's hearing revisits legislation enacted by this 
committee 20 years ago. Much has changed, as the chairman said, 
since that time, particularly in the way Americans communicate 
with each other. An increasing number of U.S. consumers 
identify their wireless device as their primary means of 
communication, and many have eliminated the use of alandline 
phone altogether.
    And while I believe these changes in consumer behavior 
warrant our review of the Telephone Consumer Protection Act, I 
am concerned about the potential for misuse by modifying the 
act. In fact, my constituents have spoken very clearly. They 
don't like this bill. I have heard from many, many 
constituents, and, to a person, they don't like it. They have 
written to me since this legislation was introduced, and, as I 
said, they are opposed because they have a lot of concerns 
about it.
    We almost always have our wireless devices with us. And I 
agree that, with a consumer's consent, these devices can serve 
as an ideal method for communicating data breaches, fraud 
alerts, drug recalls, and other important information in a 
timely manner. But ``consent'' is a very important term. I am 
concerned that in redefining, quote, ``prior express consent,'' 
as this legislation does, consumers will unknowingly be opening 
themselves up to future robocalls anytime they provide a 
business with their mobile number.
    Furthermore, unlike landline phones, there is still a cost 
associated with receiving an incoming call or text message on a 
wireless device. While it is true that many consumers subscribe 
to a monthly service plan, there is still a growing portion of 
the population, particularly many low-income Americans, who 
rely on prepaid service and pay on a per-minute or per-message 
basis.
    We see what happened with the banks and their debit card 
fees. And I think that there are going to be a lot of consumers 
in the country--if this bill were adopted in its present form, 
I think the Congress will hear from an awful lot of people on 
this.
    Why should a consumer be subjected to an unsolicited text 
message at a cost of 20 cents per message? Many consumers may 
wish to opt out of receiving these informational text messages, 
preferring instead to receive a phone call, an email, or other 
form of communication. So these options should be available to 
consumers, yet they are not considered by this legislation.
    So I think that there are some real questions that need to 
be answered about the legislation under consideration. I thank 
each one of the witnesses for being here with us today, and I 
look forward to their testimony.
    And, Mr. Chairman, I would like to ask unanimous consent to 
submit the following letters of opposition for the record.
    [The letters follow:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Ms.Eshoo. And I would like to yield the remaining time that 
I have to Mr. Doyle for the balance of the time.
    Mr.Walden. Without objection.
    Ms.Eshoo. Thank you.

OPENING STATEMENT OF HON. MICHAEL F. DOYLE, A REPRESENTATIVE IN 
         CONGRESS FROM THE COMMONWEALTH OF PENNSYLVANIA

    Mr.Doyle. I want to thank our ranking member and my good 
friend, Anna Eshoo, for giving me some time to speak.
    I want to thank our distinguished panel of witnesses for 
joining us today.
    Mr. Chairman, only 4 years ago, I remember the Energy and 
Commerce Committee's consideration of my bill to make the Do 
Not Call List permanent. That legislation, which was signed 
into law in 2008, allows people to opt out of receiving 
unwanted telemarketing calls once and for all. The bill before 
the subcommittee today presents a similar opportunity for us to 
weigh the potential benefits of a business' ability to contact 
its customers with the importance of consumer protections.
    As a growing number of people cut the cord in favor of 
wireless phone and text services, it is commendable that the 
subcommittee seeks to explore the effects of these changes on 
the conduct of commerce. However, my initial read of this 
legislation causes me to worry that its possible harmful impact 
on consumer welfare could overshadow its benevolent goals. I am 
concerned about the bill's potential consequences for 
individual privacy as well as its implication on consumers' 
pocketbooks.
    So I look forward to learning more from our witnesses about 
the legislation's impacts on consumers, in addition to 
businesses. I want to thank you again, to all the members of 
our panel, for taking the time to help explain these complex 
issues to the subcommittee.
    Mr. Chairman, I appreciate your patience, and I yield back.
    Mr.Walden. The gentleman yields back his time.
    I now recognize the vice chair of the committee, Mr. Terry.

   OPENING STATEMENT OF HON. LEE TERRY, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF NEBRASKA

    Mr.Terry. Thank you, Mr. Walden, for holding this hearing 
today.
    And this is a continuation of this committee's effort to 
look at older laws and see how they need to be changed to meet 
modern needs and technologies.
    Now, I will admit that, after reading some articles that 
have been written about this, that maybe there is a 
misperception, but also the misperception can be reality, in 
the sense that the essence of this bill is to ride the fine 
line between unwanted and wanted communications from people 
that choose to have the communication occur.
    So that is the fine line that we are trying to ride here. I 
make no pretense here that we have perfect language in finding 
that line. And that is why I am pleased that all of our 
panelists are here to help us refine the language today.
    So, under current law, if a consumer like me gives my cell 
phone number as my contact to an organization or business--so, 
let's say, schools--already current in law is I have consented 
because I physically gave them that phone number. I wrote it 
down on the line that says, ``How do we contact you?'' OK? 
Under the FCC, that is permission.
    The issue is whether the phone number is going to be 
physically dialed by somebody pushing 10 buttons or whether it 
is an automated, computer-based call. And we think that needs 
to be modernized. That is where the line should be drawn 
between weeding out or preventing--and this bill's intent is to 
never allow an unsolicited, unwanted call. That is the goal 
here.
    Now, you look at society today, and it is ubiquitous in our 
ability to communicate with each other. I give my school my 
cell phone number. I get texts when there is an emergency or 
some issue that they need to communicate with--last year, it 
was a certain virus that was going around the schools. We have 
snow days in Nebraska. I want to know about that. The cell 
phone is my only way to get that information.
    Another example with some of our financial institutions is 
their overdraft protection. You can sign up that they will 
notify you when you get to a certain point in your checking, 
let's say $20. You say, I want to be notified if I get down to 
$20 so I don't write a bad check. That is an automated call 
that comes out and says, your account is at $20. Under today's 
law, that is not lawful, but yet it is wanted.
    That is our goal here. We can go through dozens of examples 
where people give their phone number as a contact, that want 
the information, but it is unlawful. That is the fine line that 
we are riding here today.
    And I really look forward to Attorney General Zoeller. You 
are particularly vociferous. I appreciate that. We want your 
suggestions of how to define that line. Because I think all of 
us would say, if you signed up, you want that information, you 
should get it lawfully.
    So, with that, what I would like to do is yield my 
remaining minute, 15 to the chairman emeritus, Mr. Barton.
    Mr.Barton. I want to thank the sponsor of the bill, Mr. 
Terry, for yielding some time to me even though he knows that I 
am in opposition to his bill. That shows great statesmanship 
and tolerance on your part, and I appreciate it.
    Mr.Terry. Take it back.
    Mr.Walden. The gentleman's time is expired.
    Mr.Barton. Yes, that is way the game is played.

   OPENING STATEMENT OF HON. JOE BARTON, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF TEXAS

    I hate to be the Republican that spoils the garden party, 
but the current system is in place for a reason, and that 
reason is that people do protect and want to protect their 
privacy.
    I have a cell phone also, and the only people that have my 
cell phone number are other Members of Congress, my family, my 
very close friends, and my senior staff. I know that if I get a 
phone call on my cell phone, it is from somebody that I know 
and that they need or want to talk to me.
    I have three landline phones in Texas. I know that if that 
phone rings, the odds are better than even that it is a 
commercial call that I don't really care to get. So about half 
the time I don't even answer it, unless I am expecting a call 
from somebody.
    I know what Mr. Terry and Mr. Towns are attempting to do, 
and I think it is noble, but I don't think you can draw that 
fine line, as Mr. Terry said. Once we open the door to 
automated dialing for cell phones for very reasonable reasons 
such as Mr. Terry suggested, I don't see how you prevent it 
being used for other, less reasonable reasons.
    So, for that reason, Mr. Chairman and Mr. Vice Chairman and 
Mr. Towns, I do respectfully oppose the bill. But I am glad 
that we are having a hearing to air the issues.
    With that, I yield back.
    [The prepared statement of Mr. Barton follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr.Walden. The gentleman yields back the balance of his 
time.
    I recognize the ranking member of the full committee, Mr. 
Waxman.

OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr.Waxman. Thank you, Mr. Chairman. I appreciate your 
holding this hearing on the Mobile Informational Call Act of 
2011. You and Mrs. Eshoo have put together another balanced 
panel, and it is appreciated.
    The Telephone Consumer Protection Act, TCPA, was signed 
into law by President Bush in 1991. In the 20 years since its 
enactment, there have been dramatic changes in phone 
technology. Most notably, in 1991, less than 8 million 
Americans subscribed to mobile phone service. Today, there are 
well over 300 million wireless subscribers. And every day, more 
Americans are cutting the cord and relying on their mobile 
phones exclusively.
    Congress enacted the TCPA based on the bipartisan premise 
that residential telephone subscribers consider automated or 
prerecorded telephone calls, regardless of the content or the 
initiator of the message, to be a nuisance and an invasion of 
privacy. Although mobile phone usage has skyrocketed, I 
expected most Americans still have a high degree of concern 
about unwanted telephone calls, regardless of where they 
receive them. Indeed, congressional actions to protect 
Americans from unwanted phone solicitation have proven wildly 
popular.
    Fundamentally, we need to look at this issue from the 
perspective of the wireless consumer. By amending the law, as 
H.R. 3035 proposes, are we modifying consumer control over 
wireless phones? Are we changing expectations regarding 
privacy? Are we increasing costs?
    Although some consumers have unlimited texting and calling 
plans, millions do not. Will consumers have a clear ability to 
avoid unwanted calls and texts on their wireless phones when 
such communications increase their costs?
    Will consumers understand that, when they turn over their 
wireless phone number to the auto dealership, they are agreeing 
to receive future autodialed and prerecorded calls and texts 
about recalls, warranty updates, scheduled oil changes, or even 
from third-party bill collectors?
    We also need to understand whether existing law already 
allows consumers to receive calls on their wireless phones from 
businesses and others. Several experts have suggested that this 
is permissible under existing law. For example, if a school 
wants to use an automated dialer or prerecorded message to call 
parents' cell phones or send them text messages about a snow 
day, this is permissible under existing law with a parent's 
prior express consent. Similarly, autodialed and prerecorded 
updates from power companies, airlines, banks, and cable 
companies are all allowed with the prior express consent of 
their customers.
    Finally, H.R. 3035 appears to preempt a variety of existing 
State laws in a significant way. The bill would amend the TCPA 
to preempt all State laws about faxed advertisements, 
autodialers, and artificial or prerecorded voice messages. I 
know the preemption of State laws can sometimes be good for 
businesses, but it is not clear to me how preemption would help 
consumers or deter telemarketing abuses.
    I look forward to our hearing, and I wish to yield the 
balance of my time to Mr. Towns.
    [The prepared statement of Mr. Waxman follows:]

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 OPENING STATEMENT OF HON. EDOLPHUS TOWNS, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF NEW YORK

    Mr.Towns. Thank you very much.
    You know, I am proud to stand with President Obama, who 
included this in his jobs proposal because of the opportunity 
it offers to assist with deficit reduction, something that we 
all are concerned about.
    I look forward to learning from the witnesses how this 
legislation can impact consumers' daily lives in a positive 
way. Again, I thank the subcommittee and my colleagues for 
holding this hearing. As we move forward in the legislative 
process, I will work with my colleagues to shape the bill to 
keep the important benefits the bill would provide to consumers 
while at the same time ensuring that it has strong consumer 
protection to prevent and punish abuse.
    Critics of the bill have said that the bill will open the 
door to nuisance and abusive calls that impose unacceptable 
costs to people's cell phone bills. While I don't think the 
incentives are there for this to happen to consumers, I look 
forward to learning and hearing from the witnesses to see in 
terms of how we can move forward and hoping that, as we move 
forward, some of the things that have been said, that we will 
be able to clear them up.
    And, on that note, I want to thank the ranking member of 
the full committee for yielding to me.
    And, on that note, I don't have anything to yield back, but 
I will yield back.
    Mr.Terry [presiding]. Thank you, Mr. Towns.
    And I ask unanimous consent to submit 29 letters in 
support, the majority of which are from universities so they 
can contact their students. So I will submit those for the 
record, without objection.
    [The letters follow:]

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    Mr.Terry. So, at this time, we would like to hear from our 
witnesses. We will go from my left to right, with Ms. Schwartz.
    You may begin. And if I could say, limit your comments to 5 
minutes. And I will lightly tap at 5 minutes. So, it is not 
being rude, just kind of notice.
    Go ahead.

  STATEMENTS OF FAITH SCHWARTZ, EXECUTIVE DIRECTOR, HOPE NOW 
    ALLIANCE; STEPHEN A. ALTERMAN, PRESIDENT, CARGO AIRLINE 
   ASSOCIATION; DELICIA REYNOLDS HAND, LEGISLATIVE DIRECTOR, 
NATIONAL ASSOCIATION OF CONSUMER ADVOCATES; GREGORY F. ZOELLER, 
 ATTORNEY GENERAL, STATE OF INDIANA; MICHAEL ALTSCHUL, SENIOR 
            VICE PRESIDENT AND GENERAL COUNSEL, CTIA

                  STATEMENT OF FAITH SCHWARTZ

    Ms.Schwartz. Chairman Walden, Ranking Member Eshoo, Vice 
Chair Terry, and members of the subcommittee, thank you for the 
opportunity to testify today.
    My name is Faith Schwartz, and I am the executive director 
of the Hope Now Alliance, a nonprofit foreclosure-prevention 
effort. And I am the cofounder of Hope LoanPort, which is a 
nonprofit Web-based tool which is a public utility for 
borrowers and counselors to submit loan-workout packages to 
loan servicers for free.
    I have served in a leadership capacity at Hope Now since 
2007, during which time I worked closely with members and 
partners of the Alliance, including mortgage servicers, 
investors, nonprofit housing counseling partners, government 
agencies, and regulators to help homeowners avoid foreclosure. 
Before my time with Hope Now, I served in various capacities in 
the housing finance industry for 28 years.
    The comments I make today are my own and reflect my 
experience in the mortgage business and, in particular, working 
with servicers and counselors attempting to help at-risk 
homeowners. These comments do not necessarily reflect all the 
views of Hope Now.
    I am here today to speak to you specifically about our 
ongoing foreclosure-prevention efforts and the difficulties of 
reaching borrowers in financial distress.
    The financial services industry and its nonprofit and 
government partners remain committed to using all the tools 
that are available to assist homeowners. Since 2007, the 
mortgage industry has completed an estimated 5 million 
permanent loan modifications--and we know this because we 
measure it every month from that date--based on 37 million 
loans. In total, the industry has provided 14 million solutions 
for homeowners that include loan mods, short-term solutions 
such as repayment plans and forbearance, unemployment options 
such as short sales and deed in lieu, that provide alternatives 
to foreclosure.
    Hope Now has held 117 face-to-face events across the 
country since 2008. In fact, today we are in Houston, Texas, 
holding such an event with the United States Treasury, Making 
Home Affordable, and our nonprofit partner, NeighborWorks 
America. Without question, the outreach events have improved 
the experience of many customers trying to resolve their 
mortgage difficulties through face-to-face meeting with their 
loan servicer or counseling through a nonprofit agency. But our 
exit surveys continue to show that at least 30 percent of those 
attending had never had contact with their servicer before the 
meeting, despite multiple attempts from the servicer.
    The single greatest obstacle to keeping a delinquent 
borrower in their home is the inability to contact them and 
make aware the workout options that are available. The breadth 
and the complexity of options, both government programs and 
proprietary solutions--a full list of which I have included in 
my written testimony--makes it imperative that homeowners be in 
contact with their servicers. But we know from experience that 
often borrowers in financial distress do not open mail, they 
cancel their landline service, and increasingly rely on 
wireless phones as their primary or exclusive communications 
device.
    As we see these numbers ever increasing, with cell phones 
and text messaging becoming the primary means of communication, 
it has become clear that the current Telephone Consumer 
Protection Act, TCPA, is hindering effective communications 
between homeowners and loan servicers. H.R. 3035, the Mobile 
Informational Call Act of 2011, would modernize TCPA by 
eliminating restrictions on informational calls to mobile 
phones.
    For 20 years, the TCPA has permitted automated 
informational calls to be delivered to consumers' wireline 
phone numbers but not their wireless numbers. H.R. 3035 would 
allow automated commercial calls to mobile phone numbers as 
long as they do not include marketing messages.
    Currently, our primary means of contact ourlandlines and 
mailing invitations to foreclosure-prevention outreach events. 
It is difficult, if not impossible, to efficiently and 
effectively reach approximately 40 percent of consumers who 
rely on wireless phones as their primary communication vehicle.
    Consumers reap significant benefits when financial 
institutions are able to reach them quickly and efficiently. 
Using the autodialers or a prerecorded message, such as the 
bill allows, is not only a quicker, more cost-effective way, it 
would also free up loss-mitigation specialists to spend time 
working with individual borrowers rather than making repetitive 
manual calls.
    While this bill is not a panacea and it certainly will not 
end every foreclosure, it will, without a doubt, increase our 
contact rate. And the more people we contact, the more 
solutions we offer. The equation is very simple: If you 
increase the amount of customers you reach, you increase the 
number of workouts and you decrease the number of foreclosures.
    In conclusion, Mr. Chairman, in the area of foreclosure 
prevention, the Mobile Informational Call Act is a positive for 
consumers and for those working to keep them in their homes. 
Thank you.
    [The prepared statement of Ms. Schwartz follows:]

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    Mr.Terry. Thank you, Ms. Schwartz.
    Mr. Alterman?

                STATEMENT OF STEPHEN A. ALTERMAN

    Mr.Alterman. Thank you very much.
    Good morning, Chairman Walden, Ranking Member Eshoo, and 
members of the subcommittee. My is Steve Alterman, and I am 
president of the Cargo Airline Association. We appreciate the 
opportunity to testify today in support of the provisions of 
H.R. 3035, the Mobile Informational Call Act of 2011, and we 
request that our written testimony be made part of the record.
    The Cargo Airline Association is the nationwide trade 
organization representing the interests of the United States 
all-cargo air transportation industry. That is companies such 
as FedEx, UPS, DHL, and all those that deliver packages. 
Members of our association are in the business of picking up, 
transporting, and delivering packages throughout the world to 
meet our customers' needs.
    At times, our members may need to notify these package 
recipients of scheduled deliveries or failed attempts to 
deliver specific packages. Typically, such notifications 
involve shipments where a signature is required, notifications 
that shipments are being held for pickup at specified 
locations, and COD shipments. These calls merely provide 
customer service and do not contain any solicitation or product 
marketing.
    In today's world, with more and more individuals relying 
solely on mobile phones, it is becoming even more important to 
permit informational calls to mobile devices. Indeed, anecdotal 
evidence in our industry indicates that upwards of 50 percent 
of all contact numbers provided are, in fact, cell phone 
numbers. Faced with these facts, the Association and its member 
companies have a significant interest in the passage of H.R. 
3035.
    The Association supports the intent of the TCPA in that it 
aims to restrict unsolicited telemarketing calls to residential 
and cellular telephones. At the same time, we agree that the 
TCPA properly grants to the FCC the regulatory authority to 
enact limited exemptions from this general ban. It has done so 
to permit non-telemarketing informational calls to landline 
equipment. And the time has now come to expand that to cell 
phones.
    It is also important to point out that, in the case of 
customer service calls made by the Cargo Airline Association 
members, phone numbers are not randomly generated or 
sequentially generated but are given to the carriers by the 
package senders, who receive them from the purchasers, 
presumably so they or the intended recipient can be contacted 
in the event that they need to be called with information about 
the package delivery.
    By giving the shipper a contact number, the recipient 
should be found to have authorized calls that to number, 
whether by the shipper or any other member of the supply chain. 
For example, if a customer orders an item online and provides a 
mobile number as the contact number, the consumer obviously 
consents to the retail merchant contacting with regard to their 
order, as well as to other parties that facilitate the 
fulfillment and delivery of that order. This information 
exchange is purely transactional, and, from the carrier 
perspective, the consent significantly boosts the ability to 
deliver packages efficiently and effectively.
    Finally, we believe that it is important that any 
legislation recognize, to the extent possible, the advancing 
technology of the modern world. Therefore, to avoid any issues 
or questions in the future, we respectfully request that the 
proposed legislation be amended to specifically provide that 
text messages, in addition to phone calls, be included in the 
scope of the calls allowed to be made to mobile devices under 
the terms of H.R. 3035.
    In view of all these circumstances, the Association urges 
the enactment of H.R. 3035 to permit purely informational 
calls, including text messages, to mobile phones by automated-
recording devices. Such action will retain the intended ban on 
so-called telemarketing calls while authorizing informational 
calls that are clearly in the public interest.
    Thank you very much. I would be happy to answer any 
questions.
    [The prepared statement of Mr. Alterman follows:]

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    Mr.Terry. Thank you, Mr. Alterman.
    And Ms. Hand? Thank you.

               STATEMENT OF DELICIA REYNOLDS HAND

    Ms.Hand. Thank you.
    Chairman Walden, Ranking Member Eshoo, Vice Chair Terry, 
and members of the subcommittee, thank you for inviting me to 
testify today on the subject of H.R. 3035, the Mobile 
Informational Call Act of 2011.
    I am the legislative director of the National Association 
of Consumer Advocates. NACA is a nonprofit association of 
consumer advocates and attorney members who represent hundreds 
of thousands of consumers victimized by fraudulent, abusive, 
and predatory business practices.
    My testimony today expresses the sentiments of the 12 
national consumer protection, civil rights, and privacy 
organizations who oppose the bill and recently submitted a 
letter opposing H.R. 3035 to this committee. This letter is 
included as an attachment to my written testimony.
    H.R. 3035 will allow entities to use the automatic 
telephone dialing system, unaffectionately known as 
``robocalls,'' and automated messages on consumer cell phones 
under the guise of consent, even though the consumer could 
never have envisioned such use. Under this new bill, any 
transaction or relationship will constitute consent to 
repeatedly call the consumer's cell phone in perpetuity, even 
if the consumer does not give out her cell phone number and 
regardless of whether the consumer asks that she not be called.
    Imagine if, after you leave today's hearing, you stop by a 
local pharmacy on your way home. While at the counter making 
your payment, you absentmindedly hand over your phone number. 
This transaction alone would now suffice as consent to receive 
a robocall on your cell phone under H.R. 3035.
    You have forgotten about this transaction, and a few days 
later, while you are out at dinner with your family, you 
receive a call on your cell phone with a robotic voice at the 
other end thanking you for your recent purchase and verifying 
that the prescription you picked up is the one you actually 
wanted. You hang up the phone, but 2 minutes later, from a 
different number, the same robotic voice is on the line. You 
hang up again. Two minutes later, yet from a different number, 
the same voice is on the line. Two minutes later, again the 
same thing. You get the idea.
    This is the reality of thousands of Americans whose cell 
phone numbers have been entered into the smart-dialer 
technology that knows when you are likely to answer the phone 
due to estimating when you are most available.
    Currently, the largest debt collectors make more than a 
million calls in 1 day to consumer cell phones. If H.R. 3035 
becomes law in its present form, harassing robocalls on 
consumer cell phones will become the new norm.
    Today, we respectfully urge committee members to be wary of 
the bill proponents' motives for the following reasons.
    First, debt-collection agencies, creditors, airlines, 
utilities, and other businesses may already robodial any 
telephone number, including cellular phones, if the number was 
provided to them by the consumer.
    Second, robocalling is also permitted in case of 
emergencies such as hurricanes and other natural disasters. For 
example, recently, in the wake of Hurricane Irene, technologies 
to notify residents of emergency preparedness measures through 
mass-notification systems were used by municipalities up and 
down the east coast.
    Third, the proponents want to completely gut the important 
privacy and consumer protections found in the Telephone 
Consumer Protection Act. They want to strip consumers of any 
choice as to what phone numbers companies with which they do 
business may contact them. They want to remove all prohibitions 
against using robocalls by redefining automatic telephone 
dialing systems to include only antiquated technology that does 
not exist in the real world today.
    In fact, under the definition provided in H.R. 3035, 
telemarketers, the original target of the Telephone Consumer 
Protection Act, would now able to robocall consumer cell phones 
because most telemarketers do not use random or sequential 
dialers; they predictively dial cell phones. They want to 
prevent consumers from enforcing the demands that unwanted 
robocalls stop and to prevent State laws and attorneys general 
from further restricting and enforcing laws regarding these 
robotic calls.
    In conclusion, Mr. Chairman and Ranking Member, I urge this 
subcommittee not to open Pandora's box of the many unforeseen 
harmful consequences that will result if H.R. 3035 becomes law 
in its present form.
    Thank you.
    [The prepared statement of Ms. Hand follows:]

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    Mr.Terry. Attorney General Zoeller?

                STATEMENT OF GREGORY F. ZOELLER

    Mr.Zoeller. I thank you, Mr. Chairman and members.
    I appreciate Congressman Terry pointing me out as having 
spoken out on this in the newspaper. It recognizes that it is 
very important to the State of Indiana and the people I 
represent.
    I think particularly our focus of concern on H.R. 3035 
deals with the proposed areas that deal with preemption. And 
``preemption'' is one of those words that gets the attention of 
attorneys general. Just in the last day, I have received 
contacts from the attorney general's office in Connecticut, 
Iowa, Illinois, Kentucky, North Carolina, North Dakota, Nevada, 
Oregon, and Tennessee, immediately upon learning that I was 
coming here. So I recommend to all the Members to please 
contact your attorneys general in your home States and kind of 
listen to the boots on the ground that have to represent the 
consumers of your State.
    Over the last 20 years, Indiana has had a very unique 
experience under our own sense of privacy among Hoosiers. We 
had an autodialer statute that prevented the use of the 
technology since 1988, well before it was seen as a problem. We 
had a do-not-call statute in 2001 that does not allow the 
exemption of prior business relationships. So, unlike the 
experience of the Congressman from Texas who says he won't 
answer the home phone, in Indiana you can still answer your 
phone because it will not be a telemarketer.
    We had a do-not-fax statute in 2006. In this past 
legislative session, we allowed for cell phones to be added 
specifically to our do-not-call list. We now have over 2 
million lines registered on our do-not-call statute. This past 
session, after the General Assembly allowed the cell phones, we 
had 189,000 immediately, within a very short period, sign up 
for the Do Not Call My Cell Phone.
    So, the autodialer law is particularly one where we have 
the biggest problem. In Indiana, if you get a robocall, it is a 
scam. And everybody knows it is a scam because it is 
prohibited. It is the one State where, if you ask the Members 
of Congress, your colleagues from Indiana, where they do not 
use robocalling even for the tele-townhalls.
    So it recognizes that in Indiana we have a certain 
appreciation for privacy that may not be common in all 50 
States. They are subject to the Federal do-not-call statute 
that allows for the exemption of the prior business 
relationship, which I think has desensitized a lot of people, 
or as your colleague from Texas just simply doesn't answer the 
phone.
    So, due to the success of our laws, the people of Indiana 
have been very sensitive to this. And, quite frankly, when I 
have toured the State talking about my trip out here, I heard 
very specifically some of their passion on this issue.
    Another point that I would make is that, in 2010, 
recognizing that there are questions about political free 
speech, I asked the three major parties in Indiana to a 
``Treaty of 2010'' where they all agree not to use or encourage 
the use of telemarketing. And I can report that that treaty was 
not broken during the 2010 election cycle.
    If you look at the history of the Federal statute, starting 
in 1934, it was really meant to focus on the services and 
facilities and not really the use in the States. So one of the 
things that we are asking--and it is not that big an ask--
having recently had a Federal court preempt the use of our own 
State statutes prohibiting autodialing, I would like to ask the 
committee to take a hard look at the use of the word 
``intrastate,'' which was exactly what the court found allowed 
for the preemption of things that were interstate.
    So, again, having recognized the problems of this case that 
we submitted in our written testimony, I would ask your staff 
to take a good, hard look at that case where, 2 weeks ago, 
Indiana's robocall statute has now been preempted by the very 
act of Congress that I see again here in front of us.
    So I would grant back the 5 seconds that I have left.
    [The prepared statement of Mr. Zoeller follows:]

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    Mr.Terry. That is appreciated.
    Mr. Altschul?

                 STATEMENT OF MICHAEL ALTSCHUL

    Mr.Altschul. Good morning. And thank you, Mr. Terry, 
Ranking Member Eshoo, and members of the subcommittee. On 
behalf of CTIA, I thank you for the opportunity to participate 
in this morning's hearing.
    CTIA was here and proud to support the original TCPA 20 
years ago, and we welcome the introduction of this bill, H.R. 
3035, as we believe it helps illustrate how profoundly the 
wireless industry has changed over the past 20 years.
    A number of you in your statements have talked about the 
phenomenal growth and acceptance of wireless. I thought for 
show-and-tell I would bring the state-of-the-art phone from 
1992. And 1 month after the TCPA was passed into law, 
Motorola's MicroTac Lite was introduced to the public in 
January. This claimed to be the first phone that you could fit 
into your pocket--it required quite a pocket--and cost as much 
as $2,500. And, by the way, service prices in 1992, on a 
permanent basis, were 10 times higher than they are today.
    So, obviously, over the past 20 years, there has been 
phenomenal change and growth in the industry and Americans' 
acceptance of wireless. We have gone, as you know, from 7 
million to over 300 million subscribers. And we are proud as an 
industry that America now leads the world in delivering next-
generation wireless services at a lower price per minute of use 
than in any other country in the developed world.
    For the purposes of today's hearing, it is perhaps this 
point--how wireless has been adopted as the primary source of 
communications for millions of Americans--that may justify a 
fresh look at the TCPA restrictions on the delivery of 
informational calls to mobile devices and the challenge we all 
face in crafting a law that will permit wanted commercial 
communications while preventing unwanted communications.
    Others have noted how more than 25 percent of Americans 
have cut the cord. In some locations, the numbers are 
substantially higher, as high as 40 percent. Obviously, this 
shift creates challenges for companies and government agencies 
that want to provide informational calls to individuals who are 
not reachable in any other way and may value timely 
notifications of the kinds of alerts and information that 
others on the panel have described.
    I want to focus the remainder of my time on three issues of 
unique importance to the wireless industry.
    First--and it is a personal peeve of mine--along with 
customers, wireless carriers are victimized by violations of 
the TCPA by unscrupulous boiler-room operators seeking to sell 
extended car warranties and the like. In cases where they can 
locate and identify the source of these messages, wireless 
carriers have vigorously brought suit to shut down these scams. 
And we are proud that we have cooperated with State attorney 
generals and the Federal Trade Commission in investigating and 
prosecuting TCPA cases.
    Unfortunately, while we do all we can to identify and shut 
down TCPA violations, the FCC continues to catalog TCPA reports 
as wireless complaints. We believe it is unfair for the 
Commission to count these complaints, which originate outside 
the wireless network and have nothing to do with wireless 
carriers' conduct and behavior, as wireless complaints in their 
quarterly reports. And, for this reason, we urge the 
subcommittee to compel the FCC to disaggregate TCPA data from 
reporting of wireless complaints.
    Second, the FCC has an open proceeding in which it has 
sought comment on proposals to harmonize its TCPA rules with 
the FTC's telemarketing sales rules. In this proceeding, we are 
concerned that requiring wireless carriers to obtain their 
customers' express written consent to receive autodialed or 
prerecorded non-marketing calls could overturn the Commission's 
precedent permitting wireless carriers to send free-to-the-end-
user calls and messages to their customers without additional 
consent.
    As you may know, the industry has recently committed to 
deliver usage notifications to wireless users when they near 
plan thresholds to prevent bill shock and overage or 
international roaming charges, and we don't want anything to 
interfere with our ability to do that.
    Third and finally, there have been a series of class-action 
lawsuits filed against Twitter; Facebook; banks, including 
Barclays and American Express, that threaten the industry's 
efforts to protect privacy and comply with the Mobile Marketing 
Association's consumer best practices. These suits allege that 
the best practice of sending a text message to confirm receipt 
and acceptance of a customer's request to quit or stop violates 
the TCPA. It is unreasonable, and it is another matter we would 
like this committee to look into.
    So thank you for your consideration of these suggestions.
    [The prepared statement of Mr. Altschul follows:]

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    Mr.Terry. Thank you for your testimony, and all of you for 
your testimony.
    At this time, we are going to begin our questions.
    Attorney General Zoeller, I am going to start with you. And 
this is friendly. But I am concerned about State preemption, 
too. So what I would like to ask you is if you would help us 
work with language that would make States feel comfortable that 
we are not preempting your individual State laws.
    I want to point out the flip side and why we need to work 
together on this. One is, as I understand, one of the laws in 
Indiana specifically allows autodialed calls from schools. 
Well, the FCC, if that school is texting about a snow day, 
whether it is a university or just a public school, may be in 
violation with an autodialer, subject to, as Mr. Altschul said, 
a $500 fine per student. So we have to work that--I wanted to 
point that out.
    Would you be able to help us draft some language that would 
protect Indiana and States' laws, at the same time making sure 
that when they comply with the State law they are not in 
violation of Federal rules and regulations?
    Mr.Zoeller. Absolutely. No, we have no concerns about how 
the rest of the country and the Federal Government regulates. 
It is our experience, though--and I think if it sounds like I 
have reservations about the promises--that we were here 
representing the State of Indiana when the TCPA was enacted, 
and there were assurances that there would be no preemption. 
And, 2 weeks ago, a Federal court struck down an Indiana 
statute on preemption grounds.
    So we would be very willing to work with the committee----
    Mr.Terry. Good.
    Mr.Zoeller (continuing]. But recognize that we worked last 
time, and the same people who supported this bill have been 
attacking our statutes for the last decade until they finally 
preempted our statute.
    Mr.Terry. OK.
    Ms. Hand, you raise some concerns, and, frankly, just like 
Ranking Member Eshoo's constituent did and some reporters as 
well, that this is opening up the Pandora's box. And, in your 
comments, you said that our intent was to cause that. And I 
just want to place on the record, we worked with leg staff 
specifically saying, let's draft language that prohibits the 
unsolicited marketing, teleservices, random calls like you were 
talking about. We worked hard to make sure that wasn't true. So 
I got to tell you, I took a little offense when you said that 
was my intent in drafting this. It is completely the opposite.
    So you have a concern, Ms. Eshoo has a concern, I have 
heard concerns from people back home when they read about this 
bill about getting the unwanted telemarketing. Will you work 
with me to develop language so that we can have language that 
is clear that bans or continues to ban--I still think our 
language still bans those type of calls. Would you work with us 
on that?
    Ms.Hand. Certainly. We want to be a part of the 
conversation, and we want to work with you to ensure that 
consumers continue to be protected. So we appreciate you 
extending that.
    Mr.Terry. OK. We want to make sure that our intent here is 
that people, when they want information, are able to receive 
that without the sender being subject to lawsuits and fines, 
and continue to ban unwanted calls. So I appreciate your 
willingness to work with us on it.
    At this time, I am going to yield back my time and 
recognize the ranking member, Anna Eshoo.
    Ms.Eshoo. Thank you, Mr. Chairman.
    And thank you again to the panel. I think the collective 
testimony has been instructive, and I thank you for it.
    To Attorney General Zoeller, it is an honor to have an AG 
here. The TCPA sets a floor, and not a ceiling, allowing States 
to experiment and give consumers more protections, should they 
wish to do so. And I think that you have spoken very clearly 
about the wishes of your constituents and the actions that your 
State has taken, and I salute you for that.
    Now, by contrast, this bill would take away the States' 
ability to provide additional protections to your consumers by 
prohibiting any State laws addressing the subject matters 
regulated in the bill. Is that your view of it?
    Mr.Zoeller. Well, the particular concern is the use of the 
word ``intrastate,'' which is exactly how in the lawsuit----
    Ms.Eshoo. And you said that in your testimony. Uh-huh.
    Mr.Zoeller. So, the fact that it says ``intrastate'' has 
been read by the Federal courts to allow the argument that we 
are preempted on interstate. So, really, I heard the floor and 
not the ceiling, but when we are preempted, we are preempted. 
So it was the floor and the ceiling.
    Ms.Eshoo. Thank you.
    And to Ms. Hand, as currently written, I understand that 
this bill would narrow the TCPA's definition of an automatic 
telephone dialing system. And based on your reading of the 
bill, wouldn't this create a loophole that enables live 
telemarketing calls?
    Ms.Hand. Yes, this is correct. As currently defined in the 
bill, the bill proposes to define automatic telephone dialing 
systems as machines that randomly or sequentially generate 
telephone numbers. And so what this would do, in effect, is 
that the industry standard for dialers would not be included. 
It would exclude what is known as predictive dialers, which are 
predominantly used by telemarketers and debt collectors.
    So it would, in effect, reverse the original intent of the 
Cell Phone Consumer Protection Act, so it is very concerning.
    Ms.Eshoo. And I think that this is a closely held value 
that came out of the TCPA legislation. So I think that is where 
an awful lot of upset is coming from.
    Ms. Schwartz, thank you for your testimony. As I noted in 
my opening statement, prior express consent, those are really 
important words. They have an important meaning to consumers. 
If you have the express consent to reach a customer's mobile 
phone, what prevents you from delivering them these important 
informational messages today under existing law?
    Ms.Schwartz. I think you are right about the prior--pardon 
my voice; I woke up without one this morning.
    Nothing prevents you when you have prior consent. Sometimes 
there are new accounts and then people have changed behavior 
and they have closed down their landlines.
    So my whole focus is reaching people, sharing information 
that is pertinent to them keeping their homes, and engaging 
with them when they have been reluctant to do so or want to do 
so but have not been effective. So, on both sides----
    Ms.Eshoo. But what prevents you from doing that today under 
existing law, what you are describing, what you want to do 
with, you know, the work of your organization?
    Ms.Schwartz. Well, we go to landlines and we go to mail to 
get to borrowers, but we don't go to cell phones because we 
don't have that prior consent or have sought to violate it.
    Ms.Eshoo. I wanted to ask a question of the chairman. Is 
the Association of Credit and Collection Professionals 
supporting the bill? Does anyone know?
    Mr.Terry. I didn't look at the 29 letters there.
    Ms.Eshoo. OK.
    To Mr. Altschul from the Wireless Association, thank you. 
And I think that it is wonderful that you brought the old set 
and talked about the changes that have taken place. It is 
nothing short of stunning, the changes that have taken place in 
a short period of time.
    You noted that prices, on a permanent basis, were 10 times 
higher in 1991 than they are today. But text messaging is one 
feature that didn't exist 20 years ago. Would you agree that it 
is fairly common for consumers to pay on a per-message basis? 
And what is the average cost of receiving such a message today?
    Mr.Altschul. I don't know that information. I would be 
happy to provide it. I know that there was a hearing about 2 
years and a couple of our member carriers did provide 
information to Congress.
    The overwhelming majority, if I recall their testimony 
correctly, the overwhelming majority of customers do have some 
kind of bucket of texts. But there still are customers, like my 
mother, who don't and would have an a-la-carte charge for 
receiving a text message.
    Ms.Eshoo. Thank you, Mr. Chairman. I yield back.
    Mr.Terry. Thank you.
    Mr. Stearns, you are recognized.
    Mr.Stearns. Thank you, Mr. Chairman.
    I was the author of the Do Not Call List when I was 
chairman of the Commerce and Consumer Protection--at that 
point, it was Trade. And then, once we passed that, then we had 
to, the next session of Congress, pass another law to make sure 
to extend it. And I have found that it is the most popular bill 
that I have ever passed, and it is perhaps one of the most 
popular bills that has ever passed Congress because everybody 
was just lauding it.
    So I think, when we move into this, we have to understand 
some of the nuances between the land-based lines and the cell 
phone. So let me just go across the panel and ask this 
question, yes or no. I think many of us don't want to allow 
intrusive telemarketing calls to consumers any more than many 
of you do. And we just want to make sure that you don't have 
your cell phone being answered time and time again with a 
computerized call, telemarketing.
    Do you think there are ways we can clarify thatautodialers 
and prerecorded voice messages should not be used to make 
telemarketing calls to consumers?
    Ms. Schwartz?
    Ms.Schwartz. Yes, we support that clarification, that you 
should not be subjected to telemarketing calls.
    Mr.Stearns. So you think we can clarify and make that. OK.
    And Mr. Alterman?
    Mr.Alterman. Absolutely, I agree.
    Mr.Stearns. OK.
    Ms. Hand?
    Ms.Hand. Well, I think while there might be some 
clarifications that can be made, I would like to reiterate that 
current law currently allows contact with the consumer, and 
there is a very bright line here with respect to consent.
    Mr.Stearns. So, technically, you think between autodialers 
and prerecorded voice messages we can make a clarification so 
that these don't end up beingtelemarketing calls. Do you think 
we can do that?
    Ms.Hand. Yes, we can do that, but consumer consent should 
absolutely be preserved.
    Mr.Stearns. And how would we do that?
    Ms.Hand. Well, I am happy to continue working with staff to 
work out the technical languages. But we just want to make sure 
that consumers have an absolute ability to opt out of receiving 
any prerecorded or----
    Mr.Stearns. By calling the Federal Trade Commission on a 
toll-free number and saying----
    Ms.Hand. I am sorry?
    Mr.Stearns. They could call the Federal Trade Commission 
and ask them to make sure that my number is not included in 
that? Is that one suggestion?
    Ms.Hand. Potentially. I mean, we would have to think about 
it, and we would have to work with staff.
    Mr.Stearns. OK.
    Go ahead, Mr. Zoeller. Your comment?
    Mr.Zoeller. I think the key would be as long as States were 
allowed to have additional restrictions.
    Mr. Stearns. OK.
    Mr.Altschul. Prohibition on telemarketing calls has worked 
well and is broadly supported.
    Mr.Stearns. OK.
    Ms. Hand, your testimony suggests that current law empowers 
a consumer to demand that incessant calls stop and that the 
proposed legislation removes that protection.
    Can you point to me specifically to where that protection 
exists today for, say, landline calls and what provision 
specifically eliminates that protection?
    Ms.Hand. Well, it is actually what is not included in the 
bill. And so, I refer to an FCC ruling, a 2008 ruling by the 
FCC in January of 2008, where the FCC recognizes--and the 
specific language, if I may just point to it--the FCC 
recognizes the right of consumers to request calls to stop. And 
so, the FCC in the 2008 ruling said that, absent instructions 
to the company, persons who knowingly release their phone 
numbers have, in effect, given an invitation or a permission to 
be called. So, in other words, consumers have the right to ask 
to stop receiving calls.
    The bill doesn't address that, and so, in essence, there is 
no enforcement mechanism. If a consumer were to receive a 
robocall, they could ask to stop, but there currently would be 
no enforcement mechanism to stop those calls under the current 
language of H.R. 3035.
    Mr.Terry. Would the gentleman yield for one moment?
    Mr.Stearns. Sure, I would be glad to.
    Mr.Terry. Yes, that is a great point that you bring up and, 
Ms. Hand, you bring up, and Mr. Markey has brought it up. And 
that is one of the areas that we are willing to work on.
    Ms.Hand. Thank you.
    Mr.Stearns. Ms. Hand, another question. Do you agree that 
consumers benefit from the informational calls discussed by Ms. 
Schwartz and Mr. Alterman? And how can the proposed legislation 
be modified to allow such calls without opening the door to 
harassing--and I think you have touched on that.
    But, Mr. Alterman and Ms. Schwartz, do you agree with what 
Ms. Hand is saying in this area of changing the legislation?
    Ms.Schwartz. I think abusive and repetitive calls should 
not be permitted, just as they are already under protection on 
the FDCPA. But I think it is very important to be allowed, if 
you already have a business relationship, to alert people of 
opportunities to fix their loan before they go to foreclosure 
by a cell phone.
    Mr.Stearns. OK.
    Mr. Alterman?
    Mr.Alterman. Yes, let me make one thing perfectly clear: We 
do not want to make repetitive calls, and we would absolutely 
have no problem with language that would do that.
    I would like to make one comment, because a comment was 
made earlier that airlines already have the ability to notify 
people by this. And our industry, unfortunately, is one step 
removed. The phone numbers that are given are given to 
retailers, such as L.L.Bean. We get the phone numbers from them 
as part of the same transaction, but it is unclear--I could 
with a straight face argue that that constitutes consent, but 
it is unclear.
    And this bill would make it clear that--we would like this 
bill to make it clear that--that is all we want to do; we just 
want to tell someone there is a package ready.
    Mr.Stearns. Thank you, Mr. Chairman.
    Mr.Terry. Thank you.
    Mr. Doyle?
    Mr.Doyle. Thank you, Mr. Chairman.
    As I said in my opening remarks, I think the bill was well-
intentioned, but obviously I think we have a lot of work to do 
here.
    As I read this bill, if a person provides their phone 
number as a means of contact at any point during a business 
relationship with a company, then that constitutes prior 
express consent.
    I just bought a washer and dryer 2 weeks ago at an 
appliance store, and they wanted to give me, like, a 40-minute 
notice before they were going to arrive at my house so that 
somebody would be there. And they asked me for my phone number, 
and I gave it to them.
    Now, I don't ever want to hear from that appliance store 
anymore if they have TVs on sale or computers or whatnot, and I 
certainly don't want to start getting text messages from that 
company.
    So I guess what I want to ask Ms. Schwartz and Mr. Alterman 
and Mr. Altschul is, why do you think the mere giving of a 
phone number in a business relationship, you know, like the 
example I have just cited, why do you think that should imply 
that I want to hear from those companies in the future?
    Ms.Schwartz. Well, sir, that is an interesting analogy. I 
look at this completely from the mortgage experience. When you 
take out a 30-year mortgage and have a relationship with your 
bank or loan servicer, you should figure out the effective ways 
to communicate with each other. And if you don't have a 
landline and you don't communicate, you will go to foreclosure 
if you are not making your payments and you don't have an 
opportunity to talk to your counterparty to understand all of 
the options available to avoid that.
    Mr.Doyle. But isn't it as simple as--you know, people want 
to know how can we do this. It is simple: Ask. I mean, why 
don't you just--I mean, right now, TCPA and FCC rules allow 
people to say upfront, ``I want you to be able to contact me.'' 
And so it seems to me that, you know, your constituencies, you 
know, the mortgage business and whatever, you should just ask 
the consumer when you have that first contact with them, will 
you give us permission--or, do you give us permission to 
contact you if we have some information about our products or 
our services? And the person says, yes, I give you my 
permission. And I think that solves the problem. Just ask the 
consumer if they want to hear from people, and if the consumers 
say yes, case closed.
    But I have to tell you--and I especially worry about young 
people. Now, my kids, they can't afford these high bundled 
plans, Mr. Altschul, so they have these prepaid phones. And 
they don't talk on the phone anymore. If I want to talk to one 
of my kids, I have to text them or they don't answer me back, 
OK? I can't send emails or call their phone numbers; they just 
don't respond.
    But I know the plans. It is like you have so many texts you 
are allowed for one price, and then it goes--you know, because 
we end up paying every time they go over their text messages 
and they call crying to us that they don't have the money to 
pay their phone bill.
    The industry has already voluntarily said, you know, they 
are going to start notifying people when they are getting close 
to using up their plans so that they don't have the sticker 
shock, you know, when their bill comes. I mean, imagine----
    Mr.Altschul. We have done that on a free-to-the-end-user 
basis, by the way, so it won't generate usage calls----
    Mr.Doyle. Exactly. But imagine the calls you are going to 
start to get when these young kids start to get these text 
messages from these telemarketers that they don't want and it 
starts to run their bill up, either over their prepaid plan--
and they are going to be calling your companies complaining, 
you know, that they owe all this money for calls that they 
don't want to accept.
    So, I mean, Lee, I think this is simple. I think we just 
ask consumers if they want to hear from these folks. And if 
they indicate they do--I know when I go online and order a 
product, there is always a box there that says, would you like 
to hear from us on any future sales our company has? And I get 
to check the box, and then I get emails from that company.
    But I am saying, to me, I think it is pretty 
straightforward. Just ask people if they want to hear from you, 
and if they say yes, then they want to hear from you. If they 
say no, they don't want to hear from you, and don't call them. 
And I think that would solve the problem.
    Mr.Terry. We would appreciate working with you.
    Ms.Schwartz. May I follow up with that, sir?
    Mr.Doyle. Yes, sure. I have 40 seconds.
    Ms.Schwartz. My only point is, when you buy a house 4 or 5 
years earlier and your life changes and you are not in 
contact--and there are millions of people who are not in 
contact on their home loan today who are in trouble. And so any 
effective tool to reach them and have an effective conversation 
and invite them to participate is a meaningful way to----
    Mr.Doyle. And I think if you would say to that consumer 
when they buy the house, if there is a situation where we could 
provide different options for you if you have financial 
trouble, would you like us to be able to tell you what those 
things are, people can make that choice.
    Thank you, Mr. Chairman.
    Mr.Terry. Mr. Chairman?
    Mr.Walden. Well, thank you, Mr. Chairman. I appreciate your 
chairing this hearing and bringing this issue to our attention. 
Obviously, there are a lot of views on how you might get this 
done. And I know it is not your intent to open the door to 
random telemarketing calls. That is not what this is about.
    Mr.Terry. No.
    Mr.Walden. I have found it interesting, though--and I have 
been in the back in some meetings but also trying to keep an 
ear to the testimony--that there does seem to be this 
persistent issue about the way technology has changed. There 
are now more cell phones than there are citizens of this 
country in use in this country. People are cutting their 
landlines, and there are some legacy rules here.
    Now, I don't want random text messages from companies just 
to market to me. I don't want random cell phone calls. But I 
did note when our colleague from Tennessee talked about just 
the nature of FedEx being able to automate the call that says, 
``We are going to deliver the package to your house,'' I have 
encountered that where they call our landline but nobody is 
home, and so you get the call later and they couldn't leave the 
package, so now I have to call them, trace them down, figure 
out where to go get it and go through this drill. If there were 
a way that they could have just called my cell phone, then I 
would know, OK, I can run back to the house, or whatever is my 
home life.
    And so I am trying to figure out, is there a way to thread 
this needle that we don't open this door that I don't think 
anybody on this committee wants to open, on sort of random 
telemarketing calls to cell phones, but that allows that 
understanding of how technology has changed? Because if I 
understand this right, if there is a human dialing the number, 
that is OK. But if I pull it up on a computer screen and push a 
button, that is not OK.
    Now, I got to tell you--and I realize it is probably the 
race between gray and gone, the loss of memory, but I have 
trouble remembering people's phone numbers anymore because I 
pull out one of these devices and right here are my favorite 
phone numbers and my friends, family, or staff, and I just 
push, you know, ``Brian'' or ``Ray'' or whomever and it dials 
it automatically.
    Now, would that kind of a--is that an automatic dialer? It 
is not. Some of you say it is not; some say it is. Right? OK.
    Well somewhere, though, if I had to reach 30 people, I 
might have a system and basically say, call Bill, Ed, Ray, 
whoever is available, and I will talk to the first one you 
find. Is that the autodialer we are talking about here? So it 
is just--if they are all my friends or whatever. I don't know.
    So I think there is a way to get at modernizing the law 
without opening the door to unwanted solicitations and 
informational calls and all that stuff.
    So, anyway, I would yield to the chairman.
    Mr.Terry. All right, thank you. And I do think you hit on 
probably the ultimate point here. We focus on the technology 
change from wirelines to wireless, but the reality is the trap 
we are in is the technology of an operator dialing versus 
manually dialing versus clicking and having a computer program 
that would automatically dial, like, the school notices or all 
of that.
    So that is the technology that is hanging up the TCPA right 
now and is the good and the bad, and we have got to figure out 
how to draw that line. So I appreciate that.
    At this point, Mr. Barrow.
    Mr.Barrow. I yield my time to the gentleman from 
Massachusetts, Mr. Markey.
    Mr.Markey. I thank the gentleman very much.
    So I am the House author of the Telephone Consumer 
Protection Act of 1991, which is amended by this act. And I 
feel as strongly today as I did 20 years ago that consumers 
should not be subject to intrusive calls from telemarketers, 
whether they are at home or on their mobile phones.
    So we were looking, at that time, about people who were 
just ticked off that they were getting called just every night 
just around dinnertime. Just an amazing coincidence that they 
didn't call at 2:00 in the afternoon or 11:00 in the morning, 
but it was always just as people were sitting down to dinner, 
when parents were reading to their kids, when people were 
trying to unwind from a long day. And that is when everyone 
just started to call and the phone would just start ringing.
    So we banned autodialing and prerecorded calls to land 
lines and mobile phones, with certain exceptions. And we 
established the Do Not Call List, the law creating a zone of 
privacy that remains hugely popular with consumers to this day.
    So here is my question. Maybe, Ms. Hand or Attorney 
General, maybe you could help me with this. As we discuss this, 
let's just say Members of Congress get home late from wherever 
they go, OK, and they just start calling whatever their local 
takeout taxi is. And one day they are calling to have Italian 
food sent over; another day, Chinese, Ethiopian. Well, let's 
just say, by the end of the year they have called 20 different 
restaurants to have takeout taxi bring it over--you know, 
pizza, whatever.
    Now, under this proposed change, what would the 
relationship now be between those 20 restaurants and you at 
home, in terms of their ability to call you with the good news 
that the pu pu platter is now on sale or, you know, the new 
eggplant parmesan? Would that now make it possible for them to 
call you with all the great news that each one of the 20 have, 
even though you wanted a one-time relationship with them on the 
cheese pizza or, you know, the Chinese or other food?
    So help me with that. What happens under this proposed 
change in terms of my relationship with the restaurants in the 
greater Boston area?
    Ms.Hand. Well, Mr. Markey, you raise a really good point. 
Under the language of the bill as it currently is, this would 
now qualify as an established business relationship.
    Mr.Markey. That one-time call?
    Ms.Hand. That one time. You have called, you have made a 
purchase, and you have provided contact information. This would 
suffice to be an established business relationship for the 
purpose of receiving robocalls on your cell phone.
    Mr.Markey. Is that correct?
    Mr.Zoeller. Yes. And what I would like to point out is, in 
Indiana, we did not include a prior-business-relationship 
exception. So, in Indiana, you would not continue to get any 
other calls. They don't have a prior-business-relationship 
exemption so you don't get--when you are listed on our Do Not 
Call, you don't get calls.
    Mr.Markey. Would that be a nightmare situation for 
families, where every night they get a call in a different 
language letting them know that their favorite food----
    Mr.Zoeller. Well, I can tell you, in Indiana, if you would 
have not allowed for that prior-business-relationship exemption 
in the original act, you would have been much more popular than 
you are today.
    Mr.Markey. Yes. Yes.
    So if you give over your phone number--so now it is just 
your phone number, you know, is handed over to someone just to 
even get information. Now, under this proposed change, would 
just handing over your phone number now create a pre-existing 
business relationship for all purposes, even though you might 
not have even purchased something?
    Mr.Zoeller. Well, under the Federal statute. But, again, as 
long as we are not preempted, it would not create--because we 
don't have the exemption in Indiana. If you preempt us, though, 
and we have to follow the Federal model, Indiana would get the 
12, on average, calls per week that most people in the country 
do that have a Federal Do Not Call but not a tough law like we 
have in Indiana.
    Mr.Markey. So what is your answer to that, Ms. Schwartz? 
How do we protect it? You know, you want mortgage information 
because the individual's largest single, you know, investment 
in their lives could be at stake. But you hear all the other 
stuff that could now happen coming in under that exemption.
    So what would you do to protect against the tsunami of 
calls that would inundate people's cell phones? And people 
would have to pay for the right to have the text or have the 
phone call coming into them because it is on their bill.
    Ms.Schwartz. I am certainly not an expert on the breadth of 
the complex legal side of this, although it sounds like 
telemarketing to me. And I thought that was explicitly not--or 
that there was a protection against that in this bill. So I 
would thread the needle a little more closely to make sure that 
doesn't happen.
    Mr.Terry. Thank you, Mr. Markey.
    Mr.Markey. OK, that is great. Now, could I be recognized on 
my own time? I have been using----
    Mr.Shimkus. Reserving the right to object.
    Mr.Terry. Why don't we come back?
    Mr.Markey. All right, I will wait for my turn to come back.
    Mr.Terry. Mr. Shimkus?
    Mr.Shimkus. Thank you, Mr. Chairman. This has been a good 
panel and a great discussion because I think you can see where 
we are all trying to wrestle with this.
    Everyone has stories. I am from rural America. Propane is 
the heating fuel of choice. I have a constituent who dropped 
their landline. And the system was, with the propane industry, 
that when you would go low on propane, they would then dial you 
and say, hey, you are running low, you better fill up your 
propane. But since they dropped the landline, they couldn't get 
notified. And so, in the middle of the night, they ran out of 
propane, and, you know, that was not a good time to run out of 
propane, in the middle of the night in mid-December.
    So I think we are talking about making consent easier, 
where we understand the business relationship more defined so 
that, as Michael Doyle said--and I am glad he finally got a 
washer and a dryer. I have been hoping he would buy one for the 
last 10 years here. But, as he said, we want to make sure we 
establish a business relationship--if there is a business 
relationship and they opt in and say, ``We want to continue to 
have this communication,'' then we need to have this. And these 
constituents of mine want the propane company to be able to 
call them on their cell phone if their propane is running low. 
And so, that is what this is about.
    I have two questions, but I want to go to the attorney 
general first, because his story in answer to a question is 
really encompassing, kind of, our debate here in Washington.
    And maybe you want to restate it. You said you were pretty 
well promised that the State of Indiana would have been left 
alone in your ability to deal with this. However, the courts 
got involved; is that right? Can you explain that real quickly 
again?
    Mr.Zoeller. Well, the case of--I think the telemarketing 
companies had a client named the Patriotic Veterans 
Association, and they were wanting to blast out these robocalls 
to literally hundreds of thousands of people in Indiana because 
they had their numbers. They had given money to various 
charities over the years. They wanted to blast out these 
prerecorded phone calls.
    And the court, looking at the language of the TCPA, 
recognized that, just as this bill does, says that it is not to 
be preempted for intrastate. Therefore, since they did not 
mention interstate, if they choose to use robocalling equipment 
outside of our domestic robocallers in Indiana, they are free 
to do so because the Federal Government, although well-intended 
by Mr. Markey and others, had opened up the door to preemption.
    Mr.Shimkus. Right.
    Mr.Zoeller. So, after a decade of fighting us, they finally 
got a Federal judge to preempt our enforcement of our own 
statute.
    Mr.Shimkus. And that is a continuing debate we have here, 
about the unintended consequences. Going to the court and then 
changing the intent of the law, and then we have to come back 
and refine it. And that is a good thing to have on record on 
other issues that we debate here in Washington, D.C. And I 
enjoyed that--I will use that example in the future.
    Ms. Hand, Indiana's law allows autodialed calls from 
schools to parents and does not distinguish between calls to 
landlines and calls to cell phones. Do you think Indiana's law 
is unreasonable?
    Ms.Hand. Absolutely not. I think if the State legislature 
determines what is appropriate for its residents, that should 
hold and the State's law should not be preempted.
    Mr.Shimkus. Yes.
    And my time is running and we have votes, so, Mr. Alterman, 
talk about the benefit of text messaging. I have young kids 
still. Texting is the communication mode now. It was emails, it 
was phones, now it is texting. So talk about the importance of 
text messages.
    Mr.Alterman. I think that it is just--as things develop, as 
technology develops and the way our society develops, it is 
just becoming a more basic way of communicating. And some 
people like phones, some people like text messages. Text 
messages are a little less intrusive sometimes because nothing 
rings and you can answer them whenever. So it is becoming more 
of a way of contacting people.
    Mr.Shimkus. Although I think I woke up my son at 5:00 a.m. 
This morning because it vibrated. Kids sleep with their phones 
these days.
    So, anyway, thank you very much.
    I yield back, Mr. Chairman.
    Mr.Terry. Thank you, Mr. Shimkus.
    And we do have votes on the floor, which is--timing is 
perfect. Mr. Barrow, I--well, I recognize Mr. Markey.
    Mr.Markey. I thank the Chair.
    So I guess what we all want is, kind of, some commonsense 
rule here that doesn't have your phone ringing all night long, 
huh?
    Mr.Terry. Agreed.
    Mr.Markey. And if, you know, looking back 20 years at all 
the changes that have taken place, you know, we might want to 
tweak it here or there, that is one thing. But I think people 
love the peace and quiet of their home. And I also think that, 
when you are talking about people's new devices, since they 
have to pay for the right to have all of these communications--
and it is a little bit of a safety zone for people right now. 
That is, the only people who know your cell phone number are 
the people you give it to. You know, it is not in the phone 
book, it is not for everyone to know. And you can walk around 
not thinking that you are back at home, that this phone is 
going off 40 or 50 times because it is just some kind of 
public, you know, phone booth.
    So I think if we can work together to accomplish, kind of, 
the limited goals that people might have but not to open this 
thing wide but still to preserve for the attorney general and 
others the right to be able to give Hoosiers a little bit of 
additional protection if they would want to do so because of 
the independent nature of that State, that they just might want 
to give a little bit more protection to their consumers. And 
that is----
    Mr.Terry. Those are all things we would agree with, I would 
agree with.
    Mr.Markey. Beautiful.
    Mr.Terry. So let's work together. Appreciate that, Mr. 
Markey.
    And, Mr. Barrow, do you have any questions?
    Mr.Barrow. No, sir. I gave my time to Mr. Markey.
    Mr.Terry. Yes, twice.
    So thank you all. I think it has been a very productive 
hearing and gives us a path forward, with your advice and 
counsel.
    So, at this time, we are now adjourned.
    [Whereupon, at 10:25 a.m., the subcommittee was adjourned.]
    [Material submitted for inclusion in the record follows:]

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