[Senate Hearing 116-355]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 116-355

                          ILLEGAL ROBOCALLS: 
                    CALLING ALL TO STOP THE SCOURGE

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

                                HEARING

                               before the

SUBCOMMITTEE ON COMMUNICATIONS, TECHNOLOGY, INNOVATION AND THE INTERNET

                                 of the

                         COMMITTEE ON COMMERCE,
                      SCIENCE, AND TRANSPORTATION
                          UNITED STATES SENATE

                     ONE HUNDRED SIXTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             APRIL 11, 2019

                               __________

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





                  [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]






                 Available online: http://www.govinfo.gov

                               ______
                                 

                 U.S. GOVERNMENT PUBLISHING OFFICE

42-447 PDF                WASHINGTON : 2023













       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                     ONE HUNDRED SIXTEENTH CONGRESS

                             FIRST SESSION

                  ROGER WICKER, Mississippi, Chairman

JOHN THUNE, South Dakota             MARIA CANTWELL, Washington, 
ROY BLUNT, Missouri                      Ranking
TED CRUZ, Texas                      AMY KLOBUCHAR, Minnesota
DEB FISCHER, Nebraska                RICHARD BLUMENTHAL, Connecticut
JERRY MORAN, Kansas                  BRIAN SCHATZ, Hawaii
DAN SULLIVAN, Alaska                 EDWARD MARKEY, Massachusetts
CORY GARDNER, Colorado               TOM UDALL, New Mexico
MARSHA BLACKBURN, Tennessee          GARY PETERS, Michigan
SHELLEY MOORE CAPITO, West Virginia  TAMMY BALDWIN, Wisconsin
MIKE LEE, Utah                       TAMMY DUCKWORTH, Illinois
RON JOHNSON, Wisconsin               JON TESTER, Montana
TODD YOUNG, Indiana                  KYRSTEN SINEMA, Arizona
RICK SCOTT, Florida                  JACKY ROSEN, Nevada

                       John Keast, Staff Director
                  Crystal Tully, Deputy Staff Director
                      Steven Wall, General Counsel
                 Kim Lipsky, Democratic Staff Director
              Chris Day, Democratic Deputy Staff Director
                      Renae Black, Senior Counsel

                                 ------                                

SUBCOMMITTEE ON COMMUNICATIONS, TECHNOLOGY, INNOVATION AND THE INTERNET

JOHN THUNE, South Dakota, Chairman
ROY BLUNT, Missouri                  BRIAN SCHATZ, Hawaii, Ranking
TED CRUZ, Texas                      AMY KLOBUCHAR, Minnesota
DEB FISCHER, Nebraska                RICHARD BLUMENTHAL, Connecticut
JERRY MORAN, Kansas                  EDWARD MARKEY, Massachusetts
DAN SULLIVAN, Alaska                 TOM UDALL, New Mexico
CORY GARDNER, Colorado               GARY PETERS, Michigan
MARSHA BLACKBURN, Tennessee          TAMMY BALDWIN, Wisconsin
SHELLEY MOORE CAPITO, West Virginia  TAMMY DUCKWORTH, Illinois
MIKE LEE, Utah                       JON TESTER, Montana
RON JOHNSON, Wisconsin               KYRSTEN SINEMA, Arizona
TODD YOUNG, Indiana                  JACKY ROSEN, Nevada
RICK SCOTT, Florida








                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on April 11, 2019...................................     1
Statement of Senator Thune.......................................     1
    Letter dated April 11, 2019 to Hon. John Thune and Hon. 
      Edward Markey from Genevieve Morelli, President, ITTA......    52
Statement of Senator Schatz......................................     3
Statement of Senator Wicker......................................     4
Statement of Senator Blackburn...................................    29
Statement of Senator Klobuchar...................................    30
Statement of Senator Fischer.....................................    32
Statement of Senator Blumenthal..................................    34
    Article from The Wall Street Journal entitled, ``The FCC Has 
      Fined Robocallers $208 Million. It's Collected $6,790.''...    35
Statement of Senator Gardner.....................................    39
Statement of Senator Markey......................................    41
Statement of Senator Capito......................................    43
Statement of Senator Tester......................................    45
Statement of Senator Young.......................................    47
Statement of Senator Sinema......................................    50

                               Witnesses

Hon. Doug Peterson, Attorney General, State of Nebraska..........     4
    Prepared statement...........................................     6
Kevin Rupy, Partner, Wiley Rein, on Behalf of USTelecom--The 
  Broadband Association..........................................     7
    Prepared statement...........................................     9
Margot Freeman Saunders, Counsel, National Consumer Law Center...    13
    Prepared statement...........................................    14

                                Appendix

Letter dated April 11, 2019 to Hon. John Thune and Hon. Brian 
  Schatz from Brad Thaler, Vice President of Legislative Affairs, 
  National Association of Federally-Insured Credit Unions........    55
Response to written questions submitted by Hon. Edward Markey to:
    Hon. Doug Peterson...........................................    56
    Margot Freeman Saunders......................................    56










 
                          ILLEGAL ROBOCALLS: 
                    CALLING ALL TO STOP THE SCOURGE

                              ----------                              


                        THURSDAY, APRIL 11, 2019

                               U.S. Senate,
       Subcommittee on Communications, Technology, 
                       Innovation and the Internet,
        Committee on Commerce, Science, and Transportation,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10:02 a.m. in 
room SH-216, Hart Senate Office Building, Hon. John Thune, 
Chairman of the Subcommittee, presiding.
    Present: Senators Thune [presiding], Schatz, Wicker, 
Fischer, Blackburn, Klobuchar, Blumenthal, Gardner, Markey, 
Capito, Tester, Young, and Sinema.

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

    Senator Thune. Good morning, everyone. Welcome to our 
hearing today, we will be addressing a topic that we can all 
agree on. Illegal and abusive robocalls must end.
    No one is immune to these illegal and potentially dangerous 
calls. It's no surprise that unsolicited robocalls consistently 
rank among the top consumer complaints to the Federal Trade 
Commission and to the Federal Communications Commission.
    One report estimated that robocallers rang Americans' 
mobile phones over 26 billion times last year alone. Illegal 
and abusive robocalls are a clear problem, but it's important 
to remember that automated calls are not inherently negative.
    Many important services are carried out via such calls when 
companies and call recipients have a pre-established 
relationship. For example, if you're on your way to the airport 
and your flight is canceled, if there's a fraud alert on your 
credit card, or if you're being reminded of an upcoming medical 
appointment, these are calls that are important to consumers. 
Different rules of the road apply to these types of calls and 
they should.
    Our focus today is on the unscrupulous use of robocalls, 
something that has earned bipartisan scorn. Almost a year ago, 
when I was Chairman of the Commerce Committee, I subpoenaed the 
mass robocallers Adrian Abramovich to testify about his 
operation. He's facing $120 million in FCC penalties for making 
nearly a hundred million robocalls throughout the country.
    His testimony shed light on the reality that many 
robocallers view the risk of getting caught and paying civil 
fines as a cost of business. Illegal calling operations are 
often based abroad and can disappear quickly when authorities 
seek to hold them accountable.
    Since subpoenaing Mr. Abramowitz, I have introduced the 
Telephone Robocall Abuse Criminal Enforcement and Deterrence or 
TRACED Act with Senator Markey, bipartisan legislation 
targeting the worst of the worst, scam artists and others who 
knowingly violate the law.
    A credible threat of criminal prosecution is necessary and 
appropriate for those who knowingly flout laws to prey upon the 
elderly and other vulnerable populations.
    The TRACED Act mandates that Federal law enforcement, state 
attorneys general, and telecommunications experts work together 
to determine what systems and what potential modifications to 
our laws will create a credible threat of prosecution and 
prison for those who intentionally violate the law.
    I've also heard from Federal enforcers that requiring a 
warning citation before the FCC can act against an illegal 
robocaller and the current one-year statute of limitations 
necessitating the initiation of a fine within a year from when 
an illegal call is made are hampering their ability to hold bad 
actors accountable.
    The TRACED Act will give the FCC three years to identify 
robocallers who intentionally violate the law and eliminates 
the need for a preliminary citation.
    New technologies have also made it easier for scammers to 
hide from law enforcement and seek to gain their victims' trust 
by using a technique known as ``spoofing'' where they display 
fake caller ID information.
    The goal of scammers using spoofed robocalls is often to 
get money out of unsuspecting recipients and some of their 
methods can be particularly malicious.
    The TRACED Act tackles the frustrating issue of spoofing by 
requiring the FCC to adopt an industry-developed framework for 
call authentication and, importantly, the bill makes it easier 
for carriers to lawfully block calls that aren't properly 
authenticated.
    Ultimately, this will help stop such calls from reaching 
your phone. These improvements may not stop every illegal 
robocall, but they will go a long way toward making it safe to 
answer your phone again.
    That's why I'm pleased that the Commerce Committee 
unanimously reported the TRACED Act out of Committee last week 
and it is now moving to the Full Senate for consideration.
    I'm also grateful for Senator Markey for partnering with me 
on this legislation. I will work to get the TRACED Act to the 
President's desk as soon as possible.
    I mentioned earlier that solving this issue is going to 
require a variety of stakeholders to get together. Today, we 
have the opportunity to hear from the Honorable Doug Peterson, 
who serves as the Attorney General for the State of Nebraska.
    State attorneys general are actively enforcing Do Not Call 
laws and educating consumers about scam robocalls. Industry's 
also been working diligently to develop new call authentication 
technology to provide consumers relief from illegal robocalls.
    So I'm glad to welcome Mr. Kevin Rupy and Ms. Margot 
Saunders of the National Consumer Law Center who can speak to 
these efforts.
    I want to thank you all for being here today, and I'll hand 
it off now to Senator Schatz for an opening statement.

                STATEMENT OF HON. BRIAN SCHATZ, 
                    U.S. SENATOR FROM HAWAII

    Senator Schatz. Thank you, Mr. Chairman. Thank you for 
being here.
    This is an important issue. It's an issue that crosses 
state lines, party lines, phone lines, and unites all 
Americans. We've all heard complaints from constituents about 
robocalls, stories about people being harassed by debt 
collectors, about calls on mobile phones with familiar-looking 
caller ID numbers that turn out to be fake.
    I got a text from my mother on Tuesday, ``I'm reaching out 
to my senator. I just got spam calls to my own landline 
supposedly from my landline. What is the regular person 
supposed to do except grin and bear it?'' So I texted back, 
``On it!''
    [Laughter.]
    Senator Schatz. Robocalls have turned us into a nation of 
call screeners, only picking up when we are sure it is a number 
that we know, and I think this is an important sort of 
underappreciated downside to robocalls. It's not just a 
nuisance. Certainly the fraud is the biggest deal. But the fact 
that a lot of people don't use their phones as phones anymore 
for that reason is a significant economic issue and it needs to 
be addressed.
    The first step toward taking on robocalls is to make sure 
that the enforcers have the authority that they need. That's 
why in the last Congress I reintroduced the Robocall 
Enforcement Enhancement Act which would extend the FCC's 
statute of limitations and give it authority to find bad actors 
without providing a warning and that's why I voted to advance 
Senator Thune and Markey's TRACED Act out of the Commerce 
Committee last week, but we're not going to stop this problem 
with enforcement alone.
    We also need to scale our efforts with technology. We must 
fight bad technology with good technology. So I'm looking 
forward to hearing from our witnesses today about the prospects 
for using validation and blocking tools and other tech to fight 
back. These tools should not be an excuse for providers to make 
more money or invade consumers' privacy.
    Finally, there may be more that we can do to educate 
consumers. Are we doing enough to help people avoid being 
tricked by scams in the first place? Do they know about the 
tools available to identify or block unwarranted calls or the 
best way to report illegal calls?
    I look forward to the hearing today and working with 
Chairman Thune and members of the Subcommittee to address this 
frustrating issue.
    Thank you.
    Senator Thune. Thank you, Senator Schatz.
    We're glad to be joined today by the Chairman of the Full 
Committee, Senator Wicker, who was instrumental in helping us 
move the bill out of the Committee last week.
    So, Senator Wicker, recognize you for an opening statement.

              STATEMENT OF THE HON. ROGER WICKER, 
                 U.S. SENATOR FROM MISSISSIPPI

    Senator Wicker. Thank you, Chairman Thune and Senator 
Schatz.
    I agree with both of you that this is an important hearing 
and a very important issue that has long plagued consumers, 
particularly the Nation's most vulnerable and underserved 
populations.
    Senator Schatz, I, too, got a call from my dad in Pontotoc, 
Mississippi just last month about a malicious phone call, so 
join the club. I'm doing my best on the matter regarding 
illegal robocalls.
    As technology evolves and becomes more sophisticated, 
criminals and bad actors in the marketplace take advantage of 
new calling features to engage in illegal activity. As the 
Chairman said, spoofing, there's neighbor spoofing where 
robocallers use local numbers in hopes that recipients will be 
more likely to pick up the phone. Other times, the robocallers 
engage in malicious spoofing where the perpetrator is able to 
alter or manipulate caller ID information. Many have fallen 
victim to scams and other fraudulent schemes of this sort.
    I strongly support the TRACED Act which, as the Chair 
pointed out, passed out of the Full Committee last week. This 
legislation would provide meaningful reforms to curb fraudulent 
and abusive robocalls and so I thank the authors of this 
legislation for their leadership on this Act and I hope we can 
bring it to the Floor in a bipartisan fashion soon.
    Thank you to the witnesses for being with us today. We look 
forward to a nice discussion.
    Thank you, sir.
    Senator Thune. Thank you, Chairman Wicker.
    We're going to have, I think, Senator Fischer is here and 
would like to recognize you, General Peterson, but I assume 
she's at another, I think, Armed Services Committee hearing. So 
she will be by later, but in the meantime, we'll let you all 
get going.
    I want to thank you all for being here. We have with us 
today, as I mentioned, the Attorney General for the State of 
Nebraska, Mr. Doug Peterson; followed by Mr. Kevin Rupy, who is 
a Partner in Wiley Rein, representing USTelecom--the Broadband 
Association; and Ms. Margot Saunders of Washington, D.C., 
Counsel for the National Consumer Law Center.
    So thank you all for being here. We look forward to hearing 
from you and asking you some questions.
    We'll start with you, Attorney General, on my left and your 
right, and proceed and if you could confine your oral remarks 
to around 5 minutes, it'll give us optimum time to ask 
questions.
    So thank you for being here. Please proceed.

  STATEMENT OF HON. DOUG PETERSON, ATTORNEY GENERAL, STATE OF 
                            NEBRASKA

    Mr. Peterson. Good morning, Chairman Thune and Ranking 
Member Schatz, and the Esteemed Members of this Subcommittee.
    I'm Doug Peterson, the Attorney General from the State of 
Nebraska, and I'm here to provide a state attorney general's 
perspective on protecting consumers from the scourge of illegal 
robocalls and phone scammers.
    Thank you for the opportunity to testify on this important 
issue.
    State attorneys general are on the front lines of helping 
consumers who are harassed and scammed by unwanted calls. 
Robocalls and telemarketing calls are currently the Number One 
source of consumer complaints for many AG offices as well as 
both the FCC and the FTC.
    In response, attorneys general bring enforcement actions 
against telemarketers and robocallers under state and Federal 
law, both in our individual capacities and collectively with 
the U.S. Department of Justice and the FTC.
    In 2015, 10 attorneys general partnered with the FTC to sue 
a Florida-based cruise line company that conducted a 
telemarketing campaign that issued billions of robocalls. In 
2017, four AGs and the U.S. Department of Justice obtained a 
$280 million judgment against DISH Network for knowingly 
engaging in pervasive telemarketing misconduct, such as placing 
repeated calls to people on the Do Not Call Registry and using 
pre-recorded messages.
    However, law enforcement alone is not enough. As 
acknowledged in the FCC's Staff Report on Robocalls released 
this year, stopping illegal calls before they reach consumers 
is especially important because, unlike legitimate callers, 
these nuisance callers will not be deterred by the prospect of 
enforcement knowing that they will be very difficult to locate.
    For more than four years, we have been a loud and sometimes 
critical voice in the fight to make call blocking a reality for 
consumers. In September 2014, 39 AGs asked the FCC to clarify 
whether Federal law was interfering with efforts by service 
providers to implement call blocking technology.
    Ultimately, in June 2015, the FCC clarified that Federal 
law does not prohibit voice service providers from offering 
upon consumer request call blocking technology.
    In July 2017, AGs responded in support of the FCC's 
proposal to allow voice service providers to block several 
types of obviously spoofed robocalls, such as the originating 
from the unassigned telephone numbers or impossible telephone 
number combinations.
    Thirty-five AGs submitted similar comments to the FCC in 
October 2018.
    We have known for years that the technological solutions 
are a significant part of the answer. Since 2015, though, it 
has been up to consumers to find, purchase, and otherwise adopt 
call blocking technology. They have downloaded apps for their 
smart phones or enrolled in a service provided by their 
carrier, yet the problem continues to grow. So we must do more 
and that's why I appreciate the actions taken by the Senate in 
this matter.
    In the last three years, industry participants have made 
significant progress toward development and implementation of 
the Call Authentication Framework, known as STIR/SHAKEN, but 
even the best solutions won't help consumers if industry 
participants and regulators fail to collaborate on the 
implementation.
    This means the widespread adoption of STIR/SHAKEN so that 
many consumers benefit from the caller ID authentication as 
possible. It also means industry-wide cooperation on trace-back 
efforts so that law enforcement can more easily identify 
perpetrators of these illegal mass callings.
    For these reasons and just last month, attorney generals 
from all 50 states and the District of Columbia and 33 U.S. 
territories submitted a letter to Chairman Wicker expressing 
our support of the TRACED Act and I must say when you get 50 
AGs and the District of Columbia and 3 territory AGs, you've 
accomplished a significant task and it shows really how 
significant this is to all the states.
    We believe this legislation effectively addresses many of 
the concerns raised by the Federal regulatory service 
providers, private businesses, consumer advocacy groups, and 
other interested parties to combat illegal robocalls and 
spoofing.
    We are pleased to see that the TRACED Act requires 
implementation of the STIR/SHAKEN, affirms that service 
providers' authority to block certain calls and creates a safe 
harbor for the inadvertent blocking of legitimate calls, and, 
furthermore, the attorney generals are very encouraged about 
the interagency working group because we feel it's going to be 
an important partnership for state AGs to work closely with 
Federal authorities in order to consult with solutions on this 
problem.
    I thank you Senator Thune, Senator Markey, and Senator 
Fischer and many of the cosponsors of the TRACED Act for their 
support of this important fight. The AGs look forward to 
providing comments to the FCC if and when the time comes to 
implement accompanying regulations, and I look forward to 
answering your questions.
    [The prepared statement of Mr. Peterson follows:]

        Prepared Statement of Doug Peterson, Attorney General, 
                           State of Nebraska
    Good morning Chairman Thune, Ranking Member Schatz, and esteemed 
members of the Subcommittee. I'm Doug Peterson, Attorney General for 
the State of Nebraska, and I am here to provide my office's perspective 
on protecting consumers from the scourge of illegal robocalls. Thank 
you for the opportunity to testify on this important issue.
    State attorneys general are on the front lines of helping consumers 
who are harassed and scammed by unwanted calls. Robocalls and 
telemarketing calls are currently the number one source of consumer 
complaints at many of our offices, as well as at both the Federal 
Communications Commission (FCC) and the Federal Trade Commission (FTC). 
In response, Attorneys General bring enforcement actions against 
telemarketers and robocallers under state and Federal law, both in our 
individual capacities and collectively with the U.S. Department of 
Justice and the FTC.
    In 2015, ten state AGs partnered with the FTC to sue a Florida-
based cruise-line company that conducted a telemarketing campaign 
resulting in billions of robocalls.\1\ In 2017, four AGs and the U.S. 
Department of Justice obtained a $280 million judgment against Dish 
Network for knowingly engaging in pervasive telemarketing misconduct, 
such as placing repeated calls to people on the National Do Not Call 
Registry and using prerecorded messages.
---------------------------------------------------------------------------
    \1\ Caribbean Cruise Line, Inc. and the other defendants agreed to 
injunctive terms barring them from calling consumers whose phone 
numbers are on the DNC Registry, spoofing caller ID information, and 
placing illegal robocalls.
---------------------------------------------------------------------------
    Law enforcement alone, though, is not enough. As acknowledged in 
the FCC's Staff Report on Robocalls released this year, stopping 
illegal calls before they reach consumers is especially important 
because--unlike legitimate callers--these nuisance callers will not be 
deterred by the ``prospect of enforcement [action] and [are] especially 
difficult to locate.'' \2\
---------------------------------------------------------------------------
    \2\ Report on Robocalls, CG Docket No. 17-59 (released Feb. 14, 
2019).
---------------------------------------------------------------------------
    For more than four years, we have been a loud--and sometimes 
critical--voice in the fight to make call blocking a reality for 
consumers. In September 2014, 39 attorneys general asked the FCC to 
clarify whether Federal law was interfering with efforts by service 
providers to implement call-blocking technology.\3\ Ultimately, in June 
2015, the FCC clarified that Federal law does not prohibit voice 
service providers from offering, upon a customer's request, call-
blocking technology.\4\
---------------------------------------------------------------------------
    \3\ Letter from Thirty-Nine (39) State Attorneys General to 
Chairman Wheeler, (dated Sept. 9, 2014).
    \4\ FCC, CG Docket No. 02-278, Declaratory Ruling and Order, FCC 
15-72 (June 18, 2015).
---------------------------------------------------------------------------
    And in July 2017, 30 attorneys general responded in support of the 
FCC's proposal to allow voice service providers to block several types 
of obviously spoofed robocalls--such as those originating from 
unassigned telephone numbers or impossible telephone number 
combinations.\5\ 35 attorneys general submitted similar comments to the 
FCC in October 2018.\6\
---------------------------------------------------------------------------
    \5\ FCC, Advanced Methods to Target and Eliminate Unlawful 
Robocalls, CG Docket No. 17-59, Report and Order, FCC 17-151 (Nov. 17, 
2017).
    \6\ See Advanced Methods to Target and Eliminate Unlawful 
Robocalls, Reply Comments of Thirty-Five (35) State Attorneys General, 
CG Docket No. 17-59 at 2-3 (filed Oct. 8, 2018).
---------------------------------------------------------------------------
    We have known for years that technological solutions are part of 
the answer. Since 2015, though, it has been up to consumers to find, 
purchase, or otherwise adopt call-blocking technology. They had to 
download ``apps'' for their smartphones or enroll in a service provided 
by their carrier; and yet the problem continued to grow. We must do 
more. And more can be done with caller ID authentication and the STIR/
SHAKEN standards.
    In the last three years, industry participants have made 
significant progress towards development and implementation of the call 
authentication framework known as STIR/SHAKEN. But even the best 
solutions won't help consumers if industry participants and regulators 
fail to collaborate on implementation. This means widespread adoption 
of STIR/SHAKEN--so that as many consumers benefit from caller ID 
authentication as possible--and appropriate consumer education--so that 
consumers can still meaningfully interpret caller ID. It also means 
industry-wide cooperation on traceback efforts, so that law enforcement 
can more easily identify the perpetrators of these illegal, mass-
calling campaigns.
    For these reasons, on March 6, 2018, Attorneys General from all 50 
states, the District of Columbia, and 3 U.S. territories submitted a 
letter to Chairman Wicker expressing their support for the Telephone 
Robocall Abuse Criminal Enforcement and Deterrence Act--also known as 
the TRACED Act. We believe this legislation effectively addresses many 
of the concerns raised by Federal regulators, service providers, 
private businesses, consumer advocacy groups, and other interested 
parties to combat illegal robocalls and spoofing. We are pleased to see 
that the TRACED Act requires implementation of STIR/SHAKEN, affirms the 
service provider's authority to block certain calls, and creates a safe 
harbor for the inadvertent blocking of legitimate calls.
    I thank Senator Thune, Senator Markey, Senator Fischer, and the 
many co-sponsors of the TRACED Act for their support in this important 
fight, and I look forward to providing comments to the FCC if, and 
when, the times comes to implement its accompanying regulations. I look 
forward to answering your questions.

    Senator Thune. Thank you, Mr. Peterson.
    Mr. Rupy.

         STATEMENT OF KEVIN RUPY, PARTNER, WILEY REIN,

       ON BEHALF OF USTELECOM--THE BROADBAND ASSOCIATION

    Mr. Rupy. Chairman Thune, Ranking Member Schatz, Members of 
the Subcommittee, thank you for giving me the opportunity to 
appear before you today.
    My name is Kevin Rupy, and I am a Partner in the 
Telecommunications Media Technology Practice at Wiley Rein, and 
I am here today on behalf of USTelecom--The Broadband 
Association.
    USTelecom shares the Committee's concerns on illegal 
robocalls and is pleased to support the TRACED Act.
    Since I last testified before the Senate in 2018, there 
have been three significant developments in this area and I 
would like to mention a fourth point.
    First, since last year, industry has undertaken 
considerable efforts to deploy call authentication 
technologies, commonly referred to as SHAKEN/STIR, that will 
significantly diminish the ability of illegal robocallers to 
spoof caller ID information.
    Companies are deploying these standards into their networks 
today and will continue to do so throughout 2019.
    Second, consumers today have more tools than ever at their 
disposal to mitigate illegal or unwanted robocalls. Hundreds of 
such tools are available to consumers on their smart phones and 
a broad range of voice providers are integrating these tools 
into their networks.
    Third, USTelecom's industry trace-back group efforts, which 
seek to identify illegal robocallers, had been significantly 
enhanced through recent automation. The time it now takes to 
trace back illegal robocalls has been reduced from weeks to 
days, sometimes even hours.
    Fourth, while the Federal civil enforcement actions of the 
FCC and FTC are laudatory and effective, increased criminal 
enforcement against illegal robocallers is needed.
    Let me briefly address each of these issues. First, the 
industry-led governance authority for the SHAKEN standard was 
established last year under ATIS, the standards body 
coordinating industry implementation of the SHAKEN protocol.
    ATIS will identify the policy administrator in May and will 
oversee day-to-day operations of the SHAKEN standard. In short, 
industry is moving swiftly to implement this important call 
authentication technology.
    Once implemented, the ability of illegal robocallers to 
spoof caller ID information will be significantly reduced, 
while consumer knowledge about the validity of incoming calls 
will increase.
    As this process moves forward, broad sectors of industry 
are already deploying the SHAKEN standard into their networks. 
Several U.S. Telecom member companies have publicly advised the 
FCC of these deployment efforts with most targeting deployments 
in their IP networks as soon as the end of 2019.
    Testing of the new technology and products is well 
advanced. Just last month, Comcast and AT&T successfully 
verified authentication of calls between their networks and 
Verizon announced the first exchange of STIR/SHAKEN-enabled 
calls to and from wireless handsets.
    Second, consumers today can access more tools than ever to 
protect them from illegal robocalls. Between October 2016 and 
March 2018, the number of smart phone applications available 
increased from 85 to 550.
    Equally important, more voice providers are integrating 
these tools into their networks. For example, AT&T provides the 
Call Protect Service that allows its customers with certain 
handsets to block suspected fraudulent calls.
    In March of this year, Verizon rolled out new spam alerting 
and call blocking tools to wireless customers whose smart 
phones support these features.
    Carriers are also deploying various tools across their TDM 
and IP wireline networks, such as anonymous call rejection and 
no solicitation, and several have worked with or are currently 
working with Nomorobo's blocking service.
    Third, late last year, USTelecom's 26-member industry 
Traceback Group transitioned its manual process to one that is 
largely automated. The FCC recently acknowledged that 
USTelecom's manual process had reduced the time necessary for 
the agency to conduct its own investigations from months to 
weeks and the automated process is expected to produce even 
greater efficiencies.
    Finally, while current Federal enforcement efforts are 
laudatory, they are mostly limited to civil enforcement. There 
is an acute need for aggressive criminal enforcement against 
illegal robocallers at Federal and state levels.
    Criminal syndicates engaged in illegal robocalling activity 
should be targeted and brought to justice through aggressive 
criminal enforcement efforts. We applaud the TRACED Act's 
facilitation of these efforts.
    In closing, let me again thank the Committee for holding 
this timely hearing. USTelecom shares your concerns with the 
scourge of illegal robocalls and we look forward to our 
continued work together to address this challenge.
    [The prepared statement of Mr. Rupy follows:]

            Prepared Statement of Kevin Rupy, On Behalf of 
                  USTelecom--the Broadband Association
    Chairman Thune, Ranking Member Schatz, Members of the Subcommittee, 
thank you for giving me the opportunity to appear before you today.
    My name is Kevin Rupy, and I am a Partner in the 
Telecommunications, Media, and Technology Practice at Wiley Rein LLP, 
and I am here today on behalf of USTelecom--The Broadband Association. 
USTelecom shares the Committee's concerns on illegal robocalls, and is 
pleased to support the TRACED Act.
    Since I last testified before the Senate in 2018, there have been 
three substantial developments in the area of illegal robocalls, and I 
will also emphasize a fourth point.

   First, since last year, industry has undertaken considerable 
        efforts to deploy call authentication technologies, commonly 
        referred to as SHAKEN/STIR, that will substantially diminish 
        the ability of illegal robocallers to spoof caller-ID 
        information. Companies are deploying these standards into their 
        IP networks today and will continue to do so throughout 2019.

   Second, consumers today have more tools than ever at their 
        disposal to mitigate illegal or unwanted robocalls. Hundreds of 
        such tools are available to consumers on their smartphones and 
        a broad range of voice providers are increasingly integrating 
        these tools into their networks.

   Third, USTelecom's Industry Traceback Group (``ITB Group'') 
        efforts, which seek to identify illegal robocallers, have been 
        significantly enhanced through recent automation of the 
        traceback process. The time it now takes to trace back illegal 
        robocalls has been reduced from weeks to days--sometimes even 
        hours.

   Fourth, while the Federal civil enforcement actions of the 
        Federal Communications Commission (FCC) and Federal Trade 
        Commission (FTC) are laudatory and effective, increased 
        criminal enforcement against illegal robocallers is needed.
Industry Has Demonstrated a Strong Commitment to the Deployment of 
        SHAKEN/STIR
    First, the industry-led Governance Authority for the SHAKEN 
standard was established last year under The Alliance for 
Telecommunications Industry Solutions (ATIS), the standards body 
coordinating industry implementation of the SHAKEN protocol. ATIS will 
identify the Policy Administrator in May, that will oversee the day-to-
day operations of the SHAKEN standard. In short, industry is swiftly 
moving to implement this important call authentication technology. Once 
implemented, the ability of illegal robocallers to spoof caller-ID 
information will be significantly reduced, while consumer knowledge 
about the validity of incoming calls will increase.
    Central to this effort is the development of the separate SHAKEN 
and STIR standards and best practice implementations. While deployment 
of the SHAKEN and STIR standards is not a panacea to the robocall 
problem, these standards should improve the reliability of the Nation's 
communications system by better identifying legitimate traffic. The 
deployment of the SHAKEN standard will also facilitate the ability of 
stakeholders (such as USTelecom's ITB Group) to identify illegal 
robocalls and the sources of untrustworthy communications.
    There is strong industry commitment to the deployment of the SHAKEN 
and STIR standards. Numerous voice providers--representing the 
wireless, wireline and cable industries--have committed to deploying 
the SHAKEN and STIR standards within their respective networks. These 
include commitments from several companies with nationwide wireless 
coverage, as well as several large facilities based voice providers.\1\ 
While there are some differences in the specific timelines to 
deployment of the SHAKEN and STIR standards, and deployment depends on 
the timely and practical availability of vendor network upgrades and 
applications, the commitments generally reflect deployments starting in 
2018, with most targeting deployments in their IP networks as soon as 
the end of 2019.
---------------------------------------------------------------------------
    \1\ See e.g., FCC website, Combating Spoofed Robocalls with Caller 
ID Authentication, (available at: https://www.fcc.gov/call-
authentication) (visited April 9, 2019).
---------------------------------------------------------------------------
    In addition, the Call Authentication Trust Anchor Working Group 
(CATA WG) of the North American Numbering Council (NANC) completed its 
work last year to investigate a variety of issues associated with the 
SHAKEN/STIR system.\2\ Testing of the new technology and products is 
well advanced. Just last month, Comcast and AT&T successfully verified 
authentication of calls between their separate networks, and Verizon 
announced the first exchange of STIR/SHAKEN-enabled calls to and from 
wireless customers.
---------------------------------------------------------------------------
    \2\ See, Report on Selection of Governance Authority and Timely 
Deployment of SHAKEN/STIR NANC Call Authentication Trust Anchor Working 
Group (available at: http://nanc-chair.org/docs/mtg_docs/
May_18_Call_Authentication_Trust_Anchor_NANC_Final_Report.pdf) (visited 
April 8, 2019).
---------------------------------------------------------------------------
    After issuing its report to the FCC, the NANC CATA WG also selected 
a Governance Authority to establish the policies for the SHAKEN 
certificate management framework. The Governance Authority--ATIS--has 
moved forward with its work. The Board of Directors for the Governance 
Authority was selected last year, and includes representatives from a 
broad range of industry constituencies, including large and small voice 
providers, as well as a diversity of network providers. The diversity 
and commitment of the Governance Authority Board of Directors will help 
to facilitate a controlled and productive deployment of the SHAKEN 
standard.
An Increasing Number of Robocall Mitigation Tools are Available to 
        Consumers Across Multiple Voice Platforms, Including TDM
    Today, a broad range of voice providers, independent application 
developers and a growing number of diverse companies are offering 
services that can help Americans reduce unknown and potentially 
fraudulent calls. While these tools are not a panacea to the robocall 
problem, they are an important component that empowers consumers with 
the increased ability to better identify and/or block illegal or 
unwanted robocalls. Of particular note, an increasing number of 
robocall mitigation tools are being deployed by facilities-based 
providers themselves.
    For example, AT&T has launched its `Call Protect' service that 
allows customers with iPhones and HD Voice enabled Android handsets to 
automatically block suspected fraudulent calls. AT&T also offers AT&T 
Digital Call Protect for IP wireline phones.\3\ When the app is 
installed and set up, AT&T will automatically block fraudulent calls, 
warn of suspected spam calls, and allow consumers to block unwanted 
calls from a specific number for free.
---------------------------------------------------------------------------
    \3\ See, AT&T website, AT&T Mobile Security & Call Protect 
(available at: https://www.att.com/features/security-apps.html) 
(visited April 8, 2019).
---------------------------------------------------------------------------
    In addition, last year, Verizon launched its Spam Alerts service 
which provides its wireline customers who have Caller ID--whether they 
are on copper or fiber--with enhanced warnings about calls that meet 
Verizon's spam criteria by showing the term ``SPAM?'' before a caller's 
name on the Caller ID display. Verizon's Spam Alerts feature utilizes 
TNS's Call Guardian and Neustar's Robocall Mitigation solution to 
proactively identify illegal robocalls and other fraudulent caller 
activity with more accuracy. By using existing Caller-ID technology, 
the service empowers consumers to better decide if they should answer a 
particular call. Verizon has also rolled out spam alerting and call 
blocking tools to wireless customers whose smartphones support these 
features.
    Carriers are also deploying a variety of additional tools across 
their TDM and IP networks, including ``anonymous call rejection'' 
services that block callers who intentionally mask their phone numbers 
and ``no solicitation'' services that make unidentified callers go 
through a screening step before ringing. Numerous service providers 
have worked with or are currently working with Nomorobo to facilitate 
their customers' ability to use that third-party blocking service, such 
as Verizon's ``one click'' solution that simplifies customers' ability 
to sign up for the service. In addition, the company Metaswitch also 
provides a robocall blocking service that supports all voice 
infrastructures and switches, from legacy Class 5 TDM to Metaswitch's 
pure VoIP systems.\4\
---------------------------------------------------------------------------
    \4\ See, Metaswitch website, Robocall Blocking Service, (available 
at: https://www.meta
switch.com/solutions/fixed-line-solutions/robocall-blocking-service) 
(visited April 8, 2019).
---------------------------------------------------------------------------
    In the wireless arena, the number of scoring and labelling 
analytics tools for consumers has exploded. In 2016 there were 
approximately 85 call-blocking applications available across all 
platforms, including several offered by carriers to their customers at 
no charge. By October, 2018, there were over 550 applications 
available, a 495 percent increase in call blocking, labeling, and 
identifying applications to fight malicious robocalls. The diversity in 
tools across multiple platforms demonstrates industry's commitment to 
empower consumers, regardless of the type of network utilized by their 
chosen voice service provider.
Industry Traceback Efforts are Crucial to Combatting the Scourge of 
        Illegal Robocalls
    An equally important tool for reducing illegal robocalls is a 
robust traceback process with vigorous and consistent enforcement 
action. Since 2016, USTelecom has led the 26-member ITB Group whose 
members are committed to identifying the source of illegal robocalls, 
and working with law enforcement to bring these illegal perpetrators to 
justice. The 2017 Strike Force Report contains a detailed overview of 
the Traceback Group, and its general structure and operations.\5\
---------------------------------------------------------------------------
    \5\ See, Ex Parte Notice, from USTelecom, CTIA, ATIS, and ACT--The 
App Association, CG Docket No. 17-59, pp. 19--23 (submitted April 28, 
2017) (available at: https://ecfsapi.fcc.gov/file/10428413802365/
Ex%20Parte-Strike-Force-Report-2017-04-28-FINAL.pdf) (visited Sept. 24, 
2018).
---------------------------------------------------------------------------
    There are currently twenty-six members of the ITB Group, which 
includes traditional wireline phone companies, wholesale carriers, 
wireless providers, and cable companies. The membership also includes 
foreign carriers (e.g., Bell Canada), and non-traditional voice 
providers (e.g., Google and YMax).
    Since late 2017, USTelecom has been making enforcement referrals to 
the FCC and the FTC. This cooperation between industry and government 
can help to administratively streamline the enforcement efforts of both 
the FCC and the FTC. The Communications Act permits voice providers to 
share customer proprietary network information (CPNI) in order to 
protect their customers and/or networks, enabling USTelecom's ITB Group 
to quickly and efficiently identify the path of calls under 
investigation.\6\
---------------------------------------------------------------------------
    \6\ Section 222(d)(2) of the Communications Act permits 
telecommunications carriers to share, disclose and/or permit access to, 
Customer Proprietary Network Information in order to ``protect the 
rights or property of the carrier, or to protect users of those 
services and other carriers from fraudulent, abusive, or unlawful use 
of, or subscription to, such services.'' See, 47 U.S.C. Sec. 222(d)(2).
---------------------------------------------------------------------------
    This in turn, means that neither the FCC nor the FTC must go 
through the time-consuming process of issuing subpoenas to each and 
every provider in the call path--instead, they can focus such efforts 
only on those upstream providers that have declined to cooperate with 
the efforts of the Traceback Group. Indeed, just last year, the FCC 
acknowledged that USTelecom's manual traceback process had reduced the 
time necessary for the agency to conduct its own traceback 
investigations from ``months to weeks.'' \7\
---------------------------------------------------------------------------
    \7\ See, Letter from Rosemary Harold, Chief, Enforcement Bureau, 
and Eric Burger, Chief Technology Office, to Jonathan Spalter, 
President and CEO, USTelecom, p. 1, November 6, 2018 (available at: 
https://docs.fcc.gov/public/attachments/DOC-354942A2.pdf) (visited 
April 8, 2019).
---------------------------------------------------------------------------
    The most significant development regarding USTelecom's ITB Group is 
the last year's transition of USTelecom's its manual traceback process 
to one that is largely automated. The automated process is expected to 
produce even greater efficiencies for both ITB Group tracebacks, as 
well as subsequent investigations by the FCC and the FTC.
    While numerous providers have joined USTelecom's ITB Group, and 
many others cooperate in good faith, too many upstream carriers refuse 
to cooperate. This not only prevents the ITB Group from identifying the 
true origin of these malicious calling events, but it makes subsequent 
law enforcement investigations more time consuming. Given the crucial 
role of traceback in mitigating illegal robocalls, Congress and Federal 
enforcement agencies should strongly encourage voice providers to 
participate in traceback efforts.
Criminal Enforcement of Illegal Robocallers is Needed
    Finally, while current Federal enforcement efforts are laudatory, 
they are mostly limited to civil enforcement. There is an acute need 
for aggressive criminal enforcement against illegal robocallers at 
Federal and state levels. Criminal syndicates engaged in illegal 
robocalling activity should be identified, targeted and brought to 
justice through criminal enforcement efforts. We applaud the TRACED 
Act's facilitation of these criminal enforcement efforts.
    USTelecom applauds government efforts in the robocall fight, 
particularly the ongoing civil enforcement actions by the FCC and FTC. 
For example, the FCC last year, approved a $120 million fine against 
one illegal robocallers responsible for generating billions of calls. 
The FTC also continues to engage in a series of complementary 
enforcement actions that target the worst of the worst bad actors in 
this space.
    These civil enforcement actions brought by both agencies send a 
strong and powerful message to illegal robocallers that they will be 
located and brought to justice. USTelecom and its industry partners 
stand ready to further assist in these efforts to bring these bad 
actors to justice. Indeed, the ultimate goal of USTelecom's ITB Group 
is to identify the source of the worst of these illegal calls, and 
further enable further enforcement actions by Federal agencies.
    While current Federal enforcement efforts are laudatory, they are 
mostly limited to civil enforcement. As a result, bad actors currently 
engaged in criminal robocall activities are--at most--subject only to 
civil forfeitures. USTelecom believes there is an acute need for 
coordinated, targeted and aggressive criminal enforcement of illegal 
robocallers at the Federal level and in conjunction with state 
attorneys general. Given the felonious nature of their activities, 
criminal syndicates engaged in illegal robocalling activity should be 
identified, targeted and brought to justice through criminal 
enforcement efforts.
    To further underscore the need for criminal enforcement of illegal 
robocallers, the FTC announced this month that it reached a settlement 
with four separate operations, two of which allegedly facilitated 
``billions of illegal robocalls to consumers nationwide.'' \8\ Of 
particular note in the FTC's announcement is the acknowledgement that 
two of the individuals named in the complaint are ``recidivist 
robocallers,'' who were each targeted in FTC lawsuits brought in 2017 
and 2018. In fact, the FTC noted that certain of these recidivist 
robocallers were ``permanently banned from making robocalls, or 
assisting others in doing so.'' \9\
---------------------------------------------------------------------------
    \8\ See, FTC Press Release, FTC Crackdown Stops Operations 
Responsible for Billions of Illegal Robocalls, March 26, 2019 
(available at: https://www.ftc.gov/news-events/press-releases/2019/03/
ftc-crackdown-stops-operations-responsible-billions-illegal) (visited 
April 8, 2019).
    \9\ Id.
---------------------------------------------------------------------------
    It is clear that more than civil enforcement is necessary to 
address illegal robocalling. We believe, in particular, that U.S. 
Attorneys' offices across the country should prioritize enforcement 
where Federal statutes, such as the Truth in Caller ID Act, are 
implicated, and should work closely with the FCC and FTC and 
international partners in enforcement cases, particularly when the 
calls originate outside of the United States.
    Another possible vehicle could be the Task Force on Market 
Integrity and Consumer Fraud, comprised of a number of divisions of the 
Department of Justice (DOJ), including the FBI and various United 
States Attorney's Offices as designated by the Attorney General.\10\ 
The focus of the Task Force is to investigate and prosecute consumer 
and corporate fraud that targets the public and the government, with a 
particular emphasis on the elderly, service members and veterans. Given 
its focus on fraud directed towards consumers, as well as the inclusion 
of criminal enforcement agencies, the Task Force could be an ideal 
vehicle for pursuing criminal enforcement against illegal robocallers. 
The TRACED Act's establishment of an interagency working group under 
the Attorney General, will also further enhance Federal and state 
criminal law enforcement efforts against illegal robocallers.
---------------------------------------------------------------------------
    \10\ See, White House Executive Order, Executive Order Regarding 
the Establishment of the Task Force on Market Integrity and Consumer 
Fraud, July 11, 2018 (available at: https://www.whitehouse.gov/
presidential-actions/executive-order-regarding-establishment-task-
force-market-integrity-consumer-fraud/) (visited July 20, 2018).
---------------------------------------------------------------------------
    While a holistic approach is essential to broadly address the issue 
of robocalls, robust enforcement efforts targeting illegal robocallers 
are most effective since they address the activity at the source. For 
example, consumer-centric tools may stop a series of calls from 
reaching tens of thousands consumers, whereas root-cause removal stops 
millions of calls from ever being dialed.

    Senator Thune. Thank you, Mr. Rupy.
    Ms. Saunders.

    STATEMENT OF MARGOT FREEMAN SAUNDERS, COUNSEL, NATIONAL 
                      CONSUMER LAW CENTER

    Ms. Saunders. Chairman Thune, Senator Schatz, Members of 
the Subcommittee, I appreciate the opportunity today to testify 
on the importance of maintaining the integrity of the Telephone 
Consumer Protection Act as a primary tool to address unwanted 
robocalls.
    My testimony is on behalf of the low-income clients of the 
National Consumer Law Center and five other national consumer 
organizations.
    We very much appreciate Chairman Thune and Senator Markey's 
leadership in this area by sponsoring the TRACED Act. We want 
to talk about some of the other things that need to be done.
    Last month, Americans received 5.2 billion robocalls, a 
phenomenal 370 percent increase since 2015. The data 
illustrates that the majority of robocalls are not overt scams. 
They are calls made by American corporations or on behalf of 
American corporations selling products and collecting debts. 
These callers claim to be the victims of a TCPA crisis but it's 
a crisis of their own making.
    So-called legitimate businesses, often using lead 
generators who make the calls, are responsible for almost a 
billion telemarketing robocalls just last month to sell car 
insurance, health insurance, car warranties, home security 
systems, resort vacations, and more.
    If the rate of telemarketing non-scam calls continues at 
the current pace, in 2019, there will be over 11 billion non-
scam telemarketing robocalls in the United States.
    In addition to telemarketers, major American corporations 
make an enormous number of robocalls to collect debts. Many 
debt collection calls are made to people who are behind in 
their payments but the calls are made dozens of times a week in 
an attempt to harass people into paying. Other robocalls are 
made to people who have nothing to do with the debts. Examples 
of these harassing debt collection calls are in my testimony.
    A significant reason for the escalation of robocalls is 
that many of the offending callers anticipate a caller-friendly 
response from the FCC from their many requests to the FCC to 
loosen restrictions on robocalls. This is evidenced by the 
spike in calls that occurred right after last year's decision 
by the D.C. Circuit Court in ACA International v. FCC 
illustrated on Page 5 of my testimony. That decision set aside 
a 2015 Order on the question of what calling systems are 
included in the TCPA's definition for an automated dialer.
    The calling industry's response to this decision is 
perfectly illustrated by the request by the U.S. Chamber, 
joined by 16 major national industries, requesting the FCC to 
loosen restrictions on robocalls.
    The TCPA is straightforward. It does not prohibit 
robocalls. It simply requires expressed consent before calls 
are made to cell phones with an automated dialer or a pre-
recorded voice or before telemarketing calls are made to 
residences.
    The law is not out of date, as some claim. The problem is 
that the callers want to make robocalls without worrying about 
having this consent and they do not want to stop calling 
consumers when the consumers say stop.
    If their requests are granted, the number of automated 
calls will skyrocket and there will be no protections against 
automated texts.
    Finally, the rules to stop unwanted robocalls must remain 
privately enforceable. Individual consumers harmed by invasive 
calls must be able to obtain redress for that harm and private 
enforcement through class actions is essential to deter 
violations.
    FCC enforcement unfortunately does not accomplish this 
goal. The Wall Street Journal reported a few weeks ago that the 
FCC had collected only 6,700 in fines against violators of the 
TCPA.
    I'd be happy to answer any questions. Thank you.
    [The prepared statement of Ms. Saunders follows:]

Prepared Statement of Margot Freeman Saunders, Senior Counsel, National 
                          Consumer Law Center
    Chairman Thune, Senator Schatz, and Members of the Committee, I 
appreciate the opportunity to testify today on the importance of 
maintaining the integrity of the Telephone Consumer Protection Act 
(TCPA) for consumers. I provide my testimony here today on behalf of 
the low-income clients of the National Consumer Law Center (NCLC), and 
on behalf of Consumer Action, Consumer Federation of America, National 
Association of Consumer Advocates, Public Knowledge, and U.S.PIRG.
I. Introduction
    Americans were subjected to 5.2 billion robocalls last month--an 
increase by a phenomenal 370 percent just since December 2015.\1\ This 
explosion of robocalls invades our privacy, distracts us, disrupts our 
lives, costs us money, and undermines the utility of the American 
telephony system.
---------------------------------------------------------------------------
    \1\ See YouMail Robocall Index, available at https://
robocallindex.com/(last accessed Apr. 4, 2019).
---------------------------------------------------------------------------
    The explosion of robocalls is not just a problem of calls that are 
overt scams, such as calls made by criminals to steal identities or 
defraud people into making payments to avoid spurious threats. Major 
American corporations, many of which are household names, are a large 
part of the cause of the proliferation of robocalls that plague 
Americans every day. These corporations are the defendants in actions 
in the Federal courts in most every state, and more tellingly, they are 
generally the leaders in the effort currently waging in the halls of 
the Federal Communications Commission (FCC) to weaken critical 
interpretations of the Telephone Consumer Protection Act (TCPA).\2\ 
These callers are claiming to be the victims of a TCPA crisis--but it 
is a crisis of their own creation. The primary purpose of this 
testimony is to illustrate this, and ask this Congress to protect 
consumers, not robocallers.
---------------------------------------------------------------------------
    \2\ 47 U.S.C. Sec. 227.
---------------------------------------------------------------------------
    The TCPA is straightforward and clear. It does not prohibit all 
robocalls. The law and the TCPA regulations that implement it simply 
require two main things with respect to robocalls and robotexts. First, 
a call or text can be made to a cell phone using an automatic telephone 
dialing system (ATDS) or a prerecorded voice only with the prior 
express consent of the person called, and the consent must be in 
writing if it is a telemarketing call. Second, prior express written 
consent is also required for any prerecorded telemarketing call to a 
residential line. (There are exceptions for calls relating to an 
emergency or to collection of a debt owed to the United States.) The 
elegance of this construct is that it gives us--the people being 
called--control over our own phones.
    The current problem is not with the TCPA. (It is not out-of-date as 
some claim.) The problem is that the callers want to make the robocalls 
without worrying about having that consent. And they do not want to 
stop calling when consumers say ``stop.''
    In this testimony I will first address the fact that it is major 
American corporations that are responsible for most of the robocalls we 
all deplore, and discuss why the number of calls is escalating so 
alarmingly. I will then discuss several particular problems in 
enforcing the TCPA, with recommendations for what Congress and the 
Federal Communications Commission (FCC) should do to resolve them.
II. Major American Corporations Are Responsible for the Majority of 
        Robocalls
    The majority of robocalls are made by, or at the behest of, major 
American corporations. Large, respected national corporations with whom 
many of us do business every day are responsible for hundreds of 
millions of telemarketing robocalls every month. The creditors with 
whom we all do business regularly make an equivalent number of unwanted 
robocalls to collect debts. The majority of robocalls made every day to 
our home phones and our cell phones are not overt scam calls, but calls 
made by so-called ``legitimate businesses.'' \3\
---------------------------------------------------------------------------
    \3\ Averaging the monthly totals for the different types of calls 
on YouMail's Robocall Index indicates that according to their analysis, 
37 percent of robocalls are scams. The rest of the calls are 23 percent 
debt collection calls (including payment reminders), 18 percent 
telemarketing, and 22 percent alerts and reminders.
---------------------------------------------------------------------------
    Major American corporations make directly--or are responsible for--
a vast number of intrusive, annoying, repeated telemarketing calls to 
our landlines and cell phones--selling car insurance,\4\ health 
insurance,\5\ car warranties,\6\ home security systems,\7\ resort 
vacations,\8\ and more. Some of these calls push products and services 
that are shoddy, overpriced, or of dubious value, and some may push 
real bargains, but all of these calls annoy us, interrupt us, and 
invade our privacy. If the rate of telemarketing calls continues at the 
current pace, in 2019 there will be over $11.2 billion telemarketing 
robocalls made in the United States.
---------------------------------------------------------------------------
    \4\ See Smith v. State Farm Mut. Auto. Ins. Co., 30 F. Supp. 3d 765 
(N.D. Ill. 2014).
    \5\ See Sullivan v. All Web Leads, Inc., 2017 WL 2378079 (N.D. Ill. 
June 1, 2017). See also Northrup v. Innovative Health Ins. Partners, 
L.L.C., 329 F.R.D. 443 (M.D. Fla. 2019) (text messages).
    \6\ See Mey v. Enterprise Fin. Group, Case No. 2:15-cv-00463 (M.D. 
Fla. filed Aug. 3, 2015).
    \7\ See In re Monitronics Int'l Inc., Telephone Consumer Prot. Act. 
Litig., Case No. 1:13-md-02493 (N.D. W. Va. filed Feb. 28, 2014). See 
also Braver v. Northstar Alarm Servs., L.L.C., 329 F.R.D. 320 (W.D. 
Okla. 2018) (regarding 75 million prerecorded voice calls to sell home 
security systems).
    \8\ See Glasser v. Hilton Grand Vacations Co., L.L.C., 341 F. Supp. 
3d 1305 (M.D. Fla. 2018), appeal to 11th Circuit pending.
---------------------------------------------------------------------------
    There are dozens of cases against corporate defendants seeking 
redress for tens of millions of unwanted and illegal telemarketing 
robocalls. Just a few of these cases holding American corporations 
responsible for making hundreds of millions of telemarketing calls 
include:

   Insurance: Smith v. State Farm Mut. Auto. Ins. Co.\9\ In 
        this case, the court held State Farm liable for the TCPA 
        violations of a lead-generator marketing company it had used to 
        market its insurance products. Calls were made to over 80,000 
        consumers.
---------------------------------------------------------------------------
    \9\ 30 F.Supp.3d 765 (N.D.Ill.2014).

   Home Security Systems: Mey v. Monitronics Int'l, Inc.\10\ 
        The named-plaintiff had received over 19 calls from a broker 
        calling to sell home security services, even though she had 
        listed her telephone number on the national Do Not Call 
        Registry. These telemarketing calls were made by lead 
        generators on behalf of a Monitronic's dealer. Calls were made 
        to more than 7.7 million phone numbers. Monitronics claimed 
        that it was not responsible for these calls made by others to 
        sell its services.
---------------------------------------------------------------------------
    \10\ 959 F. Supp. 2d 927 (N.D. W. Va. 2013). See also In re 
Monitronics Int'l, Inc., Telephone Consumer Prot. Act. Litig., Case No. 
1:13-md-02493 (N.D. W. Va. filed Aug. 31, 2017) (settlement agreement)

   Cruises: McCurley v. Royal Seas Cruises, Inc.\11\ After the 
        cruise line claimed it was not responsible for the calls made 
        by lead generators, who referred interested consumers to Royal 
        Seas after telemarketing calls, the court allowed the case to 
        proceed as a class action challenging the legality of 634 
        million calls \12\ to the cell phones of 2.1 class members \13\ 
        in violation of the TCPA.
---------------------------------------------------------------------------
    \11\ 2019 WL 1383804 (S.D. Cal. Mar. 27, 2019).
    \12\ Id. at *9.
    \13\ Id. at *10.

   Bank: Ott v. Mortgage Investors Corp. of Ohio, Inc.\14\ A 
        mortgage lender robocalled over 3.5 million people to push them 
        into refinancing their mortgages with loans guaranteed by the 
        U.S. Department of Veterans Affairs.
---------------------------------------------------------------------------
    \14\ 65 F. Supp. 3d 1046 (D. Or. 2014).

   Film Studio: Golan v. Veritas Entertainment, L.L.C.\15\ A 
        film studio made over 3 million unsolicited calls as part of a 
        six day telemarketing campaign to promote the film ``Last Ounce 
        of Courage.''
---------------------------------------------------------------------------
    \15\ 2017 WL 2861671 (E.D. Mo. July 5, 2017).

   National Cell Provider: Hageman v. AT&T Mobility L.L.C.\16\ 
        A large telemarketing campaign conducted by AT&T that pushed 
        its wireless service produced a class action settlement. Many 
        of these calls were repeat calls to the same consumers: the 
        plaintiff received over 53 automated, prerecorded calls on his 
        cell phone in less than two years.
---------------------------------------------------------------------------
    \16\ 2015 WL 9855925 (D. Mont. Feb. 11, 2015).

   Business Services Provider: Thomas v. Dun & Bradstreet 
        Credibility Corp.\17\ Repeated telemarketing calls, even after 
        requests to stop, to advertise business services to over 1 
        million individuals.
---------------------------------------------------------------------------
    \17\ Case No. 2:15-cv-03194 (C.D. Cal. filed Apr. 28, 2015).

    In addition to telemarketers, major American corporations make an 
enormous number of robocalls to collect debts. Many of these callers 
repeatedly and flagrantly violate the consumer protections of the TCPA, 
simply paying off consumers when they are sued, and then continuing 
their patterns of calling. Many debt collection calls are made to 
people who owe money but are behind on their payments, but many others 
are made to people who have nothing to do with the debts.
    Below are just a few examples of problematic debt collector 
robocallers. These cases all involve hundreds--if not thousands--of 
calls, and all involve multiple calls after repeated requests from the 
consumer to stop calling.

  1.  Robertson v. Navient Solutions.\18\ Shortly after Ms. Robertson 
        acquired a Certified Nursing Assistant certificate, which she 
        had funded with student loans, she experienced health problems, 
        and also had to care for her dying father. She was unable to 
        work, and applied for disability benefits. She received a 
        forbearance on her Federal student loans, but not for her 
        private student loans. Ms. Robertson made payments when she was 
        able. However, payments did not stop the calls. In total, 
        Navient called Ms. Robertson a total of 667 times, and called 
        522 times after she told them to stop calling. Navient would 
        call back the same day even when Ms. Robertson told the 
        collection agent that she would not have any money to pay until 
        the following month.
---------------------------------------------------------------------------
    \18\ Robertson v. Navient Solutions, Inc., Case No.: 8:17-cv-01077-
RAL-MAP (M.D. Fla. filed May 8, 2017).

  2.  Gold v. Ocwen Loan Servicing, L.L.C.\19\ The plaintiff consented 
        to being contacted about his mortgage debt, and answered 
        several collection calls, but then asked for the calls to stop. 
        However, the servicer called his cell phone at least 1,281 
        times between April 2, 2011 and March 27, 2014, despite 
        repeated requests to stop.
---------------------------------------------------------------------------
    \19\ 2017 WL 6342575 (E.D. Mich. Dec. 12, 2017).

  3.  Montegna v. Ocwen Loan Servicing, L.L.C.\20\ The servicer called 
        the plaintiff on his cell phone at least 234 times, even after 
        he requested that the calls stop.
---------------------------------------------------------------------------
    \20\ 2017 WL 4680168 (S.D. Cal. Oct. 18, 2017).

  4.  Todd v. Citibank.\21\ Some time in January 2016, the bank began 
        calling the plaintiff's cell phone. The 350 calls were often 
        made twice a day, even after repeated requests to stop 
        calling.\22\
---------------------------------------------------------------------------
    \21\ 2017 WL 1502796 (D.N.J. Apr. 26, 2017).
    \22\ Id. at *8.

  5.  Karl Critchlow v. Sterling Jewelers Inc. (aka Jared).\23\ The 
        complaint alleges that Jared robocalled Mr. Critchlow more than 
        300 times, several times a day and on back-to-back days, even 
        after he begged for the calls to stop, saying he simply did not 
        have the money to pay the debt. The case was settled with a 
        confidentiality agreement.
---------------------------------------------------------------------------
    \23\ Case No. 8:18-cv-00096 (M.D. Fla. filed Jan. 12, 2018).

    There are hundreds of similar cases filed in courts around the 
Nation every month. Most of these are settled, and in return for the 
settlement consumers are required to sign confidentiality clauses, 
which prohibit either them or their lawyers from disclosing the details 
of the settlements. These confidentiality settlements prevent reviewing 
courts from evaluating the repeated and persistent nature of the 
callers' behavior, and shields them from liability for systematic 
practices that violate the TCPA.
III. Why Are the Calls Increasing?
    A significant reason for the escalation in robocalls is that many 
callers are anticipating a caller-friendly response to the many 
requests they have submitted to the FCC to loosen restrictions on 
robocalls. This is evidenced by the spike in calls that occurred right 
after last year's decision in March 2018 by the D.C. Circuit Court in 
ACA International v. F.C.C.\24\ That decision set aside a 2015 FCC 
order on the question of what calling technology is included in the 
definition of an automatic telephone dialing system (ATDS),\25\ and 
raised the specter that the term might be interpreted not to cover the 
autodialing systems that are currently used to deluge cell phones with 
unwanted calls.
---------------------------------------------------------------------------
    \24\ 885 F.3d 687 (D.C. Cir. 2018)
    \25\ 47 U.S.C. Sec. 227(a)(1).
---------------------------------------------------------------------------
         Increase in Robocalls December 2015 through March 2019

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    The calling industry's response to this decision is perfectly 
illustrated by the request of the U.S. Chamber Institute for Legal 
Reform (U.S. Chamber),\26\ joined by sixteen major national 
industries,\27\ to the FCC to loosen restrictions on robocalls. It is 
essential to understand, that if the request of the U.S. Chamber were 
to be granted, the scourge of robocalls will skyrocket.
---------------------------------------------------------------------------
    \26\ In re Rules & Regulations Implementing the Telephone Consumer 
Protection Act of 1991, U.S. Chamber Institute for Legal Reform, 
Petition for Declaratory Ruling, CG Docket No. 02-278 (filed May 3, 
2018), available at https://ecfsapi.fcc.gov/file/105112489220171/
18050803-5.pdf.
    \27\ These industries include: ACA International, American 
Association of Healthcare Administrative Management, American Bankers 
Association, American Financial Services Association, Consumer Bankers 
Association, Consumer Mortgage Coalition, Credit Union National 
Association, Edison Electric Institute, Electronic Transactions 
Association, Financial Services Roundtable, Insights Association, 
Mortgage Bankers Association, National Association of Federally-Insured 
Credit Unions, National Association of Mutual Insurance Companies, 
RestaurantLaw Center, and Student Loan Servicing Alliance.
---------------------------------------------------------------------------
    Additionally, losing defendants in judicial actions typically seek 
redress from the FCC by asking for retroactive waivers for the 
liability they face after courts have found that they have made 
millions of robocalls without consent. And there are dozens of 
petitions currently pending at the FCC asking for special 
interpretations or exemptions, which seek to allow industries to ignore 
the basic rule of the TCPA that express consent must be provided before 
automated calls can be made to our cell phones. We ask you to encourage 
the FCC to hold the line and enforce the TCPA. Allowing waivers and 
exemptions undermines compliance, and leads to increased unwanted 
robocalls.
IV. What Should Be Done to Rein in Robocalls?
    To rein in robocalls, five steps are necessary:

  1.  We need to be able to identify who the caller is when calls come 
        in to our phones.

  2.  The TCPA's broad scope must be upheld so that it applies to the 
        unwanted automated calls Americans receive.

  3.  The rules must give us the ability to limit and control the calls 
        to our phones.

  4.  Sellers must not be allowed to hide behind the third parties they 
        hire.

  5.  The rules must be enforceable in a way that provides a) 
        individuals harmed with the ability to obtain redress for their 
        harms, and b) incentives to the callers to comply with the law.
A. Identifying Who Is Calling
    To decide whether to answer the phone one must know who is calling. 
This requires that both the name displayed--if a name is displayed--and 
the phone number displayed be accurate.
    There is a new technology, which the telecom industry has been 
developing, known as SHAKEN/STIR, for better verifying the accuracy of 
caller ID information.\28\ And the TRACED Act,\29\ which your Committee 
approved last week, would expedite the implementation of this 
technology. NCLC joined with other consumer groups in strongly 
endorsing this legislation.
---------------------------------------------------------------------------
    \28\ See Press Release, Federal Communications Commission, Chairman 
Pai Calls on Industry to Adopt Anti-Spoofing Protocols to Help 
Consumers Combat Scam Robocalls (Nov. 5, 2018), available at https://
docs.fcc.gov/public/attachments/DOC-354933A1.pdf.
    \29\ This bill, sponsored by U.S. Sens. John Thune (R-S.D.) and Ed 
Markey (D-Mass.), is the Telephone Robocall Abuse Criminal Enforcement 
and Deterrence (TRACED) Act, S. 151.
---------------------------------------------------------------------------
    Even though this legislation takes an important and welcome step, 
it is important for us all to realize that the work will not be over, 
even as to rooting out spoofed calls. In its current form, as I 
understand it, SHAKEN/STIR would capture only phone numbers that can be 
reliably identified as not belonging to the caller. It will thus not 
catch situations in which a robocaller purchases actual numbers, 
perhaps in the thousands, from a legal source, and then uses those 
numbers to make calls that mask the robocaller's real identity. Nor is 
it apparent how it would, or could, capture calls originating from 
carriers overseas that have not implemented the technology.
    Ultimately, if we can't actually identify who the real caller is, 
we don't have good information about whether to answer the phone.
    The TCPA contains this provision:

        (c) It shall be unlawful for any person within the United 
        States, in connection with any telecommunications service or 
        IP-enabled voice service, to cause any caller identification 
        service to knowingly transmit misleading or inaccurate caller 
        identification information with the intent to defraud, cause 
        harm, or wrongfully obtain anything of value, unless such 
        transmission is exempted pursuant to paragraph (3)(B).\30\
---------------------------------------------------------------------------
    \30\ 42 U.S.C. Sec. 227(e)(1) (emphasis added).

    This provision makes caller ID spoofing illegal only if the 
spoofing is done with wrongful intent. This is a very difficult 
standard to prove. This provision does not prevent telemarketers and 
debt collectors from spoofing phone numbers.
Recommendations:
    1) Congress should pass the TRACED Act, S. 151;
    2) The TCPA should be amended specifically to prohibit the 
transmission of misleading or inaccurate caller ID information, except 
in limited circumstances necessary for law enforcement or the 
protection of the callers (but caller ID suppression should still be 
permissible); and
    3) Telephone service providers should be required to prevent the 
connection of calls (or texts) for which the caller-ID is not attached 
to a known customer, whose name and address matches the originating 
call provider's information for that number.
B. The TCPA Must Be Interpreted Broadly to Apply to the Calling Systems 
        Used Today
    The TCPA is a remedial statute that must be liberally interpreted 
to further its purpose of protecting consumers' privacy and stopping 
unwanted, intrusive calls.\31\ Given this mandate, it would be a grave 
error to interpret the statute's definition of ``automatic telephone 
dialing system'' \32\ (ATDS or ``autodialer'') narrowly, resulting in 
effective nullification of the prohibition against autodialed calls to 
cell phones without the called party's consent. Yet that is exactly 
what much of corporate America is applying heavy pressure on the FCC to 
do.
---------------------------------------------------------------------------
    \31\ See, e.g., Parchman v. SLM Corp., 896 F.3d 728, 738-739 (6th 
Cir. 2018); Daubert v. NRA Grp., L.L.C., 861 F.3d 382, 390 (3d Cir. 
2017); Van Patten v. Vertical Fitness Grp., 847 F.3d 1037, 1047-48 (9th 
Cir. 2017).
    \32\ Senators Markey, Menendez, Gillibrand, Warren, Wyden, and 
Cortez Masto urged the FCC to issue ``a comprehensive definition of the 
term autodialer. . . .'' (June 26, 2018) available at https://
www.markey.senate.gov/imo/media/doc/autodialer percent20letter.pdf.
---------------------------------------------------------------------------
    The TCPA defines an ATDS as equipment that ``has the capacity--(A) 
to store or produce telephone numbers to be called, using a random or 
sequential number generator; and (B) to dial such numbers.'' \33\ In 
our view, and the view of a number of courts,\34\ this definition 
encompasses both systems that store numbers and dial them 
automatically, and systems that generate numbers and dial them 
automatically, and only the latter must use a random or sequential 
number generator. Other courts, however, take the position that a 
system must use ``a random or sequential number generator'' to qualify 
as a covered ATDS under the TCPA.\35\
---------------------------------------------------------------------------
    \33\ 47 U.S.C Sec. 227(a)(1).
    \34\ Marks v. Crunch San Diego, L.L.C., 904 F.3d 1041 (9th Cir. 
2018). Accord Evans v. Pa. Higher Educ. Assistance Agency, 2018 WL 
6262637 (N.D. Ga. Oct. 11, 2018). See also Getz v. DirecTV, L.L.C., F. 
Supp. 3d ___, 2019 WL 850254 (S.D. Fla. Feb. 20, 2019); Adams v. Ocwen 
Loan Servicing, L.L.C., 2018 WL 6488062 (S.D. Fla. Oct. 29, 2018); 
Davis v. Diversified Consultants Inc., 36 F. Supp. 3d 217 (D. Mass. 
2014); Echevvaria v. Diversified Consultants, Inc., 2014 WL 929275 
(S.D.N.Y. Feb. 28, 2014), adopted by 2014 WL 12783200 (S.D.N.Y. Apr. 
22, 2014).
    \35\ See, e.g., Pinkus v. Sirius XM Radio, Inc., 319 F. Supp. 3d 
927 (N.D. Ill. 2018). Accord Thompson-Harbach v. USAA Fed. Sav. Bank, 
2019 WL 148711 (N.D. Iowa Jan. 9, 2019). See also Johnson v. Yahoo!, 
Inc., 346 F. Supp. 3d 1159 (N.D. Ill. Nov. 29, 2018); Gary v. Trueblue, 
Inc., 346 F. Supp. 3d 1040 (E.D. Mich. 2018).
---------------------------------------------------------------------------
    The issue is of great importance, because robodialing and 
robotexting technology are what enables so many billions of calls to be 
made every year. Yet many of the calling systems in use today do not 
call numbers randomly. Instead, they are ``predictive dialers'' that 
generate call lists from a database of numbers, and then robodial or 
robotext those numbers. For example, a telemarketer may purchase a list 
of consumers who have proven to be easy marks in the past; a debt 
collector will call numbers believed to belong to debtors; or a seller 
may buy a list of consumers who are believed to be interested in a 
certain type of product. If the definition of ATDS were interpreted so 
narrowly that it did not apply to dialing systems that automatically 
dial from lists--those systems that are in use today--there would be no 
way to stop this onslaught.
    A Ninth Circuit decision, Marks v. Crunch San Diego, L.L.C.,\36\ is 
the leading decision for an interpretation of ATDS that encompasses the 
dialers used today. After a meticulous analysis of the statutory 
language, the Ninth Circuit determined that an ATDS includes systems 
that simply store and automatically dial numbers.\37\
---------------------------------------------------------------------------
    \36\ 904 F.3d 1041 (9th Cir. 2018).
    \37\ Id. 904 F.3d at 1051. Among other rationales, the court 
pointed out that the TCPA does not prohibit all calls made with an 
ATDS: it allows ATDS calls to be made when a party has consented to 
receive them. If the definition included only systems that dial 
telephone numbers produced randomly or sequentially from thin air, 
rather than dial from a stored database of inputted numbers, the 
prohibition of autodialed calls to consumers who had not consented to 
receive them would be meaningless. Autodialed calls would always reach 
parties who had not consented, because the calls would go to numbers 
that had been generated from thin air. Callers would have consent for 
calls to autodialed numbers only as a matter of sheer coincidence, if 
ever. Only if the prohibition encompasses calls made to a stored list 
of numbers, for which the caller will know whether it has obtained 
consent, does the prohibition make sense. As the Ninth Circuit stated, 
``[t]o take advantage of this permitted use, an autodialer would have 
to dial from a list of phone numbers of persons who had consented to 
such calls, rather than merely dialing a block of random or sequential 
numbers.'' Id.
---------------------------------------------------------------------------
    Robocallers have claimed that the Marks decision cannot be correct 
because its interpretation of the ATDS definition could sweep in all 
smartphones, triggering one of the concerns that led the 1D.C. Circuit, 
in ACA International v. FCC, to set aside the FCC's interpretation of 
the definition. However, this is not the case.\38\ Smartphones--just 
like all computers--may have the potential capacity to be part of a 
system that could be an ATDS. But Chairman Pai has taken the position 
that it is present capacity, not potential capacity, that must be 
shown, and smartphones are not manufactured with any inherent features 
that make them ATDSs. Unlike predictive dialers, they cannot make 
simultaneous calls to a batch of numbers automatically from a stored 
list, nor do they dial numbers while no human being is on the line, 
which creates the problem of ``dead air'' and abandoned calls inherent 
to predictive dialers.\39\ Calls are made from a smartphone only when 
the caller who is going to speak to the called party scrolls through 
the list, chooses a number or name, and presses the call button (or 
when the human manually inputs the number to be called). That 
capability does not make the smartphone an ATDS. As Chairman Pai has 
noted, the Commission has already explicitly held that ``speed 
dialing'' does not fall within the definition of an ATDS. \40\
---------------------------------------------------------------------------
    \38\ NCLC has filed numerous comments with the FCC on the proper 
interpretation of autodialer under the TCPA, as well as the more 
specific question raised by the various cases, and the issue of whether 
smart phones are covered if the Marks decision prevails. See, e.g., 
Comments of National Consumer Law Center on behalf of its low-income 
clients and forty-one other national and state public interest groups 
and legal services organizations, In re Rules and Regulations 
Implementing the Telephone Consumer Protection Act and Interpretations 
in Light of the ACA International Decision, CG Dockets 02-278 and 18-
152 (June 13, 2018) available at https://ecfsapi.fcc.gov/file/
106131272217474/Comments%20on%20Interpretation%20of%20TCP
A%20in%20Light%20of%20ACA%20International.pdf; Comments of National 
Consumer Law Center on the Marks decision (October 17, 2018) available 
at https://ecfsapi.fcc.gov/file/1018245262122/
NCLC%20Comments%20on%20Marks%20Decision.pdf; Ex Parte on Smart Phones, 
(November 13, 2018) available at https://ecfsapi.fcc.gov/file/
11142097310498/ex%20
parte%20on%20smartphones%20-%2011-13-18.pdf.
    \39\ See Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 110, 
114 (11th Cir. 2014).
    \40\ In re Rules & Regulations Implementing the Tel. Consumer Prot. 
Act of 1991, 30 FCC Rcd. 7961, 8074 (F.C.C. July 2015) (Dissenting 
Statement of Commissioner Ajit Pai). See also In Re Rules and 
Regulations Implementing the Tel. Consumer Prot. Act of 1991, 7 FCC 
Rcd. 8752, 8776 (F.C.C. Oct. 16, 1992).
---------------------------------------------------------------------------
    The Third Circuit's decision in Dominguez v. Yahoo, Inc.\41\ is 
another example of an interpretation that could undermine the scope of 
the TCPA. In that case, Yahoo's completely automated text messaging 
system sent 27,809 unwanted text messages to a consumer.\42\ The 
previous owner of the number had subscribed to an e-mail-notification 
service offered by Yahoo, which sent a text message to the former 
owner's phone number every time an e-mail was sent to the former 
owner's linked Yahoo e-mail account. The consumer tried to halt the 
messages by replying ``stop'' and ``help'' to some texts. When he asked 
Yahoo's customer service for help, he was told that the company could 
not stop the messages, and that, as far as Yahoo was concerned, the 
number would always belong to the previous owner. The consumer then 
sought help from the FCC. In a three-way call with the consumer and 
Yahoo, the FCC tried to convince Yahoo to stop the messages, but was 
similarly unsuccessful. After receiving 27,809 text messages from a 
machine over seventeen months, the consumer brought suit under the 
TCPA. Only after the case was filed did the messages finally stop.\43\ 
Alarmingly, the Third Circuit ruled that the system was not an ATDS 
because the consumer did not prove that it had the present capacity to 
generate random or sequential numbers. This ruling, if accepted by 
other courts or the FCC, would leave every cell phone in America 
vulnerable to the same deluge of unstoppable text messages.
---------------------------------------------------------------------------
    \41\ 894 F.3d 116 (3d Cir. 2018). Two other cases of uncontrolled 
technology resulting in a deluge of unwanted robocalls or texts are 
Pagan v. Redwood Capital Group and Schuster v. Uber Technologies, Inc. 
In Gonzalez-Pagan v. Redwood Capital Group, a local developer called 
Mr. Gonzalez-Pagan approximately 5,000 times for years, often making 
more than 50 calls a day on back-to-back days; even though Mr. 
Gonzalez-Pagan owed nothing to the developer and had no idea how it put 
his cell number in its robodialing campaign. The calls continued even 
after Mr. Gonzalez-Pagan drove to the defendant's apartment complex and 
begged for the calls to stop. Over 500 calls were made even after the 
lawsuit was filed in Federal court In Schuster v. Uber Technologies, 
Inc., Mr. Shuster sued Uber for sending 1,050 text messages without 
consent and despite repeated requests to cease.
    \42\ Dominguez v. Yahoo, Inc., 629 Fed. Appx. at 121 (``Ultimately, 
Dominguez cannot point to any evidence that creates a genuine dispute 
of fact as to whether the E-mail SMS Service had the present capacity 
to function as an autodialer by generating random or sequential 
telephone numbers and dialing those numbers.'' (emphasis added)).
    \43\ Dominguez v. Yahoo, Inc., 629 Fed. Appx. at 370-71.
---------------------------------------------------------------------------
    Perhaps the most brazen attempt to evade the TCPA's protections 
against autodialed calls to cell phones is clicker agent calling 
systems. These systems are entirely automated, but insert a human 
``clicker agent'' into the process. These human clicking agents do not 
participate in the calls, and simply have the job of repeatedly 
clicking a single computer button, which sends telephone numbers on an 
already-created list to an automated dialer in an another locale. The 
seller then claims that the insertion of this human as an automaton 
means that the calls are not governed by the TCPA, so they can be made 
without consent and the called party has no way to stop them.
    If this position were accepted, the result for our ability to 
control unwanted calls to our cell phones would be profound. For 
example, a single seller, Hilton Grand Vacations Co., used a clicker 
agent system to make 56 million calls to cell phones to sell vacation 
packages, and then claimed that the TCPA did not require consent.\44\ 
And that is just one company. Allowing clicker agent calls to evade the 
TCPA would amount to an invitation to every telemarketer--both those 
pushing overt scams and those making less shady but equally intrusive 
calls--to make millions of calls without consent. Clicker agent systems 
not only result in mass unwanted automated calls to cell phones, but 
also produce the same problems of dropped calls and delays after 
answering the phone that calls made by all autodialers produce.\45\
---------------------------------------------------------------------------
    \44\ Glasser v. Hilton Grand Vacations Co., L.L.C., 341 F. Supp. 3d 
1305 (M.D. Fla. 2018), appeal to 11th Circuit pending.
    \45\ According to the record in the case, Hilton's documents 
included an illustration of the two systems side by side. Doc. 104-7, 
at 2. The two systems appear to be identical except for the addition of 
the superfluous clicker agent for the TCPA-covered calls.
---------------------------------------------------------------------------
    Consumer groups have asked the FCC to rule on these evasion efforts 
and clarify that systems which use human clicker agents to process 
phone numbers that are then automatically dialed are covered by the 
TCPA. However, the FCC has not yet issued a response.
Recommendation:
    Congress should make clear to the FCC that the TCPA's definition of 
ATDS is intended to encompass the automated dialing systems in use 
today, and to reject the evasions that callers are attempting to 
devise.
C. The Rules Must Give Us Control Over Calls
    The TCPA was written explicitly to protect Americans from the 
``scourge of robocalls'' by giving consumers control over whether they 
receive robocalls. Congress did so by giving consumers the right to 
chose whether to consent--and implicitly to withhold or revoke that 
consent--to automated calls.
    The calling industry has asked the FCC to issue a ruling that 
consent provided as part of a contract cannot be unilaterally revoked 
by the consumer.\46\ Such a ruling would effectively eradicate the 
TCPA's requirement for express consent for automated calls.
---------------------------------------------------------------------------
    \46\ See, e.g., Comments of U.S. Chamber Institute for Legal 
Reform, In re Rules and Regulations Implementing the Telephone Consumer 
Protection Act of 1991, CG Docket Nos. 02-278 and 18-152, at 21, 27 
(filed June 13, 2018), available at https://ecfsapi.fcc.gov/file/
10613489
77655/ILR-U.S.%20Chamber%20TCPA%20Public%20Notice%20Comments.pdf.
---------------------------------------------------------------------------
    The D.C. Circuit's decision in ACA International confirms the FCC's 
conclusion in its 2015 Order \47\ that consumers have the right to 
revoke consent.\48\ However, the ACA International court did not take a 
position on whether the FCC had authority to determine that revocation 
of contractually provided consent might be limited by contract, because 
the issue was not before the court.\49\
---------------------------------------------------------------------------
    \47\ See 2015 Order at 7993.
    \48\ ACA International v. F.C.C., 885 F.3d 687, 709 (D.C. Cir. 
2018).
    \49\ Id. at 710 (D.C. Cir. 2018) (emphasis added; citation 
omitted).
---------------------------------------------------------------------------
    Most of the automated calls about which consumers complain are 
either telemarketing calls or debt collection calls.\50\ For calls made 
by debt collectors, the FCC has explicitly allowed consent to be 
presumed whenever consent was provided in the original credit contract 
with the creditor or the seller. Those contracts are adhesion 
contracts, in which consumers have no bargaining power and no ability 
to change the terms. So it is already a stretch for the FCC to have 
said that consent for debt collection calls--which is required by 
statute to be express--can be implied when a consumer gives her 
telephone number to open a charge account in a store. Providing a 
telephone number when applying for credit hardly constitutes express 
consent to be contacted months or years later by a debt collector.\51\ 
Courts have stretched the notion of express consent even farther by 
holding that consent can be transferred from the original creditor to a 
debt buyer, and then from the debt buyer to a collector it hires.\52\
---------------------------------------------------------------------------
    \50\ See section II, supra, for more discussion about unwanted and 
unstoppable debt collection calls.
    \51\ ``[P]ersons who knowingly release their phone numbers have in 
effect given their invitation or permission to be called at the number 
which they have given, absent instructions to the contrary.'' In re 
Rules and Regulations Implementing the Telephone Consumer Protection 
Act of 1991, CG Docket No. 92-90, Report and Order, 7 F.C.C. Rcd. 8752, 
8769  31 (Oct. 16, 1992).
    \52\ See Selby v. LVNV Funding, L.L.C., 2016 WL 6677928, at *8 
(S.D. Cal. June 22, 2016).
---------------------------------------------------------------------------
    It would be a true overextension for the FCC to take the next step 
down the road to unlimited automated calls and hold that, once a 
consumer has provided her phone number in a contract, she could never 
stop a debt collector's automated calls by withdrawing that consent. 
One Second Circuit decision, Reyes v. Lincoln Automotive Financial 
Services,\53\ erroneously holds that the consumer's consent is 
irrevocable when it is part of a binding contract. However, that 
decision fails to give appropriate weight to the FCC's 2015 Order 
ruling that, ``[w]here the consumer gives prior express consent, the 
consumer may also revoke that consent.'' \54\ The Reyes decision also 
mistakenly holds that no other circuit had addressed the question, when 
in fact several other circuit court decisions had upheld the consumer's 
right to revoke consent that had been given in a contractual 
context.\55\
---------------------------------------------------------------------------
    \53\ 861 F.3d 51, 58.
    \54\ 2015 Order at 7996. See Ginwright v. Exeter Fin. Corp., 280 F. 
Supp. 3d 674, 683 (D. Md. 2017) (declining to follow Reyes; noting its 
inconsistency with FCC's ruling).
    \55\ See Gager v. Dell Fin. Services, L.L.C., 727 F.3d 265 (3d Cir. 
2013) (consent provided in application for credit). See also Schweitzer 
v. Commenity Bank, 866 F.3d 1273 (11th Cir. 2017) (consent provided in 
credit card application can be revoked, and consumer can revoke consent 
in part); Van Patten v. Vertical Fitness Grp., 847 F.3d 1037, 1047-49 
(9th Cir. 2017) (consent provided in gym membership application); 
Osorio v. State Farm Bank, 746 F.3d 1242 (11th Cir. 2014) (consent 
provided in application for credit card, although the court allows that 
the method of revoking consent may be limited by the contract).
---------------------------------------------------------------------------
    If revocation is not permitted, robocalls will be even more abusive 
and unstoppable. Debt collection callers comprise nineteen of the top 
twenty robocallers in the United States.\56\ As detailed above, debt 
collection calls are among those calls that are routinely complained 
about and the subject of litigation. Often, debt collectors and 
creditors collecting their own debts are now routinely refusing to stop 
calling, despite pleas from consumers, and are instead arguing that the 
Second Circuit's Reyes decision applies to them and that consent cannot 
be revoked. We can only imagine the nightmarish scenario that will 
impact tens of millions of people across the U.S. if the FCC rules that 
consent granted by contract cannot be revoked.
---------------------------------------------------------------------------
    \56\ See YouMail Robocall Index, available at https://
robocallindex.com/(last accessed April 9, 2019). To verify the sources 
of the calls, we listened to provided-voice-mail recordings and called 
the numbers listed to see who answered.
---------------------------------------------------------------------------
Recommendation:
    1) Congress should a) re-emphasize to the FCC what the TCPA already 
says, that it is intended to ensure that consumers who have consented 
to received robocalls as part of a contract can revoke their consent in 
any reasonable manner regardless of the context in which consent was 
provided.
    2) If the FCC fails to issue the correct interpretation of the 
TCPA, Congress should pass H.R. 946 (the Stopping Bad Robocalls Act), 
sponsored by Congressman Pallone and others in the House, which 
mandates the appropriate interpretations of these critical issues.
D. Sellers Must Not Be Allowed to Hide Behind the Third Parties They 
        Hire
    Callers--particularly the ``legitimate businesses'' that can 
actually be traced and called to account for their violations--go to 
great lengths to devise ways to bombard us with calls without our 
consent yet evade liability. One strategy is to use ``data brokers'' to 
place the calls. On these calls from data brokers, once a consumer 
indicates an interest in the product being sold (``Press 2 now if you 
want to hear more about available health insurance in your area.''), 
the broker passes along the consumer's information to the company 
selling the product.
    Another strategy is to hire others to make the calls and then claim 
that the callers were independent contractors for whom the seller is 
not responsible. The seller may put a clause in its contract with the 
independent contractor that purports to require it to comply with the 
TCPA, and then claim that it can't possibly be held liable since the 
independent contractor promised to obey the law.
    This ploy was outlined--and strongly disapproved of--in the case of 
Krakauer v. DishNetwork, L.L.C.\57\ After one prosecution by the 
Federal and state governments had found that Dish was responsible for 
hundreds of millions of calls,\58\ the court adjudicating a civil 
enforcement action found that the independent contractors were agents 
of DishNetwork, and that DishNetwork was vicariously liable for the 
calls made by the independent contractors to sell Dish products.\59\ 
Yet it is still commonly raised by sellers in case after case as a 
means of avoiding liability for the illegal calls made on their behalf.
---------------------------------------------------------------------------
    \57\ 311 F.R.D. 384 (N.D.N.C. 2015)
    \58\ United States v. Dish Network, LLC, 75 F. Supp. 3d 942 (C.D. 
Ill. 2014).
    \59\ See Krakauer v. Dish Network L.L.C., 2017 WL 2242952, at *3 
(M.D.N.C. May 22, 2017 (``The OE Retailers collectively generated 
hundreds of millions of dollars a year in revenue for Dish.'').
---------------------------------------------------------------------------
Recommendation:
    Congress should urge the FCC to strengthen its rulings about the 
liability of sellers who benefit from robocalls made by others (such as 
data brokers and independent brokers), making it even clearer that 
these sellers are responsible for the TCPA compliance of those callers.
E. The Rules Must Continue To Be Enforceable, with Strong Remedies that 
        Provide a Deterrent for Serial Violators
    Rules to stop robocalls need to be privately enforceable for two 
reasons. First, individual consumers harmed by the invasion of privacy 
caused by the multitude of calls they receive need to be able to obtain 
redress for that harm. And, second, private enforcement is essential as 
a way of deterring violations. Unfortunately, FCC enforcement does not 
accomplish this goal. According to a recent article in the Wall Street 
Journal, the FCC has collected only $6,790 in fines against violators 
of the TCPA.\60\
---------------------------------------------------------------------------
    \60\ Sarah Krouse, The FCC Has Fined Robocallers $208 Million. It's 
Collected $6,790, The Wall Street Journal,Mar. 28, 2019, available at 
https://www.wsj.com/articles/the-fcc-has-fined-robocallers-208-million-
its-collected-6-790-11553770803. The article cites as a source for the 
analysis ``records obtained by The Wall Street Journal through a 
Freedom of Information Act request.''
---------------------------------------------------------------------------
    The TCPA provides this redress by authorizing ``an action to 
recover for actual monetary loss from such a violation, or to receive 
$500 in damages for each such violation, which is greater. . . .'' \61\ 
Moreover, when the court finds ``that the defendant willfully or 
knowingly violated this subsection. . ., the court may increase the 
amount of the award to an amount equal to not more than 3 times'' the 
$500.\62\ However, there is no authorization in the law for the 
recovery of attorney's fees or of the costs of the action to be 
awarded, as is provided in other Federal consumer protection 
statutes.\63\
---------------------------------------------------------------------------
    \61\ 47 U.S.C. Sec. 227(b)(3).
    \62\ Id.
    \63\ See, e.g., Truth in Lending Act, 15 U.S.C. Sec. 1640(a)(3); 
Fair Debt Collection Practices Act, 15 U.S.C. Sec. 1692k(a)(3); Equal 
Credit Opportunity Act 15 U.S.C. Sec. 1691e(d).
---------------------------------------------------------------------------
    Individual actions are essential for providing redress to 
individual consumers, but because of confidentiality clauses they 
provide little deterrent effect on the callers. These callers simply 
pay up and repeat the pattern with other victims. Obviously, routinely 
violating the law and paying individual consumers damages is more 
financially beneficial than complying with the law--else these callers 
would not keep repeating the pattern, as they are now doing.
    A classic example is callers who keep making illegal calls to new 
consumers even after being sued in case after case. Tampa attorney 
Billy Howard,\64\ who represents consumers throughout Florida, has 
litigated hundreds of cases on behalf of consumers against creditors 
who are robocalling them with similar facts: hundreds of unconsented-to 
robocalls to collect debts. He has litigated repeat TCPA claims 
involving dozens or hundreds of unconsented-to robocalls to consumers 
with the same callers:
---------------------------------------------------------------------------
    \64\ https://www.theconsumerprotectionfirm.com/billy-howard

---------------------------------------------------------------------------
   10 cases against Synchrony Bank in the past two years.

   18 cases against Navient Solutions in the past three years.

   24 cases against Credit One Financial/Credit One Bank in the 
        past three years.

   8 cases against Commenity LLC in the past three years.

    This pattern of repeated calls leading to repeated cases shows that 
existing remedies are not enough to deter callers from continuing to 
make illegal calls.
    Typically, consumers bring individual TCPA suits only after 
hundreds, or even thousands, of illegal calls interfere with work, 
interrupt family time, or infringe upon the consumer's solitude. Repeat 
violators of this forty-year-old law cry foul when forced to answer for 
their transgressions. Lost in the rhetoric is the fact that many of the 
same corporations are violating the same law while ignoring the same 
pleas for the calls to stop. It seems that corporations have made the 
business decision that ignoring the TCPA is more profitable than 
compliance. Even more troubling, the consumers who experienced these 
violations of Federal law are then sworn to secrecy through 
confidentiality clauses and subject to liquidated damages of 
potentially thousands of dollars if they share their story.
    Wrong number calls are a particularly maddening example of why a 
stronger deterrent is necessary. Many debt collection calls are made to 
people who never owed money to the callers, yet the callers have their 
number and just keep calling, ignoring pleas to stop. Litigation around 
reassigned number calls is caused by repeated and unstoppable calls to 
the wrong number, not just one or two mistaken calls. Consumers beg 
callers to stop the calls, and it is only when they don't that 
consumers seek legal advice to stop the calls and obtain legal redress. 
Some recent examples--from many similar cases--include:

  1.  Lebo v. Navient.\65\ Zachary Lebo received 100 calls over two 
        months from Navient for a ``Justine Sulia,'' sometimes as many 
        as five calls a day. He had never given permission for Navient 
        to call him and revoked permission over the phone, yet the 
        calls continued.
---------------------------------------------------------------------------
    \65\ Case No. 2:17-cv-00154 (D. Wyo. filed Sept. 15, 2017).

  2.  Waite v. Diversified Consultants.\66\ Patricia Waite and her 
        daughter Heather received about 166 calls from Diversified 
        Consultants for ``Marcy Rodriguez,'' whom neither of them knew. 
        Diversified continued calling multiple times a day despite 
        being told that it had a wrong number.
---------------------------------------------------------------------------
    \66\ Case No. 5:13-cv-00491 (M.D. Fla. filed Oct. 7, 2013).

  3.  Goins v. Palmer Recovery Attorneys.\67\ Amber Goins received 
        frequent calls from Palmer Recovery Attorneys seeking to 
        collect from ``Kenya Johnson.'' Ms. Goins told Palmer several 
        times that she was not Kenya Johnson, and Palmer repeatedly 
        said that it would remove her number from its calling list; 
        however, the calls continued.
---------------------------------------------------------------------------
    \67\ Case No. 6:17-cv-00654 (M.D. Fla. filed Apr. 11, 2017).

  4.  Davis v. Diversified Consultants, Inc.\68\ Jamie Davis received 
        up to three calls a day from Diversified Consultants seeking to 
        collect on a debt owed by ``Rosemary.'' The calls continued 
        even after Mr. Davis told Diversified that he did not know 
        Rosemary, and the callers said they would remove his phone 
        number.
---------------------------------------------------------------------------
    \68\ Case No. 1:13-cv-10875 (D. Mass. filed Apr. 12, 2013).

  5.  Moseby v. Navient Solutions, Inc.\69\ Terrance Moseby received 
        dozens of calls from Navient for a ``Joshua Morris'' or 
        ``Andrea.'' Mr. Moseby has never had any relationship with 
        Navient or either of these people. He told Navient that it had 
        the wrong number but the calls continued.
---------------------------------------------------------------------------
    \69\ E.D. Ark. 4:16-cv-00654.

    To protect consumers, it is imperative that the pressure be 
maintained on callers to ensure that they are calling the correct 
number: the number that belongs to the consumer from whom they have 
consent to call. Mistakes do happen. But these lawsuits are not about a 
single mistake. These lawsuits are about callers who persist in calling 
numbers after they have been told repeatedly that the number does not 
belong to the person who provided consent. These cases are brought 
against callers who clearly did not have enough of a financial 
incentive to make sure that they stopped calling--and harassing--
consumers with whom they had no relationship, who had not provided 
consent, and who begged the callers to stop the calls.
    The calling industry complains incessantly about the ``nuisance 
class actions'' brought by plaintiffs' attorneys, and uses the stories 
as a basis for requesting a variety of changes in interpretations of 
TCPA terms. However, class actions drive compliance with the law and 
the FCC's rules.
    Because class actions cost the calling industry money when they 
have failed to follow the simple requirements for obtaining consent 
before they make robocalls, callers are more likely to change their 
behavior to avoid being held liable in a class action case. As the 
Federal district court judge noted in a telemarketing case against Dish 
Network involving tens of millions of calls:

        [T]he legislative intent behind the TCPA supports the view that 
        class action is the superior method of litigation. ``[I]f the 
        goal of the TCPA is to remove a `scourge' from our society, it 
        is unlikely that `individual suits would deter large commercial 
        entities as effectively as aggregated class actions and that 
        individuals would be as motivated . . . to sue in the absence 
        of the class action vehicle.' '' \70\
---------------------------------------------------------------------------
    \70\ Krakauer v. Dish Network L.L.C., 311 F.R.D. 384, 400 (M.D.N.C. 
2015) (emphasis added).

    Indeed, in another opinion related to this case, the court recited 
the failure of the defendant to comply with its promise to government 
enforcers, explaining its rationale for awarding treble damages for the 
---------------------------------------------------------------------------
defendant's willful violations of the TCPA:

        The Court concludes that treble damages are appropriate here 
        because of the need to deter Dish from future violations and 
        the need to give appropriate weight to the scope of the 
        violations. The evidence shows that Dish's TCPA compliance 
        policy was decidedly two-faced. Its contract allowed it to 
        monitor TCPA compliance, and it told forty-six state attorneys 
        general that it would monitor and enforce marketer compliance, 
        but in reality it never did anything more than attempt to find 
        out what marketer had made a complained-about call. It never 
        investigated whether a marketer actually violated the TCPA and 
        it never followed up to see if marketers complied with general 
        directions concerning TCPA compliance and or with specific do-
        not-call instructions about individual persons. Dish 
        characterized people who pursued TCPA lawsuits not as canaries 
        in the coal mine, but as ``harvester'' plaintiffs who were 
        illegitimately seeking money from the company. The Compliance 
        Agreement did not cause Dish to take the TCPA seriously, so 
        significant damages are appropriate to emphasize the 
        seriousness of such statutory violations and to deter Dish in 
        the future.
        . . .
        This case does not involve an inadvertent or occasional 
        violation. It involves a sustained and ingrained practice of 
        violating the law.

        Dish did not take seriously the promises it made to forty-six 
        state attorneys general, repeatedly overlooked TCPA violations 
        by SSN, and allowed SSN to make many thousands of calls on its 
        behalf that violated the TCPA. Trebled damages are therefore 
        appropriate.\71\
---------------------------------------------------------------------------
    \71\ Krakauer v. Dish Network L.L.C., No. 1:14-CV-333, 2017 WL 
2242952, at *12-13 (M.D.N.C. May 22, 2017) (internal citations 
omitted.).

    Most of the litigation under the TCPA relates to calls to cell 
phones because violations trigger damages after the first call. 
However, these cases are costly and complex to litigate, requiring 
experts to opine on technical issues such as whether the caller used an 
ATDS, or to assist in determining the number of covered calls, as well 
as issues of consent. Calls to landlines are much less protected and 
many have said that the unrestricted number of robocalls to landlines 
is one of the reasons for the decrease in the use of residential 
landlines. Private litigation should be encouraged and facilitated by 
the laws governing robocalls.
Recommendation:
    Make it easier for victims of unwanted robocalls to bring actions 
against callers who violate the TCPA, by allowing courts to award 
plaintiffs attorney's fees and costs of bringing the action.
    Thank you for considering the views of consumers. I am happy to 
answer any questions.

    Senator Thune. Thank you, Ms. Saunders.
    As I said earlier, I'm committed to protecting consumers 
from fraudulent and scam calls and that's why I, along with 
Senator Markey, authored the TRACED Act to go after individuals 
who intentionally violate the law and prey on vulnerable 
populations.
    It is unfortunate that illegal robocalls have now increased 
to the point where people hardly want to pick up their phones 
at all. Consumers can also be harmed if they do not receive 
important time-sensitive calls that financial institutions, 
health care companies, and automakers make to their customers.
    Attorney General Peterson, do you think that you have the 
necessary tools to meet the challenge of tackling illegal 
robocallers so that consumers feel it's safe to answer their 
phones again?
    Mr. Peterson. No, Senator. I think one of the reasons I 
think the TRACED Act is going to be really advantageous to 
attorneys general is because technology is a big part of the 
answer and I think with the STIR/SHAKEN guidelines that will 
really help us--I think that's one of the more important 
elements that we see there to stay in front of the technology, 
if possible.
    The other part is the interagency cooperation will be 
important because I think as states, we find more strength in 
working with the FCC or the FTC on some of these efforts. We've 
had a history of that and I think the fact that in the bill it 
notes that the attorney general should work with state 
attorneys general is an important element for us because this 
thing is always advancing. It's taking turns and I think 
working together we will be strengthened in enforcement.
    Senator Thune. Let me direct this to you, Attorney General 
Peterson, also Mr. Rupy.
    In the past, when I've asked enforcement and industry 
officials whether the Do Not Call Registry is broken, the 
response has made clear that it is most effective for folks who 
are making a good faith effort to comply with the law.
    The reality is that there are too many individuals, like 
Adrian Abramovich, who had no regard for the laws on the books, 
which is why I believe a credible threat of prosecution is 
necessary for illegal robocalls.
    Do you agree that threat of criminal prosecution is a 
necessary deterrent?
    Mr. Rupy. Mr. Chairman, thank you for that question, and 
it's an excellent question, and I wholeheartedly agree with 
that view, and I think I applaud the TRACED Act for what it 
does in establishing that interagency working group to 
facilitate that type of criminal enforcement.
    I think one of the things that is not lost on me is that 
when you look at Mr. Abramovich, he was a recidivist 
robocaller. So he was sued by AT&T in 2007. The FCC acted 
aggressively against him in 2017, 2018.
    The FTC just last week announced a series of settlements 
with several individuals: Andy Salisbury, Aaron Michael Jones, 
James Christiano, and the most disheartening aspect of that 
announcement was that the FTC referred to them as recidivist 
robocallers. They're doing this again and again and again.
    I think individuals like that definitely need to be 
targeted through criminal enforcement. The best way to prevent 
illegal robocalls is to stop them from ever being made and the 
best way to ensure that is put the people that are making them 
behind bars.
    Mr. Peterson. I think, Senator Thune, you mentioned in your 
opening about the cost of doing business, and I think that a 
lot of these violators probably perceive it that way, as if 
they're fine to move on.
    I think when you bring up criminal penalties that's when 
you get their attention. So that's why I support that.
    Senator Thune. OK. Thanks.
    Mr. Rupy, in your testimony, you mentioned industry's 
commitment to deploying the Call Authentication Framework known 
as STIR/SHAKEN. It has been discussed quite a bit here this 
morning already, but the bipartisan TRACED Act will help guide 
industry on the implementation of this much-needed call 
framework.
    Can you speak to how implementation of this framework will 
help consumers not receive spoofed calls? It's going to 
describe that.
    Mr. Rupy. Thank you, Mr. Chairman.
    Absolutely. So basically the way I like to explain the 
SHAKEN/STIR standard is as follows. It's obviously a very 
technologically complex standard and issue, but I think the 
best way to understand it is that it's effectively the 
equivalent of a Notary Public.
    When you go to a Notary Public with a document, they don't 
look at the document. They look at your driver's license and 
the signature you put on the line. So the STIR/SHAKEN protocols 
and standards will do two things.
    Number 1, they will authenticate the number that is 
originating that call. In other words, verifying that that is 
indeed the number calling. Number 2, it will enhance trace-back 
efforts. So when we trace back the call, we may go through 
five-six-seven different providers to get to the point of 
origination.
    Because that call origination will be authenticated at the 
front end, we can hop right to that point to get to them and 
that helps consumers in a couple of ways. Number 1, it makes 
enforcement actions, whether civil or criminal, easier to 
pursue because we can find these people faster and U.S. 
Telecom, through its Traceback Group, is doing that, but then, 
Number 2, the standard will help inform a lot of the analytics 
that's taking place in the network and on the consumer's end in 
the various, you know, hundreds of apps and services that are 
out there.
    So that will better inform their analytics in terms of how 
to handle that call and just to be clear, especially early on, 
the lack of authentication on a call as the standard is being 
deployed is not necessarily going to be an indicator of whether 
that call is good or bad.
    But as implementation progresses, it will greatly enhance 
the analytics side for consumers.
    Senator Thune. Thank you.
    Senator Schatz.
    Senator Schatz. Thank you.
    Let me start with Ms. Saunders. The Wall Street Journal 
recently reported that the FCC has fined robocallers $208 
million but collected about $7,000. So, in addition to the sort 
of cost of doing business question, the cost is actually close 
to zero, and I'm wondering how we can do better to improve the 
recovery rate.
    Ms. Saunders. Well, the recovery rate by the government is 
poor but the recovery rate in private class actions is 
significant and so as unpopular as they are, it is the class 
actions that are driving compliance and that's why the major 
industries are pushing the FCC to change the rules so that 
these class actions won't be available.
    But I would like to take a step back and look at what is 
driving all those robocalls that has been the subject of 
discussion today.
    Who's paying those robocallers? How are they making money? 
They're being paid--those robocallers are lead generators. 
They're making the calls illegally. When they get someone on 
the phone who's interested in purchasing home security or car 
insurance or life insurance contract, that's a live lead, they 
then refer that lead to a real American company, State Farm, 
Royal----
    Senator Schatz. And it sort of launders the illegal 
activity and incentivizes it, but at some point it gets handed 
over to a legit business.
    Ms. Saunders. That's exactly right and those legitimate 
businesses are paying for those calls and then when they're 
sued--excuse me--are paying for the leads and then when they're 
sued for making illegal telemarketing robocalls without prior 
expressed consent, they say we didn't know anything about the 
illegality. Our contract with this lead generator or this 
independent contractor requires them to comply with the law. 
We're not responsible.
    Senator Schatz. I got it. OK. So it seems to me there's the 
problem of the recovery rate, there's the problem of the sort 
of upstream, whatever you want to call it, upstream or 
downstream companies that are benefiting from this, and 
plausible deniability through the contract itself, and then 
there's this question of the criminal penalties, and I'd like 
to lead into the attorney general with a question about how we 
can enhance AGs' authorities here.
    Why don't you just offer us your thoughts on what AGs can 
be empowered to do and how that would make a difference?
    Mr. Peterson. Typically, the AGs are empowered by our own 
state laws and, frankly, I think a lot of legislative bodies 
are challenged to stay in front of this type of technology. So 
I'm a proponent of the state solutions, but I also think the 
partnership with Federal authorities is important here.
    I will say one of the challenges, whether it's a civil 
penalty or criminal penalty, is the ability to get our hands 
around these people.
    Senator Schatz. To find them?
    Mr. Peterson. Yes, to actually get them in a headlock, and 
that's not easy to do and, in fact, we're fortunate we have one 
case where we have a partial player in a headlock, but that's 
always going to be the challenge and so I think having in our 
toolbox the ability to enforce criminal penalties will help, 
but I don't think it's the silver bullet.
    Senator Schatz. So the other thing I think offers an 
opportunity for consumers is, first of all, education because I 
think there will be some number of robocalls happening, even if 
we do all the right policies, and so it seems to me that likely 
the most vulnerable among our constituents are still endanger 
of being not just spoofed and spammed but really scammed and 
ripped off, and so we have to kind of work on the consumer 
education side and then apps are going to provide some utility 
to people, but I kind of worry about having two tiers of phone 
users, those that are educated, know how to use an app to block 
all the nonsense, and those who don't.
    And so, Mr. Rupy, I'm wondering whether you can address 
that question, and just one more sort of nuance to this, which 
is that there are now apps that you have to pay for to block 
robocalls, which I suppose is better than nothing, but it seems 
to me that this is ought to be like a seatbelt. This ought to 
be, both in sort of tech terms and in sort of public policy 
terms, like a utility.
    We just don't allow robocalls. You don't have to pay to 
block them and you don't have to forfeit your privacy to some 
telecommunications or tech company in order to have that 
utility. You just ought to be free of these things. So can you 
comment on that?
    Mr. Rupy. Thank you, Senator.
    Those are both great questions. So let me tackle the first 
of your questions, and I would respond to that by saying U.S. 
Telecom has long believed and I certainly believe that there's 
no single silver bullet to the robocall problem. OK. There has 
to be a holistic comprehensive approach that includes tools, 
that includes enforcement, that includes technologies, like 
SHAKEN/STIR, but also education.
    Education is a huge component and an important component 
and it's happening. You know, the example I give is that my 83-
year-old mother up in New Jersey got the grandparents' scam and 
fortunately she has a son that talks to her relentlessly about 
robocalls. She didn't take the call. My in-laws had a friend 
down the street that was at the CVS buying the iTunes cards and 
a clerk stopped the sale.
    Both those are examples of education and education can be 
powerful, but again no single thing in and of itself is going 
to solve this problem.
    Senator Schatz. Thank you.
    Senator Thune. Thank you, Senator Schatz, and good point 
there.
    The people probably most likely to get preyed on are the 
least technologically savvy and so a lot of the consumer 
awareness things that we're talking about in many cases 
probably aren't going to get to some of the populations that 
are most likely to be subject to scams.
    Senator Blackburn.

              STATEMENT OF HON. MARSHA BLACKBURN, 
                  U.S. SENATOR FROM TENNESSEE

    Senator Blackburn. Thank you, Mr. Chairman, and I 
appreciate that we're having this hearing today.
    As you can see, this is an area where there is bipartisan 
agreement, and I think we all have our stories of family 
members that have received these calls and are just aggravated 
when they receive this number of calls.
    I want to, Mr. Rupy, ask you quickly. Looking at the cost 
of this and with SHAKEN/STIR and the implementation, what is 
your concern that equipment vendors may escalate their price as 
you look at a date certain implementation?
    Mr. Rupy. Absolutely. Thank you for that question, Senator.
    Just two quick points on that. Number 1, industry is 
heavily committed to deploying this standard. They're doing it. 
They're going to make it happen. They're committed to it.
    To the point on vendors, I do know that that is certainly 
an issue that some companies may be facing, particularly for 
smaller rural companies. There are a limited number of vendors 
that are out there. We are certainly hopeful that they can 
provide the equipment in a timely and reasonable manner, but, 
you know, that's certainly one factor that may be out there, 
but, nevertheless, industry is definitely strongly committed.
    Senator Blackburn. So is it fair to say you all are 
watching that to make certain that we do not end up with some 
of those being taken advantage of?
    Mr. Rupy. Absolutely, Senator. I think that's something 
that all of us, you know,----
    Senator Blackburn. OK.
    Mr. Rupy.--want to keep an interest in.
    Senator Blackburn. Let me ask you this, and this is to each 
of you there. In Tennessee, we have some companies that want to 
follow up with individuals that have contracted for their 
service. It may be home improvement, it may be lawn care, it 
may be health care, and they're prohibited from doing follow-up 
with those customers that are under contract because of the 
robocall rules and they've gotten caught in this area.
    So how do you suggest that we ensure that companies who 
have contracted with people for a service, whether it's 
something like lawn care or health care or repairmen, are not 
harmed during the implementation of the solution?
    Mr. Peterson. Ms. Saunders, you want to go first?
    Mr. Rupy. I'll jump at that first, Senator. Look, I think 
that's a crucial point and from a technology perspective, at 
the end of the day, what we want to achieve, to Chairman 
Thune's point, we want to ensure that the bad illegal robocalls 
are stopped or blocked or mitigated and that legal legitimate 
calls will go through.
    Mr. Chairman, as you acknowledged in your speech yesterday, 
SHAKEN is not going to be the silver bullet. It's not a 
panacea, but it can help authenticate legitimate calls so that 
legitimate businesses and individuals can make their legitimate 
calls while stopping the illegal robocalls.
    Senator Blackburn. Anyone want to add anything further to 
that? Ms. Saunders?
    Ms. Saunders. I think there is some misunderstanding about 
what you call the robocall rules. The Telephone Consumer 
Protection Act does not prohibit all robocalls. It only 
requires automated calls to cell phones to be consented to 
first.
    So those folks that are following up on inquiries, the 
inquiries----
    Senator Blackburn. We have numerous companies that have had 
problems with that and so as we look at SHAKEN/STIR, what we 
want to do is make certain that they are not disadvantaged 
because there have been problems and that may come to us 
regularly on these.
    My time is running out. I will just say to you, Mr. 
Peterson, the criminal penalties, I appreciate your comments 
about getting that actor in the headlock and feeling that 
criminal penalties.
    I just want to make certain that I understand you are 
saying you think the criminal penalties as opposed to raising 
the cost or raising the fee on civil penalties is going to be 
more helpful?
    Mr. Peterson. That's correct.
    Senator Blackburn. OK. Thank you.
    Senator Thune. Thank you, Senator Blackburn, and appreciate 
all of the wrestling analogies here today, too.
    Next up is Senator Klobuchar.

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

    Senator Klobuchar. Thank you all.
    It's a very important topic and in my own state, robocalls 
doubled last year and you know what the national volumes are 
and I'm very pleased to be part of this bill and I want to 
thank the leaders of the bill.
    Last week, I offered an amendment to the TRACED Act to 
direct the FCC to establish a robocalls task force. This idea 
was not actually mine, it was Commissioner Rosenworcel's, and I 
look forward to working with my colleagues on these issues. I'm 
hoping we can get something going at the FCC.
    Do you think that the FCC could do more to combat illegal 
robocalls and establish a robocall task force? Do any of you 
want to comment on if you think that would be helpful? Yes, Mr. 
Rupy?
    Mr. Rupy. Thank you for that question, Senator.
    I certainly I think that's one of the things that the 
TRACED Act does by establishing this interagency working group, 
but I will also say that U.S. Telecom and its 26-member 
industry Traceback Group is already working very 
collaboratively with the Enforcement Bureaus of both the FCC 
and FTC. We would love to work with state AGs.
    Industry wants to help advance those enforcement actions 
and we applaud certainly the civil enforcement actions by both 
agencies. We think they're effective, and we share our trace-
back information with the FCC's Enforcement Bureau, who has 
this high priority for them as well as for Chairman Pai at the 
agency.
    Senator Klobuchar. Ms. Saunders, do you want to comment 
about this idea of the task force?
    Ms. Saunders. I'm sure it will be very helpful.
    Senator Klobuchar. OK. Thank you.
    Ms. Saunders, we know that seniors are more often targeted, 
vulnerable to these schemes, and do you think additional 
information about emerging fraud schemes would help prevent 
seniors from being financially exploited?
    Mr. Rupy mentioned his own family, his own grandparents 
being subject to a scam, is that right?
    Mr. Rupy. That's correct.
    Senator Klobuchar. Right. Where seniors believe they're 
given money and so this idea to me--my former job, I was a 
county attorney and we went around. We did a Senior Fraud Task 
Force all over the state and getting the information out, we 
found, to the local areas about what these actual scams were 
was helpful because then seniors could learn about them and 
anticipate them.
    Do you want to comment on that?
    Ms. Saunders. Yes, Senator Klobuchar. I think that 
education is always a good thing and will be helpful.
    I've been working in consumer protection on behalf of low-
income people for my entire career, which is now over 40 years, 
and I have to say that in all of these scams that we have tried 
to address, Legal Services and private attorneys, working with 
attorneys general, the thing that almost always works the best 
is enforcement and whether it's public enforcement or private 
enforcement.
    Education unfortunately will help only some people----
    Senator Klobuchar. Exactly.
    Ms. Saunders.--but will not help everybody.
    Senator Klobuchar. Mr. Peterson, I know that we've been 
using this figure that the FCC has ordered $208.4 million for 
violators but only collected around $6,000. Ms. Saunders 
mentioned this in her opening.
    Given the minimal amount of money collected, can you 
discuss how we're going to improve this process to hold these 
scammers accountable? It seems to me if they know that none of 
this money's really collected, they're just going to keep doing 
it.
    Mr. Peterson. Yes, Senator. I'm not qualified really to go 
into the depths of the collection process.
    Senator Klobuchar. OK.
    Mr. Peterson. I will just tell you as a reality, it's 
difficult for us because of the questions or the concerns we've 
discussed as far as being able to locate them and to actually 
ascertain their assets.
    Senator Klobuchar. And it would be easier if some of it was 
done on the Federal level is what you're saying?
    Mr. Peterson. That would help.
    Senator Klobuchar. Yes.
    Mr. Peterson. But on the education front, we actually 
travel all around the state of Nebraska and set up in senior 
centers to explain this. Kind of the sad thing about that is 
you can fully set out the scams. They'll go home the next day 
and they're lonely and the phone rings and we say look at 
caller ID, if you don't recognize it, then let them leave a 
message, but they give it a shot anyway.
    Senator Klobuchar. Yes.
    Mr. Peterson. So I think that will always be a challenge.
    Senator Klobuchar. Right. Anyone want to add about the 
collections and how we can improve that?
    Ms. Saunders. I think the problem is that the people that 
are being prosecuted are the lead generators and they don't 
have any money and the way to actually increase enforcement is 
to go after the people who are paying them for those leads, so 
the big corporations.
    Senator Klobuchar. So it takes more of sort of in-depth 
prosecutions and investigations?
    Ms. Saunders. That's right.
    Senator Klobuchar. Mr. Rupy?
    Mr. Rupy. I would just add, Senator, that that's where I 
believe criminal enforcement is especially key. I mean, when 
you look at the fact that the individuals I cited at the FTC, a 
billion robocalls, illegal robocalls annually, Abramovich, I 
think it was 300-400 million in 3 months, so.
    Senator Klobuchar. Yes. Well, I don't know what the numbers 
are for the FTC personnel and Justice on this kind of thing. I 
do know just because of a somewhat related issue, antitrust, I 
was looking at those numbers and they have gone down from their 
height quite remarkably the number of employees working on 
these and meanwhile in that area just like this, you have more 
and more detailed sophisticated proposals, we'll call them, in 
that case mergers, but in this case schemes, and everyone knows 
that they're outmatched, so they just keep doing it. So it 
makes the problem even worse.
    All right. Thank you.
    Senator Thune. Thank you, Senator Klobuchar.
    Mr. Attorney General, I'll recognize your Senator from the 
great state of Nebraska, Senator Fischer.

                STATEMENT OF HON. DEB FISCHER, 
                   U.S. SENATOR FROM NEBRASKA

    Senator Fischer. Thank you, Mr. Chairman.
    On behalf of the millions of Americans, it is critical that 
we effectively address the many concerns voiced by consumers, 
voice service providers, private businesses, state law 
enforcement, and Federal regulators.
    We could not have this discussion today without the 
important voice of our state attorneys general and so I am 
pleased to welcome Nebraska Attorney General Doug Peterson to 
the subcommittee today.
    AG Peterson is well versed on the TRACED Act. He led all 50 
state attorneys general, in addition to the District of 
Columbia and three U.S. territories, in a letter to this 
Committee voicing support for the bill's provisions. So thank 
you, General Peterson, for being here today.
    As we're looking at the issue before us and as you know 
very well, many of the recent robocall enforcement actions led 
by the FTC involved collaboration with state partners.
    What attributes of collaboration between Federal agencies 
and state partners have been the most helpful in these 
enforcement sweeps?
    Mr. Peterson. Well, I think the scope of the remedies that 
the Federal authorities have are something that because you 
have a variety of different state laws in the area, having the 
Federal legislation to enforce is important and helpful.
    That's why we think the interagency working group is also 
very important because in a variety of things, the combination 
of states working together with the FTC is a much stronger 
combination. It gives you better avenues and options as far as 
courts.
    In fact, 43 states have come together on this specific 
topic to work closely with the FTC and that's why we're 
appreciative of the bill actually identifying the importance of 
meeting with the attorneys general.
    I think specifically our enforcement is typically difficult 
if we're just limited within our own state authorities and 
that's why you see the multistate efforts and I think we're 
much stronger if we work together with the FTC and the FCC in 
doing this.
    Also, even in the regulations and developing the 
regulations, the opportunity to have input of what we see, I 
guess, on the street, if you will.
    Senator Fischer. When you have that interagency working 
group, do you think a main benefit would be that it will really 
clarify communication, make that clear communication more 
effective across the country?
    Mr. Peterson. I do, because we have the same goal. The goal 
is very clear and to work together as two enforcement bodies I 
think makes it even stronger.
    Senator Fischer. And last year, the estimated number of 
illegal robocalls surged by more than 36 percent, and it 
reached nearly 48 billion illegal robocalls.
    As we see advances in technology, it just costs pennies for 
these to take place and so a lot of bad actors profit from that 
enormous amount of calls that we're seeing.
    General Peterson, can you highlight how requiring 
comprehensive implementation of STIR/SHAKEN, the standards that 
are in there, as the TRACED Act does, as well, how can we 
address the root cause of the problem? You know, it is so 
irritating to have these calls 24 hours a day from numbers that 
you think must be a neighbor calling and they spoof you on it, 
so how can we address this?
    Mr. Peterson. Well, I think STIR/SHAKEN is one major step 
for that because it puts the industry in the position of using 
their technical expertise to be part of the solution.
    I say up to this point in time, oftentimes the consumer was 
given the burden of responsibility to either download apps or 
do things of that nature and so those who were, you know, 
careful consumers would go through the steps, but particularly 
the elderly who are not very advanced in the technology, they 
always have to have their grandchildren do their phones and 
things of that nature.
    The message we've always done in our consumer protection 
efforts in this area has always been utilize your caller ID, 
utilize your caller ID, and when they start getting fooled by 
spoofing, then that advice seems to have less effect and now 
with the STIR/SHAKEN programs being developed, I think we can 
feel a little bit more confident by giving that counsel that 
they know it's from an authentic source.
    Senator Fischer. I'm just very pleased to see a bipartisan 
approach here and consensus from every state and I certainly 
appreciate your leadership in this.
    Thank you.
    Mr. Peterson. Thank you.
    Senator Fischer. Thank you, Mr. Chairman.
    Senator Thune. Thank you, Senator Fischer.
    Who came up with the STIR/SHAKEN?
    Mr. Rupy. A bunch of engineers.
    [Laughter.]
    Senator Thune. And James Bond fans.
    Senator Blumenthal is up next.

             STATEMENT OF HON. RICHARD BLUMENTHAL, 
                 U.S. SENATOR FROM CONNECTICUT

    Senator Blumenthal. I think Senator Thune means who came up 
with the acronym, not the technology. Was it engineers?
    Senator Thune. STIR/SHAKEN.
    Mr. Rupy. It was a bunch of engineers, yes.
    Mr. Peterson. The name is Bond, James Bond.
    [Laughter.]
    Senator Blumenthal. Thank you all for being here.
    I want to pick up on a point that Senator Schatz raised. 
There's an article that I saw today, I think it may have 
reported the fact that he cited, and I'm going to ask that it 
be entered into the record, if there's no objection.
    Senator Thune. Without objection.
    [The article was entered into the record:]

                   The Wall Street Journal--Business

   THE FCC HAS FINED ROBOCALLERS $208 MILLION. IT'S COLLECTED $6,790.

U.S. telecom regulators impose penalties and seek to recoup ill-gotten 
         gains from robocallers, but have struggled to collect

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Large wireless carriers are currently working on a call-
verification system that regulators and executives say will help 
consumers identify legitimate calls. PHOTO: ANDREU DALMAU/EPA/
SHUTTERSTOCK

               By Sarah Krouse--March 28, 2019 7:00 am ET

    America's telecommunications watchdogs have levied hefty financial 
penalties against illegal robocallers and demanded that bad actors 
repay millions to their victims. But years later, little money has been 
collected.
    Since 2015, the Federal Communications Commission has ordered 
violators of the Telephone Consumer Protection Act, a law governing 
telemarketing and robodialing, to pay $208.4 million. That sum includes 
so-called forfeiture orders in cases involving robocalling, Do Not Call 
Registry and telephone solicitation violations.
    So far, the government has collected $6,790 of that amount, 
according to records obtained by The Wall Street Journal through a 
Freedom of Information Act request.
    The total amount of money secured by the Federal Trade Commission 
through court judgments in cases involving civil penalties for 
robocalls or National Do Not Call Registry-related violations, plus the 
sum requested for consumer redress in fraud-related cases, is $1.5 
billion since 2004. It has collected $121 million of that total, said 
Ian Barlow, coordinator of the agency's Do Not Call program, or about 8 
percent. The agency operates the National Do Not Call Registry and 
regulates telemarketing.
    ``That number stands on its own. We're proud of it; we think our 
enforcement program is pretty strong,'' Mr. Barlow said.
    An FCC spokesman said his agency lacks the authority to enforce the 
forfeiture orders it issues and has passed all unpaid penalties to the 
Justice Department, which has the power to collect the fines. Many of 
the spoofers and robocallers the agency tries to punish are individuals 
and small operations, he added, which means they are at times unable to 
pay the full penalties.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    ``Fines serve to penalize bad conduct and deter future 
misconduct,'' the FCC spokesman said. A spokeswoman for the Justice 
Department, which can settle or drop cases, declined to comment.
    The dearth of financial penalties collected by the U.S. government 
for violations of telemarketing and auto-dialing rules shows the limits 
the sister regulators face in putting a stop to illegal robocalls. It 
also shows why the threat of large fines can fail to deter bad actors.
    ``It's great that we have these laws; it's great that we have 
public enforcement, but because there are so many calls and so many 
callers, the public enforcement is a joke,'' said Margot Saunders, 
senior counsel at consumer advocacy group National Consumer Law Center. 
``It doesn't even make a dent.''
    There were 26.3 billion unwanted robocalls made to U.S. mobile 
phones in 2018, by one measure from robocall-blocking app Hiya. Another 
company that offers such services, YouMail Inc., puts the number of 
unwanted and illegal robocalls made in the U.S. last year even higher, 
at nearly 48 billion.
    AT&T Inc. and other large wireless carriers are currently working 
to implement a call-verification system by the end of the year that 
regulators and telecom industry executives say will help consumers 
identify legitimate calls. That system won't block calls, but will 
signal that the caller has the right to use a given number and that it 
hasn't been spoofed.
    The FCC and FTC say there are challenges to collecting penalties 
for robocall-related wrongdoing. Small illegal operations can quickly 
close up shop and change their names, enforcement officials say. Some 
are based overseas, making it difficult to identify or seize assets.
    Fines are ``a deterrent on legitimate companies that have real 
assets in the U.S.,'' said Daniel Delnero, a senior attorney at Squire 
Patton Boggs in Atlanta that advises companies on consumer class-action 
suits related to the Telephone Consumer Protection Act.
    For a spam caller or overseas operator, ``that's really just 
pushing for Social Security numbers or bank account information--it's 
less of a deterrent, because they don't really have anything that could 
be collected anyway,'' Mr. Delnero said.
    In many FTC cases involving civil penalties, the agency secures 
judgments for large fines and settles for a smaller sum, contingent 
upon the accused person or company being transparent about their 
assets, Mr. Barlow said. Congress requires the agency to consider an 
individual's ability to pay.
    In the 2017 case of a ``recidivist robocaller'' that placed illegal 
robocalls for nearly a decade, for example, two defendants faced civil 
penalties of $2.7 million in a California suit filed by the FTC. They 
were each ultimately ordered to pay $225,000 or less, if their 
financial disclosures were complete and accurate.
    Ajit Pai, Chairman of the FCC since January 2017, said in an 
interview on robocalls earlier this month that in the past, few 
financial penalties have been collected, but that he is working to 
change that. It is ``important to send a signal to other would-be 
robocallers that you're not going to be able to get away with it,'' Mr. 
Pai said.
    Still, none of the $202 million demanded in what the FCC calls 
forfeiture orders against alleged rulebreakers during Mr. Pai's tenure 
has been collected.
    The agency in May 2018, for example, fined a Florida-based company 
and its top executive $120 million for making 100 million illegal 
robocalls during a three-month period in 2016. Agency records as of 
late December indicate that no funds had been collected.

    Senator Blumenthal. The headline is ``The FCC has fined 
robocallers $208 million. It's collected $6,790.''
    Mr. Rupy, do you have an explanation for why that is?
    Mr. Rupy. Thank you for that question, Senator.
    So I think just two things real quick. Number 1, I think my 
understanding of how the FCC can collect those funds, they 
basically have to make the referral to DOJ and then, you know, 
DOJ basically has to enforce that.
    Senator Blumenthal. So DOJ is not enforcing the FTC orders?
    Mr. Rupy. It's not that they're not enforcing--the orders 
are enforced by the FCC, but it's the collection of the funds 
that falls into the Department of Justice's.
    Senator Blumenthal. Well, that's what I mean. The orders 
are enforced. The FTC is the plaintiff, but you're saying DOJ 
is the one who goes to court----
    Mr. Rupy. Correct.
    Senator Blumenthal.--and they're not going to court?
    Mr. Rupy. Correct. But the other point I would raise, 
Senator, is that while there is that collection issue, I do 
believe, U.S. Telecom certainly believes that those enforcement 
actions do have a positive impact.
    I mean just as an example, last year the Enforcement Bureau 
Chief sent letters to carriers that weren't supporting 
Traceback. USTelecom's Traceback Program, you know, saw an 
uptick in support of carriers after those letters went out. So 
I do think, you know, we have to look at the positive effect 
that those types of enforcement actions have on industry.
    Senator Blumenthal. Well, they may have a positive impact 
but they'd have a lot more positive impact if the collections 
were made and I agree totally with Attorney General Peterson, 
having been an attorney general myself, that nothing speaks as 
loudly as prison time.
    Mr. Rupy. Senator, I wholeheartedly agree there. I think 
that's the most effective.
    Senator Blumenthal. At the end of the day, what really 
matters for consumers is the ability to block these calls. 
That's the most effective tool and the technology exists to 
block these calls.
    I've joined Commissioner Rosenworcel in calling on carriers 
to make robocall blocking tools available to their customers 
for free. Most of them now charge a fairly steep monthly bill 
for this blocking technology and I am introducing today a 
measure, it's called The Robocall Bill, that would require the 
carriers to provide this technology for free to every consumer, 
give them control.
    Would you support that bill?
    Mr. Rupy. Senator, I think one of the things that I would 
point to is there is tremendous deployment of these tools by a 
variety of carriers and some are free, some are not, but many 
carriers are deploying a variety of tools, both, you know, on 
the edge and in the networks and on the apps, and it's 
certainly my view that that diversity in tools and diversity in 
approaches to empowering consumers is the best approach.
    Senator Blumenthal. Why not just require that it be 
provided for free?
    Mr. Rupy. I think, Number 1, Senator, I think that's----
    Senator Blumenthal. I don't understand the argument for 
diversity. I mean, you know, diversity is a great thing, but a 
lot of carriers are not providing it free of charge.
    Mr. Rupy. I think many carriers are deploying tools that--
--
    Senator Blumenthal. Why not require it for free?
    Mr. Rupy. Some are free, some----
    Senator Blumenthal. OK. So I don't mind if you don't want 
to answer the question, but I have limited time. So let me go 
on.
    Ms. Saunders, what do you think? Shouldn't it be required 
for free?
    Ms. Saunders. Senator Blumenthal, you have already 
sponsored a lot of bills that I think have moved the ball 
forward and we really appreciate that.
    I'm not sure, frankly, that I agree that it should be 
always provided for free. When a phone carrier is required to 
provide something someone has to pay for that, it's generally 
the ratepayers, not the stockholders. When the ratepayers pay 
for it, that causes the rates to go up, that affects the 
poorest ratepayers, the low-income homeowners who are paying 
for residential landline and often $5 or $10 a difference a 
month can make the difference between whether they can afford 
that landline or not.
    So I fully support call blocking, but I'm not necessarily 
sure that requiring phone companies to provide them for free 
helps the people that you want to help the most, which are 
those that really can't afford to pay those fees, because it 
may mean that not only do they not have call blocking but they 
don't have their phones. It's at least an issue that we are 
considering--that we represent those poor people, those low-
income people who struggle to pay their landline bills.
    Senator Blumenthal. Is there a difference between the 
prepaid and other consumers?
    Ms. Saunders. I think there is a difference. Some of the 
lowest-income consumers have cell phones which are lifeline and 
those are often prepaid and some are on contracts. I'm not sure 
how that goes to call blocking.
    Senator Blumenthal. So you would agree with Mr. Rupy that 
the diversity is a good thing?
    Ms. Saunders. My point is, sir, is that, call blocking is 
an interim measure that needs to be implemented, but the 
ultimate measure is that we need to figure out how to stop the 
illegal calls and the Traceback is a very good step in that 
direction, but it won't complete the problem until we give 
consumers control over who gets to call their phone lines and 
that, I think, really lies with implementation of the Telephone 
Consumer Protection Act.
    Senator Blumenthal. Thank you. My time has expired. Thanks 
very much.
    Senator Thune. Thank you, Senator Blumenthal.
    Senator Gardner.

                STATEMENT OF HON. CORY GARDNER, 
                   U.S. SENATOR FROM COLORADO

    Senator Gardner. Thank you to the witnesses for being here 
today and thank you to Chairman Thune for convening this very 
important hearing.
    You know, the only thing that I can think that Coloradans 
might universally despise more than the Los Angeles or Oakland 
or Las Vegas Raiders or whoever they are robocalls and just 
like everyone else around this dais, my state is getting 
inundated with them.
    According to YouMail's Robocall Index, Coloradans received 
30.7 million robocalls in March 2017. That's more than 989,000 
calls per day and more than 41,000 calls per hour. But that was 
2 years ago.
    In March of this year, YouMail estimates that Coloradans 
received a whopping 73.6 million robocalls. That's an 
approximately 140 percent increase in robocalls to Coloradans 
over the past 2 years. That's equivalent to 2.4 million calls 
per day, nearly 99,000 calls per hour, and just over 27 calls 
per second every single day in a state of five and a half 
million people.
    But these are just averages. Many in Colorado have it far 
worse than the average. For example, I received a letter from a 
constituent in Loveland who e-mailed me at 11 a.m. 1 day to let 
me know that he had already received 11 robocalls that morning. 
A husband and wife in their 70s who live in Delta had sent me a 
letter telling me that calls start at 8:30 in the morning and 
last late into the evening with nearly nonstop recordings and 
robocalls about medical supplies and financial offers.
    They're on the Do Not Call List but that doesn't stop the 
scammers and incessant calls. Enough is enough. We simply have 
to stop this.
    Even my staffers' desk lines here in Washington, D.C., and 
I'm going to get this opened up are getting robocalls from 
spoofed internal Senate phone numbers. A phone call that looks 
like it came from the Senate is a scammer.
    One of my staffers was actually connected to a scammer this 
week through a robocall at his desk line and the scammer tried 
to get him to divulge his personal credit card details to 
secure lower interest rates.
    I'm going to play just a few seconds of that call and the 
scammer has figured out how to disable the phone, but I hope 
that people will take some time to listen to this call. If 
anybody's interested in hearing the transcript of this, they 
should because I was going to play about 7 seconds of it where 
they tried over and over to get and divulge the----
    [Audio played.]
    Senator Gardner. Now I stopped it there because the next 
words have probably never been entered into the congressional 
record before----
    [Laughter.]
    Senator Gardner.--and I don't want people to hear this 
listening live.
    I hope that people will, if anybody's interested, hear this 
and what this person tried to do to access and did everything 
they could to access this.
    Now if this was maybe my 95-year-old grandmother who got 
this phone call, she'd have been pretty intrigued by what this 
gentleman had to say and the dangers that it poses.
    So this call ended with this. My staffer said the U.S. 
Government is aggressively pursuing criminal activities and the 
scammer replied to him, ``Sure. If you can, if you can, I'll be 
waiting for you.'' It's on this call. Think of that. ``I'll be 
waiting for you.''
    These criminals are taunting us because they think we won't 
act. They think we can't reach them. Congress has waited too 
long to take more aggressive action on robocalls and these 
scammers think that they're invincible.
    That's why I was proud to cosponsor the TRACED Act, 
legislation designed to crack down on these kinds of calls and 
promote better coordination among Federal agencies.
    I thank Senators Thune and Markey for their leadership on 
that effort and for this Committee passing the bill at our most 
recent markup.
    Mr. Rupy, the Department of Justice announced last year 
that they had sentenced 24 defendants and a multimillion dollar 
international robocall scheme based in India. U.S. Attorney's 
Office for the District of Colorado provided significant 
support for that operation. I was pleased to see the aggressive 
action that DOJ took in this instance.
    You indicated in your testimony that we still need to 
improve coordination between the FCC, FTC, and DOJ to pursue 
criminal charges against the worst robocall offenders. I'm 
going to ask you for the record what more we can do and, you 
know, what we have to have the complete support of U.S. Telecom 
membership in pursuing justice for every Coloradan and everyone 
else in this country.
    We're going to get to that. I'm going to run out of time, 
but I just want to thank you and the Federal Government and 
private sector alike. We've got a lot to do when it comes to 
preventing robocalls and according to the FCC, approximately 60 
percent of the complaints they get are regarding unwanted 
calls.
    Coloradans are sick and tired of this. They're sick and 
tired of the interruptions, the constant scamming, the constant 
gaming, the nonstop ringing, and it needs to stop, and so 
Congress should pass the TRACED Act as soon as possible. The 
President should sign it into law and I stand ready to work 
with anyone who's willing to do just that and we'll follow up 
with you on the record.
    Thank you.
    Senator Thune. Thank you, Senator Gardner. Appreciate that.
    Next up is my partner on this, the Senator from 
Massachusetts, Senator Markey.

               STATEMENT OF HON. EDWARD MARKEY, 
                U.S. SENATOR FROM MASSACHUSETTS

    Senator Markey. Thank you, Mr. Chairman, so much, and 
nothing is more bipartisan than the scourge of robocalls.
    This is something that unites everyone in America. We 
realize that something very bad has happened, that there is a 
sinister side of cyberspace, that really terrible things can 
happen as well as very good things, and when I was authoring 
the Telecommunications Consumer Protection Act back in 1991, we 
were in a relatively prosaic era, it turns out, in terms of 
robocalls and the goal then was to make sure that people, 
whether at home or in their mobile phones, consumers should not 
be subject to intrusive and unsolicited calls.
    But this precious zone of privacy and control is under 
massive attack today because technology has evolved. Scammers 
can now easily robocall consumers en masse using technology as 
basic as a modern smart phone. That's all they need. They just 
need a smart phone and they're in business in sending tens of 
thousands of unwanted calls to people.
    The fraudsters can easily spoof their numbers in which they 
conceal their actual identity and instead make it seem like the 
call is coming from someone in your neighborhood when it's 
coming from some place, as Senator Gardner is saying, unknown 
and more likely than not international, but it's been disguised 
as it's coming into people's homes.
    In March, as the Chairman mentioned, consumers received an 
estimated 5.2 billion robocalls and more than 55 million came 
to my constituents in Massachusetts and the onslaught of 
robocalls has rattled consumers' confidence in their mobile 
devices, caller ID isn't trusted, important calls go 
unanswered, innocent Americans are defrauded, robocalls are a 
menace in our country, and just last week, this Committee sent 
a clear message to fraudulent robocallers your days are 
numbered.
    The Committee unanimously passed the TRACED Act, bipartisan 
legislation that has received the unanimous support of this 
Committee and we thank you, Mr. Chairman, for your incredible 
work in putting together that coalition in stopping robocalls.
    It requires a simple formula, authentication, blocking, and 
enforcement, and this bill does achieve all three, and it's 
received and we thank you, Mr. Attorney General, for your 
support, the attorneys general of 54 states and territories 
attorneys general, all of the Federal Communications 
Commissioners, all of the Federal Trade Commissioners, major 
industry associations, and leading consumer groups.
    So let me go to you first, Ms. Saunders. Estimates suggest 
that this year almost half of all calls to mobile phones will 
be from spoofed numbers. Half of all calls to mobile phones in 
America in a year will be from spoofed numbers.
    How will the TRACED Act address the pressing challenge to 
the authenticity of our telephone networks?
    Ms. Saunders. Senator Markey, thank you for the question 
and thank you for your leadership on this issue.
    The TRACED Act will require that the phone companies 
originating the phone calls will validate that the caller ID 
matches the actual phone number from which the call is coming 
and that will bring us much farther along the road to ensuring 
that we can believe our caller IDs and we will know who is 
calling us.
    Senator Markey. So there's an enforcement working group to 
identify better opportunities to better prosecute illegal 
robocallers.
    So, Attorney General Peterson, what enforcement challenges 
do you face and how do you think the working group could help 
alleviate those challenges?
    Mr. Peterson. Well, I think that the working group among 
the attorneys general, this interagency working group is going 
to be very important. As I have already said, 43 state AGs have 
come together and want to coordinate with the Feds as to how 
best we can collectively use Federal law and state law, what 
are the best forums, what are the best investigative tools.
    So the problem is so significant that in order to have any 
opportunity to be effective, I think there's got to be this 
combined effort. That's why we were very encouraged to see the 
specific language in the bill with regards to the interagency 
working groups.
    Senator Markey. Can you once again just state what percent 
of all the complaints that come into your office are with 
regard to unwanted calls?
    Mr. Peterson. For us, it's over 60 percent, but I know 
every state's a little bit different, but the volume is what's 
so significant and probably in the last 2 years how that volume 
has just accelerated at a rate with the technology and the 
accessibility that we haven't seen before.
    Senator Markey. So, Mr. Rupy, the TRACED Act establishes 
binding requirements for telephone providers to adopt call 
authentication and blocking technologies.
    What type of impact will the adoption of these protections 
have on curbing the meteoric rise in the number of unwanted 
robocalls?
    Mr. Rupy. Thank you for that question, Senator, and thank 
you for your leadership on this issue and this bill, and I 
think the TRACED Act will do two important things.
    One, as Attorney General Peterson noted and Ms. Saunders, 
it will authenticate that number. It will restore trust in that 
number and that's important both to consumers and on the 
analytics side as we look to, you know, try to separate the 
good calls from the bad calls.
    Second thing it'll do, it'll enhance traceback and to 
Senator Gardner's point, USTelecom's Industry Traceback Group 
can find these individuals. We've traced them back to Croatia, 
India, and the Dominican Republic. We can find them and, you 
know, there have been enforcement actions against call centers 
in India and I would encourage those types of actions which 
were, you know, facilitated by the FTC.
    Senator Markey. Thank you. So I thank you again, Mr. 
Chairman. I thank Ranking Member Schatz and Cantwell, Chairman 
Wicker. This has been bipartisan. There are no blue robocalls 
or red robocalls. There are just irritating robocalls and 
that's why it's so important that we take action.
    Thank you, Mr. Chairman.
    Senator Thune. Hear, hear. Thank you, Senator Markey.
    Senator Capito.

            STATEMENT OF HON. SHELLEY MOORE CAPITO, 
                U.S. SENATOR FROM WEST VIRGINIA

    Senator Capito. Thank you, Mr. Chairman. Thank all of you 
for being here, and I join my voice in the irritation category 
of spoofing.
    I can tell you just walking, you know, walking around when 
you're grocery shopping, it's inevitable that somebody's going 
to say can you do something about these spoofing calls and 
these numbers that come in and so I'm glad that the TRACED Act 
has moved in that direction.
    Here's my concern. Through the tools that we're giving in 
the TRACED Act to block and authenticate, I mean, there are 
people out there now trying to figure out how to get around 
that and so I guess my question is, in this bill, do we give 
the ability for the FCC and others to sort of look beyond to 
the next algorithmic scam that's going to be coming down the 
pike, Mr. Rupy?
    Mr. Rupy. Thank you for that question, Senator.
    Yes, there are definitely provisions in the bill that look 
toward forward-thinking developments on this issue and the fact 
of the matter is that this is a constantly evolving challenge.
    I think industry has done an admirable job of not only 
developing these standards and deploying them but also looking 
at ways to deploy, you know, powerful and important tools for 
consumers.
    So as the bad actors change their tactics, which they 
inevitably will, I think there is definitely a good strong 
effort by industry to basically counteract that----
    Senator Capito. Good.
    Mr. Rupy.--and the bill addresses that.
    Senator Capito. Good. Ms. Saunders, one of the issues that 
came to my attention was a younger woman whose mother, who 
would be a senior, she said my mother doesn't answer the phone 
anymore. She's afraid to answer the phone. As a senior, she's 
afraid to answer the phone, even if she knows the number, she 
just doesn't trust it anymore because of these spoofing calls 
and robocalls, and so I see it as a real potential, if we don't 
get a handle on this, a real potential for fraud obviously for 
a senior, but also some really serious safety concerns, 
particularly for seniors who really rely on the phone and maybe 
have one or two folks that they call every day and if 
somebody's calling in to say watch out, the river's rising, 
you've got to get out of here, they're not answering those 
calls.
    Have you looked at that as a particular issue in terms of 
how this affects seniors?
    Ms. Saunders. Senator Capito, it's nice to see you.
    Senator Capito. Good to see you.
    Ms. Saunders. We have been complaining about robocalls as 
being a major source of the reduction of value in our 
telephones. As Senator Schatz noted, it is a really serious 
problem.
    We are trying to identify all of the different causes for 
this and the spoofing is one of the worst elements of the 
problem. We do think that the TRACED Act will make a big, big 
difference, but I feel like a broken record here because I keep 
saying the same thing, that it is not all that needs to be 
done.
    We also must continue to give consumers control over who 
calls them, especially over automated calls to them, and that 
means strong implementation of the Telephone Consumer 
Protection Act, which will allow the senior, the example that 
you're providing, to go on the Do Not Call Registry and know 
that that means that any telemarketer that calls her, unless 
she has given prior expressed written consent, will have 
violated that law and that she can call the private attorneys 
or the attorney general, the FCC, and the FCC can go after that 
caller.
    Senator Capito. OK. Good. Thank you.
    Mr. Attorney General, do you feel that your office--I mean, 
some of this is pretty complicated stuff, I mean, in terms of--
I mean, it's not complicated when you get a call. That's the 
uncomplicated part, but the unwinding of it all is very 
complicated.
    Do you feel that as a state attorney general that you have 
the resources within your office or another state would have to 
handle this or would you think it would be better if you banded 
together and use that expertise maybe, you know?
    I'm just concerned about overloading your office, Number 1, 
but also making sure--these are specialized telecom statutes.
    Mr. Peterson. Right. I appreciate the question, Senator. I 
had mentioned earlier and didn't really define it that well, 
but North Carolina Attorney General Josh Stein and also New 
Hampshire Attorney General Gordon MacDonald made the effort to 
coordinate attorney generals and I think 43 AGs are now engaged 
in the process and retained an expert because you're exactly 
right. The technology moves so quickly and, to be quite honest, 
among our AGs, we have limited talents in that area of 
technology.
    So what they did is they retained the former FCC Chief of 
Technology Dr. Henning Schulzrinne, I hope I'm saying that 
correctly, but, anyway, to have that type of consulting.
    Senator Capito. To answer this question?
    Mr. Peterson. Yes, exactly. And so I think we recognize our 
shortcomings as far as being able to have the bandwidth in our 
own office----
    Senator Capito. Right.
    Mr. Peterson.--with these challenges and so I think that 
shows that we're trying to stay in front of it by getting some 
of the best in the industry to consult with and that's how we 
deal with a lot of variety of issues we face.
    Senator Capito. All right. Thank you. Good luck.
    Mr. Peterson. Thanks.
    Senator Thune. Thank you, Senator Capito.
    Senator Tester.

                 STATEMENT OF HON. JON TESTER, 
                   U.S. SENATOR FROM MONTANA

    Senator Tester. Thank you, Chairman Thune. I want to thank 
you all for being here. I appreciate it very, very much.
    If there's one thing that we all agree on, these are a pain 
in the neck, OK, but I want to go off of what Senator Capito 
was saying about the fact that elderly people aren't answering 
their phone anymore and there's a lot of problems with that.
    Do any of you have any data on the number of calls that are 
going unanswered? In other words, is the number of calls being 
answered going down?
    Mr. Rupy. Senator, thank you for that question, and it's a 
good one, but I don't think there's any dataset on that. 
There's certainly anecdotal data that people are picking up 
their phone less or, you know, as Attorney General Peterson 
noted, letting it go to voice mail.
    Senator Tester. OK. So a couple questions that kind of spin 
off of this whole thing that have come to mind here.
    Several times during this conversation, Mrs. Saunders, you 
have talked about the fact that the TRACED Act is a great first 
step, but, quite frankly, the full implementation of the 
Telephone Consumer Protection Act needs to happen, which 
contains the Do Not Call List.
    Is there any teeth in that Do Not Call List? I'm on the Do 
Not Call List but I still get the damn calls and so when I tell 
them I'm on the Do Not Call List, they kind of laugh. Is there 
any teeth in that Do Not Call List?
    Ms. Saunders. There are some teeth in it, but the cases are 
unfortunately difficult to bring because TRACED Act has not yet 
been implemented.
    Senator Tester. OK.
    Ms. Saunders. But there is a private right of action but it 
is inadequate.
    Senator Durbin actually is about to introduce a bill that 
tremendously adds to the private right of action under the Do 
Not Call List.
    Senator Tester. That's a good thing, I think, although I 
haven't seen the bill yet and I always reserve the right, but 
what you're saying is if the TRACED Act is implemented, which 
hopefully we can do, hopefully we can do it by UC, quite 
frankly, if it's implemented, that makes the Telephone Consumer 
Protection Act more powerful and more enforceable?
    Ms. Saunders. Yes, sir.
    Senator Tester. Good. You talked about--does anybody know 
the percentage of robocalls that are coming from offshore, from 
foreign countries?
    Ms. Saunders. I don't think we know that, sir. I haven't 
seen any statistics. Do you?
    Mr. Rupy. That's another area that's lacking, Senator, and 
one of the challenges in this area, is that there's not--the 
FCC acknowledged in its recent report that the data out there 
is very scattered and inconclusive. But----
    Senator Tester. Go ahead. Finish, finish up.
    Mr. Rupy.--there are certainly significant portion of the 
traffic comes from overseas, but I would note that in the cases 
involving Adrian Abramovich and Aaron Michael Jones, they were 
orchestrating those calls domestically.
    So, in other words, Adrian Abramovich was based in Miami, 
Florida. He had a call center in Mexico----
    Senator Tester. Yes.
    Mr. Rupy.--generating the calls.
    Ms. Saunders. May I add something?
    Senator Tester. You may.
    Ms. Saunders. Mr. Abramovich and others are lead generators 
and they are paid by sellers of real goods and services and if 
we are able to hold the sellers of those goods and services 
responsible for the making of the calls by their lead 
generators, that will stop a lot of these calls. At the moment, 
they are defending the actions and saying we know nothing.
    Senator Tester. You make a very good point. So let me ask 
you and maybe this is a question for the Attorney General.
    So we passed the TRACED Act. We allow the Telephone 
Consumer Protection Act to be fully enforced. Can we go after 
those folks who are paying to have this done?
    Ms. Saunders. If the current law is good but the calling 
industry is pushing the FCC and the courts to change the law 
and make the callers independently liable but make the sellers 
responsible for the callers not liable. That's the push. That's 
one of the issues that's pending.
    Senator Tester. So talk to me.
    Ms. Saunders. So----
    Senator Tester. No. The question is, are we going down a 
line that's enforceable or are we going down a line that will 
never happen? It looks to me that you go after the money. OK. 
If these dudes don't have money or don't have enough money or 
whatever, go after the folks who are creating the problem to 
begin with.
    What's your view on that matter, Mr. Rupy?
    Mr. Rupy. Senator, the main point I wanted to raise was 
that Adrian Abramovich, when the FCC issued its citation, it 
noted he wasn't saying I'm calling from Adrian Abramovich 
Resorts.
    Senator Tester. No, no.
    Mr. Rupy. He was co-opting the names of Disney Resorts, 
Marriott, Hilton, et cetera. So, you know, in a lot of 
instances, these lead generators are purporting to be from 
these organizations----
    Senator Tester. And they're not.
    Mr. Rupy.--and that is not the case.
    Senator Tester. OK. All right. Well, look, I'm in the 
business of taking phone calls as a U.S. Senator and I leave a 
lot of them and, quite frankly, what really ticks me off is 
when they call me. I don't get a real person. I get a damn 
computer that's talking to me and it takes me 15-20 seconds to 
figure out it's a computer and then when I call them back, I 
get a busy signal. It drives me crazy. But it's probably good 
they don't answer.
    I would also say on a foreign call, I can't imagine that 
many regular people get many calls from foreign countries. Just 
I've been here for 62 years and I've had a handful of them. OK.
    So thank you all very much.
    Senator Thune. Thank you, Senator Tester.
    Senator Young.

                 STATEMENT OF HON. TODD YOUNG, 
                   U.S. SENATOR FROM INDIANA

    Senator Young. Thank you, Chairman.
    Well, I want to thank each of you for sharing your views on 
this important issue. It's really important to people that I 
represent. We've dealt with this issue of robocalls in the 
state of Indiana in a very public way for decades now. In fact, 
for a period of time, I characterized this as the Number 1 
public policy issue among Hoosiers, getting what they regard as 
annoying calls at dinner time, interrupting their daily lives.
    Still today, it's not uncommon I'll hear from Hoosiers. 
They get 10 calls a day from people they don't know, they 
didn't ask for the call, and so forth.
    So I'm glad we're having this hearing, Mr. Chairman. I'm 
glad we're taking some action to crack down.
    In 2018, YouMail, a third-party software company, indicated 
that approximately 725 million robocalls were placed to Indiana 
recipients. Now if used properly, I want to acknowledge, 
robocalls don't have to be burdensome if you have the proper 
consent between parties worked out. Many services utilize pre-
recorded calls and they share important information with 
constituents and customers.
    But at their worst, as you know, there are criminals out 
there who have the ability to steal people's information, to 
steal their resources, and to prey on unsuspecting American 
citizens.
    So again I'm glad we've moved forward with a first step 
here with the TRACED Act, but we have to continue to review 
this issue and I look forward to working with all of you as we 
do that to see how we can empower regulators and, if necessary, 
consumers additionally to combat this problem.
    Constituents tell me that they're on the National Do Not 
Call List. They're on our states' Do Not Call List and yet they 
still receive unsolicited phone calls and they can't figure out 
why that is. That doesn?t seem right to them.
    As it's currently envisioned, the SHAKEN/STIR standards 
would authenticate each call and allow the recipient to answer 
the phone with confidence. However, with the current use of 
voice traffic over the internet, phone spammers can route calls 
through a private telephone network based here in the United 
States. If marked as spam under these standards, the operators 
can easily re-establish another operation.
    So my question for the panel is, how would you suggest 
adapting these proposed standards or national enforcement to 
stop private telephone network operators from setting up 
operations all over again to continue making these unsolicited 
robocalls?
    Mr. Rupy. Senator, thank you for that question.
    It's a very good question and I think the TRACED Act does 
two things that are going to help with that. The facilitation 
of the interagency working group, SHAKEN/STIR, will make 
finding those actors easier and faster, but I really think at 
the end of the day, the criminal enforcement component, so that 
when they get caught that first time, they can't set up shop 
again because they're in a jail cell.
    Mr. Peterson. Yes. The only thing, and, Senator, I'd like 
to thank the State of Indiana because I know the Attorney 
General's Office in Indiana has been one of the leaders among 
the AGs in this fight along with Missouri.
    Senator Young. A shout-out goes to Attorney General Carter 
and Attorney General Zeller in our state. They were very active 
on this front and I know that the effort continues with our 
current AG.
    Mr. Peterson. AG Hill, yes. To me, the regulations will be 
important and I think having the opportunity for the FCC to get 
the input of the states we consider to be an important effort, 
but this acceleration of technology, I think, is always going 
to be our challenge and that's why the industry's cooperation 
is going to be so important.
    Senator Young. Ms. Saunders, do you have anything to add to 
that?
    Ms. Saunders. No, sir.
    Senator Young. OK. So I would just note the STIR/SHAKEN 
framework confirms the identity of the caller, not the content 
of the call.
    Do we need to be doing anything with respect to the content 
or you think the identity is where we should stop in this 
effort?
    Mr. Rupy. Senator, I think that the authentication of the 
number is a very good start. That's an important start.
    Senator Young. OK.
    Mr. Rupy. Spoofing has been the key driver, one of the key 
drivers for robocalls. Authenticating who is associated with 
that number, that's an important step, as well, and I know 
that's something industry is definitely looking at.
    Senator Young. OK. Great. Thank you, Mr. Chairman.
    Senator Thune. Thank you, Senator Young.
    My understanding is that Senator Sinema is en route. Did 
you have another question, Senator Markey? A quick one?
    Senator Markey. Thank you, Mr. Chairman. I actually have 
questions for the record.
    Senator Thune. You do? OK. Well, if you want to ask, go 
ahead. I mean, we're going to wait for--we've got one more 
member that's on their way here.
    Senator Markey. Oh, great. So if I can play that role, then 
I'd be glad to do it.
    There's an entire industry out there solely predicated on 
contacting consumers by any means possible and the only thing 
preventing these callers from bombarding the public in an 
unlimited number of unwanted calls is the Telephone Consumer 
Protection Act and consent is the bedrock of the Telephone 
Consumer Protection Act and while technology may change, the 
key principle does not, and therefore it is the FCC's 
obligation to use its authority to adapt to changing 
technologies and ensure consumers have robust enforceable 
protections against the onslaught of unwanted and abusive calls 
and texts and their work is more important now than ever 
because the D.C. Circuit Court of Appeals struck down portions 
of the FCC's 2015 rules which updated protections for the smart 
phone era.
    While the court case was a setback, the spirit and intent 
of the TCPA has always been very clear. Callers must have 
affirmative permission from the consumer before using auto-
dialers which are technologies that can call and text countless 
consumers at one time, and consumers should always have 
reasonable means to revoke consent, to say ``no'' from 
receiving any more calls or texts.
    So, Ms. Saunders, is there any reason why the Federal 
Communications Commission cannot use its authority under the 
TCPA to ensure consumers have an easy way to revoke consent and 
require callers using auto-dialers to receive permission before 
calling or texting a consumer?
    Ms. Saunders. Thank you for the question, Senator Markey.
    The issue before the FCC--there are a number of issues. The 
two big issues you've just identified, one is how to define or 
how to interpret the definition for auto-dialer. The reason the 
ACA case was sent back to the FCC by the D.C. Circuit Court was 
that it said that the 2015 FCC Order was too broad and that as 
it read, it covered all smart phones.
    The FCC now has before it a number of comments from 
consumer groups and industry arguing that concept and we have 
pointed out to the FCC that smart phones as they come from the 
factory do not have the capacity, the current capacity to make 
automated calls.
    So to quibble with you slightly, Senator Markey, you said 
that smart phones could be automated dialers, that is not the 
case unless they add applications and that's a critical 
distinction to make for the FCC.
    If the FCC were to include all smart phones, the case would 
be sent back again, but we think we've shown to them how they 
can avoid that.
    If the FCC does what the industry wants and defines 
automated dialers as the U.S. Chamber and other callers have 
asked, the definition will not cover any of the dialers out 
there. The consequences will be that all these automated calls 
will be completely unregulated and there will not be any way to 
say stop because the TCPA won't apply to them.
    Senator Markey. OK. So your response is that the Federal 
Communications Commission has clear authority----
    Ms. Saunders. Yes, sir.
    Senator Markey.--and if strong protections are not 
established, consumers would lose their right to provide and 
revoke consent from any calls and I agree with that and that's 
why so many members of the Senate are communicating with FCC 
Chairman Ajit Pai to adopt key protections of comprehensive 
definition of auto-dialer, ensuring all callers must receive 
permission before robocalling or robotexting a consumer, and 
preserving a consumer's right to revoke consent should they no 
longer wish to receive calls or texts, and if the FCC fails to 
fulfill their legislative mandate, it's going to be imperative 
for this Committee once again to take action in order to ensure 
the consumers always have the right to say no to robocalls.
    Ms. Saunders. Yes. May I respond? Senator Markey, you 
yourself wrote a letter. You've written several letters to the 
FCC but you specifically wrote a letter on this point which we 
appreciate because it supports the consumers' view of the 
necessity for the FCC to appropriately interpret the statutory 
definitions.
    Senator Markey. I appreciate that. Thank you. Thank you, 
Mr. Chairman.
    Senator Thune. Thank you, Senator Markey.
    Senator Sinema.

               STATEMENT OF HON. KYRSTEN SINEMA, 
                   U.S. SENATOR FROM ARIZONA

    Senator Sinema. Thank you, Mr. Chairman, for holding this 
important hearing, and thank you to our witnesses for 
participating today.
    I'm sure you've heard this from other folks on the panel, 
but in Arizona, people are frustrated by the barrage of illegal 
robocalls which interrupt family dinners, ruin people's movie 
nights, and occasionally even wake them up in the middle of the 
night.
    But beyond frustration, illegal robocalls frequently 
support fraudulent scams that threaten the personal and 
financial security of Arizona's seniors, families, and 
businesses.
    We know the FCC estimates nearly half of all cell phone 
calls received this year will be spam and according to a recent 
study, robocalls reached record highs in every Arizona area 
code in 2018.
    In June 2018 alone, Arizonans received 78.3 million 
robocalls. I hear from constituents every day about annoying, 
burdensome, and dangerous robocalls. One family, Donald and 
Rosemary, who live in Mesa, are harassed as early as 6:30 in 
the morning by robocalls. Alejandro, who's a volunteer in an 
Arizona County Sheriff's Department, receives robocalls at work 
which distract him from his duties. Eric, a constituent in 
Phoenix, worries that his 82-year-old mother will get scammed 
by a robocall or that she might stop answering the phone all 
together.
    So as robocalls disrupt the lives of hard-working 
Arizonans, they deserve much-needed relief, which is why I'm 
proud to have cosponsored our bipartisan legislation, the 
TRACED Act, which this Committee recently approved to crack 
down on illegal robocalls and hold perpetrators accountable.
    Our bill increases criminal penalties and promotes call 
authentication and blocking technologies, and I'm committed to 
working with my colleagues on both sides of the aisle to make 
sure that that TRACED Act becomes law.
    As Eric from Phoenix said to me, no one should be held 
hostage by their own device.
    So my first question this morning is for Mr. Rupy. If 
enacted, the TRACED Act would require voice service providers 
to adopt call authentication technologies to verify the 
identity of incoming calls before connecting the consumer.
    Can you explain the STIR/SHAKEN technology and how it will 
prevent Arizonans from receiving these unwanted robocalls?
    Mr. Rupy. Thank you for that question, Senator.
    And, yes, the Act does that and industry's committed to 
deploying that standard. They're doing that now and basically 
the way the standard works, I've equated it to a Notary Public. 
When that calls get originated, the number is authenticated.
    Basically, the company originating that call says I own 
this number, I know where it's coming from, my network, and it 
passes through the network and in each subsequent hub, each 
network it goes through, that number continues to be 
authenticated throughout the process.
    So it will work on a pure IP network. Comcast and AT&T have 
already had successful handoffs of that. Verizon's done the 
same. So at the end of the day, what it will do is when that 
consumer sees that number on their caller ID that's been 
authenticated, they will know that that is indeed the number.
    Now it doesn't authenticate the content of the call but 
nevertheless the authentication of that number is a powerful 
and important step.
    Senator Sinema. Thank you.
    My next question is for Ms. Saunders, but I also welcome 
the thoughts of Mr. Peterson.
    A recent report by the Wall Street Journal indicates that 
although the FCC and FTC have imposed large penalties on 
illegal robocalls, only a very small amount of those fines have 
been collected. So the FCC has levied over $200 million in 
fines but has collected only about $7,000.
    So how will the TRACED Act improve enforcement of the law 
and how can we better partner with state authorities to ensure 
enforcement for these types of violations?
    Ms. Saunders. I think the TRACED Act will improve 
enforcement of the law by providing the enforcers, both private 
and public and government enforcement officials, the ability to 
determine who is making the calls and then they can bring 
actions against them.
    In terms of collecting more fines and fees, I think the 
problem may be that the people that are being prosecuted don't 
actually have the money and as I've been saying is that we need 
to also make sure that we can go after the sellers of goods and 
services for whom these robocallers are actually making the 
calls and providing the leads.
    In my testimony in Footnotes beginning on Page 2, I've 
detailed a number of individual class actions brought privately 
that are against home security systems and cruise-selling 
robocall systems and Hilton and other telemarketers who are 
responsible for those robocalls, even if they're not actually 
making them.
    Mr. Peterson. Senator, the only thing I would add to that 
is the TRACED Act will help. It will give us greater options. 
It'll also create, I think, even stronger interagency and 
Federal and state cooperation.
    It's not to say that there has never been any type of 
significant collections here, but, for example, in 2017, there 
were four attorney generals and the U.S. DOJ obtained a $280 
million judgment against DISH. So there has been some effective 
enforcement, but I agree with Ms. Saunders. I think one of the 
bigger challenges is sometimes the collectability of the 
players and their fluid operations.
    Senator Sinema. Thank you. Mr. Chairman, my time's expired, 
but thank you again for hosting this hearing.
    Senator Thune. Thank you, Senator Sinema.
    And as we wrap up, I think we want to get these bad actors 
in a headlock, as was alluded to earlier, and so hopefully we 
can move the legislation forward.
    It occurred to me as I was listening to all this that not 
only you run the danger obviously of people who are being 
preyed upon by scam artists and fraud and everything else, but 
also there seemed to me an inherent danger when people are no 
longer picking up legitimate calls that might relate to their 
own health and safety and so particularly elderly people and 
that to me seems to be yet another reason why we need to get 
this issue addressed.
    So it has been very helpful this morning. Thank you all, as 
always, for your input and testimony.
    We will keep the hearing record open for a couple of weeks 
and so if members have questions that they want to submit for 
the record, if you would please respond to those as quickly as 
possible, and we'll include those as a part of the permanent 
hearing record.
    I do want to ask that there's a letter from ITTA in support 
of TRACED, that that be made a part of the hearing record.
    [The ITTA letter referred to follows:]

                                                       ITTA
                                     Washington, DC, April 11, 2019

Hon. John Thune,
511 Dirksen Senate Office Building,
Washington, D.C
Hon. Edward Markey,
255 Dirksen Senate Office Building,
Washington, DC.

Dear Senators Thune and Markey:

    Thank you for your leadership as the sponsors of the Telephone 
Robocall Abuse Criminal Enforcement and Deterrence (``TRACED'') Act. We 
view this bill as an important step in Federal efforts to stop the 
illegal robocalls that have intruded on consumers' privacy and 
triggered millions of complaints to Federal and state agencies.
    ITTA's members support aggressive civil and criminal enforcement 
against illegal robocallers by the Federal Trade Commission, Federal 
Communications Commission and Department of Justice. Various ITTA 
members have also worked on the many cross-industry efforts to reduce 
robocalls, including the Industry Traceback Group, and the development 
of the SHAKEN and STIR standards for call authentication. Together, 
these efforts can reduce the incentive and ability of bad actors to 
abuse the communications system, and give consumers tools to protect 
themselves.
    As the TRACED Act moves toward enactment, the implementation 
process for the market-based call authentication measures has already 
begun by some carriers, including carrier network investments. To that 
end, we hope Congress and others in an oversight role will encourage 
all parties to work through the process in good faith. In many cases, 
the practical number of equipment and software options will be limited, 
and ITTA member companies will depend on a small number of technology 
vendors to come through on time with the appropriate technology and 
network updates, at reasonable prices, and in sufficient quantity to 
achieve the reasonable timelines envisioned in your bill. If all 
parties work cooperatively, we feel confident the goals can be reached.
    We appreciate your leadership on robocalling and other issues.
            Sincerely,
                                         Genevieve Morelli,
                                                         President.

    Senator Thune. And we will look forward to working with our 
colleagues on this Committee, Senator Markey and I, and 
hopefully in a very bipartisan way moving this legislation 
across the finish line and on to the President's desk for his 
signature.
    I think we have 53 cosponsors at the moment and hopefully 
there will be more as time progresses.
    So thank you all again, and with that, this hearing is 
adjourned.
    [Whereupon, at 11:47 a.m., the hearing was adjourned.]

                            A P P E N D I X

    National Association of Federally-Insured Credit Unions
                                      Arlington, VA, April 10, 2019

Hon. John Thune,
Chairman
Subcommittee on Communications, Technology, Innovation, and the 
Internet,
Committee on Commerce, Science, and Transportation,
United States Senate,
Washington, DC.

Hon. Brian Schatz,
Ranking Member,
Subcommittee on Communications, Technology, Innovation, and the 
Internet,
Committee on Commerce, Science, and & Transportation,
United States Senate,
Washington, DC.

Re: Tomorrow's Hearing on ``Illegal Robocalls: Calling All To Stop The 
            Scourge''

Dear Chairman Thune and Ranking Member Schatz:

    I write to you today on behalf of the National Association of 
Federally-Insured Credit Unions (NAFCU) in conjunction with tomorrow's 
hearing entitled ``Illegal Robocalls: Calling All To Stop The 
Scourge.'' NAFCU advocates for all federally-insured not-for-profit 
credit unions that, in turn, serve over 116 million consumers with 
personal and small business financial service products. NAFCU and our 
members appreciate the Subcommittee tackling the scourge of unwanted, 
illegal robocalls, but we would caution the Subcommittee to ensure that 
efforts do not hamper the ability of credit unions to make legitimate 
communications to their members.
    In particular, NAFCU would like to reiterate our concerns regarding 
the Federal Communications Commission's (FCC) continuing work on 
defining ``automatic telephone dialing system'' (``autodialer'') issues 
with the Telephone Consumer Protection Act (TCPA). Since the FCC issued 
its problematic 2015 Declaratory Ruling and Order (2015 Order), the 
risk of facing a costly lawsuit over inadvertent TCPA violations has 
kept many credit unions from freely communicating with their members. 
The March 2018 ACA International v. FCC decision invalidated the 2015 
Order's overly expansive definition of ``autodialer'' and the FCC's 
approach to liability for calls to reassigned numbers under the TCPA. 
Since then, courts have taken a variety of approaches in determining 
what qualifies as an ``autodialer,'' leading to a maze of judicial 
interpretations of Congress's intent and meaning in passing the TCPA.
    NAFCU supports a broad definition of ``autodialer'' that only 
includes equipment that uses a random or sequential number generator to 
store or produce numbers and dial those numbers without human 
intervention. NAFCU also supports other reforms to help credit unions 
contact their members with important information about their existing 
accounts, such as permitting callers to establish a reasonable opt-out 
method for revoking their consent to be contacted.
    We appreciate the Subcommittee's continued oversight of the FCC and 
examination of this issue· and would urge the Subcommittee to 
modernize the TCPA to combat illegal robocalls, while also protecting 
credit unions' ability to freely communicate with their members on 
important issues related to their existing accounts. We also urge you 
to support the changes to S. 151, the TRACED Act, that we outlined in a 
letter to the Committee on April 1 of this year. We believe these 
changes would help ensure efforts to stop illegal robocalls do not 
negatively impact the ability of credit unions to contact their members 
for legitimate business purposes.
    On behalf of our Nation's credit unions and their more than 116 
million members, we thank you for your attention to this important 
matter. Should you have any questions or require any additional 
information, please contact me or Alex Gleason, NAFCU's Associate 
Director of Legislative Affairs.
            Aincerely,
                                               Brad Thaler,
                             Vice President of Legislative Affairs.

cc: Members of the U.S. Senate Committee on Commerce, Science, and 
Transportation
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Edward Markey to 
                           Hon. Doug Peterson
    Question 1. Mr. Peterson, since at least 2014, you and other 
states' Attorneys General have been calling on carriers to adopt call 
blocking technologies and services and make them widely available to 
their subscribers. For example, Nomorobo just announced that it has 
blocked its 1 billionth wireless call, and is offering for free its 
real-time feed of IRS call-back scammers. How has this type of market-
based service helped to combat robocalls?
    Answer. With respect to call-blocking options offered by voice 
service providers, we have come a long way since 2014. Today, a number 
of the largest service providers offer a variety of free or lowcost 
options for both wireline and wireless customers.
    With respect to services offered by third parties such as Nomorobo, 
I continue to believe that these companies and their call-filtering 
applications remain critical in the fight against illegal robocalls. 
For some consumers, these applications may be cheaper than a service 
offered by their service provider, more effective for certain purposes 
(e.g., creating a whitelist), or simply easier to utilize.
    Regardless of whether the service is offered by a third party or 
the consumer's voice service provider, these tools provide consumers 
with critical information needed to reclaim their privacy and protect 
themselves from unscrupulous scam artists.

    Question 2. Is there more that the industry can do to foster 
adoption of robocall solutions?
    Answer. Yes, there is no doubt that more must be done by industry 
to adopt and enforce robocall solutions. In addition to implementing 
the STIR/SHAKEN call authentication framework, voice service providers 
must demonstrate their commitment to identifying and blocking illegal 
robocalls at the network level. This requires service providers to know 
their customers, actively monitor their networks for robocall traffic, 
and investigate suspicious calling patterns.
    All service providers should also offer free, easy-to-use call 
blocking and labeling tools to their customers and ensure that those 
customers know such tools are available.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Edward Markey to 
                        Margot Freeman Saunders
    Question 1. Consumers should have meaningful control over who can 
and cannot contact their mobile device. Yet, two years ago, the FCC 
sought comments on a petition to exempt ringless voice-mails from TCPA 
protections. Ringless voice-mails allow the calling party to leave 
automated voice messages in a consumer's voice-mail without the phone 
actually ringing. Had the petition been granted, consumers would have 
no way to block or stop these unwanted messages from clogging their 
voice-mail. Callers will seek to exploit any technological developments 
to bypass core TCPA protections--ringless voice-mails are just a recent 
example. Ms. Saunders, how can we ensure that consumers are protected 
from these emerging technologies, which seek to bypass TCPA 
protections?
    Answer. The TCPA prohibits the making of ``any call'' other than an 
emergency call ``using an ``automatic telephone dialing system'' to 
``any telephone number assigned to a . . . cellular telephone service'' 
without the ``prior express consent of the called party''.\1\ The users 
of ringless voice-mails argue that ringless voice-mails are 
``information service technologies'' that are not subject to regulation 
by the TCPA.\2\
---------------------------------------------------------------------------
    \1\ 47 U.S.C. Sec. 227(b)(1)(A)(iii).
    \2\ See e.g., Picton v. Greenway Chrysler-Jeep-Dodge, Inc., No. 
619CV196ORL31DCI, 2019 WL 2567971, at *2 (M.D. Fla. June 21, 2019).
---------------------------------------------------------------------------
    However, courts have consistently held that calls resulting in 
voice-mail messages are subject to the TCPA.\3\ Indeed, this was the 
result in a recent case in Florida in which the caller tried to make 
telemarketing calls using the ringless voice mail technology. The court 
unequivocally struck down the defendant's arguments.\4\ Other cases 
have met a similar fate.\5\
---------------------------------------------------------------------------
    \3\ See, e.g., Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 
638 (7th Cir. 2012) (stating that the TCPA ``curtails the use of 
automated dialers and prerecorded messages to cell phones . . . and 
routing a call to voice-mail counts as answering a call'') and Castro 
v. Green Tree Servicing LLC, 959 F.Supp.2d 698, 720 (S.D.N.Y. 2013) 
(holding that for purposes of liability under the TCPA, it was 
immaterial whether the calls at issue had been answered by the 
plaintiff or had gone to voice-mail).
    \4\ Picton v. Greenway Chrysler-Jeep-Dodge, Inc., No. 
619CV196ORL31DCI, 2019 WL 2567971, at *2 (M.D. Fla. June 21, 2019).
    \5\ See, e.g., Schaevitz v. Braman Hyundai, No. 1:17-cv-23890, 2019 
U.S. Dist. LEXIS 48906 (S.D.Fla. March 25, 2019) (holding that ringless 
voice-mails can constitute a ``call'' subject to the TCPA).
---------------------------------------------------------------------------
    As a result, as long as the Federal Communications Commission and 
the courts follow the law, we do not believe there is much risk that 
ringless voice-mails will be allowed to evade TCPA coverage and clog up 
consumers' voice-mail.

    Question 2. Scammers can now robocall consumers en masse by 
downloading apps on a modern smart phone. Ms. Saunders, can you explain 
how a traditional smartphone could be converted into an autodialer and 
how this potential capability is contributing to the rise in unwanted 
calls and texts?
    Answer. Smartphones as manufactured and delivered to consumers do 
not have the present capacity to dial multiple numbers simultaneously 
or send mass texts. The same is true for ordinary desk top or laptop 
computers. None of these devices come from the factory capable of being 
used as autodialers. They can, however, be adapted, with the addition 
of software, or through accessing the web, in ways that will allow them 
to become part of a system that makes autodialed calls.
    Chairman Pai's dissent to the 2015 Omnibus Order \6\ when he was a 
Commissioner provides a framework for this analysis, as it points out 
the technological capacity of smartphones in a way that draws a simple 
and straightforward distinction between an ATDS and the ordinary use of 
a smartphone. In his dissent, then-Commissioner Pai stated his view 
that the test for whether a system meets the definition of ATDS must be 
based on its ``present capacity'' or ``present ability.'' \7\ The 
problem he identified with applying a ``potential capacity'' test to 
smartphones was the ability to add features to the phone: ``It's 
trivial to download an app, update software, or write a few lines of 
code that would modify a phone to dial random or sequential numbers.'' 
\8\ These observations by Chairman Pai set forth a path for drawing a 
clear and simple distinction that excludes smartphones from the 
definition of ATDS: assuming that present capacity is the test, 
smartphones simply are not manufactured with features that enable users 
to make simultaneous calls or send mass texts.
---------------------------------------------------------------------------
    \6\ 22015 Order,  17, 2015 Order, Dissenting Statement of 
Commissioner Ajit Pai, at 8074; Rules and Regulations Implementing the 
Telephone Consumer Protection Act of 1991, CG Docket No. 92-90, Report 
and Order, 7 FCC Rcd 8752, 8775.
    \7\ Id.
    \8\ Id.
---------------------------------------------------------------------------
    As we said in our comments filed on October 17, 2018, a smartphone 
should be treated as a box into which various programs and features are 
packed--the ability to make voice calls, a clock, a music player, 
Internet access, texting capacity, etc. These capabilities should be 
examined one-by-one when determining whether a particular smartphone is 
an ATDS. The fact that apps could be downloaded to the phone should not 
make the phone an ATDS unless the user has downloaded and has used such 
an app. Likewise, for any special software that could enable mass 
dialing, unless it has been installed on the phone the smartphone would 
not act like or become an ATDS.
    Smartphones--just like any computers--do have the potential to be 
part of a system that could be an ATDS. But they do not come from the 
manufacturer already configured to be an ATDS. Smartphones are not 
manufactured with any inherent features that make them ATDSs. Unlike 
predictive dialers, they cannot make simultaneous calls to a batch of 
numbers automatically from a stored list. Calls are made from a 
smartphone only when the human caller scrolls through the list, chooses 
a number or name, and presses the call button (or when the human 
manually inputs the number or otherwise identifies the number to be 
called). That capability does not make the smartphone an ATDS. As 
Chairman Pai has noted,\9\ the Commission has already explicitly held 
that ``speed dialing'' does not fall within the definition of an 
ATDS.\10\
---------------------------------------------------------------------------
    \9\ Id. at 8774.
    \10\ Id. at 8776..
---------------------------------------------------------------------------
    Additionally, a smartphone cannot send mass texts (as opposed to 
group texts with modest limits on their number) without downloading an 
app or connecting to an Internet program. After much investigation, the 
only case \11\ we have found in which a smartphone was used to send 
mass texts involved a user who downloaded an app: the smartphone did 
not come with this capability. Accordingly, a smartphone should be 
considered part of an automated telephone dialing system for the 
purpose of sending mass texts only when the smartphone actually has an 
app or additional software added to it, or has connected to a web-based 
mechanism to send texts en masse.
---------------------------------------------------------------------------
    \11\ Wanca v La Fitness, No. 11 CH 4131 (Lake County, Il). 
(Defendants had downloaded a mass texting application to an iPhone and 
used that to telemarket.).
---------------------------------------------------------------------------
    As the Commission has said repeatedly, the test for whether a 
device is an ATDS is whether it can ``dial numbers without human 
intervention'' and ``dial thousands of numbers in a short period of 
time.'' \12\ Smartphones, without the addition of apps or software, or 
the connection to the Internet to use web-capabilities, do not 
inherently meet these requirements.
---------------------------------------------------------------------------
    \12\ 2015 Order, at  67, citing Rules and Regulations Implementing 
the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, 
Report and Order, 18 FCC Rcd 14014, 14092, para. 132-33; Rules and 
Regulations Implementing the Telephone Consumer Protection Act of 1991, 
Request of ACA International for Clarification and Declaratory Ruling, 
CG Docket No. 02-278, FCC Docket No. 07-232, 23 FCC Rcd 559 at 566, 
para 13 (2008); Rules and Regulations Implementing the Telephone 
Consumer Protection Act of 1991, SoundBite Communications, Inc., 
Petition for Expedited Declaratory Ruling, CG Docket No. 02-278, 
Declaratory Ruling, 27 FCC Rcd 15391 at 15392, para. 2 n.5. (2012).
---------------------------------------------------------------------------
    Please let me know if I can answer any further questions.
    Thank you.

                                [all]