    [Senate Hearing 118-606]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 118-606

                      PROTECTING AMERICANS FROM ROBOCALLS

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

                                    HEARING

                                   before the

                     SUBCOMMITTEE ON COMMUNICATIONS, MEDIA,
                                 AND BROADBAND

                                     of the

                             COMMITTEE ON COMMERCE,
                          SCIENCE, AND TRANSPORTATION
                              UNITED STATES SENATE

                        ONE HUNDRED EIGHTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                OCTOBER 24, 2023

                                   __________

        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

    59-860 PDF                WASHINGTON : 2025

           SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                        ONE HUNDRED EIGHTEENTH CONGRESS

                                 FIRST SESSION

                       MARIA CANTWELL, Washington, Chair

    AMY KLOBUCHAR, Minnesota             TED CRUZ, Texas, Ranking
    BRIAN SCHATZ, Hawaii                 JOHN THUNE, South Dakota
    EDWARD MARKEY, Massachusetts         ROGER WICKER, Mississippi
    GARY PETERS, Michigan                DEB FISCHER, Nebraska
    TAMMY BALDWIN, Wisconsin             JERRY MORAN, Kansas
    TAMMY DUCKWORTH, Illinois            DAN SULLIVAN, Alaska
    JON TESTER, Montana                  MARSHA BLACKBURN, Tennessee
    KYRSTEN SINEMA, Arizona              TODD YOUNG, Indiana
    JACKY ROSEN, Nevada                  TED BUDD, North Carolina
    BEN RAY LUJAN, New Mexico            ERIC SCHMITT, Missouri
    JOHN HICKENLOOPER, Colorado          J. D. VANCE, Ohio
    RAPHAEL WARNOCK, Georgia             SHELLEY MOORE CAPITO, West
    PETER WELCH, Vermont                     Virginia
                                         CYNTHIA LUMMIS, Wyoming

                       Lila Harper Helms, Staff Director
                     Melissa Porter, Deputy Staff Director
                         Jonathan Hale, General Counsel
                     Brad Grantz, Republican Staff Director
               Nicole Christus, Republican Deputy Staff Director
                         Liam McKenna, General Counsel

                                 ------

              SUBCOMMITTEE ON COMMUNICATIONS, MEDIA, AND BROADBAND

    BEN RAY LUJAN, New Mexico, Chair     JOHN THUNE, South Dakota, Ranking
    AMY KLOBUCHAR, Minnesota             ROGER WICKER, Mississippi
    BRIAN SCHATZ, Hawaii                 DEB FISCHER, Nebraska
    EDWARD MARKEY, Massachusetts         JERRY MORAN, Kansas
    GARY PETERS, Michigan                DAN SULLIVAN, Alaska
    TAMMY BALDWIN, Wisconsin             MARSHA BLACKBURN, Tennessee
    TAMMY DUCKWORTH, Illinois            TODD YOUNG, Indiana
    JON TESTER, Montana                  TED BUDD, North Carolina
    KYRSTEN SINEMA, Arizona              ERIC SCHMITT, Missouri
    JACKY ROSEN, Nevada                  J. D. VANCE, Ohio
    JOHN HICKENLOOPER, Colorado          SHELLEY MOORE CAPITO, West
    RAPHAEL WARNOCK, Georgia                 Virginia
    PETER WELCH, Vermont                 CYNTHIA LUMMIS, Wyoming

                                C O N T E N T S

                                  ----------
                                                                       Page
    Hearing held on October 24, 2023.................................     1
    Statement of Senator Lujan.......................................     1
        Letter dated October 23, 2023 to Hon. Ray Ben Lujan and Hon.
          John Thune from Loyaan Egal, Chief, Enforcement Bureau,
          Federal Communications Commission..........................     2
        Prepared statement from Jennifer DeStefano...................     5
        Report entitled ``Scam Robocalls: Telecom Providers Profit''
          [link provided]............................................    61
    Statement of Senator Fischer.....................................     7
        Prepared statement from Hon. John Thune, U.S. Senator from
          South Dakota...............................................    62
        Letter dated October 24, 2023 to Senator Ray Ben Lujan and
          Senator John Thune from Scott Purcell, Chief Executive
          Officer, ACA International.................................    63
        Letter dated October 24, 2023 to Hon. Ray Ben Lujan and Hon.
          John Thune from Jim Nussle, President and CEO, Credit Union
          National Association.......................................    66
    Statement of Senator Markey......................................    68
    Statement of Senator Budd........................................    70
    Statement of Senator Tester......................................    72
    Statement of Senator Vance.......................................    74
    Statement of Senator Klobuchar...................................    76
    Statement of Senator Welch.......................................    78
    Statement of Senator Hickenlooper................................    79
    Statement of Senator Rosen.......................................    81

                                   Witnesses

    Margot Freeman Saunders, Senior Counsel, National Consumer Law
      Center.........................................................     9
        Prepared statement...........................................    10
    Megan L. Brown, Partner, Wiley Rein LLP, on behalf of the U.S.
      Chamber Institute for Legal Reform.............................    25
        Prepared statement...........................................    27
    Joshua M. Bercu, Executive Director, Industry Traceback Group;
      Vice President, Policy & Advocacy, USTelecom--The Broadband
      Association....................................................    35
        Prepared statement...........................................    36
    Michael Rudolph, Chief Technology Officer, YouMail, Inc..........    42
        Prepared statement...........................................    44

                                    Appendix

    Response to written questions submitted to Margot Freeman
      Saunders by:
        Hon. Maria Cantwell..........................................    91
        Hon. Ben Ray Lujan...........................................    95
        Hon. John Hickenlooper.......................................    96
        Hon. Peter Welch.............................................    96
        Hon. Ted Cruz................................................    97
    Response to written questions submitted to Megan L. Brown by:
        Hon. Ted Cruz................................................   101
        Hon. John Thune..............................................   104
    Response to written questions submitted to Joshua M. Bercu by:
        Hon. Maria Cantwell..........................................   106
        Hon. Ben Ray Lujan...........................................   106
        Hon. John Hickenlooper.......................................   107
        Hon. John Thune..............................................   107
    Response to written questions submitted to Michael Rudolph by:
        Hon. Maria Cantwell..........................................   108
        Hon. Ben Ray Lujan...........................................   111
        Hon. Peter Welch.............................................   113

                      PROTECTING AMERICANS FROM ROBOCALLS

                                  ----------

                           TUESDAY, OCTOBER 24, 2023

                                   U.S. Senate,
            Subcommittee on Communications, Media, and
                                             Broadband,
            Committee on Commerce, Science, and Transportation,
                                                        Washington, DC.
        The Subcommittee met, pursuant to notice, at 10:03 a.m., in
    room SR-253, Russell Senate Office Building, Hon. Ben Ray
    Lujan, Chairman of the Subcommittee, presiding.
        Present: Senators Lujan [presiding], Klobuchar, Markey,
    Peters, Tester, Rosen, Hickenlooper, Welch, Fischer, Budd, and
    Vance.

               OPENING STATEMENT OF HON. BEN RAY LUJAN,
                      U.S. SENATOR FROM NEW MEXICO

        Senator Lujan. [Technical problems]--committee to order. I
    want to thank everyone for being here for a hearing on
    ``Protecting Americans from Robocalls''. And first of all, I
    wanted to thank Ranking Member Thune for working with me and my
    staff.
        I want to thank his team. And I especially wanted to thank
    Senator Fischer for being here with us, as she always is, but
    especially to serve in an important role today as well. So, I
    want to thank you, Senator Fischer, for joining us to preside
    today.
        Thank you so very much. And today, we will hear from expert
    witnesses on protecting our constituents from the growing
    number of fraudulent and illegal robocalls and robotexts. Every
    month, Americans receive roughly 1.5 billion to 3 billion scam
    calls and likely illegal telemarketing calls.
        This is an issue that I am confident everyone in the room
    has dealt with. For those of you that have your phones on, I am
    sure you are going to receive robocalls and robotexts that are
    predatory even during this hearing, and I would not be
    surprised if we did as well.
        Robocalls, they interrupt sleep if you are not putting your
    phones in some privacy mode or sleep mode or turning them off
    themselves. They interrupt time with friends and family, and as
    I said, even during hearings, I won't be surprised if they came
    up.
        So, if they do, feel free to hold your phone up and share
    with the rest of America what is happening while we are in this
    room. Robocalls have eroded trust in our Nation's
    communications networks. I know many in my family, including
    myself, that you will look at the phone now and you are not
    sure where it is coming from.
        And some of the phone providers are putting scam alerts or
    maybe it is some other call, and folks will look at their
    device and they will drop it down as well. Many have become
    subject to those phishing attacks from those robotexts as well,
    which are costing the American people billions of dollars.
        In 1991, Congress passed the Telephone Consumer Protection
    Act, the TCPA, and more recently, the Telephone Robocall Abuse
    Criminal Enforcement and Deterrence Act, which--acronym is
    TRACED. It was back in 2019. These two laws each protect
    Americans from predatory and unsolicited robocalls and
    robotexts, giving Federal agencies the tools to fight back.
        And in some ways, the TCPA and TRACED, as they were
    implemented, the number of unsolicited and illegal
    telemarketing calls has decreased. Do not call complaints at
    the FCC have reduced as well, not entirely, but by some
    numbers.
        And the Federal Communications Commission has issued 500
    million enforcement actions against illegal robocalls over the
    last 12 months. The FCC has empowered the industry Traceback
    Group and phone companies to block, by default, illegal or
    unwanted calls based on reasonable evidence.
        And the Federal Communications Commission provided a
    statement for today's hearing. And without objection, I would
    like to enter it into the record. We will enter that.
        [The information referred to follows:]

                              Federal Communications Commission
                                       Washington, DC, October 23, 2023

    Hon. Ben Ray Lujan,
    Chairman,
    Subcommittee on Communications, Media, and Broadband,
    Washington, DC.

    Hon. John Thune,
    Ranking Member,
    Subcommittee on Communications, Media, and Broadband,
    Washington, DC.

    Dear Chairman Lujan and Ranking Member Thune:

        Thank you for the opportunity to submit a statement addressing the
    ongoing work of the Federal Communications Commission's Enforcement
    Bureau to combat illegal robocalls and scam texts. Protecting consumers
    from fraud and unwanted communications is a top consumer protection
    priority for the Commission and the Enforcement Bureau. The Commission
    is grateful for the continuing support of the Subcommittee on
    Communications, Media, and Broadband. Below, I outline the Commission's
    recent enforcement efforts against illegal robocalls and ways the
    Commission is modernizing its approach to enforcement. Lastly, I
    identify where Chairwoman Jessica Rosenworcel has called for new
    legislation to address statutory gaps that are leaving consumers
    vulnerable.
    Recent Enforcement Activities
        In our ongoing effort and commitment to put a stop to illegal
    robocalls, the Commission has ordered substantial penalties against bad
    actors, acted swiftly and repeatedly to disrupt illegal traffic, and
    cracked down on providers who have failed to implement sufficient
    robocall mitigation plans. This calendar year alone, the Commission has
    already issued four orders imposing more than $500 million in fines
    against robocallers. In parallel, the Commission has had significant
    success blocking illegal robocalls before they ever reach consumers.
    After identifying a non-compliant gateway or originating provider
    responsible for facilitating bad traffic, the Commission has permitted
    or ordered downstream providers to block the traffic from that non-
    compliant provider--thereby stopping the robocalls immediately.
    Further, under the Commission's current rules, all providers in the
    potential path of a call are required to implement a robocall
    mitigation plan that includes reasonable steps to avoid originating,
    carrying, or processing illegal robocall traffic, and file that plan in
    the Robocall Mitigation Database (RMD). The Commission has issued over
    20 notices or show cause orders threatening non-compliant providers
    with removal from the RMD. This is a significant consequence, as
    downstream providers may not accept traffic from any provider that is
    required to file in the RMD and has been removed due to noncompliance
    with the Commission's rules. Our evolving, multi-pronged approach has
    resulted in an over 20 percent drop in illegal robocalls since last
    year, according to one study.\1\ But the Commission's work is not done.
    Going forward we intend to continue the battle against robocalls as
    well as pioneer enforcement against robotexts.
    ---------------------------------------------------------------------------
        \1\ See Robokiller, The Robokiller Phone Scam Report 2023 Mid-Year
    Insights & Analysis at 10 (2023), https://assets.website-files.com/
    61f9a8793a878d7f71c5505d/64ca6ccf1f5e962fae3e55e3_
    Robokiller%20Mid-Year%20Report%202023.pdf.
    ---------------------------------------------------------------------------
        To strengthen its investigative and enforcement efforts, the
    Commission has continued to expand its partnerships with state,
    federal, and international regulatory and law enforcement partners. The
    Commission now has memoranda of understanding with attorneys general in
    47 states, the District of Columbia, and Guam, which allows the
    Enforcement Bureau and its counterparties to facilitate information
    sharing and investigative cooperation more easily. The Commission also
    renewed its memorandum of understanding between international
    regulatory and law enforcement authorities that are members of the
    Unsolicited Communications Enforcement Network (UCENet). Collectively,
    these memoranda aim to promote domestic and cross-border collaboration
    to combat unsolicited communications, including e-mail and text spam,
    scams, and illegal telemarketing. These relationships matter. To point
    to just one example this year, our collaboration with the Ohio Attorney
    General's Office led to a record-breaking penalty of nearly
    $300,000,000 ordered against one of the worst robocalling schemes
    inflicted on U.S. consumers.
        The Commission also engages directly with consumers and the general
    public in a variety of ways to increase consumer and industry
    awareness. In advance of the Supreme Court's ruling pertaining to
    student loan debt in June, the Commission worked with multiple
    attorneys general and the U.S. Department of Education to warn students
    about potential scams looking to take advantage of any confusion
    stemming from the ruling. The Commission also now publishes certain
    traceback data, i.e., information pertaining to calls reported as
    potentially illegal, including the source of those calls. The
    Commission also closely monitors and investigates complaints by
    consumers and small businesses.
    Modernizing Enforcement Methods
        Many of these successful enforcement efforts would not have been
    possible without the passage of the Telephone Robocall Abuse Criminal
    Enforcement and Deterrence (TRACED) Act, which led to two key
    developments. First, the TRACED Act no longer required the Commission
    to issue citations for the bulk of robocall violations, and instead
    allowed the Commission to move immediately to forfeiture proceedings.
    The result was record-breaking fines against the worst bad actors in
    the industry. Second, the TRACED Act required the FCC to mandate
    adoption of the STIR/SHAKEN caller identification framework, which
    enables phone companies to verify that the caller ID information
    transmitted with a call matches the caller's real phone number. Among
    other initiatives undertaken to meet this mandate, the FCC launched the
    RMD to monitor compliance. As discussed above, removal of providers
    from the RMD who fall short of their obligations to protect consumers
    is a devastating consequence.
        The Commission is currently engaged in discussions with the
    Treasury Department, including with the Financial Crimes Enforcement
    Network (FinCEN), to provide the Commission's Enforcement Bureau with
    access to vital information collected pursuant to the Bank Secrecy Act
    (BSA). Although our efforts with Treasury are ongoing, we are able to
    note that these efforts have been collaborative, and our Treasury
    colleagues have been very constructive in their engagement with us. BSA
    evidence is critical to identify the financing used to support the
    entities using U.S. communications networks to commit fraud targeting
    consumers, as well as the various methods in which bad actors are
    laundering and exfiltrating their illicit proceeds. Supplementing our
    current authorities with BSA information will further assist the
    Enforcement Bureau in identifying and going after the worst actors
    while limiting their ability to reconfigure and use financial resources
    to further their schemes.
    Proposed Policy Changes
        The Chairwoman has identified two additional fronts where Congress
    can help the Commission's enforcement efforts. First, Congress could
    help the Commission protect consumers by broadening the definition of
    ``automatic telephone dialing system'' in the Telephone Consumer
    Protection Act (TCPA). The TCPA broadly protects consumers from calls
    made using an ``automatic telephone dialing system or an artificial or
    prerecorded voice.'' The TCPA's definition of automatic telephone
    dialing system has been unaltered since 1991 and needs adjustments to
    keep pace with the way technology has developed over the last thirty
    years. Further, in Facebook v. Duguid, the Supreme Court narrowly
    interpreted ``automatic telephone dialing system'' to mean equipment
    that stores or generates numbers randomly or sequentially.
        Consequently, equipment that simply stores non-random and non-
    sequential lists of numbers may fall outside the statute. This
    interpretation makes it harder for the Commission to regulate bad
    actors manipulating technology to reach massive volumes of consumers,
    particularly with regards to sending unwanted text messages.
        Second, the Chairwoman has explained that Congress could help the
    Commission protect consumers by giving the Commission the authority to
    collect the fines it imposes against bad actors responsible for illegal
    robocalls. The Commission has the authority to issue a Forfeiture Order
    for violations of the Communications Act and its rules, but it lacks
    the authority to pursue collection without involvement from the
    Department of Justice (DOJ). Since 2018, the Commission has referred
    eight robocalling forfeiture orders to the DOJ for collection, of which
    the DOJ is currently pursuing collection for two. The result is that
    significant sums of ill-gotten gains are potentially left in the
    pockets of bad actors. With its own authority to collect its fines, the
    Commission would pursue these cases promptly and aggressively.
        Thank you for the opportunity to submit written testimony about
    this important consumer protection matter.
                Sincerely,
                                                   Loyaan Egal,
                                             Chief, Enforcement Bureau,
                                         Federal Communications Commission.

        Senator Lujan. However, it is important that we recognize
    that robocalls and robotexts are not just a nuisance. Scammers
    use our telecom networks to defraud Americans out of an
    estimated $39 billion.
        Now, that was just in 2022 alone. That is roughly enough
    money to provide affordable broadband to the current 21 million
    households enrolled in the Affordable Connectivity Program for
    8 years. I hope we understand the magnitude of what that $39
    billion year to year means.
        Scammers and fly by night companies are stealing American
    families' hard earned dollars using our telecom networks to do
    so, and they don't face any consequences. The FCC levies fines,
    but fines go uncollected, and the company dissolves and moves
    assets elsewhere.
        Congress must empower our regulators and enforcement
    agencies to ensure that when an individual or company breaks
    the law, they are held to account. Part of the reason these
    scammers are so effective at tricking consumers and evading
    enforcement is that the technology is constantly evolving.
        We will hear testimony that suggests consumer consent for
    telemarketing is increasingly falsified. Automated bots and
    other artificial intelligence systems are using public data to
    consent on behalf of a consumer for calls they never asked for
    and do not want.
        Automated robocalls and robots are using chat bots and
    generative artificial intelligence to impersonate a real life
    person, lulling the recipient into a false sense of security by
    mimicking voices and mannerisms.
        In the most frightening examples, bad actors are playing on
    our emotions and impersonating loved ones in distress. Earlier
    this year in the Senate Human Rights subcommittee, Senator
    Ossoff and Ranking Member Blackburn heard testimony from
    Jennifer DeStefano of Arizona who was the victim of a scam call
    impersonating her daughter.
        And without objection, I would like to enter her testimony
    into the record for today's hearing. Hearing none, it is
    entered.
        [The information referred to follows:]

                    Prepared Statement of Jennifer DeStefano
                       Abuses of Artificial Intelligence
                                 June 13, 2023
        Good Afternoon Senators, it is my great honor to speak with you
    today and to share my experience of how artificial intelligence is
    being weaponized to not only invoke fear and terror in the American
    public, but in the global community at large as it capitalizes on and
    redefines what we have known to be as ``familiar''. I would like to
    take this moment to thank Senator Ossoff for inviting me to be here
    today. I would also like to thank Senator Blackburn for your concern on
    this ever evolving topic and community threat. AI is revolutionizing
    and unraveling the very foundation of our social fabric by creating
    doubt and fear in what was once never questioned, the sound of a loved
    one's voice.
        What is ``familiar''? How many times have you received a phone call
    from your child and asked them to verify who is calling? How many times
    has a loved one reached out to you in despair and you stopped them to
    validate their identity? Did you hang up on them? Did you require to
    call them back to make sure you are speaking to the correct person? The
    answer is more than likely, never. Never have you stopped your loved
    one and questioned if the voice you are speaking with is really them.
    The sound of a loved one's voice is often never questioned. It is
    designed by nature, it is designed by God, as a unique identity, as
    unique as a fingerprint. This familiar identity is how a mother knows
    if it's her child crying in a room and it is how a newborn child
    instantly recognizes their mother.
        It was a typical Friday afternoon for our family kicking off a
    weekend of races and rehearsals that often divide our family across the
    state. As the parents of four children close in age, we tend to have to
    ``divide and conquer''. My husband was with our older daughter Brie and
    our youngest son in Northern Arizona training for ski races. I was with
    our older son and youngest daughter Aubrey in the valley as she had
    rehearsal. Ski racing is a high risk sport and Brie had not raced in
    years. At age 15, she promised me she would take it easy and not hurt
    herself by pushing to hard. When I first received a call from an
    ``unknown'' number upon exiting my car, I was going to ignore it. On
    the final ring I chose to answer as ``unknown'' calls can often be a
    doctor or a hospital. I answered the phone '' Hello'', on the other end
    was our daughter Briana sobbing and crying saying ``mom''. At first I
    thought nothing of it, she had run into race gates and bruised herself
    before, not to worry. I casually asked her what happened as I had her
    on speaker walking through the parking lot to meet her sister. Briana
    continued with ``mom, I messed up'' with more crying and sobbing. Not
    thinking twice, I asked her again, ``ok what happened?'' Suddenly a
    man's voice barked at her to ``lay down and put your head back''. At
    that moment I started to panic. My concern escalated and I demanded to
    know what was going on, but nothing could have prepared me for her
    response. ``MOM THESE BAD MEN HAVE ME, HELP ME, HELP ME!!'' She begged
    and pleaded as the phone was taken from her. A threatening and vulgar
    man took over the call ``Listen here, I have your daughter, you tell
    anyone, you call the cops, I am going to pump her stomach so full of
    drugs, I am going to have my way with her, drop her in Mexico and
    you'll never see her again!'' all the while Briana was in the
    background desperately pleading ``mom help me!!!''
        With my shaking hand on the door handle to the studio, I put the
    man on mute, flung open the door and started screaming for help. The
    next few minutes were a parent's worst nightmare. I was fortunate to
    have a few moms at the studio who surrounded me, hearing all of the
    vulgar threats the man was making. One mom ran outside and called 911.
    Our 13 year old daughter Aubrey stood paralyzed in fear. I needed her
    help, her sister was in trouble and we had to find her. Another mom ran
    to her to aid as they started making calls to her dad, her brothers,
    anyone that could help us figure out what happened to Brie. The
    kidnapper demanded a million dollars. That was not possible and so the
    kidnapper decided on $50,000, in cash. At this moment, the mom who
    called 911 came inside and shared with me that 911 was familiar with an
    AI scam where they can replicate your loved one's voice. I didn't
    believe this was a scam. It wasn't just Brie's voice, it was her cries,
    it was her sobs that were unique to her. It wasn't possible to fake
    that I protested. She told me that AI can also replicate inflection and
    emotion. That gave me a little hope but still was not enough. I
    proceeded with the negotiations. I asked for wiring instructions and
    routing numbers for the $50,000 but was refused. ``Oh no'' the man
    demanded, ``that's traceable, that's not how this is going to go down.
    We are going to come pick you up!'' ``What?'' I shouted, ``You will
    agree to being picked up in a white van, with a bag over your head so
    you don't know where we are taking you. You better have all $50k in
    cash otherwise both you and your daughter are dead! If you don't agree
    to this, you will never see your daughter again!'' he screamed. I had
    to stall, I asked the mom on the call with 911 to send police, I needed
    to stall until I had police with me. Then the mom who was making calls
    with Aubrey was able to get my husband on the phone. He frantically
    located Brie resting safely in bed.
        Brie had no idea what was happening. As I was negotiating the
    arrangements of the abduction of myself to save my daughter, the mom
    came to me and told me she found Brie and that she was safe. I didn't
    believe her. How could she be safe with her father and yet be in the
    possession of kidnappers? It was not making any sense. I had to speak
    to Brie. I could not believe she was safe until I heard her voice say
    she was. I asked her over and over again if it was really her, if she
    was really safe, again, is this really Brie, are you sure you are
    really safe?! My mind was whirling. I do not remember how many times I
    needed reassurance, but when I finally took hold of the fact she was
    safe, I was furious. I lashed at the men for such a horrible attempt to
    scam and extort money. To go so far as to fake my daughter's kidnapping
    was beyond the lowest of the low for money. They continued to threaten
    to kill Brie. I made a promise that I was going to stop them, that not
    only were they never going to hurt my daughter, but that they were not
    going to continue to harm others with their scheme. After I hung up, I
    collapsed to the floor in tears of relief. When I called the police to
    pursue the matter, unfortunately I was met with this is a prank call.
    That it happens often and that I am probably not in harm's way
    (although not a guarantee). I was offered to have a police officer call
    me from another ``unknown'' number if it would make me feel better as
    law enforcement numbers are also blocked. That certainly did not make
    me feel better. Bottom line was no actual crime had been committed, no
    one was physically kidnapped, and no money was transferred, period, the
    end.
        But that wasn't the end, it couldn't be the end. If it was the end,
    then this nightmare would never stop. I stayed up all night paralyzed
    in fear. Do they know where I am? Do they know where my daughter is?
    How did they get her voice? How did they get her crying, her sobs that
    are unique to her. She is not a very public person. Are we being cyber
    stalked? Targeted? So many questions that I could not leave unanswered,
    so I turned to our community and the response was overwhelming!
        Friends and neighbors came out of the woodwork with their stories.
    Kidnapping phone calls coming from their children's phones, bags of
    money being driven halfway to Mexico, even voices of young children
    nowhere to be found on social media and who do not have phones, the
    stories kept pouring in. Even my own mother received a call with my
    brother's voice claiming to be in an accident and needing money for the
    hospital bill! My mother is hard of hearing and quite spunky. After
    having the caller repeat the request multiple times, she realized the
    language used was not something my brother would say. She told the
    caller to call their real mother and hung up. The common response the
    victims received from authorities was that nothing could be done. In
    fact, one mother I know personally shared with me how she was even
    mocked by her son's school and security officer. She called his school
    frantically trying to locate her son when she received a call from him
    that he had been kidnapped. He even used his unique nickname during the
    call to self identify. Fortunately he was safe in class and she was
    told ``this happens all the time'' as her fear was dismissed. ``It's
    the most frustrating, maddening, scary and invaded I've felt . . . my
    fear is that it is only a matter of time until someone actually follows
    through with the threat'', she told me as she has been living in fear
    and concern for her son's safety ever sense.
        Money scams have been around for thousands of years. We have all
    heard of ``snake oil'' and remember the days of ``swap land'' sold as
    paradise in Florida. This is entirely different. This is terrorizing
    with lasting post traumatic stress. Even months later, sharing the
    story shakes me to my core. It was my daughter's voice. It was her
    cries, her sobs. It was the way she spoke. I will never be able to
    shake that voice out of mind. It's every parents' worst nightmare to
    hear your child pleading with fear and pain, knowing that they are
    being harmed and you are helpless and desperate. The longer this form
    of terror remains unpunishable, the farther and more egregious it will
    become. The thought crossed my mind before I hung on the ``kidnappers''
    to follow through with the physical abduction of me. Was that what
    would it take to bring an end to this? Was that what it would take in
    order to have a pursuable criminal offense?
        As our world moves at a lightning fast pace, the human element of
    familiarity that lays foundation to our social fabric of what is
    ``known'' and what is ``truth'', is being revolutionized with
    Artificial Intelligence. Some for good, and some for evil. No longer
    can we trust ``seeing is believing'', ``I heard it with my own ears''
    nor even the sound of our own child's voice. This concept redefines and
    rewrites what the very meaning of ``familiarity'' means. Familiarity is
    defined as ``the quality of being well known or knowledge of
    something'' and further is defined as ``relaxed friendliness or
    intimacy between people.'' Familiar and family share the root word
    ``Famil'' which establishes strength of a relationship between one
    person and another. I ask you, when your mother calls, are you going to
    hang up and call her back to make sure it is really her? When your
    child calls you in need of help, will you disconnect the call and say I
    don't believe its really you? Is this our new norm? Is this the future
    we are creating by enabling this abuse of Artificial Intelligence
    without consequence?
        I want to thank you for your time and attention today. Congress has
    a large and looming task ahead. How do we move forward as a community
    with this haunting reality that is plaguing us? If left uncontrolled,
    unguarded and without consequence, it will rewrite our understanding
    and perception what is and what is not truth. It will erode our sense
    of ``familiar'' as it corrodes our confidence in what is real and what
    is not. This is a non-partisan matter and I have seen the hands reach
    across the aisle in unified concern. That gives me great hope. How to
    contain the ever evolving Artificial Intelligence and its unknowns, is
    not an easy task. My sincere thanks and humble appreciation for your
    time and attention today. I thank all of you, and especially Senator
    Ossoff and Congress at large, for tirelessly taking action to keep our
    community and world safe from the hands of evil. I am one person, one
    story, but I am not the only one and I certainly will not be the last
    one unless action is taken. I wish you God's speed.

        Senator Lujan. Now, she testified, ``AI is revolutionizing
    and unraveling the very foundation of our social fabric by
    creating doubt and fear in what was once never questioned, the
    sound of a loved one's voice.''
        This hearing will examine how robocallers are evading
    enforcement, consider public, private efforts to combat illegal
    robocalls, unravel how new and evolving technologies are
    changing the landscape, and investigate what next steps are
    needed to protect Americans from fraudulent and illegal text
    messages and calls.
        I am very excited that we have the panel that we have with
    us today. I will introduce each of you momentarily. But first,
    I want to recognize a friend and a leader that is with us
    today, and I want to turn this over to Ranking Member Fischer
    for her opening comments.

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

        Senator Fischer. Good morning, and thank you, Chairman
    Lujan, for holding this hearing. The persistent issue of
    illegal robocalls has been a longstanding concern of mine.
    Nationwide, illegal and spoofed robocalls continue to be the
    number one consumer complaint. I want to ensure that we have
    the right tools in place to protect consumers from these calls
    that prey on them.
        As we all know, our phones give us connection to the world
    around us. Whether it is calling family, friends, or
    colleagues, scheduling appointments, or summoning emergency
    services, they are integrated into our daily lives. Our phone
    numbers are a very personal part of our identities as well.
        We use them to verify who we are, and we hold on to them
    for decades, sometimes for a lifetime. But as we know too well,
    this allows scammers to reach directly into our homes and into
    our pockets. Bad actors are increasingly savvy in the
    technologies they use to defraud consumers.
        This can result in devastating financial losses. Criminals
    are engaging in more targeted calls and impersonating
    businesses like banks to steal personal data or commit
    financial fraud. Phone scams are still yielding the highest
    reported fraud losses per person, despite the rapid growth of
    scammers on social media platforms. In fact, fraud losses due
    to phone scams are higher than ever.
        According to a recent report, over 68 million Americans
    lost approximately $40 billion to phone scams in 2021 alone. In
    many ways, it feels like we have had this conversation so many
    times over so many years. But crucially, in 2019, Congress
    passed the TRACED Act to put wide ranging solutions in motion
    that would reduce illegal robocalls.
        I commend my colleague, Senator Thune, for leading this
    legislation, and I was glad to be a co-sponsor of it.
    Previously, I also led the Spoofing Prevention Act with Senator
    Bill Nelson, which passed into law in 2018.
        This law was a foundational effort to increase penalties
    and boost enforcement tools that fight illegal spoofing.
    Deterrence through fines for illegal robocall activities is a
    key part of cracking down on nuisance calls that endanger
    consumers.
        On this front, Federal agencies, particularly the Justice
    Department, must improve how they work together to ensure that
    unpaid fines are collected. There are no silver bullets to
    eradicate the scourge of illegal scam calls and texts.
        Lawmakers have to remain vigilant on and monitor how
    illegal robocall schemes are evolving. We must be able to
    empower consumers with the knowledge of who is actually calling
    them and the ability to block illegal callers. We all share the
    goal of being able to pick up our phone safely, trusting that
    we know who is going to be on the other end of the line, but we
    are not there just yet.
        The industry has made commendable efforts to reduce the
    prevalence of these illegal calls, including through
    advancements in call author--to authorize them, and trace back
    technology. New statistics from the federally designated
    Traceback Consortium, ITC, indicate that certain common
    robocall scams have started to decline over the last couple of
    years.
        Continuing this trend will take the united cooperation of
    all voice service providers. As lawmakers, we need to maintain
    this momentum and ensure that traceback efforts are fully
    supported. I urge the FCC to spend its time and resources to
    prevent genuine criminal activity and create meaningful, safe
    harbors for businesses acting in good faith compliance with the
    law.
        I look forward to hearing from today's witnesses about
    where we are in this effort and where additional assistance may
    be needed. Thank you for being here and thank you, Chairman
    Lujan.
        Senator Lujan. Thank you, Senator Fischer. And I want to
    thank you again for being with us today. But I want to commend
    you for your leadership in so many ways, but especially in this
    case, when it comes to robocalls and robotexts, and what you
    have been doing to work, to bring support to the American
    people.
        So, thank you so very much for that. As I introduce the
    panel, we will--after the introduction, we will then hear from
    Ms. Saunders. But Ms. Saunders, who is the Senior Attorney from
    the National Consumer Law Center, thank you so much for being
    with us today.
        Ms. Megan Brown, a member of the United States Chamber of
    Commerce's Cybersecurity Leadership Council. And partner, Wiley
    Rein, I believe, is with us as well--Wiley. Miss--Mr. Josh
    Burco--Bercu, like the city.
        I appreciate that, Josh. Mr. Josh Bercu, Executive
    Director, Industry Traceback Group and Vice President of Policy
    and Advocacy for USTelecom. Thank you so much as well. And Mr.
    Mike Rudolph, the Chief Technology Officer from YouMail.
        Thank you so much for being with us today. Ms. Saunders,
    the floor is yours for your opening statement for five minutes.

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

        Ms. Saunders. [Technical problems]--Senator Fischer, I
    appreciate the opportunity to testify today on what needs to be
    done to protect Americans from robocalls. I provide my
    testimony today on behalf of the low income clients of the
    National Consumer Law Center and the Consumer Federation of
    America.
        The current regulatory structure allows criminals access to
    Americans' wallets. As you have cited, billions of dollars are
    stolen every year through scams executed over this Nation's
    telephones.
        At the same time, the combination of scam calls, along with
    the onslaught of illegal and unwanted telemarketing calls, have
    damaged our trust in our phones and made it more difficult for
    legitimate wanted messages to reach us. The FCC has been trying
    to solve the problem, but to date its methods have not
    succeeded.
        In my testimony, you can see a graph of the number of
    robocalls, and telemarketing calls and scam calls over the
    years, and it looks like that, unfortunately, we are about
    today where we were in 2019 in terms of the combined number of
    calls.
        But either the FCC does not have sufficient legal tools to
    stop the calls, or it has not yet determined how to employ
    those--deploy those tools effectively. The Commission has
    issued numerous regulations to implement the TRACED Act,
    brought multiple enforcement actions against scam callers and
    their complicit voice service providers, yet the numbers of
    calls and the losses to Americans keep--are continuing.
        The problem is that complicit voice service providers
    responsible for these calls are making money for transmitting
    them. And as FCC Commissioner Geoffrey Starks said, ``illegal
    robocalls will continue so long as those initiating and
    facilitating them can get away with it and profit from it.''
        To eliminate these calls, there must be incentives for
    compliance, which there are not currently. We believe that the
    calls can be dramatically reduced, but the resolution requires
    a shift in emphasis by the FCC.
        The primary goal of the FCC's actions should be to protect
    the Nation's telephone subscribers from the scam calls that are
    stealing billions of dollars. To do that requires a change,
    from ensuring that calls can be completed and protecting voice
    service providers' access to the telephone numbers, telephone
    network toward shielding consumers from these illegal calls.
        If the FCC were to adopt a system under which it quickly
    suspends the ability of a voice service provider to participate
    in the network once that provider is determined to be a repeat
    offender, we think that would be a magic bullet.
        This is along the lines of the temporary restraining order
    procedure established in the Federal rules of civil procedure.
    There are procedures that can be used that we think would
    change the incentive structure and actually cause a reduction
    in the calls. Additionally, the FCC's current regulations
    prohibit telemarketers from calling our phones without express
    written consent.
        Telemarketers routinely ignore the specific requirements of
    these regulations and make about a billion illegal
    telemarketing calls every month. Then they defend themselves
    from Government and private enforcement by relying on specious
    consent agreements that were either completely fabricated or
    based on supposed consent agreements, sold and resold, and sold
    again by lead generators.
        The FCC could actually eliminate this entire business model
    by simply reiterating its current regulations. Instead,
    unfortunately, it has proposed new regulations that are less
    protective of consumers.
        In a nutshell, we believe that the FCC could eliminate most
    of these illegal calls by changing their current emphasis. In a
    civilization in which we can take pictures of Saturn's rings,
    the failure to solve this problem is not a matter of
    technology. It is a question of whether the people in power
    actually want to solve it.
        Thank you very much.
        [The prepared statement of Ms. Saunders follows:]

    Prepared Statement of Margot Freeman Saunders, Senior Counsel, National
                              Consumer Law Center
        Chairman Lujan, Senator Thune, and Members of the Committee, I
    appreciate the opportunity to testify today on what needs to be done to
    protect Americans from robocalls. I provide my testimony here today on
    behalf of the low-income clients of the National Consumer Law Center
    (NCLC), and the Consumer Federation of America.\1\
    ---------------------------------------------------------------------------
        \1\ This testimony was written with the substantial assistance of
    Chris Frascella, Counsel at the Electronic Privacy Information Center,
    and Carolyn Carter, Deputy Director, National Consumer Law Center.
    ---------------------------------------------------------------------------
        The current regulatory structure allows criminals access to
    Americans' wallets: billions of dollars are stolen every year through
    scams executed over this Nation's telephone lines.\2\ At the same time,
    the combination of the scam calls along with the onslaught of
    unwanted--and mostly illegal--telemarketing calls and texts damages our
    trust in our phones and makes it more difficult for important messages
    from health care providers and other legitimate callers to get through.
    ---------------------------------------------------------------------------
        \2\ See National Consumer Law Center and Electronic Privacy
    Information Center, Scam Robocalls: Telecom Providers Profit (June 1,
    2022), available at https://www.nclc.org/resources/ scam-robocalls-
    telecom-providers-profit/ [hereinafter Scam Robocalls report]. This
    report also explains how scam calls are impacting American subscribers,
    the mechanics of the communications system in the U.S., how the current
    system facilitates the transmission of illegal calls, and our
    recommendations to resolve the problem.
    ---------------------------------------------------------------------------
        The Federal Communications Commission (FCC or Commission) has been
    trying to address the problems, but, to date, its methods have not
    succeeded in achieving a meaningful reduction in these unwanted and
    illegal calls. Either the FCC does not have sufficient legal tools to
    stop these unwanted and illegal calls, or it has not yet determined how
    to deploy those tools effectively. In Section I, we describe the
    magnitude of the onslaught of the scam and illegal telemarketing calls,
    and how the problems caused by these calls have not significantly
    abated. We note that the numbers of these calls have remained high,
    despite the dozens of new regulations and rulings issued by the
    Commission to deploy the STIR-SHAKEN caller-ID authentication
    technology \3\ and implement other mandates of the TRACED Act passed by
    Congress in 2019,\4\ and the enforcement actions it has brought against
    VoIP providers and illegal callers.\5\
    ---------------------------------------------------------------------------
        \3\ See Federal Commc'ns Comm'n, Combating Spoofed Robocalls with
    Caller ID Authentication, available at https://www.fcc.gov/call-
    authentication
        \4\ Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and
    Deterrence (TRACED) Act, Pub. L. No. 116-105, 133 Stat. 3274 (2019).
        \5\ See In re Advanced Methods to Target and Eliminate Unlawful
    Robocalls; Call Authentication Trust Anchor, Seventh Report and Order,
    Eighth Further Notice of Proposed Rulemaking and Third Notice of
    Inquiry, CG Docket No. 17-59, WC Docket No. 17-97, at  6 to 64. (Rel.
    May 19, 2023), available at https://docs.fcc.gov/public/ attachments/
    FCC-23-37A1.pdf [hereinafter FNPRM].
    ---------------------------------------------------------------------------
        In Section II, we explain that we believe that these scam and
    illegal telemarketing calls can be dramatically reduced. But the
    resolution requires a shift in emphasis by the FCC. The primary goal of
    the FCC's actions should be to protect the Nation's telephone
    subscribers from the scam calls that are stealing tens of billions of
    dollars from them. To do that requires a change from ensuring that
    calls be completed and protecting voice service providers' access to
    the telephone network toward shielding consumers from these illegal
    calls. We believe the number of illegal calls would be significantly
    reduced if the FCC were to adopt a system of swiftly suspending the
    ability of complicit providers to transmit illegal calls after they has
    been notified of previous illegal transmissions.
        In Section III, we explain our advocacy before the Commission to
    encourage it to issue guidance that will radically reduce the number of
    illegal telemarketing calls.
        Finally, Section IV describes a methodology that would provide
    legal callers--such as health care providers, callers with fraud
    alerts, and those with payment reminders--a way to ensure that their
    calls are completed and that would also facilitate the blocking of the
    illegal calls.
    I. Illegal and unwanted scam and telemarketing calls persist, despite
            FCC efforts.
        The unrelenting onslaught of unwanted and illegal calls and texts
    to American telephone lines illustrates that more aggressive measures
    must be employed to stop them. In recent years, the combined number of
    scam and likely illegal telemarketing calls made every month to
    American telephone lines has ranged from 1.5 to 3.3 billion every
    month, with little change from year to year.\6\
    ---------------------------------------------------------------------------
        \6\ Scam Robocalls report, supra note 2, at 6 (noting annual scam
    robocall volumes between 20 billion and 25 billion from 2019-2021). See
    Total National Robocalls chart, infra.
    ---------------------------------------------------------------------------
        While the FCC and the private Industry Traceback Group (ITG)\7\
    have removed hundreds of offending callers from the network--including
    progress on scam robocalls regarding car warranties and student loan
    debt relief \8\--the raw number of illegal calls has remained
    relatively steady. This illustrates that, even as one scam or
    telemarketing caller or complicit provider is removed from the network,
    another quickly steps into its place.
    ---------------------------------------------------------------------------
        \7\ The ITG, run by USTelcom/The Broadband Association, is
    designated by the FCC to determine the source of illegal calls. ``The
    origination, delivery, and termination of robocalls involves numerous
    voice service providers in a complex ecosystem. Using a secure
    traceback portal developed by the ITG, suspected illegal robocalls are
    traced systematically back through various networks until the ITG
    identifies the originator of the suspicious calls, where the calls
    entered the United States if internationally originated, and often the
    identity of the calling party. The ITG traces the call back from the
    recipient to the caller--usually routing through four or more, or
    sometimes as many as nine or ten service providers (or ``hops'') across
    the globe.'' Industry Traceback Group, How a Traceback Works, available
    at https://tracebacks.org/for-government/.
        \8\ See Press Release, Federal Commc'ns Comm'n, FCC & State
    Attorneys General Warn Consumers of Increased Risk of Student Loan Debt
    Scam Robocalls and Robotexts (June 30, 2023, available at https://
    www.fcc.gov/document/fcc-state-ags-warn-student-loan-debt-scam-
    robocalls-robotexts; Industry Traceback Group, ITG 2022 Year-In-Review:
    State of Industry Traceback, available at https://tracebacks.org/wp-
    content/uploads/2023/03/ITG-2022-Year-in-Review-
    State-of-Industry-Traceback.pdf (``Over 500 offending callers kicked
    off the network. Terminated callers responsible for approximately 32
    million daily illegal robocalls.'').
    ---------------------------------------------------------------------------
        Moreover, because of the complete lack of meaningful caller ID used
    by these callers, it remains effectively impossible for consumers to
    determine the difference between scam calls and unwanted spam
    telemarketing calls on the one hand, and legitimate calls on the other
    hand. Both types of unwanted calls continue to flood the system, and
    they all purport to be local. As it is highly doubtful that consumers
    have consented to receive over a billion telemarketing calls every
    month, most are likely illegal. The dark blue area on the chart below
    shows the combined volume of both scam and telemarketing calls.\9\
    ---------------------------------------------------------------------------
        \9\ All data comes from YouMail. The most recent data, which was
    supplied to us on October 17, 2023, was combined with publicly
    available data for previous time periods. Scam and telemarketing stats
    are likely conservative estimates based on known percentages rather
    than direct reporting, which would result in underreported volume on
    these categorizations. In the past, YouMail has cautioned that ``[s]ome
    calls initially viewed as telemarketing are eventually recognized as
    illegal telemarketing or scam calls, so it's important to measure the
    overall quantity of scam and spam calls combined.'' PR Newswire,
    Robocalls Top 50.3 Billion in 2022, Matching 2021 Call Volumes Despite
    Enforcement Efforts (Jan. 5, 2023), available at https://
    www.prnewswire.com/news-releases/robocalls-top-50-3-billion-in-2022--
    matching-2021-call-volumes-despite-enforcement-efforts-301714297.html
    (quoting YouMail press release).
    ---------------------------------------------------------------------------
        Americans continue to lose vast sums to scam calls and texts. The
    Harris Poll/TrueCaller survey found that the number of Americans who
    lost money through telephone scams continued to escalate in 2022,
    increasing from 59 million people suffering these losses in 2021 to
    over 68 million in 2022. As more people were scammed, the total
    consumer losses also increased to over $39 billion last year.\10\ The
    FTC also reported a significant increase in individual reported losses
    between 2021 and 2022.\11\ A March 2023 report issued by Juniper
    Research predicts that fraudulent robocalls will cost mobile
    subscribers $58 billion this year.\12\
    ---------------------------------------------------------------------------
        \10\ Truecaller, Truecaller Insights 2022 U.S. Spam & Scam Report
    (May 24, 2022), available at https://www.truecaller.com/blog/insights/
    truecaller-insights-2022-us-spam-scam-report.
        \11\ Losses from phone scams reported to the FTC by consumers
    increased from $700M to $798M from 2021-22, and losses from text scams
    more than doubled from $131M to $326M. FTC Consumer Sentinel Network,
    Fraud Reports by Contact Method, Reports & Amount Lost by Contact
    Method (Losses & Contact Method tab, with quarters 1 through 4 checked
    for 2021, 2022) (last visited Mar. 10, 2023), available at https://
    public.tableau.com/app/profile/federal.trade.commission/viz/
    FraudReports/FraudFacts. These numbers represent live scams as well as
    robocalls. As the number of complaints received has decreased, this
    means the average reported losses are getting larger.
        \12\ Press Release, Juniper Research, Fraudulent Robocalls to Cost
    Mobile Subscribers a Record $58 Billion Globally This Year, Finds
    Juniper Research Study (Mar. 20, 2023), available at https://
    www.juniperresearch.com/pressreleases/fraudulent-robocalls-to-cost-
    mobile-subscribers?
    utm_source=juniper_pr&utm_campaign=pr1_robocallmitigation_providers_
    operators_mar23
    &utm_medium=e (``Despite the ongoing development of robocalling
    mitigation frameworks, such as STIR/SHAKEN in North America, the report
    predicts that fraudsters' ability to innovate fraud methods will drive
    these losses to reach $70 billion globally by 2027. STIR/SHAKEN
    includes standards to mitigate fraudulent methods popular in North
    America, such as caller ID spoofing, which imitates a legitimate
    enterprise through the use of temporary business numbers.'').
    ---------------------------------------------------------------------------
        Incessant unwanted calls and texts are degrading the value of the
    U.S. telephone system. The continued onslaught of unwanted calls from
    unknown numbers undermines the value of the entire telephone system,
    and makes it more difficult to reach people in emergencies because they
    do not answer calls.\13\ As the Commission recently noted:
    ---------------------------------------------------------------------------
        \13\ See Benjamin Siegel, Dr. Mark Adbelmalek, & Dr. Jay Bhatt, ABC
    News, Coronavirus Contact Tracers' Nemeses: People Who Don't Answer
    Their Phones (May 15, 2020), available at https://abcnews.go.com/
    Health/coronavirus-contact-tracers-nemeses-people-answer-phones/
    story?id=70693586. See also Stephen Simpson, Few Picking Up Phone When
    Virus Tracers Call, Arkansas Democrat Gazelle, July 10, 2020, available
    at https://www.arkansasonline.com/news/2020/jul/10/few-picking-up-
    phone-when-virus-tracers-call/.

            . . . [T]he evidence reveals that the escalating problem of
            robocalls has undermined consumers' trust and willingness to
            rely on their landline telephone, leading consumers in many
            cases to simply not answer the phone. That communication
            breakdown can have significant health and safety of life
            implications for the many consumers who rely on residential
            landline service.\14\
    ---------------------------------------------------------------------------
        \14\ Federal Commc'ns Comm'n, Final Rule, Limits on Exempted Calls
    Under the Telephone Consumer Protection Act of 1991, CG Docket No. 02-
    278, 88 Fed. Reg. 3668, at  21 (Jan. 20, 2023), available at https://
    www.govinfo.gov/content/pkg/FR-2023-01-20/pdf/2023-00635.pdf.

        Government agencies and their contractors (such as ITG and YouMail)
    typically focus on scam calls, as they are the most damaging to both
    the recipients and the network. We understand that originating
    providers have increasingly resisted traceback requests from the ITG
    regarding telemarketing calls, claiming that these calls are legal
    because the recipients have provided TCPA-compliant consent for these
    calls. Yet it is impossible to believe that legitimate consent has been
    provided by subscribers for over a billion telemarketing calls each
    month. To address this confusion, in this past year we have been
    advocating that the FCC provide guidance concerning its regulations in
    a way that should radically reduce the number of telemarketing calls
    for which consent can be claimed to have been provided. Section III
    explains this advocacy.
        FCC enforcement actions are not sufficient to make a meaningful
    difference in these illegal calls. U.S.-based providers continue to
    spurn the Commission's requirements to respond to traceback requests,
    as the FCC reports each year,\15\ and as recently as Q2 2023.\16\ Its
    ``first-ever'' robo-blocking order (issued more than three years after
    the passage of the TRACED Act)\17\ has already been breached.\18\
    Traceback requests unearth gateway providers and point of entry
    providers (the providers who bring the calls into the U.S. phone
    network) that months earlier were subject to FCC cease and desist
    orders for transmitting illegal robocalls.\19\ Of the more than 7,000
    voice service providers with certifications in the Robocall Mitigation
    Database (RMD),\20\ the FCC has brought a total of 27 enforcement
    actions for deficient certifications; many of these actions addressed
    providers' failure to upload relevant documents rather than actual sub-
    standard practices.\21\ The fines issued against some of the most
    egregious fraudsters \22\ have not been recovered, which undermines the
    intended deterrent effect of imposing these fines. Yet the Commission
    has referred only three forfeiture orders to the Department of Justice
    related to unwanted calls since the FCC began TRACED Act reporting in
    2020.\23\
    ---------------------------------------------------------------------------
        \15\ Compare Federal Commc'ns Comm'n, Report to Congress on
    Robocalls and Transmission of Misleading or Inaccurate Caller
    Identification Information, Attachment A, ``Non-Responsive 2022'' tab
    (Dec. 23, 2022), available at https://www.fcc.gov/document/ fcc-
    submits-traced-act-annual-report-2022-congress [hereinafter FCC 2022
    Report to Congress] with Federal Commc'ns Comm'n, Report to Congress on
    Robocalls and Transmission of Misleading or Inaccurate Caller
    Identification Information, Attachment A, ``2021 NR Providers'' tab
    (Dec. 22, 2021), available at https://www.fcc.gov/document/ fcc-
    submits-traced-act-annual-report-2021-congress [hereinafter FCC 2021
    Report to Congress] with Federal Commc'ns Comm'n, Report to Congress on
    Robocalls and Transmission of Misleading or Inaccurate Caller
    Identification Information, Attachment D, ``2020 NR Providers'' tab
    (Dec. 23, 2020), available at https://www.fcc.gov/document/fcc-submits-
    traced-act-annual-report-2020-congress [hereinafter FCC 2020 Report to
    Congress].
        \16\ Federal Commc'ns Comm'n, Report on Traceback Data for the
    Period of April 2023 Through June 30, 2023) (Sept. 29, 2023), available
    at https://www.fcc.gov/ document/fcc-releases-traceback-transparency-
    report [hereinafter Traceback Transparency report].
        \17\ Press Release, Federal Commc'ns Comm'n, FCC Orders Blocking of
    Calls from Gateway Facilitator of Illegal Robocalls from Overseas (May
    11, 2023), available at https://www.fcc.gov/document/ fcc-issues-first-
    ever-roboblocking-order-against-one-eye [hereinafter Blocking of Calls
    order].
        \18\ Traceback Transparency report, supra note 16, at 10, Traceback
    ID 13726; this call was in violation of the Commission's May 11
    Blocking of Calls order, supra note 17.
        \19\ See Letter from FCC Enforcement Bureau to Jeff Lawson, CEO of
    Twilio Inc. and Mellissa Blassingame, Senior Director of Twilio (Jan.
    24, 2023), available at https://www.fcc.gov/document/ fcc-issues-
    robocall-cease-and-desist-letter-twilio; Letter from FCC Enforcement
    Bureau to Brittany Reed, President of SIPphony L.L.C. (Jan. 11, 2023),
    available at https://www.fcc.gov/document/fcc-issues-robocall-cease-
    and-desist-letter-sipphony; Letter from FCC Enforcement Bureau to Corey
    Seaman, CEO of Vultik Inc. (Jan. 11, 2023), available at https://
    www.fcc.gov/ document/fcc-issues-robocall-cease-and-desist-letter-
    vultik-inc; Letter from FCC Enforcement Bureau to Aaron Leon, Co-
    Founder & CEO of thinQ Technologies, Inc. (Mar. 22, 2022), available at
    https://www.fcc.gov/ document/fcc-issues-robocall-cease-and-desist-
    letter-thinq.
        \20\ Federal Commc'ns Comm'n, Robocall Mitigation Database,
    available at https://fccprod
    .servicenowservices.com/rmd?id=rmd_listings.
        \21\ See Press Release, Federal Commc'ns Comm'n, FCC Seeks to
    Remove Companies from Key Database for Non-Compliance with Anti-
    Robocall Rules (Oct. 16, 2022), available at https://www.fcc.gov/
    document/fcc-seeks-remove-companies-robocall-mitigation-database; Press
    Release, Federal Commc'ns Comm'n, FCC Plans to Remove Companies from
    Key Database for Non-Compliance with Anti-Robocall Rules (Oct. 3,
    2022), available at https://www.fcc.gov/document/fcc-remove-companies-
    robocall-database-non-compliance.
        \22\ See Press Release, Federal Commc'ns Comm'n, FCC Proposes
    Record $225 Million Fine for Massive Spoofed Robocall Campaign Selling
    Health Insurance (June 9, 2020), available at https://www.fcc.gov/
    document/fcc-proposes-record-225-million-fine-1-billion-spoofed-
    robocalls-0 (proposed in June 2020), Press Release, Federal Commc'ns
    Comm'n, Health Insurance Telemarketer Faces Record FCC Fine of $225
    Million for Spoofed Robocalls (Mar, 17, 2021),
    available at https://www.fcc.gov/document/fcc-fines-telemarketer-225-
    million-spoofed-robocalls (adopted in March 2021), Press Release,
    Federal Commc'ns Comm'n, FCC Reaffirms $225 Million Spoofed Robocall
    Fine (June 7, 2023), 3available at https://www.fcc.gov/document/fcc-
    reaffirms-225-million-spoofed-robocall-fine-against-rising-eagle
    (reaffirmed in June 2023). See also Press Release, Federal Commc'ns
    Comm'n, FCC Imposes Record Penalty Against Transnational Illegal
    Robocalling Operation (Aug. 3, 2023), available at https://www.fcc.gov/
    document/fcc-imposes-record-fine-transnational-illegal-robocalling-
    operation (issued after the Ohio Attorney General brought the following
    case in July 2022: Complaint for Permanent Injunction, Damages, and
    Other Equitable Relief, State of Ohio ex rel. Attorney General Dave
    Yost v. Jones, No. 2:22-cv-2700 (S.D. Ohio July 7, 2022), available at
    https://www.ohioattorneygeneral.gov/Files/Briefing-Room/News-Releases/
    Time-Stamped-Complaint-22-CV-2700-State-of-Ohio-v.aspx).
        \23\ See FCC 2022 Report to Congress, supra note 15, at 7
    (continuing the trend from 2021); FCC 2021 Report to Congress, supra
    note 15, at 8, and FCC 2020 Report to Congress, supra note 15, at 7.
    ---------------------------------------------------------------------------
        As is described in this testimony, we believe that additional
    measures are necessary to protect Americans from the illegal calls.
    II. The FCC should establish a system to suspend complicit voice
            service providers after one notice, preventing them from
            transmitting illegal calls.
        There are currently insufficient deterrents to counter the $1
    million in monthly revenue \24\ earned by complicit providers that
    transmit the one billion or more illegal calls made monthly.\25\ Under
    the current rules, the profit from these calls clearly makes it
    worthwhile for providers to run the risk of transmitting the calls. Yet
    the income to providers pales when compared to the approximately $3
    billion stolen every month from consumers through these fraudulent
    robocalls.\26\
    ---------------------------------------------------------------------------
        \24\ By some estimates, robocallers can send one million calls for
    as cheaply as $1,000 in call transmission costs; at a cost of $0.001
    per call, more than one billion scam robocalls every month means that
    providers earn more than $1 million in revenue every month. See, e.g.,
    In re Advanced Methods To Target and Eliminate Unlawful Robocalls, Call
    Authentication Trust Anchor, Comments of ZipDX LLC, Seventh Further
    Notice of Proposed Rulemaking in CG Docket No. 17-59, and Fifth Further
    Notice of Proposed Rulemaking in WC Docket No. 17-97, at 2 (filed Aug.
    17, 2022), available at https://www.fcc.gov/ecfs/search/search-filings/
    filing/10818
    2676204994.
        \25\ Every month there are an average of one billion scam robocalls
    made to U.S. telephones, and a comparable number of illegal
    telemarketing calls. PR Newswire, Robocalls Top 50.3 Billion in 2022,
    Matching 2021 Call Volumes Despite Enforcement Efforts (Jan. 5, 2023),
    available at https://www.prnewswire.com/news-releases/robocalls-top-50-
    3-billion-in-2022--matching-2021-call-volumes-despite-enforcement-
    efforts-301714297.html (quoting YouMail press release) (scam calls made
    up roughly 41 percent of all robocall volume in 2022). The distinction
    between the two appears to be somewhat fluid, as they depend on how the
    calls are classified. The universally-reviled calls selling auto
    warranties--recently targeted by the Ohio Attorney General and the
    Commission, see Press Release, Office of the Ohio Attorney General,
    Yost Files Suit Alleging Massive Robocall Scheme (June 7, 2022)--are
    considered telemarketing calls, not outright scam calls. Conversation
    with Mike Rudolph, CTO, YouMail (Aug. 29, 2022).
        \26\ In May 2022, HarrisPoll, in a survey commissioned by
    Truecaller, estimated $39.5 billion in consumer losses over the past
    twelve months. See Truecaller, Truecaller Insights 2022 U.S. Spam &
    Scam Report (May 24, 2022), available at https://www.truecaller.com/
    blog/insights/truecaller-insights-2022-us-spam-scam-report (last
    visited Sept. 16, 2022). This is an average of more than $3.29 billion
    in consumer losses per month.
    ---------------------------------------------------------------------------
        Scam robocalls are transmitted as the result of the choices made by
    telecommunication service providers regarding what calls they will
    accept and transmit. Providers receive a payment for each call they
    transmit.
        Robocalls typically follow a multi-step path from a caller to the
    called party, passed along from one provider to another multiple times.
    Calls go first to an originating provider (or a ``gateway provider'' in
    the case of a call from another country). That provider makes a choice
    whether to accept the calls from that caller. If it accepts the calls,
    it will send them to an intermediate provider that chooses to accept
    and transmit those calls down the call path. If that first intermediate
    provider decides not to accept the calls from the originating provider,
    the scam calls are stopped at that point and do not reach the called
    party unless the originating provider finds another intermediate
    provider willing to take them. Similarly, each hop in the chain to a
    subsequent intermediate provider or the terminating provider represents
    a separate decision by the downstream provider to accept and transmit
    those calls or to block them. Currently, the primary determinant for
    many of these instantaneous decisions made by the providers in the call
    path is profit. That must change.
        As we describe in Section IV, there are tools currently available
    that allow providers to identify and then block scam robocalls. But
    providers need to be incentivized to use these tools and to block the
    calls found to be illegal.
        The choices that providers in the call path make about whether to
    accept calls from upstream providers should be guided not only by the
    price paid for those calls, but also by the risk involved in accepting
    calls from those upstream providers. The consequences of the wrong
    choice should be steep. Providers who might otherwise be tempted to be
    complicit in transmitting scam calls will be financially motivated to
    comply with the law if punishments are swift, certain, and sufficiently
    severe. Given the proper incentives, the communications industry in the
    United States will develop and implement additional successful
    mechanisms as they become necessary.
        Telephone providers should be incentivized to develop and use
    procedures to guard against transmitting fraud robocalls. For
    originating, gateway, and first intermediate providers specifically,
    there is little excuse for continuing to transmit scam robocall traffic
    after any notice that the traffic is illegal based on previous
    tracebacks, FCC or FTC notices or cease and desist letters, similar
    notices from state attorneys general, or notices from service providers
    such as YouMail.
        The FCC established the Robocall Mitigation Database (RMD) as a way
    to keep track of voice service providers and apply requirements to
    them.\27\ The RMD provides a powerful and effective tool to the FCC to
    control non-compliant providers, as providers are prohibited from
    accepting traffic from voice service providers that have not submitted
    proper certification to the RMD.\28\
    ---------------------------------------------------------------------------
        \27\ See Federal Commc'ns Comm'n, Robocall Mitigation Database,
    available at https://www.fcc.gov/robocall-mitigation-database.
        \28\ See 47 C.F.R. Sec. 64.6305(e)(1). See also In re Call
    Authentication Trust Anchor, Sixth Report and Order and Further Notice
    of Proposed Rulemaking, WC Docket No. 17-97, at  8 (Rel. Mar. 17
    2023), available at https://docs.fcc.gov/ public/attachments/FCC-23-
    18A1.pdf.
    ---------------------------------------------------------------------------
        We believe that the FCC should be empowered to use immediate--but
    temporary--suspension \29\ from its Robocall Mitigation Database as a
    mechanism to protect telephone subscribers from receiving illegal
    calls, pending investigations and due process determinations. This
    would prioritize protecting U.S. telephone subscribers from criminal
    scam calls over providing originating and gateway providers access to
    the U.S. telephone network.\30\ Once a provider has been notified by
    any of the government enforcement agencies, or their service providers,
    that it has been found to be transmitting illegal calls, such
    notification should serve as legal notice that the next time it is
    determined to be transmitting illegal calls, it will be suspended from
    the RMD. These suspensions should be temporary and short-lived, but
    immediate, pending a due process review. The due process review would
    determine whether this latest finding that the provider was
    transmitting illegal calls was a mistake that will not be repeated, or
    whether it justifies permanent removal from the RMD.
    ---------------------------------------------------------------------------
        \29\ Suspension should result in legally effective removal from the
    RMD. This can be accomplished via a prominent notation that the
    provider's status is suspended. See, e.g., In re Advanced Methods to
    Target and Eliminate Unlawful Robocalls et al., Comments of ZipDX
    L.L.C., Fifth Further Notice of Proposed Rulemaking in CG Docket No.
    17-59, and Fourth Further Notice of Proposed Rulemaking in WC Docket
    No. 17-97, at  64 (filed Dec. 7, 2021), available at https://
    www.fcc.gov/ecfs/document/12080110629539/1 (``We would note that
    `delisting' should not actually constitute complete removal from the
    database; rather, an entry should be retained so that it is clear to
    all others that the problematic provider has been explicitly designated
    as such. This will ensure that if (when) the problematic provider
    attempts to shift their traffic to a new downstream, that downstream
    will become aware of the situation before enabling the traffic.'').
        \30\ Most, if not all, of the offending voice service providers are
    VoIP (Voice over Internet Protocol) services. VoIP is a technology that
    accesses the telephone network through the internet, and is commonly
    used by many large telecommunications providers in place of traditional
    landlines to provide service to residential and business customers.
    Often, the telephone service is paired with Internet access and cable
    television service. The VoIP providers that process the illegal
    robocalls are generally small, often simply one or two individuals with
    minimal investment or technical expertise who have set up a service in
    their home or other temporary quarters and offer services through
    online advertisements. See FCC 2021 Report to Congress, supra note 15,
    at 12 (``The Commission's experience tracing back the origins of
    unlawful call traffic indicates that a disproportionately large number
    of calls originate from Voice over Internet Protocol (VoIP) providers,
    particularly non-interconnected VoIP providers. Moreover, the Industry
    Traceback Group has found that high-volume, rapid-fire calling is a
    cost-effective way to find susceptible targets, although it does not
    collect data about which robocall originators are VoIP providers.'').
    ---------------------------------------------------------------------------
        We have recommended this type of immediate suspension to the
    Commission as a way of swiftly preventing complicit voice service
    providers from continuing to transmit tens of thousands of illegal
    calls.\31\ The interests of American subscribers to be protected from
    dangerous, fraudulent, and invasive calls would be prioritized.
    ---------------------------------------------------------------------------
        \31\ In re Advanced Methods To Target and Eliminate Unlawful
    Robocalls, Call Authentication Trust Anchor, Comments of Electronic
    Privacy Information Center and National Consumer Law Center on Fifth
    Further Notice of Proposed Rulemaking in WC Docket No. 17-97 (filed
    Aug. 17, 2022), available at https://www.fcc.gov/ecfs/document/
    10817350228611/1. Our proposal for the immediate suspension of
    complicit providers contrasts with the Commission's procedure of
    issuing a Notification of Suspected Illegal Traffic, followed by an
    Initial Determination Order, then followed by a Final Determination
    Order, see FNPRM at  30. All three of those steps are required by the
    FCC before the provider is stopped from continuing to transmit illegal
    calls. In the time between the first and third steps, tens of thousands
    of illegal calls will reach subscribers.
    ---------------------------------------------------------------------------
        We understand that this type of immediate suspension raises due
    process concerns for the affected providers. However, as we explain,
    those due process issues can be addressed.
        Due process principles raise two concerns: 1) the timing and the
    content of notice given to the provider before the suspension from the
    RMD occurs; and 2) the opportunity for the provider to be heard and
    contest the factual basis for the suspension.\32\
    ---------------------------------------------------------------------------
        \32\  See, e.g., Mathews v. Eldridge, 424 U.S. 319, 332, 96 S. Ct.
    893, 47 L. Ed. 2d 18 (1976) (``Procedural due process imposes
    constraints on governmental decisions which deprive individuals of
    `liberty' or `property' interests within the meaning of the Due Process
    Clause of the Fifth or Fourteenth Amendment.'').
    ---------------------------------------------------------------------------
        The Commission can establish an expedited process of suspending
    providers from the RMD akin to the procedures established by Rule 65 of
    the Federal Rules of Civil Procedure for a court to provide a Temporary
    Restraining Order (TRO). TROs recognize the need to move quickly and
    without prior notice to the respondent to protect the moving party from
    immediate, irreparable harm.\33\
    ---------------------------------------------------------------------------
        \33\ See ``Legal Information Institute, Temporary Restraining
    Order, available at https://www.law.cornell.edu/ wex/
    temporary_restraining_order (last accessed Oct. 19, 2023).
    ---------------------------------------------------------------------------
        The Supreme Court has noted that ``due process is flexible and
    calls for such procedural protections as the particular situation
    demands.'' \34\ In this context, the Commission will be protecting
    telephone subscribers from the tens of thousands of illegal robocalls
    that would otherwise be placed but for the provider's suspension from
    the RMD. Protecting American subscribers from access by known criminals
    who seek to defraud them prevents irreparable harm and justifies a
    truncated procedure that provides notice to the provider of the
    suspension simultaneously with initiating an immediate suspension from
    the RMD. The U.S. government has an interest in protecting its
    residents from scam calls. The Supreme Court has recognized that the
    government's interests are to be balanced against the private interest
    affected by the action--in this case, the provider's removal from the
    RMD and subsequent inability to transmit calls into the network.\35\
    ---------------------------------------------------------------------------
        \34\ Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L.
    Ed. 2d 484 (1972). See also Mathews v. Eldridge, 424 U.S. 319, 349, 96
    S. Ct. 893, 47 L. Ed. 2d 18 (1976) (``In assessing what process is due
    in this case, substantial weight must be given to the good-faith
    judgments of the individuals charged by Congress with the
    administration of social welfare programs that the procedures they have
    provided assure fair consideration of the entitlement claims of
    individuals.'').
        \35\ See Mathews, 424 U.S. at 334-35 (``Accordingly, resolution of
    the issue whether the administrative procedures provided here are
    constitutionally sufficient requires analysis of the governmental and
    private interests that are affected. More precisely, our prior
    decisions indicate that identification of the specific dictates of due
    process generally requires consideration of three distinct factors:
    First, the private interest that will be affected by the official
    action; second, the risk of an erroneous deprivation of such interest
    through the procedures used, and the probable value, if any, of
    additional or substitute procedural safeguards; and finally, the
    Government's interest, including the function involved and the fiscal
    and administrative burdens that the additional or substitute procedural
    requirement would entail.'' (internal citations omitted)).
    ---------------------------------------------------------------------------
        Formal Notice. Just as when a TRO is issued by a court, the system
    we propose would require the Commission to issue a formal notice of the
    suspension to the provider at the same time it orders the suspension
    from the RMD. The notice to the provider would inform it of the basis
    for the suspension, the provider's right to request an evidentiary
    hearing to challenge the suspension, and other requirements related to
    the suspension. At the same time, the Commission would also notify all
    other providers on the RMD that they are prohibited from accepting
    calls from the suspended provider until otherwise notified.
        Pre-Suspension Notice. The Commission can ensure that providers
    subject to these immediate suspensions have received previous notices
    of the consequences of continuing to transmit illegal calls. Currently,
    when the ITG sends a traceback request to a provider, it already
    includes information about the nature of the call subject to the
    traceback.\36\ The traceback request is sent up through the call-path
    from the terminating provider, through the multiple intermediate
    providers, up to the originating or gateway providers. Not all these
    providers in the call path are complicit, as the illegal calls become
    mixed with legal calls as they travel--making it difficult for
    downstream providers to root out the illegal calls.
    ---------------------------------------------------------------------------
        \36\ Each traceback notice sent to every provider in the call path
    contains a text description of the call, typically explaining what
    makes it illegal. See Complaint for Injunctive Relief and Civil
    Penalties, North Carolina ex rel. Stein v. Articul8, LLC & Paul K.
    Talbot, Case No. 1:22-cv-00058, at 30  93-94 and 34  98-99
    (M.D.N.C. Jan. 25, 2022), available at https://ncdoj.gov/wp-content/
    uploads/2022/01/FILED-Complaint_NC-v-Articul8_22-cv-00058-MDNC-2022.pdf
    [hereinafter North Carolina v. Articul8 Complaint].
    ---------------------------------------------------------------------------
        In the future, all traceback requests could include a warning that
    the failure to cease making illegal calls after notice, could trigger
    suspension from the RMD. The pre-suspension notice could also be
    included in notices from state attorneys general and the Federal Trade
    Commission. Providing notice of the possibility of suspension to all
    providers who are found to have transmitted illegal calls serves to
    remind every one of the potential ramifications of continuing the
    illegal activity.
        Triggering Activity. Providers are complicit in transmitting
    illegal calls when they have received notice that their calls are
    illegal from any one of a number of enforcement agencies or their
    partners in this system and yet continue to pass along this traffic.
    Other Federal agencies are engaged in battling the scam calls,
    including the FTC and the Social Security Administration, as are the
    attorneys general in most states. Additionally, responsible
    intermediate providers currently alert upstream providers that they are
    transmitting illegal calls, as do some private service providers (such
    as YouMail and ZipDX) that are engaged in network monitoring. In the
    future, the Commission could establish a system under which any one of
    these entities--state attorneys general, the FTC and other Federal
    agencies involved in this work, intermediate providers, and private
    service providers--could alert the Commission when originating or
    gateway providers continue to transmit illegal calls even after
    repeated notice from any one or more of these entities. Alerts from any
    one of these trusted sources to the FCC could serve as the basis for
    the FCC to initiate immediately the suspension process. Once a trusted
    source provides information to the FCC regarding ongoing transmission
    of illegal calls by a provider, along with proof (information about the
    number and type of the calls, and the nature of the previous notice
    provided by the trusted source), that would trigger the immediate
    suspension notice from the FCC. At that point, the FCC would initiate
    the suspension of the targeted provider for a period of 10 days, by the
    end of which there would be a hearing to determine whether the provider
    would remain suspended from the RMD.
        Opportunity to be Heard. Once a provider is given the formal notice
    from the Commission or its enforcement partners about the suspension,
    the basis for the suspension, and the provider's rights, the provider
    would have the right to contest the determination that it was
    transmitting illegal calls, had failed to comply with a traceback
    request or a Commission order, or was affiliated with providers
    previously suspended from the RMD.
        We have advocated that the Commission should establish a mechanism
    to allow this type of fact-finding proceeding, possibly before a
    Commission Administrative Law Judge,\37\ on an expedited basis. The
    Supreme Court has not required that these due process hearings always
    involve full evidentiary hearings and oral testimony; hearings can be
    conducted solely through the submission of written evidence.\38\ The
    public's interest in being relieved of the illegal calls is a factor in
    determining the process that that is due. As the Court noted:
    ---------------------------------------------------------------------------
        \37\ Fed. Commc'ns Comm'n, Administrative Law Judges, available at
    https://www.fcc.gov/administrative-law-judges (last accessed Oct. 19,
    2023)
        \38\ See Mathews v. Eldridge, 424 U.S. 319, 334, 343-44, 96 S. Ct.
    893, 47 L. Ed. 2d 18 (1976).

            In striking the appropriate due process balance the final
            factor to be assessed is the public interest. This includes the
            administrative burden and other societal costs that would be
            associated with requiring, as a matter of constitutional right,
            an evidentiary hearing upon demand in all cases prior to the
            termination of disability benefits. The most visible burden
            would be the incremental cost resulting from the increased
            number of hearings. . . .\39\
    ---------------------------------------------------------------------------
        \39\ Id. at 347.

        In this context, the Commission's priority should be protecting
    subscribers from the criminals seeking to defraud them through the scam
    robocalls. Moreover, the only procedures required are those ``to insure
    that [the respondents] are given a meaningful opportunity to present
    their case.'' \40\ The Supreme Court has emphasized that ``substantial
    weight must be given to the good-faith judgments of the individuals
    charged by Congress with the administration of social welfare programs
    that the procedures they have provided assure fair consideration of the
    entitlement claims of individuals.'' \41\ Like the Social Security
    Administration in the case quoted, the Commission is charged with the
    important task of protecting the American public--here, from illegal
    robocalls, and the billions stolen from American subscribers through
    these calls.
    ---------------------------------------------------------------------------
        \40\ Id. at 349.
        \41\ Id.
    ---------------------------------------------------------------------------
        Length of the Suspension. The Commission should offer the suspended
    provider the opportunity to request a hearing within an appropriate
    number of days to contest the grounds for the suspension, provide
    evidence, and possibly provide sufficient sureties of good behavior in
    the future. If no hearing is requested, however, the Commission should
    determine the appropriate length of the suspension based on the need to
    protect the telephone system from illegal robocalls. Permanent
    suspension from the RMD should be a valued tool in the Commission's
    authority to protect subscribers from illegal robocalls. This aligns
    with Commissioner Starks' statement: ``[i]f we identify a bad actor,
    it's time to make it harder to operate. If it's a repeat offender, we
    should go further.'' \42\ The Commission has already made clear in
    numerous instances that providers must comply with its rules, and it
    has listed potential consequences for failing to do so, explicitly
    including suspension from the RMD.\43\
    ---------------------------------------------------------------------------
        \42\ See Statement of Comm'r Geoffrey Starks, In re Advanced
    Methods to Target and Eliminate Unlawful Robocalls, CG Docket No. 17-
    59; Call Authentication Trust Anchor, WC Docket No. 17-97; Report and
    Order, Order on Reconsideration, Order, and Further Notice of Proposed
    Rulemaking (May 19, 2022).
        \43\ For example, since at least as early as its Second Report and
    Order in October 2020, the Commission has given U.S. voice service
    providers (as well as foreign providers that use U.S. numbers to send
    voice traffic to U.S. subscribers) notice that deficient certifications
    or failure to meet the standards of its own certifications could be met
    with enforcement ``including de-listing the provider from the
    database.'' In re Call Authentication Trust Anchor, Second Report and
    Order, WC Docket No. 17-97, at  93 (Oct. 1, 2020), available at
    https://docs.fcc.gov/public/attachments/FCC-20-136A1.pdf. Also, the
    Commission has required that providers submit updates regarding ``any
    of the information they filed in the certification process'' within 10
    business days of the change. Id. The Commission took a similar step
    against the robocallers themselves in 2020. See Press Release, Federal
    Commc'ns Comm'n, FCC to Robocallers: There Will Be No More Warnings
    (May 1, 2020), available at https://docs.fcc.gov/public/attachments/
    DOC-364109A1.pdf.
    ---------------------------------------------------------------------------
        If the Commission believes that it does not have the authority to
    exercise these immediate but temporary suspensions to protect American
    telephone subscribers from these illegal calls, we urge Congress to
    provide such authority.
    III. The Commission should issue guidance confirming that its current
            regulations limit agreements for prior express consent and
            prior express invitation to calls from one seller, and that the
            E-Sign Act applies to agreements entered online.
        The misuse of consumers' ``consents'' by lead generators and others
    is a major factor contributing to the increasing number of illegal
    telemarketing calls and texts. The number of telemarketing calls has
    been steadily rising in recent years, peaking at over 1.4 billion a
    month in March 2023.\44\
    ---------------------------------------------------------------------------
        \44\ PR Newswire, U.S. Consumers Received Roughly 5 Billion
    Robocalls in March, According to YouMail Robocall Index: National
    Monthly Robocall Volume Reached Highest Peak Since November 2019 (Apr.
    7, 2023), available at https://www.prnewswire.com/news-releases/us-
    consumers-received-roughly-5-billion-robocalls-in-march-according-to-
    youmail-robocall-index-301792
    292.html.
    ---------------------------------------------------------------------------
        Lead generators, a common feature on the internet, refer potential
    customers to vendors.\45\ The ``leads''--the telephone numbers and
    other data regarding potential customers--are sold directly to sellers
    of products or services (such as lenders or insurance companies) or to
    lead aggregators that then sell the leads to sellers.\46\ As courts and
    the FTC have noted, it is not always apparent from a particular website
    that it is operated by a lead generator rather than an actual lender or
    seller of other products or services,\47\ and misrepresentations and
    outright consent fraud on lead generators' sites are common.\48\
    ---------------------------------------------------------------------------
        \45\ See Federal Trade Comm'n, ``Follow the Lead'' Workshop, Staff
    Perspective (Sept. 2016), available at www.ftc.gov (overview of lead
    generation industry).
        \46\ Id. at 2 (``A lead is someone who has indicated--directly or
    indirectly--interest in buying a product.'').
        \47\ See, e.g., CFPB v. D & D Mktg., 2016 WL 8849698, at *1 (C.D.
    Cal. Nov. 17, 2016).
        \48\ See Federal Trade Comm'n, Follow the Lead Workshop--Staff
    Perspective 5 (Sept. 2016), available at www.ftc.gov. See also Consumer
    Fin. Prot. Bureau v. RD Legal Funding, L.L.C., 332 F. Supp. 3d 729,
    782-783 (S.D.N.Y. 2018); MacDonald v. CashCall, Inc., 2017 WL 1536427,
    at *12 (D.N.J. Apr. 28, 2017), aff'd on other grounds, 883 F.3d 220 (3d
    Cir. 2018) (affirming denial of arbitration motion); CFPB v. D & D
    Mktg., 2016 WL 8849698, at *1 (C.D. Cal. Nov. 17, 2016); Consumer Fin.
    Prot. Bureau v. CashCall, Inc., 2016 WL 4820635, at *10 (C.D. Cal. Aug.
    31, 2016). See also McCurley v. Royal Seas Cruises, Inc., 21-55099,
    2022 WL 1012471 at *3 (9th Cir. Apr. 5, 2022) (``The amount of
    mismatched data in the record cannot all be explained by data-entry
    errors or family members with different last names. . . . These facts,
    in combination with the evidence of widespread TCPA violations in the
    cruise industry, would support a finding that Royal Seas knew facts
    that should have led it to investigate Prospects's work for TCPA
    violations.'').
    ---------------------------------------------------------------------------
        Consumers who visit a lead generator's site are typically invited
    to enter their contact information into a form or application on the
    site. Typically, the consumer is asked to click on a link that includes
    language in tiny font \49\ that does not anywhere indicate that the
    lead generator is planning to use that click to justify telemarketing
    calls from hundreds--or even--thousands--of telemarketers.\50\
    ---------------------------------------------------------------------------
        \49\ For example: By clicking ``Get My Auto Quotes'' the consumer
    is supposedly agreeing that the lead generator can ``share my
    information to the providers in our network for the purpose of
    providing me with information about their financial services and
    products.'' But to see the full list of callers and other lead
    generators that this website could sell the consumer's lead to, one
    must place their mouse and hover over a link embedded in the long
    paragraph under the place to be clicked, described infra at 50.
        To access this form, a person must go to QuoteWizard's website at
    https://www.quotewizard.com/ and provide information about the
    insurance product they seek, as well as their name, address, and
    telephone number, birth date, and other personal information.
        \50\ See, e.g., the list of thousands of insurance carrier partners
    of QuoteWizard, available at https://quotewizard.usnews.com/form/
    static/corp/providers.html?bn=U.S.%20News&bf=us
    news.
    ---------------------------------------------------------------------------
        The site operator then sells the consumer's information to
    interested lenders or sellers, sometimes with some level of data
    analysis, and often through an automated auction. A 2011 survey found
    that leads are sometimes sold for over $100 \51\; more recent online
    data indicates that leads can be sold for as much as $600 each.\52\
    ---------------------------------------------------------------------------
        \51\ Consumer Federation of America, CFA Survey of Online Payday
    Loan Websites 7 (Aug. 2011), available at https://consumerfed.org/pdfs/
    CFAsurveyInternetPaydayLoanWebsites.pdf.
        \52\ See Leads Hook, Blog post, How to Make Money Selling Leads in
    2023 (& How Much to Charge) (July 12, 2023), available at https://
    www.leadshook.com/blog/how-to-sell-leads/.
    ---------------------------------------------------------------------------
        One organization of lead generators admitted in its comments to the
    Commission in a March 2023 Notice of Proposed Rulemaking that lead
    generators are responsible for a ``meaningful percentage'' of entirely
    fabricated consent agreements.\53\ These comments provide particularly
    helpful information about how the lead generator industry works to
    facilitate telemarketing robocalls: ``once the consumer has submitted
    the consent form the company seeks to profit by reselling the `lead'
    multiple--perhaps hundreds--of times over a limitless period of time.
    Since express written consent does not expire, the website is free to
    sell the consent forever.'' \54\
    ---------------------------------------------------------------------------
        \53\ Comment of Responsible Enterprises Against Consumer
    Harassment, CG Dockets Nos. 21-402, 02-278, at 1 (filed May 9, 2023),
    available at https://www.fcc.gov/ecfs/document/1050
    9951114134/1.
        \54\ Id. at 3 (emphasis added).
    ---------------------------------------------------------------------------
        Each party that owns the consent, including the original lead
    generator and every subsequent purchaser of the consent, ``is free to
    sell it again.'' \55\ As the lead generators explain: the result of all
    these sales is that ``[e]ach time the website operator--or an
    intermediary ``aggregator'' . . . sells the consumer's data a new set
    of phone calls will be made to the consumer.'' \56\
    ---------------------------------------------------------------------------
        \55\ Id. at 6 (emphasis added).
        \56\ Id. at 3 (emphasis added).
    ---------------------------------------------------------------------------
        Additional comments in the FCC's proceeding support the point that
    the practice of lead generators sharing consents is a major
    contributing factor in the proliferation of unwanted telemarketing
    calls:

       The known fact that one click can sign up a consumer to
            thousands of businesses, related or not, is a dreadful problem.
            Aged leads are also problematic because, currently, consent
            never expires.\57\
    ---------------------------------------------------------------------------
        \57\ Comment of Drips, CG Dockets Nos. 21-402, 02-278 (filed May 8,
    2023), available at https://www.fcc.gov/ecfs/document/10509043191182/1.

       Until lead buyers stop purchasing non-compliant leads there
            will be incentives that lead to bad practices.\58\
    ---------------------------------------------------------------------------
        \58\ Comment of National Association of Mutual Insurance, CG
    Dockets Nos. 21-402, 02-278 (filed May 8, 2023), available at https://
    www.fcc.gov/ecfs/document/10508029328611/1.

        On the other hand, comments from the telemarketing industry and
    lead generators defend the sharing of consumer consents with hundreds,
    and even thousands, of callers. For example, a trade association for
    telemarketers argues against the Commission's proposal in the NPRM:
    ``It is easy to say that 1,000 companies are too many but there are
    many markets, such as insurance, where hundreds of relevant companies
    provide differentiated products.'' \59\ The level of objections to the
    FCC's concerns by the lead generator industry underscores the extent to
    which that industry is responsible for so many of the billion monthly
    telemarketing calls made to American telephones.
    ---------------------------------------------------------------------------
        \59\ Comment of Professional Associations for Customer Engagement,
    CG Dockets Nos. 21-402, 02-278, at 9 (filed May 8, 2023), available at
    https://www.fcc.gov/ecfs/document/10508798
    33281/1.
    ---------------------------------------------------------------------------
        FCC regulations already require consumers' written consents to
    apply to just one seller and to be non-transferable. The Telephone
    Consumer Protection Act \60\ requires the FCC to establish regulations
    governing telemarketing calls. For the past several decades, the FCC's
    regulations have outlined explicit requirements for callers before they
    can make prerecorded telemarketing calls to cell phones and residential
    lines,\61\ or any calls to lines registered on the Nation's Do Not Call
    (DNC) Registry.\62\ Both regulations require that, before those calls
    can be made, the recipient must have signed an express written
    agreement consenting to telemarketing calls by or on behalf of a single
    seller.\63\
    ---------------------------------------------------------------------------
        \60\ 47 U.S.C. Sec. Sec. 227 et seq.
        \61\ 47 C.F.R. Sec. 64.1200(f)(9).
        \62\ 47 C.F.R. Sec. 64.1200(c)(2)(ii).
        \63\ 47 U.S.C. Sec. 227(a)(4). The regulation makes exceptions for
    calls to DNC lines when the calls are on behalf of charities, and when
    the caller has an ``established business relationship'' with the
    recipient.
    ---------------------------------------------------------------------------
        The requirements for consent or invitation to receive telemarketing
    calls in the current FCC regulations are quite specific, and they have
    been the law for a long time.\64\ The current regulations prohibit
    telemarketing calls to a line registered on the DNC Registry unless the
    telemarketer has a ``personal relationship with the recipient'' or the
    caller has the subscriber's prior express invitation or permission. The
    rule specifies:
    ---------------------------------------------------------------------------
        \64\ The Commission's regulation governing consent for calls to DNC
    lines were promulgated in 2003. See Rules and Regulations Implementing
    the Telephone Consumer Protection Act (TCPA) of 1991, Final Rule, CG
    Docket No. 02-278, 68 Fed. Reg. 44,144, 44,148  22 (F.C.C. July 25,
    2003) (``Consistent with the FTC's determination, we conclude that for
    purposes of the national do-not-call list such express permission must
    be evidenced only by a signed, written agreement between the consumer
    and the seller which states that the consumer agrees to be contacted by
    this seller, including the telephone number to which the calls may be
    placed.'' (emphasis added)). The regulations requiring prior express
    written consent for prerecorded telemarketing calls to residential
    lines and cell phones were promulgated in 2012. See In re Rules &
    Regulations Implementing the Telephone Consumer Protection Act of 1991,
    Report and Order, Docket No. 02-278, 27 F.C.C. Rcd. 1830, 1873  28
    (F.C.C. Feb. 15, 2012).

            Such permission must be evidenced by a signed, written
            agreement between the consumer and seller which states that the
            consumer agrees to be contacted by this seller and includes the
            telephone number to which the calls may be placed; . . .\65\
    ---------------------------------------------------------------------------
        \65\ 47 C.F.R. Sec. 64.1200(c)(2)(ii) (emphasis added).

        The critical language in this regulation is a) the agreement must
    be ``between the consumer and seller,'' and b) it must specify that the
    consumer agrees to be contacted by ``this seller.'' As each agreement
    must be between the seller and the consumer, and each agreement must be
    limited to the calls from that seller, the FCC's regulation clearly
    prohibits any agreement from providing consent to more than one seller
    or consent that can be sold or transferred to another seller.
        Similarly, the FCC's rules for prerecorded telemarketing calls to
    cell phones and residential lines requires prior express written
    consent,\66\ which the current regulations define in 47 C.F.R.
    Sec. 64.1200(f)(9) as:
    ---------------------------------------------------------------------------
        \66\ 47 C.F.R. Sec. 64.1200(a)(3).

            (9) The term prior express written consent means an agreement,
            in writing, bearing the signature of the person called that
            clearly authorizes the seller to deliver or cause to be
            delivered to the person called advertisements or telemarketing
            messages using an automatic telephone dialing system or an
            artificial or prerecorded voice, and the telephone number to
            which the signatory authorizes such advertisements or
    ---------------------------------------------------------------------------
            telemarketing messages to be delivered.

            (i) The written agreement shall include a clear and conspicuous
            disclosure informing the person signing that:

                    (A) By executing the agreement, such person authorizes
                    the seller to deliver or cause to be delivered to the
                    signatory telemarketing calls using an automatic
                    telephone dialing system or an artificial or
                    prerecorded voice;\67\
    ---------------------------------------------------------------------------
        \67\ 47 C.F.R. Sec. 64.1200(f)(9) (emphasis added).

        Unlike the requirements for prior express invitation under 47
    C.F.R. Sec. 64.1200(c)(2)(ii) for calls to DNC lines, this regulation
    does not explicitly require that the agreement be ``between'' the
    person to be called and the seller. But the references to ``the
    seller'' make it clear that the agreement can permit calls from only
    one seller.
        Thus, both of these consent provisions are explicit in allowing
    consent to be given to receive calls only from a single identified
    seller. If there were any ambiguity, the FCC's rule should be
    interpreted to be consistent with the parallel provisions of the
    Federal Trade Commission's (FTC) Telemarketing Sales Rule (TSR).\68\
    Congress has instructed the Commission to maximize consistency with the
    FTC's rules,\69\ and even without a congressional directive it is
    obvious that inconsistent rules governing the same activity would be
    problematic.
    ---------------------------------------------------------------------------
        \68\ 16 C.F.R. Sec. Sec. 310.1 et seq. With respect to prerecorded
    calls, before a telemarketing call can be made, the TSR requires that
    the ``seller [must have] obtained [consent] only after a clear and
    conspicuous disclosure that the purpose of the agreement is to
    authorize the seller to place prerecorded calls to such person;. . .''
    16 C.F.R. Sec. 310.4(b)(1)(v)(A)(i) (emphasis added).
        \69\ The Do-Not-Call Implementation Act, Pub. L. No. 108-10,
    Sec. 3, 117 Stat. 557 (2003) (``Not later than 180 days after the date
    of enactment of this Act, the Federal Communications Commission shall
    issue a final rule pursuant to the rulemaking proceeding that it began
    on September 18, 2002, under the Telephone Consumer Protection Act (47
    U.S.C. 227 et seq.). In issuing such rule, the Federal Communications
    Commission shall consult and coordinate with the Federal Trade
    Commission to maximize consistency with the rule promulgated by the
    Federal Trade Commission. . . .'' (emphasis added)).
    ---------------------------------------------------------------------------
        The TSR's requirements that ``the seller'' obtain the consumer's
    consent, and that the consent allows delivery of prerecorded messages
    ``by or on behalf of a specific seller,'' make it clear that a third
    party that is not the seller's agent cannot obtain the consumer's
    consent, and that consent cannot be sold or transferred. And the FTC
    has explicitly reiterated this point in its Business Guidance,\70\
    which explains:
    ---------------------------------------------------------------------------
        \70\ Federal Trade Comm'n, Business Guidance, Complying with the
    Telemarketing Sales Rule, available at https://www.ftc.gov/business-
    guidance/resources/complying-telemarketing-sales-
    rule#prerecordedmessages.

            May a seller obtain a consumer's written permission to receive
            prerecorded messages from a third-party, such as a lead
            generator? No. The TSR requires the seller to obtain permission
            directly from the recipient of the call. The seller cannot rely
    ---------------------------------------------------------------------------
            on third-parties to obtain permission.

        The FCC should simply issue guidance reiterating the clear meaning
    of its existing regulations. To confirm what the FCC's regulations have
    said for the past twenty years, and to show consistency with the FTC's
    rule, the FCC should similarly issue guidance that under its existing
    rules, consent agreements must identify a single seller and that a
    seller or telemarketer cannot obtain consent by purchasing it from, or
    obtaining a referral from, a lead generator, another seller,
    telemarketer, or an independent contractor.
        In March 2023, the Commission proposed new regulations intended to
    limit the collection and selling of consent agreements among lead
    generators.\71\ However, we--on behalf of a broad coalition of consumer
    and privacy groups--have strongly urged the Commission not to proceed
    with its proposed changes to its regulations, as that proposal would be
    a reduction in consumer protections from the current regulations, and
    would be inconsistent with the existing language which already
    addresses the problem. In extensive comments, and several meetings,\72\
    we have explained how the current TCPA regulations already set the
    necessary standards. Instead of issuing new regulations, we have urged
    the Commission to issue guidance reiterating the requirements in its
    current regulations, along with a reminder that the Federal E-Sign law
    applies whenever writings or signatures are provided electronically.
    Our comments on these points have been reiterated by USTelecom-The
    Broadband Association,\73\ as well as comments filed on behalf of 28
    state attorneys general.\74\
    ---------------------------------------------------------------------------
        \71\ In re Targeting and Eliminating Unlawful Text Messages Rules
    and Regulations Implementing the Telephone Consumer Protection Act of
    1991, Report and Order and Further Notice of Proposed Rulemaking, CG
    Docket Nos. 21-402, 02-278 (Rel. Mar. 17, 2023), available at https://
    www.fcc.gov/document/fcc-adopts-its-first-rules-focused-scam-texting-0.
    The Proposed Rule was published in the Federal Register at 88 Fed. Reg.
    20,800 (Apr. 7, 2023) and is available at https://www.govinfo.gov/
    content/pkg/FR-2023-04-07/pdf/2023-07069.pdf.
        \72\ See In re Targeting and Eliminating Unlawful Text Messages
    Rules and Regulations Implementing the Telephone Consumer Protection
    Act of 1991, Comments of National Consumer Law Center et al., CG Docket
    Nos. 21-402, 02-278 (filed May 8, 2023), available at https://
    www.fcc.gov/ecfs/document/1050859496645/1 and In re Targeting and
    Eliminating Unlawful Text Messages Rules and Regulations Implementing
    the Telephone Consumer Protection Act of 1991, Reply Comments of
    National Consumer Law Center et al., CG Docket Nos. 21-402, 02-278
    (filed June 6, 2023), available at https://www.fcc.gov/ecfs/search/
    search-filings/filing/10606186902940.
        \73\ In re Targeting and Eliminating Unlawful Text Messages Rules
    and Regulations Implementing the Telephone Consumer Protection Act of
    1991, Comments of USTelecom--The Broadband Association, CG Dockets No.
    21-402, 02-278 (filed May 8, 2023), available at https://www.fcc.gov/
    ecfs/document/10508915228617/1.
        \74\ In re Targeting and Eliminating Unlawful Text Messages Rules
    and Regulations Implementing the Telephone Consumer Protection Act of
    1991, Reply Comments of 28 State Attorneys General, CG Dockets No. 21-
    402, 02-278 (filed June 6, 2023), available at https://www.fcc.gov/
    ecfs/search/search-filings/filing/10606091571575.
    ---------------------------------------------------------------------------
        Instead of issuing new rules, the FCC should simply issue guidance
    to industry, reiterating that the existing rules require a consumer's
    consent to be limited to calls by or on behalf of a single seller, and
    that this consent cannot be sold or transferred. Insisting on
    compliance with current TCPA regulations will significantly reduce the
    number of unwanted telemarketing calls by limiting the sale of consent
    by lead generators. Most of the billion-plus monthly telemarketing
    calls that consumers receive today are based on consents supposedly
    obtained through lead generators on various websites. Yet the fact that
    lead generators and their telemarketing customers have been ignoring
    the requirements of the Commission's regulations on telemarketing
    calls--and getting away with it for many years--is not a reason to
    allow that behavior to continue. As the Commission has repeatedly
    recognized, it is largely because of too many robocalls that the use of
    the telephone has declined in recent years.\75\
    ---------------------------------------------------------------------------
        \75\ See FNPRM at  1 (``Many of us no longer answer calls from
    unknown numbers and, when we do, all too often find them annoying,
    harassing, and possibly fraudulent. Consumers are not the only losers
    when this happens; legitimate callers have a hard time completing the
    calls consumers do want to receive.'').
    ---------------------------------------------------------------------------
        Limiting the ability to use a consumer's single agreement of
    consent to justify multiple calls from different telemarketers will
    stop a large number of unwanted telemarketing calls, as only a tiny
    fraction of the consents previously used to justify the calls will meet
    the requirements. Requiring the calling and lead generation industries
    to comply with regulations that have been on the books for over a
    decade may force a change in their practices, but it will be a change
    that will greatly benefit consumers.
        Complying with the existing rules will not prevent lead generators
    from putting consumers in touch with sellers they want to hear from.
    Nothing in the FCC's rules prevents lead generators from providing
    information to consumers, including direct referrals to sellers of
    products and services through weblinks. And nothing prohibits lead
    generators from providing the offered referrals through e-mail or snail
    mail (addresses are often required information), or even by simply
    displaying the information right on the website. Many lead generators
    currently do not require the entry of a telephone number to refer a
    consumer to a seller,\76\ and others ask for minimal information (like
    zip code) and then refer the consumer right to a seller's website.\77\
    All of these practices, which are far less invasive than unleashing a
    torrent of telemarketing calls, will be unaffected by compliance with
    the existing rules.
    ---------------------------------------------------------------------------
        \76\ See, e.g., https://www.google.com/travel/flights.
        \77\ See, e.g., https://best.ratepro.co/; https://www.esurance.com/
    ; www.nerdwallet.com.
    ---------------------------------------------------------------------------
        The FCC should also issue guidance reiterating that online consent
    agreements must comply with E-Sign. Although few parties comply, the
    Federal E-Sign Act applies when signatures are provided electronically,
    and when electronic records are used to satisfy requirements for a
    writing. The E-Sign Act establishes the rules for satisfying a
    requirement for a writing or a signature with their electronic
    equivalents.\78\
    ---------------------------------------------------------------------------
        \78\ 15 U.S.C. Sec. Sec. 7001 et seq.
    ---------------------------------------------------------------------------
        It is only because of the E-Sign Act that an electronic action like
    a click on a website can carry the same legal significance as a ``wet''
    signature.\79\ As a result, an electronic click used by a telemarketer
    to signify a person's signature on an agreement providing express
    consent or invitation to receive telemarketing calls under either the
    TCPA regulations or the TSR will qualify as a signature that can bind
    the person to the agreement only if that click meets the definition of
    an electronic signature in the E-Sign Act at 15 U.S.C. Sec. 7006(5).
    Among other things, this definition requires that the signer have the
    intent to sign the electronic record.\80\ When the agreement is to
    provide consent for telemarketing calls, the place on the electronic
    form where the electronic action is to be applied must clearly indicate
    that the consumer, by taking the electronic action, is intending to
    sign the related electronic agreement to receive those calls. An
    electronic sound, symbol, or process applied on a website that is
    hyperlinked to a list of multiple other parties from whom the person is
    purportedly agreeing to receive calls should not be construed to
    indicate consent by the person applying the click, because the person
    would not have had the required intent to sign an agreement with all of
    the callers each and every one of the hundreds or thousands of callers
    included in the hyperlinked list.\81\
    ---------------------------------------------------------------------------
        \79\ 15 U.S.C. Sec. 7001(a)(2).
        \80\ 15 U.S.C. Sec. 7006(5) (``The term `electronic signature'
    means an electronic sound, symbol, or process, attached to or logically
    associated with a contract or other record and executed or adopted by a
    person with the intent to sign the record.'' (emphasis added)).
        \81\ See, e.g., Federal Commc'ns Comm'n, In re Urth Access, Inc.,
    Order, File No. EB-TCD-22-00034232, 2022 WL 17550566, at  16 (Rel.
    Dec. 8, 2022), available at https://www.fcc.gov/document/fcc-orders-
    voice-service-providers-block-student-loan-robocalls (``The websites
    included TCPA consent disclosures whereby the consumer agreed to
    receive robocalls from `marketing partners.' These `marketing partners'
    would only be visible to the consumer if the consumer clicked on a
    specific hyperlink to a second website that contained the names of each
    of 5,329 entities. We find that listing more than 5,000 `marketing
    partners' on a secondary website is not sufficient to demonstrate that
    the called parties consented to the calls from any one of these
    `marketing partners.' '' (footnote omitted)).
    ---------------------------------------------------------------------------
        Because the telemarketing industry has routinized non-compliance
    with the FCC's current regulations, we have urged the FCC to issue
    guidance clarifying how these regulations apply to telemarketing calls.
    IV. Legal callers should leverage their power in the marketplace to
            protect their calls from blocking and mislabeling, which will
            assist in the
            efforts to eliminate the illegal calls.
        The FCC's efforts to address illegal calls include its recent
    proposal \82\ to encourage terminating providers to block more
    suspicious calls, as well as continuing to label suspicious calls.\83\
    While supporting these proposals, we have respectfully suggested that
    just doing more of the same--requiring blocking of calls from FCC-
    identified providers, encouraging opt-out blocking and labeling, and
    enforcing and tweaking rules for STIR/SHAKEN authentication--seems
    unlikely to change the basic dynamic that drives these illegal calls:
    originating and gateway providers are making sufficient income from
    these calls to make it more profitable to keep making the calls and
    risking the punishment.\84\ Clearly, the potential for costly
    consequences from conveying these illegal calls is sufficiently remote
    and outweighed by the income from these calls such that the current
    measures fail to dissuade these providers from continuing their current
    practices.\85\
    ---------------------------------------------------------------------------
        \82\ FNPRM. The Proposed Rule was published in the Federal Register
    at 88 Fed. Reg. 43,489 (July 10, 2023) and is available at https://
    www.federalregister.gov/documents/2023/07/10/2023-13032/advanced-
    methods-to-target-and-eliminate-unlawful-robocalls.
        \83\ We note that call labeling should only be used in lieu of
    blocking when there is meaningful doubt about the legality and value of
    the call, such that allowing the call to go through poses less risk
    than blocking it. In other words, calls that appear to be likely scams
    should always be blocked, as the risk to consumers from those calls is
    significant. Blocking scam calls should be the first and primary line
    of defense, not labeling.
        \84\ See In re Advanced Methods to Target and Eliminate Unlawful
    Robocalls; Call Authentication Trust Anchor, Reply Comments of National
    Consumer Law Center, Electronic Privacy Information Center, & Public
    Knowledge Relating to Seventh Report and Order and Eighth Further
    Notice of Proposed Rulemaking, CG Docket No. 17-59, WC Docket No. 17-97
    (filed Sept. 8, 2023), available at https://www.fcc.gov/ecfs/search/
    search-filings/filing/1090831416629.
        \85\ This dynamic was noted in 2021 by Commissioner Starks:
    ``[I]llegal robocalls will continue so long as those initiating and
    facilitating them can get away with and profit from it.'' In re Call
    Authentication Trust Anchor, Further Notice of Proposed Rulemaking, WC
    Docket No. 17-97 (Sept. 30, 2021) (Statement of Comm'r Geoffrey
    Starks).
    ---------------------------------------------------------------------------
        Instead, we have urged the Commission to adopt a set of best
    practices for legal callers that--if widely used--will likely eliminate
    many of the illegal calls plaguing subscribers' telephone lines. These
    best practices would leverage the market power of the legal callers to
    change the calculus of voice service providers that are currently
    complicit--either knowingly or with deliberate blindness--about their
    transmission of illegal calls. If legal callers were to demand, on a
    uniform basis, that the voice service providers that transmit their
    calls must adopt the Commission's best practices and avoid transmitting
    illegal calls, the profit from illegal calls would plummet. Even more
    importantly, the illegal calls would no longer mixed with the legal
    calls, making it much easier for the terminating providers to identify
    and block these calls.
        Legal callers have repeatedly complained that their legal--and
    often wanted--calls are erroneously blocked or labeled. As a result,
    subscribers are likely missing some calls that they want or need from
    callers,\86\ and legal callers are experiencing escalating costs and
    frustrations with consistently and reliably completing their calls to
    subscribers. These problems are caused by the mislabeling and incorrect
    blocking of their legal calls.\87\
    ---------------------------------------------------------------------------
        \86\ See, e.g., In re Advanced Methods to Target and Eliminate
    Unlawful Robocalls; Call Authentication Trust Anchor, Comments of
    Numeracle, Inc, CG Docket No. 17-59, WC Docket No. 17-97, at 2, 19
    (filed Aug. 9, 2023), available at https://www.fcc.gov/ecfs/document/
    108102252
    803712/1.
        \87\ Id.
    ---------------------------------------------------------------------------
        Legal callers are responsible for placing over two billion
    robocalls every month. While some of these calls are surely unwanted,
    there is no dispute that a significant percentage of these calls are
    desired, welcomed, or critical to their recipients (e.g., school,
    government, security, or disaster alerts). The difficulties with
    reliably completing these wanted calls are apparently increasing. Legal
    calls are mixed with a torrent of illegal calls at shared originating
    and intermediating providers, causing legal calls to be tainted by
    illegal calls in the same call path. The result is that legal calls end
    up mislabeled or blocked by downstream providers seeking to protect
    subscribers from illegal calls.
        We have proposed that the Commission facilitate leveraging the
    considerable marketplace power of these legal callers to assist in the
    efforts to eliminate dangerous and unwanted calls--scam and illegal
    telemarketing calls. If legal callers are armed with the information
    about how to avoid using the providers that are processing illegal
    calls, the sheer economic power of legal callers may be sufficient to
    force voice providers to stop transmitting illegal calls.
        We have suggested that the Commission define best practices for
    legal callers and provide clear recommendations to enable these callers
    to use their power in the telephone marketplace to ensure that their
    calls are placed only with providers that do not originate calls or
    transmit from illegal callers. A market-based approach like this would
    a) provide strong financial incentives to originating and intermediate
    providers to avoid transmitting illegal calls; b) facilitate the
    transmission of legal calls through call paths that would eliminate the
    likelihood that the calls would be labeled improperly or blocked by
    downstream or terminating providers; and c) supplement the other
    mechanisms created by the Commission intended to address illegal calls.
    The foundation of a market-based approach is providing legal callers
    with the information that they need to keep their calls separate from
    illegal calls. As we explain below, this information is already
    available from private analytics-based platforms. The Commission need
    only lead the way.
        Legal calls are mistaken for illegal calls because of the lack of
    transparency regarding the providers that are transmitting both types
    of calls. As described in Section II, supra, automated calls take
    circuitous routes from origination to the call recipient through the
    least-cost routing process.\88\ The least-cost routing process allows
    downstream providers to refuse to take calls from upstream providers if
    they do not like the price offered for the transmittal or if they deem
    the calls potentially illegal--and thus too costly. The issue is how to
    incentivize downstream providers to refuse more of these illegal calls.
    The providers that are complicit in transmitting illegal calls are well
    aware of what they are doing. They know that the calls are illegal
    because they have received multiple traceback requests. With each
    traceback request, they are given a notice from the Industry Traceback
    Group (ITG) that they are transmitting suspicious calls.\89\ So, even
    if the providers did not know before they received the traceback
    request from the ITG that the calls transmitted over their networks
    were illegal, the providers are fully aware once the traceback requests
    start arriving.
    ---------------------------------------------------------------------------
        \88\ See Appendix to Complaint, United States of America v.
    Palumbo, Case 1:20-cv-00473, Declaration of Marcy Ralston at 10-12  22
    (E.D.N.Y. Jan. 28, 2020). Marcy Ralston, a Special Agent in the Social
    Security Administration's Office of Inspector General, Office of
    Investigations, provided a sworn statement in United States of America
    v. Palumbo.
        \89\ Each traceback notice sent to every provider in the call path
    contains a text description of the call, typically explaining what
    makes it illegal. See North Carolina v. Articul8 Complaint, supra note
    36, at 30  93-94 and 34  98-99. In addition, most traceback notices
    include a link to the recorded message that was captured. North
    Carolina alleged that ITG notified Articul8 of this illegal traffic 49
    times for calls. Id. at 30  93. In one version of the Social Security
    scam, ``the caller says your Social Security number has been linked to
    a crime (often, he says it happened in Texas) involving drugs or
    sending money out of the country illegally.'' Jennifer Leach, Federal
    Trade Comm'n, Consumer Advice, Fake calls about your SSN (Dec. 12,
    2018), available at https://consumer.ftc.gov/consumer-alerts/2018/12/
    fake-calls-about-your-ssn.
    ---------------------------------------------------------------------------
        The phone network currently allows for legal calls to be mixed with
    illegal calls, which frustrates attempts to identify the illegal calls
    accurately and label or block them. Disaggregating legitimate calls
    from illegal traffic is the first step to resolving both problems. To
    do that, legal callers need to be equipped with the means to avoid the
    providers transmitting high volumes of illegal traffic alongside their
    legal calls.
        The results of tracebacks and government investigations into
    illegal providers are only reported publicly after they are completed.
    To protect themselves, legal callers need to know in real time which
    providers are responsible for illegal calls, and they need to be made
    aware of how to use that information to protect their calls from being
    mislabeled or blocked.
        In their enforcement efforts, the Commission and other Federal and
    state government agencies currently use information from non-government
    service providers that maintain real-time content-based analytics
    platforms. These platforms capture live evidence of illegal calls,
    including the content of the calls (both audio and transcribed), the
    telephone numbers of the callers and called parties, the date and time,
    the upstream voice service providers that provided STIR/SHAKEN
    attestation, and more. This information is aggregated to show volumes
    of calls, patterns in the calls, call paths, compliance with STIR/
    SHAKEN, and more. These content-based analytics platforms are also used
    by private enterprises in banking, health care, and hospitality and
    government agencies seeking to protect themselves from callers
    pretending to be these businesses to scam consumers. The platforms
    assist these institutions by identifying the voice service providers
    responsible for transmitting the imposter calls, thereby facilitating
    the disruption of illegal calls.\90\
    ---------------------------------------------------------------------------
        \90\ Both YouMail and ZipDX capture audio evidence and other
    material information on tens of thousands or millions of illegal calls
    daily. YouMail's solutions assist subscribers by identifying likely
    illegal calls, transferring those calls to voice-mail, and then, with
    the permission of the called consumers, capturing and transcribing the
    content of these calls. ZipDX performs similar functions using banks of
    its own telephone numbers (referred to as honeypots) to receive the
    calls. Both platforms categorize and analyze the calls, providing
    extensive detail about call patterns and call paths as well as
    transcripts of the illegal calls. Both can also identify which
    telephone providers are continuing to provide STIR/SHAKEN attestations
    to illegal calls even after receiving notice of the bad traffic.
    ---------------------------------------------------------------------------
        There is no reason that legal callers could not use the information
    from these content-based analytics platforms to identify the providers
    responsible for transmitting illegal calls. Once aware of which
    providers are participating in that conduct, a legal caller could
    switch to another originating provider that is not associated with
    illegal calls. Additionally, in its contracts with the providers
    originating their legal calls, the legal callers could require that the
    provider not send this caller's traffic to immediately downstream
    providers that are transmitting illegal calls from upstream providers
    that are currently accepting bad traffic.
        If sufficient numbers of legal callers employ these practices, in
    combination, considerable market pressure would be exerted on telecom
    providers to improve their mitigation efforts, as they would risk
    losing legal call traffic to competitors that are more effective at
    detecting and blocking bad traffic. Instead, at present, these
    originating and intermediate providers are rewarded when legal and
    illegal traffic are mixed together. That mixing masks illegal traffic,
    allowing the providers that are transmitting illegal traffic to
    continue profiting from it and further degrading the reliability of the
    American telephone system.
        The Commission can provide information on best practices that would
    clarify for legal callers how to ensure that their calls are not mixed
    with the illegal calls. Once these best practices are adopted by legal
    callers, the Commission can impose additional requirements on
    downstream and terminating providers to step up their blocking of
    suspicious calls, providing further incentives to legal callers to
    ensure that their calls are sent on legitimate call paths. Callers will
    be incentivized to use this method because it will facilitate the
    delivery of their calls, but the Commission's expanded blocking
    requirements may provide an additional stimulus.
        To prevent the telephone system from becoming further degraded by
    the prevalence of illegal, dangerous, and invasive calls, we have urged
    the Commission to consider recommending and facilitating these types of
    best practices for legal callers.
    Conclusion
        I very much appreciate the opportunity to provide the Committee
    with our ideas and proposals for how to address illegal robocalls.
    Please let me know if you have questions.

        Senator Lujan. Thank you very much, Ms. Saunders. Ms.
    Brown, the floor is yours for five minutes.

    STATEMENT OF MEGAN L. BROWN, PARTNER, WILEY REIN LLP, ON BEHALF
             OF THE U.S. CHAMBER INSTITUTE FOR LEGAL REFORM

        Ms. Brown. Thank you very much. Good morning, Chairman
    Lujan, Ranking Member Fischer, and members of the Subcommittee.
    My name is Megan Brown, and I am a partner in the telecom,
    media, and technology practice at Wiley Rein. I am here on
    behalf of the U.S. Chamber Institute for Legal Reform.
        The U.S. Chamber is the world's largest business
    federation, representing the interests of more than 3 million
    businesses of all sizes and sectors, as well as State and local
    chambers and industry associations.
        Its Institute for Legal Reform is a division of the chamber
    that promotes civil justice reform at the global, national,
    State, and local levels. Thank you for the opportunity to
    testify. The Chamber has been involved in robocalling issues
    for years and offers the perspective of the American business
    community which values reliable and trustworthy ways to
    communicate with customers and the public.
        This is a highly regulated space with lots of litigation,
    something the Chamber has been vocal about for years because
    TCPA remains a major source of class action litigation that, in
    its view, does little to help consumers. So, the Chamber today
    would like the Committee to leave with four main points.
        First, American businesses support cracking down on illegal
    and abusive robocalls. Businesses want consumers to continue to
    trust the ecosystem and answer their calls and texts. American
    businesses work hard to comply with these very complex
    regulations at the Federal and State level.
        They are hurt by caller ID spoofing and fraud against
    consumers. And because of those harms, companies are fighting
    back against robocall scams. For example, Marriott did its own
    investigation into millions of calls placed illegally using--
    misusing its brand. It worked with the Industry Traceback Group
    and YouMail, and then it sued the malicious robocallers,
    getting an injunction against the marketing agency that placed
    all these calls--bless you. U.S. businesses take the law
    seriously and work hard to comply with it.
        Second, Congress has passed major legislation recently on a
    bipartisan basis to address illegal robocalls. You can ensure
    that your hard work bears fruit by encouraging the Department
    of Justice to make robocall scams and illegal spoofing a
    priority.
        The Federal Communications Commission has taken major steps
    to implement all of this new Congressional direction, and I
    know FCC staff have been working really hard on these issues.
    They have issued enormous forfeiture orders against bad actors
    that blatantly break the law, and its cease and desist orders
    have been particularly impactful.
        Likewise, the Federal Trade Commission has been addressing
    scams using illegal robocalls and texts, and State Attorneys
    General have partnered with Federal agencies and bring their
    own cases. DOJ, however, is a vital partner here, and Congress
    should urge the Department to make enforcement a priority by
    acting aggressively on the referrals it gets from the FCC and
    by bringing its own cases directly for violations of laws like
    the Truth in Caller ID Act, but also mail and wire fraud for
    some of these really egregious scams.
        Third, unfortunately, the TCPA's private right of action
    and statutory damages continue to fuel abuse of litigation
    against American businesses. The Institute for Legal Reform has
    tracked lawsuit abuse for years and the operating environment
    under the TCPA continues to hurt businesses and consumers.
        Class actions seeking enormous damages and attorneys? fees,
    professional to TCPA plaintiffs, and the threat of crushing
    liability for mistakes creates a challenging environment for
    American businesses. An important takeaway here is that the
    TCPA class actions and those large settlements do not address
    the bad actors that are intentionally violating Federal law to
    send millions of illegal calls.
        Here I have in mind people like Adrian Abramovich, Greg
    Robbins, John Spillers, or the shell companies that they used
    to make massive numbers of fraudulent calls, often pretending
    to be legitimate American businesses. Fourth, the Chamber knows
    that some on this committee are considering additional
    legislation.
        Congress has been active on robocalling over the past
    several years, and the Chamber suggests that if the Committee
    goes forward with legislation, it should also consider modest
    but important changes that would limit the abuse of our
    judicial system through TCPA class actions that do not stop bad
    actors.
        So, in sum, the Chamber appreciates the Committee's
    attention to these issues, as well as the hard work of the FCC,
    State AGs, and the other panelists here to go after bad actors
    that abuse our networks, steal corporate goodwill, and harm
    consumers. Thank you for the opportunity to testify.
        [The prepared statement of Ms. Brown follows:]

       Prepared Statement of Megan L. Brown, Partner, Wiley Rein LLP, On
             behalf of the U.S. Chamber Institute for Legal Reform
        Thank you Chair Lujan, Ranking Member Thune, and members of the
    Subcommittee. My name is Megan Brown, and I am a partner in the
    Telecom, Media and Technology practice at Wiley Rein LLP. I am here on
    behalf of the U.S. Chamber Institute for Legal Reform (``ILR''). The
    U.S. Chamber is the world's largest business federation, representing
    the interests of more than three million businesses of all sizes and
    sectors, as well as state and local chambers and industry associations.
    The ILR is a division of the U.S. Chamber that promotes civil justice
    reform through regulatory, legislative, judicial, and educational
    activities at the global, national, state, and local levels. Thank you
    for the opportunity to testify today about the robocalling landscape
    and how American businesses are protecting consumers.
        I would like to leave the Subcommittee with four main points today:

       First, legitimate businesses support efforts to crack down
            on illegal and abusive robocalls in order to create a safe
            communications ecosystem; businesses have every incentive to
            ensure that consumers continue to trust the ecosystem and
            answer calls and texts.

       Second, Congress can ensure that its already-substantial
            efforts to address illegal robocalls bear fruit by ensuring
            that Federal agencies--and particularly the Department of
            Justice (``DOJ'')--make illegal robocalls an enforcement
            priority.

       Third, the Telephone Consumer Protection Act's (``TCPA'')
            private right of action continues to fuel abusive litigation
            against American businesses. This difficult operating
            environment hurts businesses and consumers, and Congress should
            distinguish between good calls--such as appointment reminders,
            notifications about school closures, and other communications
            that consumers want--and bad calls, such as fraudulent and
            harassing communications that originate from bad actors.

       Fourth, the Subcommittee could consider modest changes to
            the TCPA to limit the abuse of our judicial system through
            class actions that do nothing to stop bad actors--many of whom
            flagrantly and repeatedly violate existing laws.
    I. Industry Supports A Safe And Trustworthy Communications Ecosystem
            And Is Devoting Resources To Protecting Consumers From
            Scammers.
        Legitimate businesses have no interest in the perpetuation of
    illegal and abusive robocalls. The illegal robocalls that continue to
    plague U.S. consumers originate with bad actors that seek to defraud
    consumers and exploit the brand names and goodwill of trusted American
    companies. The business community abhors this conduct and shares
    Congress's concerns about protecting consumers.
        Indeed, the entire business community suffers when consumers cannot
    trust calls and text messages. Legitimate businesses use automated
    tools every day to communicate with the public. As former FCC
    Commissioner Michael O'Rielly explained, ``information is often better
    and more accurately conveyed by dialing automatically from a list or
    through pre-recorded messages rather than through a live operator.''
    \1\ For example, businesses may opt to use robocalls or robotexts to
    deliver ``flu shot reminders,'' ``food delivery order alerts,''
    ``customer satisfaction surveys,'' and other messages.\2\ But if
    consumers are inundated with illegal and abusive robocalls, they may
    ignore or doubt the veracity of these helpful communications.\3\
    ---------------------------------------------------------------------------
        \1\ Remarks of FCC Commissioner Michael O'Rielly Before the
    Washington Insights Conference, FCC, at 3-4 (May 16, 2019), https://
    www.fcc.gov/document/orielly-remarks-aca-intl-washing
    ton-insights-conference (``O'Rielly Remarks'').
        \2\ TCPA Litigation Sprawl: A Study of the Sources and Targets of
    Recent TCPA Lawsuits, U.S. Chamber Institute for Legal Reform, at 4-5
    (Aug. 2017), https://instituteforlegalreform.com/research/tcpa-
    litigation-sprawl-a-study-of-the-sources-and-targets-of-recent-tcpa-
    lawsuits/ (``TCPA Litigation Sprawl'').
        \3\ See State Of The Call 2023,Hiya, at 11, available at https://
    www.hiya.com/ state-of-the-call (updated June 2023) (``State Of The
    Call 2023'') (``17 percent of businesses report a decline in answer
    rates due to spam calls'').
    ---------------------------------------------------------------------------
        Further, legitimate businesses, including small businesses, are
    also victims of illegal and abusive robocalls. For example, businesses
    face the serious risk from illegal robocalls of dilution of their brand
    through impersonation fraud. Indeed, ``1 in 3 businesses'' report
    having ``had their name used by an impersonator making scam calls.''
    \4\ The Federal Trade Commission (``FTC'') concurred with this data,
    finding last year in a notice of proposed rulemaking that business
    ``impersonation fraud is'' both ``prevalent'' and ``harmful.'' \5\ This
    fraud carries serious consequences for businesses: 13 percent of
    consumers ``have since switched brands after receiving an impersonation
    call.'' \6\ The U.S. Chamber supports the FTC 's continued enforcement
    in this space to address business impersonation fraud.
    ---------------------------------------------------------------------------
        \4\ State Of The Call 2023 at 9.
        \5\ Trade Regulation Rule on Impersonation of Government and
    Businesses, Notice of Proposed Rulemaking, 87 Fed. Reg. 62,741, 62,746
    (Oct. 17, 2022).
        \6\ State Of The Call 2023 at 10.
    ---------------------------------------------------------------------------
        The risks to businesses from impersonation fraud do not stop at the
    business being impersonated. For example, a common scam is for
    fraudsters to impersonate representatives from Internet search engines
    and threaten to delist businesses from search results if they do not
    hand over personal information. With their livelihood on the line,
    these businesses may comply, exposing companies to identity theft.\7\
    This scam creates two business victims--the company being impersonated
    and the company being targeted.
    ---------------------------------------------------------------------------
        \7\ See Robocall Scam of the Week: Google Business Scam, YouMail
    (Feb. 22, 2023), https://blog.youmail.com/2023/02/robocall-scam-of-the-
    week-google-business-scam/.
    ---------------------------------------------------------------------------
        Because of significant harms to consumers and businesses from
    robocall scams, companies are fighting back against robocallers
    directly. For example, a major hotel chain brought its own trademark
    lawsuit against malicious robocallers and earlier this year obtained an
    injunction against a marketing agency that placed millions of calls
    illegally using its brand name.\8\ Other companies are devising
    innovative technologies to ward off illegal calls, such as analytics-
    powered software.\9\
    ---------------------------------------------------------------------------
        \8\ See Marriott Int'l, Inc. v. Dynasty Mktg. Grp. LLC, No. 1:21-
    CV-0610, 2023 WL 2230433 (E.D. Va. Feb. 6, 2023), report and
    recommendation adopted, 2023 WL 2226782 (E.D. Va. Feb. 24, 2023).
        \9\ See Haley Henschel, 7 of the Best Robocall Blocking Apps and
    Tools for Avoiding Phone Spam, Mashable (Apr. 26, 2023), https://
    mashable.com/roundup/best-robocall-blocking-apps.
    ---------------------------------------------------------------------------
        The private sector partners with the Government in tackling illegal
    and abusive robocalls. The Industry Traceback Group (``ITG''), is a
    group of ``companies from across the wireline, wireless, VoIP, and
    cable industries'' that ``collaborate to trace, source, and ultimately,
    stop illegal robocalls.'' \10\ The ITG has conducted more than 10,000
    tracebacks over the past three years \11\ supporting state and Federal
    investigations. As the FCC explained, the ITG's efforts have ``played a
    key role in combating the scourge of illegal robocalling campaigns.''
    \12\
    ---------------------------------------------------------------------------
        \10\ See Industry Traceback Group, https://tracebacks.org/ (last
    visited Sep. 25, 2023).
        \11\ FCC Report to Congress On Robocalls and Transmission of
    Misleading or Inaccurate Caller Identification Information, FCC, at 19
    (Dec. 23, 2022), https://docs.fcc.gov/public/attachments/DOC-
    390423A1.pdf (``2022 TRACED Report'').
        \12\ Id.
    ---------------------------------------------------------------------------
        The telecommunications industry also has developed technology to
    help in the fight. Industry technologists developed a standard called
    STIR/SHAKEN to authenticate caller ID information for calls carried
    over an IP network to ``combat illegal spoofing.'' \13\ With the TRACED
    Act, Congress mandated the use of this industry-spearhead approach.\14\
    ---------------------------------------------------------------------------
        \13\ Call Authentication Tr. Anchor; Implementation of Traced Act
    Section 6(a)--Knowledge of Customers by Entities with Access to
    Numbering Res., Report and Order and Further Notice of Proposed
    Rulemaking, 35 FCC Rcd. 3241,  5 (2020).
        \14\ See Pallone-Thune Telephone Robocall Abuse Criminal
    Enforcement and Deterrence Act, Pub. L. No. 116-105, Sec. 4(b)(1)(A)-
    (B), 133 Stat. 3274, 3277 (2019).
    ---------------------------------------------------------------------------
        These are just a few examples of the business community's many
    efforts to address illegal and abusive robocalls.
    II. Congress Should Ensure That Prosecuting Illegal Robocallers Is A
            Priority.
    A. Fraudulent And Abusive Robocalls Are Already Illegal.
        Illegal and abusive robocalls do not stem from a lack of laws on
    the books. To the contrary, the TCPA and its associated rules prohibit
    autodialed and artificial or prerecorded voice robocalls to personal
    numbers unless the consumer consents or the call is otherwise permitted
    (e.g., calls made for emergency purposes).\15\ The TCPA also
    establishes a number of other robust protections for consumers with
    respect to telemarketing and solicitation calls--regardless of the
    technology being used to place the call.\16\ Further, the TCPA is not
    the only tool in enforcers' toolbox to fight illegal actors. For
    example, the Truth in Caller ID Act of 2009--strengthened by the TRACED
    Act--broadly prohibits callers from ``spoofing'' their numbers ``with
    the intent to defraud, cause harm, or wrongfully obtain anything of
    value.'' \17\ Congress also empowered the FTC to ``implement and
    enforce a national do-not-call registry,'' \18\ and under the FTC's
    Telemarketing Sales Rule (``TSR''), it is illegal to place most kinds
    of telemarketing calls to a number on the registry.\19\ The TSR also
    prohibits deceptive and abusive telemarketing tactics and can be a
    powerful tool to go after bad actors.\20\
    ---------------------------------------------------------------------------
        \15\ 47 U.S.C. Sec. 227(b)(1)(B), (2)(B); 47 C.F.R.
    Sec. 64.1200(a).
        \16\ See e.g., 47 C.F.R. Sec. 64.1200(b), (c)(2).
        \17\ 47 U.S.C. Sec. 227(e).
        \18\ 15 U.S.C. Sec. 6151.
        \19\ 16 C.F.R. Sec. 310.4(b)(1)(iii)(B).
        \20\ Id. Sec. Sec. 310.4, 310.5.
    ---------------------------------------------------------------------------
        Illegal robocallers face serious potential criminal penalties.
    Fraud is of course a Federal crime. Specifically, the wire fraud
    statute provides for up to 20 years imprisonment for ``devis[ing] any
    scheme or artifice to defraud, or for obtaining money or property by
    means of false or fraudulent pretenses, representations, or promises''
    over the phone.\21\ In addition, the TRACED Act imposes criminal fines
    of $10,000 per violation of the prohibition on fraudulent spoofing.\22\
    Further, the Communications Act's general penalty provision provides
    that willful and knowing violators of the TCPA and its associated rules
    may be imprisoned and fined.\23\
    ---------------------------------------------------------------------------
        \21\ 18 U.S.C. Sec. 1343.
        \22\ 47 U.S.C. Sec. 227(e)(5)(B).
        \23\ 18 U.S.C. Sec. 501.
    ---------------------------------------------------------------------------
        In sum, the robocallers that target and harass American consumers
    and businesses with fraudulent scams have not found a legal loophole.
    Rather, they are already openly flouting the law.
    B. There Has Been Progress In Stopping Illegal Robocalls.
        Thankfully, we have seen progress in combatting the bad actors
    responsible for illegal robocalls. As the FCC's most recent report to
    Congress detailed, that agency pursues forfeitures for tens--and
    sometimes hundreds--of millions of dollars against the biggest
    robocalling operations targeting Americans.\24\ Among these recent
    enforcement actions are the largest forfeitures in the agency's
    history: $225 million levied against a group of businesses that placed
    one billion fraudulent robocalls.\25\ The FTC is also active, having
    recently initiated a lawsuit against a Voice over Internet Protocol
    (``VoIP'') provider that funneled ``hundreds of millions of illegal
    robocalls through its network.'' \26\
    ---------------------------------------------------------------------------
        \24\ See 2022 TRACED Report at 5-6; FCC Fines Telemarketer $225
    Million for Spoofed Robocalls, FCC (Mar. 18, 2021), https://
    www.fcc.gov/document/fcc-fines-telemarketer-225-million-spoofed-
    robocalls. See also FCC Assesses Nearly $300M Forfeiture for Unlawful
    Robocalls, FCC (Aug. 3, 2023), https://www.fcc.gov/document/fcc-
    assesses-nearly-300m-forfeiture-unlawful-robocalls.
        \25\ Id. at 6.
        \26\ Press Release, FTC, FTC Sues to Stop VoIP Service Provider
    That Assisted and Facilitated Telemarketers in Sending Hundreds of
    Millions of Illegal Robocalls to Consumers Nationwide (May 12, 2023),
    https://www.ftc.gov/news-events/news/press-releases/2023/05/ftc-sues-
    stop-voip-service-provider-assisted-facilitated-telemarketers-sending-
    hundreds-millions.
    ---------------------------------------------------------------------------
        Businesses and States are supplementing these Federal enforcement
    efforts. A recently filed FTC complaint cites as evidence of
    robocalling violations ``over 100 Traceback Requests'' from the ITG,
    highlighting industry's crucial role in identifying illegal
    robocallers.\27\ The States are likewise engaged. In July, a host of
    Federal agencies joined ``attorneys general from all 50 states and the
    District of Columbia'' in launching ``Operation Stop Scam Calls''--an
    enforcement initiative to crack down on illegal telemarketing
    calls.\28\ And last year, a coalition of 50 state attorneys general
    formed a bipartisan Anti-Robocall Litigation Task Force that issued
    civil investigative demands to gateway providers suspected of routing
    ``a majority of foreign robocall traffic.'' \29\
    ---------------------------------------------------------------------------
        \27\ Complaint  31-36, United States v. Xcast Labs, Inc., No.
    2:23-CV-3646 (C.D. Cal. May 12, 2023), ECF No. 1.
        \28\ Press Release, FCC, FCC Joins Federal and State Robocall
    Partners to Launch `Operation Stop Scam Calls' (July 18, 2023), https:/
    /docs.fcc.gov/ public/attachments/DOC-395216A1.pdf.
        \29\ Press Release, NCDOJ, Attorney General Josh Stein Leads New
    Nationwide Anti-Robocall Litigation Task Force (Aug. 2, 2022), https://
    ncdoj.gov/attorney-general-josh-stein-leads-new-nationwide-anti-
    robocall-litigation-task-force/.
    ---------------------------------------------------------------------------
        These efforts are yielding results. As one data point, consumers
    filed more than 100,000 informal FCC complaints about robocalls in
    2018, but they filed under 40,000 in 2022.\30\ Nevertheless, there is
    still a long way to go.
    ---------------------------------------------------------------------------
        \30\ See 2022 TRACED Report at 5.
    ---------------------------------------------------------------------------
    C. Robust Enforcement Is The Way To End Illegal Robocalls.
        Despite all of this activity--including headline-grabbing FCC
    forfeiture orders--the Federal government is not doing enough to hold
    bad actors accountable. A lack of DOJ enforcement presents the biggest
    obstacle at this time.
        DOJ has not been pursuing in court the forfeiture orders adopted by
    the FCC. The FCC recently reported that in ``calendar year 2022,'' DOJ
    ``did not collect any forfeiture penalties or criminal fines for
    violations of
        [the TCPA] that the Commission has referred.'' \31\ This is a
    missed opportunity for DOJ.
    ---------------------------------------------------------------------------
        \31\ See 2022 TRACED Report at 7.
    ---------------------------------------------------------------------------
        Nor is DOJ taking enough action to prosecute bad actors that
    actively and openly flout the law and seek to defraud Americans. DOJ
    has ample authority under the wire fraud statute and other provisions,
    as earlier described. And it has the means to use that authority
    because the ITG and other industry groups provide DOJ with tracebacks
    and other information that it could use. At the end of the day,
    however, it is DOJ that has to make the decision about whether to
    prosecute. While the DOJ has partnered with the FTC and others on some
    cases against robocallers,\32\ DOJ does not appear to have made
    material prosecutions a high priority, which is particularly
    disappointing when it comes to recidivist robocall abusers.\33\ As a
    former DOJ official myself, I see this as a profoundly squandered
    opportunity.
    ---------------------------------------------------------------------------
        \32\ Press Release, DOJ Office of Public Affairs, U.S. Department
    of Justice, Federal Trade Commission, Federal Communications Commission
    and Other Federal and State Law Enforcement Agencies Announce Results
    of Nationwide Initiative to Curtail Illegal Telemarketing Operations
    (July 18, 2023), https://www.justice.gov/opa/pr/us-department-justice-
    federal-trade-commission-federal-communications-commission-and-
    other#::text=The%20department's%20Consumer%
    20Protection%20Branch,that%20transmitted%20illegal%20phone%20calls.
        \33\ In the Matter of Sumco Panama SA et al., Forfeiture Order,
    File No. EB-TCD-21-00031913, FCC 23-64,  12 (Aug. 3, 2023) (``Cox and
    Jones, key participants in the Enterprise, are currently banned from
    any form of telemarketing, and have been since 2013 and 2017,
    respectively. However, they have continued illegal telemarketing
    practices by using an international network of companies to conceal
    their involvement.'').
    ---------------------------------------------------------------------------
        As lawmakers consider additional avenues to protect the public from
    illegal robocalls, it should consider ways to spur additional action
    from DOJ, such as:

       Requiring DOJ to file an annual report with Congress
            explaining enforcement activity it has undertaken in the last
            calendar year to combat illegal robocalls and its handling of
            FCC referrals, including the pursuit of forfeiture amounts.
            This requirement would be similar to the TRACED Act's annual
            TCPA reporting requirement for the FCC and should require DOJ
            to explain if and why it has not pursued FCC referrals.\34\
    ---------------------------------------------------------------------------
        \34\ 47 U.S.C. Sec. 227(h).

       Prioritizing DOJ funds for investigations and enforcement
    ---------------------------------------------------------------------------
            actions against illegal robocallers.

       Requiring DOJ to establish a robocall enforcement and
            education office.

        However Congress might proceed, know that American businesses stand
    ready to assist DOJ and others in the fight against illegal and abusive
    robocalls.
    III. The TCPA's Private Right Of Action Continues To Be The Source Of
            Ongoing Litigation Abuse, Which Does Not Address The Urgent
            Issue Of Combatting Bad Actors.
        Although the TCPA has helped protect consumers, the same cannot be
    said for its private right of action. That provision is presently being
    abused by plaintiff's attorneys to seek enormous payouts from American
    businesses. Private TCPA lawsuits and the threat of litigation make it
    perilous for U.S. businesses to communicate with consumers. Although
    there was some initial thinking that the Supreme Court's 2021 decision
    in Facebook v. Duguid \35\ would significantly improve the situation,
    well-meaning businesses continue to be harassed by harmful and
    opportunistic TCPA lawsuits. This ultimately harms the ability of
    consumers to utilize modern communications tools and access innovative
    services. Ultimately, any discussion of robocalling and the TCPA must
    distinguish between legitimate and lawful communication on the one
    hand, and abusive scam calls on the other.
    ---------------------------------------------------------------------------
        \35\ Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021).
    ---------------------------------------------------------------------------
    A. Not All Automated Calls Are Bad.
        Automated calls and texts can provide an efficient and effective
    means of communication to which consumers regularly and willingly
    consent. As a former FCC Commissioner explained: ``There are good and
    legal robocalls, and there are scam and illegal robocalls, and it's the
    latter that are wreaking havoc on the Nation's communications
    networks.'' \36\ Such a distinction is critical. Consider some of the
    ways in which institutions use robocalls and robotexts to communicate:
    ---------------------------------------------------------------------------
        \36\ O'Rielly Remarks at 3.

       ``Alerts from a school that a child did not arrive at
    ---------------------------------------------------------------------------
            school, or that the building is on lockdown.''

       ``Notifications regarding storm alerts, utility outages, and
            service restoration.''

       ``Immunization reminders for underserved, low-income
            populations.''

       ``Updates from airlines'' to provide critical flight
            information to passengers.

       ``Text messages from taxi and ridesharing services to alert
            customers when their driver has arrived.'' \37\
    ---------------------------------------------------------------------------
        \37\ Rules and Regulations Implementing the Telephone Consumer
    Protection Act of 1991 et al., Declaratory Ruling and Order, 30 FCC
    Rcd. 7961, 8084-85 (2015) (O'Rielly, Comm'r, dissenting in part and
    approving in part) (``2015 TCPA Declaratory Ruling and Order'').

        Such automated communications are not merely convenient; they are
    effective. For example, ``significantly more patients who received
    automated telephone messages regarding hypertension treatment achieved
    blood pressure control than patients who received ordinary care only.''
    \38\ Likewise, energy companies have reported survey data showing
    ``that customers would like outage and restoration notifications, and
    prefer communications via text message or telephone call, with e-mail
    being the least requested method of contact.'' \39\
    ---------------------------------------------------------------------------
        \38\ Id. at 8085 (alterations omitted).
        \39\ Id. at 8086 (internal quotations omitted).
    ---------------------------------------------------------------------------
        These beneficial communications are also protected by the First
    Amendment. The Supreme Court has long recognized that the Government
    may not ``suppress the dissemination of concededly truthful information
    about entirely lawful activity,'' even when dissemination is
    ``commercial'' in nature.\40\ In striking down part of the TCPA as
    unconstitutional in 2020, the Supreme Court confirmed that robocalls
    constitute speech protected by the First Amendment.\41\
    ---------------------------------------------------------------------------
        \40\ Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer
    Council, Inc., 425 U.S. 748, 771-73 (1976).
        \41\ See Barr v. Am. Ass'n of Pol. Consultants, Inc., 140 S. Ct.
    2335, 2347 (2020) (plurality) (``The law here focuses on whether the
    caller is speaking about a particular topic.'' (emphasis in original));
    id. at 2357 (Sotomayor, J., concurring) (concluding that relevant
    provision of the TCPA unconstitutionally burdened ``robocall speech''
    (internal quotations omitted)); id. at 2364 (Gorsuch, J., concurring)
    (``no one doubts the TCPA regulates speech.'').
    ---------------------------------------------------------------------------
        In sum, there are many beneficial robocalls that provide customers
    with timely, convenient, and desirable information. The Chamber urges
    this body to avoid conflating those calls with the fraudulent and
    harmful calls placed by scammers and abusers.
    B. The TCPA Encourages Litigation Against American Businesses Instead
            Of Bad Actors.
        Unfortunately, the TCPA continues to be abused and inhibits
    constitutionally protected pro-consumer communications. The Chamber's
    research has repeatedly shown how the TCPA has created a cottage
    industry of unnecessary and often abusive class-action litigation,
    burdening how businesses reach their customers, while doing little to
    stop truly abusive robocalls and protect consumers.\42\ This litigation
    cash cow has become a major obstacle, inhibiting legitimate and lawful
    communications between businesses--large and small--and their
    customers. It places businesses at risk for potential litigation each
    time they pick up the phone or send a text message. And it does nothing
    to address the real bad actors: repeat scammers who abuse our
    communications networks to harm consumers.
    ---------------------------------------------------------------------------
        \42\ See, e.g., TCPA Litigation Sprawl; Ill-Suited: Private Rights
    of Action and Privacy Claims, U.S. Chamber Institute for Legal Reform
    (July 2019), https://instituteforlegalreform.com/wp-
    content/uploads/2020/10/Ill-Suited_-
    _Private_Rights_of_Action_and_Privacy_Claims_Report
    .pdf; Turning the TCPA Tide: The Effects of Duguid, U.S. Chamber
    Institute for Legal Reform (Dec. 2021), https://
    instituteforlegalreform.com/wp-content/uploads/2021/12/1323_ILR_TCPA
    _Report_FINAL_Pages.pdf (``Turning the TCPA Tide'').
    ---------------------------------------------------------------------------
        Indeed, just a handful of plaintiff's lawyers--and some
    professional pro se plaintiffs--are responsible for the majority of the
    thousands of TCPA cases brought each year.\43\ Repeat TCPA plaintiffs
    also come up with ways to game the system--such as purchasing dozens of
    prepaid cellphones--to procure huge cash payouts.\44\ One serial TCPA
    plaintiff in New Jersey has filed over 30 TCPA lawsuits, pocketing as
    much as $800,000.\45\ Another has filed more than fifty cases in the
    Northern District of Texas in the last decade.\46\
    ---------------------------------------------------------------------------
        \43\ See e.g., Johansen v, Bluegreen Vacations Unlimited, Inc., No.
    20-81076-CIV, 2021 WL 4973593, at *1 (S.D. Fla. Sept. 30, 2021), aff'd,
    No. 22-10695, 2022 WL 17087039 (11th Cir. Nov. 21, 2022) (``Plaintiff
    appears to have an extensive history with filing lawsuits alleging
    violations of the TCPA. (See Pl. Dep. (estimating that, prior to 2020,
    Plaintiff had filed sixty (60) TCPA lawsuits and estimating that, since
    2014, Plaintiff has made on average $60,000 per year from TCPA
    lawsuits).)'') (some internal citations omitted); see also TCPA
    Litigation Sprawl at 4 (``around 60 percent of the TCPA lawsuits
    examined in the study's 17-month period were brought by only 44 law
    firms/lawyers, with two firms filing well over 200 TCPA litigations
    each.'').
        \44\ TCPA Litigation Sprawl at 15.
        \45\ Id.
        \46\ Hunsinger v. Offer, LLC, No. 3:21-CV-2846, 2022 WL 18143951
    (N.D. Tex. Dec. 7, 2022).
    ---------------------------------------------------------------------------
        ILR's members know firsthand the difficulties with this kind of
    ``gotcha'' operating environment. The statute's private right of action
    is expansive. Any person who receives an unlawful robocall may bring a
    lawsuit to recover $500-$1,500 per call.\47\ There is no cumulative
    limit to these damages, leading some plaintiff's lawyers to seek mind-
    boggling damages awards. Further, massive classes--such as a recent
    class certification of over one million people in a TCPA case against a
    bank \48\--is often sufficient to drive companies into a coercive
    settlement. For example, one lawsuit alleging violations of the TCPA
    for advertisements led to a class action settlement fund of $35 million
    with 1,237,296 class members.\49\ Other examples include a class action
    settlement with a telecommunications company for $45 million \50\ and
    another with a utility services company for $38.5 million.\51\
    ---------------------------------------------------------------------------
        \47\ 47 U.S.C. Sec. 227(b)(3).
        \48\ Head v. Citibank, N.A., 340 F.R.D. 145, 149 (D. Ariz. 2022).
        \49\ Drazen v. Pinto, 41 F.4th 1354 (11th Cir. 2022), reh'g en banc
    granted, opinion vacated, 61 F.4th 1297 (11th Cir. 2023).
        \50\ Final Judgment  14, Joel Hageman v. AT&T Mobility LLC, No.
    1:13-CV-00050 (D. Mont. April 9, 2013), ECF No. 68.
        \51\ Jenkins v. Nat'l Grid USA Serv. Co., Inc., No. 15-CV-1219,
    2022 WL 2301668, at *3 (E.D.N.Y. June 24, 2022).
    ---------------------------------------------------------------------------
        With enormous potential damages in play, plaintiffs have little
    incentive to go after criminal or overseas scammers, who offer a
    miniscule chance to generate easily such large payouts.\52\ Instead,
    TCPA plaintiffs have opted to target legitimate businesses--many of
    them household names--and not the offshore robocallers flooding
    Americans' phones with fraud and scam calls. Consider some examples of
    recent targets of TCPA lawsuits:
    ---------------------------------------------------------------------------
        \52\ See David Adam Friedman, Impostor Scams, 54 U. Mich. J.L.
    Reform 611, 658 (2021), https://repository.law.umich.edu/cgi/
    viewcontent.cgi?article=2527&context=mjlr (explaining that parties
    ``increasingly responsible for the majority of TCPA violations are
    located overseas'' and are often ``judgment proof.'').

       The City of Albuquerque was sued after sending text messages
            to local residents during the COVID-19 pandemic, notifying them
            of the opportunity to engage in socially-distanced town
            halls.\53\
    ---------------------------------------------------------------------------
        \53\ Silver v. City of Albuquerque, No. 1:22-CV-00400, 2023 WL
    2413780 (D.N.M. Mar. 8, 2023).

       Serve All, Help All, a non-profit company that provides
            financial aid and assistance to those with housing needs, was
            sued by a serial pro se litigant \54\ for an automated phone
            call offering a Public Service Announcement for homeowners in
            default.\55\
    ---------------------------------------------------------------------------
        \54\ The plaintiff filed 11 TCPA lawsuits in the Western District
    of Washington in 2021, two lawsuits in 2022, and this lawsuit in 2023.
        \55\ Barton v. Serve All, Help All, Inc., No. 3:21-CV-05338, 2023
    WL 1965905, at *1 (W.D. Wash. Feb. 13, 2023), motion to certify appeal
    denied, No. 3:21-CV-05338, 2023 WL 2372904 (W.D. Wash. Mar. 6, 2023).

       A ride-share company was sued for notifying a driver that he
            needed to update an expired driver's license.\56\
    ---------------------------------------------------------------------------
        \56\ Eller v. Uber Technologies, Inc., No. 4:23-CV-03526 (S.D. Tex.
    Sept. 19, 2023).

        This litigation environment makes it hard to communicate. Indeed,
    much of the recent litigation involves technical errors and honest
    mistakes. In one recent case where a technical glitch resulted in a
    company accidentally misdialing consumers, the defendant settled almost
    immediately to avoid potentially paying more than $4 million for the
    8,645 alleged violations of TCPA.\57\ In another case, a court treated
    the TCPA as a strict liability statute, finding that a company could be
    on the hook for damages where it called a number for which consent had
    been obtained but--unbeknownst to the company--the number was
    subsequently reassigned to a different consumer.\58\ The court so held,
    notwithstanding a regulatory ``safe harbor'' that is designed to
    prevent this problem.\59\
    ---------------------------------------------------------------------------
        \57\ Fralish v. Ceteris Portfolio Services, LLC, No. 3:22-CV-00176,
    2022 WL 19920239 (N.D. Ind. Mar. 7, 2022).
        \58\ Hylton v. Titlemax of Virginia, Inc., No. 4:21-CV-163, 2022 WL
    16753869, at *1 (S.D. Ga. Nov. 7, 2022).
        \59\ Id. at *5-*8; see also 47 C.F.R. Sec. 64.1200(m).
    ---------------------------------------------------------------------------
        The end result is that well-meaning businesses committed to
    compliance can nevertheless be subject to bet-the-company liability
    every time they call or text.
        This system does not protect against the scammers and bad actors
    who continue to prey on consumers.\60\
    ---------------------------------------------------------------------------
        \60\ In the Matter of Sumco Panama SA et al., Forfeiture Order,
    File No. EB-TCD-21-00031913, FCC 23-64,  1 (Aug. 3, 2023).
    ---------------------------------------------------------------------------
    C. Facebook v. Duguid Has Not Materially Improved The Situation.
        There was some optimism after the Supreme Court's decision in
    Facebook v. Duguid that we would see a decline in frivolous TCPA
    lawsuits. In that case, the Court clarified that an ``automatic
    telephone dialing system''--a key term in the TCPA--must use a random
    or sequential number generator.\61\ Because some lower courts had
    previously found that any system capable of storing numbers could
    trigger TCPA liability, this interpretation clarified the statute's
    language and should have limited some lawsuits against callers. Several
    courts since have heeded the Supreme Court's interpretation and
    rejected efforts to evade it with strained arguments about
    equipment.\62\
    ---------------------------------------------------------------------------
        \61\ Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1173 (2021).
        \62\ The Ninth Circuit and Third Circuit have followed the Supreme
    Court's interpretation. In Borden v. eFinancial, LLC, the Ninth Circuit
    held that an automatic telephone dialing system must ``randomly or
    sequentially generate telephone numbers, not just any number.'' Borden
    v. eFinancial, LLC, 53 F.4th 1230, 1233 (9th Cir. 2022). Similarly, in
    Panzarella v. Navient Solutions, Inc., the Third Circuit held that use
    of a system with the capacity to be an automatic telephone dialing
    system is not sufficient to establish a TCPA violation. Judgment,
    Panzarella v. Navient Solutions, Inc., No. 20-2371 (3d Cir. June 14,
    2022), ECF No. 60.
    ---------------------------------------------------------------------------
        Unfortunately, that has not happened. An ILR study concluded that
    although there was a short term reduction immediately following Duguid
    in the volume of TCPA lawsuits filed, most lawsuits were still
    ``allowed to proceed to discovery instead of being dismissed at the
    pleadings stage.'' \63\ Given the expense of discovery, plaintiff's
    attorneys still have ample leverage to coerce companies into massive
    settlements in a post-Duguid world.
    ---------------------------------------------------------------------------
        \63\ Turning The TCPA Tide at 2.
    ---------------------------------------------------------------------------
        Worse, that initial slowdown in TCPA lawsuits has now been
    reversed. TCPA filings year-to-date are up 16.8 percent from last
    year.\64\ Even more problematic, there has also been an increase in
    class action lawsuits. More than 50 percent of the 2,457 TCPA cases
    filed in Federal court in 2022 and so far in 2023 have been class
    actions.\65\ In August 2023 alone, 66.2 percent of all TCPA lawsuits
    filed were class actions.\66\
    ---------------------------------------------------------------------------
        \64\ Eric J. Troutman, HUGE INCREASE: TCPA Lawsuits Up Double
    Digits From Last Year--Class Action Numbers Spike, TCPA World (Sept.
    12, 2023), https://tcpaworld.com/2023/09/12/ huge-increase-tcpa-
    lawsuits-up-double-digits-from-last-year-class-action-numbers-spike/.
        \65\ Westlaw Litigation Analytics, Telephone Consumer Protection
    Act (last visited Sept. 25, 2023).
        \66\ Eric J. Troutman, HUGE INCREASE: TCPA Lawsuits Up Double
    Digits From Last Year--Class Action Numbers Spike, TCPA World (Sept.
    12, 2023), https://tcpaworld.com/2023/09/12/ huge-increase-tcpa-
    lawsuits-up-double-digits-from-last-year-class-action-numbers-spike/.
    ---------------------------------------------------------------------------
        Thus, Duguid has not led to long-term meaningful protections
    against opportunistic TCPA lawsuits. Worse still, there have also been
    suggestions that the FCC should unilaterally revise key terms defined
    by Congress and definitively interpreted by the Supreme Court,
    suggesting that even this limited protection could be on the chopping
    block.\67\
    ---------------------------------------------------------------------------
        \67\ See Review of the FY 2024 Budget for the Federal
    Communications Commision: Hearing Before the S. Comm. on
    Appropriations' Subcommitte on Financial Services and General
    Government, 118th Cong. (2023) (statement of Jessica Rosenworcel,
    Chairwoman, Federal Communications Commisson), https://docs.fcc.gov/
    public/attachments/DOC-397034A1.pdf.
    ---------------------------------------------------------------------------
    D. The TCPA's Private Right Of Action Harms Consumers.
        In all this talk about precedent and statistics, I do not want to
    lose track of what is at stake here. The TCPA's private right of action
    hurts businesses and consumers. Given that even innocent missteps can
    lead to business-ending liability, some companies may understandably
    choose to ``cease communicating'' altogether.\68\ But, as explained
    above, many consumers want these communications. They want to know if
    their flight has been delayed, if their medication is ready for pickup,
    or if their child did not arrive at school. An in terrorem litigation
    environment that chills these communications is fundamentally anti-
    consumer.
    ---------------------------------------------------------------------------
        \68\ 2015 TCPA Declaratory Ruling and Order at 8093.
    ---------------------------------------------------------------------------
    IV. Modest Changes To The TCPA Could Limit Litigation Abuse.
        Since the TCPA's 1991 enactment and in more recent legislation to
    address illegal robocalling, Congress has tried to strike a balance by
    addressing the abuse of mass communication tools while protecting the
    ability of businesses to communicate with customers using modern
    technology by delivering desired and timely communications in an
    efficient manner. The current litigation climate has seriously
    undermined that balance. If Congress wants to address the calling
    ecosystem, it could take steps to rein in the counterproductive abuse
    of the TCPA's statutory damages provision and the near-strict liability
    approach that has developed.
        To restore that balance, Congress should consider modest changes to
    reduce abusive litigation under the TCPA, including:

       Cumulative Damages Cap: Total exposures in TCPA cases can
            become extraordinary because of the combination of statutory
            damages and large numbers of class members who may have
            received only one errant call and experienced no meaningful
            harm. Facebook in the Duguid case faced billions in potential
            damages, and there are countless examples of eyepopping
            settlements and damage calculations.\69\ Congress should
            consider adding a cap on the TCPA's damages to help alleviate
            the specter of crushing liability for simple mistakes. The
            Health Insurance Portability and Accountability Act of 1996
            (``HIPAA'') offers a model for this approach. It caps penalties
            in tiers based on the culpability of the violator, with the low
            tier limiting the statutory penalty amount to ``$100 for each
            such violation, except that the total amount imposed on the
            person for all such violations of an identical requirement or
            prohibition during a calendar year may not exceed $25,000.''
            \70\ Congress could similarly impose a limit on the ``total
            amount'' of damages available under the TCPA.
    ---------------------------------------------------------------------------
        \69\ See, e.g., Wakefield v. ViSalus, Inc., No. 3:15-CV-1857, 2019
    WL 2578082 (D. Or. June 24, 2019) (denying request to treble
    $925,220,000 damage award).
        \70\ 42 U.S.C. Sec. 1320d-5(a)(3)(A).

       Safe Harbor: The law should provide businesses an
            opportunity to cure inadvertent alleged violations of the TCPA
            without being subjected to liability. Safe harbors allow
            businesses to remedy good-faith mistakes, thereby leaving
            consumers better off and allowing enforcers to better focus
            their efforts on true bad actors. The idea of a safe harbor is
            not unfamiliar in important societal issues. For example, the
            FTC's Children's Online Privacy Protection Act (COPPA) Safe
            Harbor Program allows industry groups to be considered in
            compliance with COPPA regulations if their proposed COPPA
            oversight programs are approved by the FTC.\71\ Additionally,
            in May of this year, Florida amended the Florida Telephone
            Solicitation Act to allow consumers to respond with ``STOP'' to
            cease further text message solitications.\72\ However, the law
            also provides a safe harbor period of 15 days for solicitors to
            react to the ``STOP'' text, and no action can be brought
            against a telephone solicitor unless a text is received more
            than 15 days after the initial ``STOP'' message was sent.\73\
    ---------------------------------------------------------------------------
        \71\ 16 CFR Sec. 312.11(b).
        \72\ H.B. 761, 2023 Leg., Reg. Sess., Sec. 1 (Fla. 2023).
        \73\ Fla. Stat. Sec. 501.059(10)(c).

       Limit Attorney's Fees: Congress should consider limiting
            attorney's fees that may be available in TCPA cases. One reason
            for the onslaught of TCPA litigation is that attorneys are
            incentivized to go after American businesses, regardless of
            culpability or actual consumer harm because large damage awards
            can generate large attorney's fees. Reasonable limits on
            attorney's fees could blunt that distorted incentive. Congress
            could borrow from other Federal statutes that limit attorney
            fee recoveries, ensuring that any damages award benefit
    ---------------------------------------------------------------------------
            consumers.

        Each of these approaches offer Congress a way to limit some of the
    most abusive TCPA litigation without undermining efforts to crack down
    on the bad actors responsible for harmful and abusive robocalls.
        The business community wants to end illegal robocalls and foster a
    safe and trustworthy communications ecosystem for businesses and their
    customers. Companies take pains to comply with the TCPA and stand ready
    to continue assisting state and Federal partners to go after scammers
    and those who intentionally flout Federal and state law. As Congress
    considers paths forward, enforcement should remain a top priority of
    all Federal agencies and Congress should consider reforms to prevent
    legitimate businesses from being ensnared in abusive TCPA litigation.
        I want to again thank the Subcommittee for the opportunity to
    discuss these important issues. I look forward to answering your
    questions.

        Senator Lujan. Thank you--[technical problems]--very much
    for your testimony today. Mr. Bercu, the floor is yours for 5
    minutes.

           STATEMENT OF JOSHUA M. BERCU, EXECUTIVE DIRECTOR,
     INDUSTRY TRACEBACK GROUP; VICE PRESIDENT, POLICY & ADVOCACY,
                  USTELECOM--THE BROADBAND ASSOCIATION

        Mr. Bercu. Thank you, Chair Lujan and Ranking Member
    Fischer, for the opportunity to join this important
    conversation.
        I am Josh Bercu, Executive Director of the Industry
    Traceback Group, or ITG, and I also serve as Vice President of
    Policy and Advocacy at USTelecom, the Broadband Association.
    USTelecom established the ITG to address the illegal robocall
    problem, and today, pursuant to the TRACED Act, the ITG is
    designated by the FCC as the official consortium to traceback
    unlawful robocalls.
        We are proud to support the FCC, FTC, DOJ, State Attorneys
    General, and other Government efforts to stop illegal robocalls
    through our traceback data. And I am pleased to be here today
    to discuss that collective effort and how Congress can bolster
    it.
        As I explain in my written testimony, various technological
    and economic changes have made it cheap and easy for bad actors
    to call American consumers from anywhere in the world. All
    anyone needs to initiate robocalls is a computer, some
    associated software, and a website. In the past, providers had
    no true--had no way to know the true origin of the calls.
        Industry traceback solves for that by piecing together the
    entire path of any given suspicious call, regardless of the
    number of providers involved. We obtained within a day or two
    the same information that would take enforcement agencies
    multiple months to get via subpoenas, and virtually all of the
    data we get makes its way to those enforcement agencies.
        Thanks to ITG data, Federal and State agencies are bringing
    more enforcement actions against illegal robocallers than ever
    before, and these efforts are working. For example, data from
    my colleagues at YouMail show that scam robocall volumes have
    dropped over 50 percent from their peak in October 2019.
        And after FCC and State enforcement actions based on ITG
    tracebacks, the billions of auto warranty robocalls that were
    plaguing Americans early last year have dropped almost to zero.
    Notably, even absent any affirmative enforcement action,
    tracebacks disrupt illegal robocalls in real time.
        Nearly 85 percent of completed tracebacks result in the
    originating provider warning or firing its offending customer.
    But as industry and Government innovate to fight illegal
    robocalls, so do their perpetrators.
        For instance, instead of robocallers, robocalls, scammers
    are now making more targeted live calls, sometimes combined
    with communications through other channels. The scammers know
    precisely who they are calling as they convincingly pretend to
    be your bank, for example.
        Also, the decline in scam robocalls has been supplanted by
    a substantial rise in unsolicited and unwanted telemarketing
    robocalls. These are the robocalls your constituents are most
    likely to receive today.
        A consumer may sign up on a job listing website, for
    example, but miss the fine print linking to a second page with
    hundreds or thousands of marketing partners that each now
    purportedly have the consumer's consent for robocalls.
        Even worse, ITG evidence suggests that these already flimsy
    claims of consent could be entirely falsified by bots
    consenting on behalf of consumers for calls they never asked
    for and do not want.
        While the STIR/SHAKEN, and call authentication framework
    makes it harder to send spoofed calls to consumers, prolific
    robocalls now engage in number rotation where they cycle
    through assigned, not spoofed numbers, sometimes for a single
    call per number.
        But this practice is intended to evade industry safeguards,
    and harms both consumers and legitimate callers, because calls
    from new numbers are far more likely to be treated as spam as a
    result.
        In my written testimony, I provide several steps that
    Congress can take to further empower industry and Government
    efforts to stop illegal robocalls, but I want to emphasize a
    few today. First, Congress should ensure that DOJ prioritizes
    prosecuting the criminals behind unlawful robocalls.
        Second, to address problematic number rotation, Congress
    should formally expand the role of the Traceback Consortium to
    investigate how bad actors get access to scores of numbers.
        Third, Congress should reintroduce and pass the Robocall
    Traceback Enhancement Act, which Senators Thune and Markey
    introduced last Congress to protect the consortium in the work
    protecting consumers. Thank you again for the opportunity to
    speak.
        We look forward to continuing to collaborate with the
    Subcommittee and Federal and State Government partners in
    solving the illegal robocall problem.
        [The prepared statement of Mr. Bercu follows:]

      Prepared Statement of Joshua M. Bercu, Executive Director, Industry
      Traceback Group; Vice President, Policy & Advocacy, USTelecom--The
                             Broadband Association
        Thank you Chair Lujan and Ranking Member Thune for the opportunity
    to speak on behalf of the Industry Traceback Group (ITG) and
    USTelecom--The Broadband Association (USTelecom), which leads the ITG.
        I am Josh Bercu, and I serve as the Executive Director of the ITG,
    and also as Vice President, Policy & Advocacy at USTelecom. I have held
    these roles for over three years, and before that, for nearly a decade,
    I was in private practice focusing on privacy, consumer protection, and
    telecommunications law.
        I am pleased to be here today to share my insights on why this
    country has an illegal robocall problem and what industry together with
    Federal and state government partners is doing to address it. Illegal
    and unwanted robocalls started to grow and get out of control in the
    early 2010s. The problem grew in large part because of the rise of the
    internet-based calling technology known as voice over Internet
    protocol, or ``VoIP.'' VoIP technology made it easier and more
    affordable for consumers to call their friends and family anywhere in
    the world, but it also made it cheap and easy for bad actors to call
    American consumers from anywhere in the world. These bad actors care
    little about the legal restrictions that apply to such calls.
        Worse, many VoIP platforms based here and abroad allowed bad actor
    callers to input any number into the caller ID field, a practice known
    as spoofing. Over the years, we have seen bad actors experiment with
    spoofing to increase the odds that their fraudulent calls are answered
    by unsuspecting consumers. Their practices evolved to use the same or
    neighboring area codes, a practice known as ``neighborhood spoofing,''
    as well as quickly cycling through calling numbers to evade the
    blocking and labeling tools carriers have deployed, a practice known as
    ``snowshoeing.'' Sometimes bad actors also spoof the telephone numbers
    of government agencies, banks, or other well-known brands.
        It would be reasonable to question why the phone network allowed
    spoofing in the first instance. There are some legitimate spoofing use
    cases, as Congress recognized when it passed the Truth in Caller ID
    Act, making spoofing illegal only with the intent to defraud, cause
    harm, or wrongfully obtain anything of value. For instance, domestic
    violence shelters often spoof outbound calls to hide the victim's
    location. Enterprises and call centers frequently spoof an outbound
    number to provide a better number to call back. Congressional telephone
    town hall calls do the same, displaying the Member of Congress's office
    number rather than a number tied to the platform vendor.
        It is also based on the nature of how the phone network evolved.
    Before VoIP, to be a phone provider, you had to lay wire to each
    customer's physical location. It was a high capital, expensive
    business. And when you wired a local bank or call center, you generally
    knew they were a real entity. You knew your customer. With VoIP and
    Internet technology, that is no longer the case. Today all anyone needs
    to be a phone provider or calling platform is a computer, some
    associated software, and a website.
        The U.S. phone system is a collection of interconnected telephone
    networks. Therefore, in most cases--and certainly before the deployment
    of the STIR/SHAKEN call authentication framework that has made it
    harder to spoof calls--providers had no reliable way to know where a
    given call actually originated from and who made it. And given the
    nature of an interconnected network, where a provider found a problem
    and fired a calling customer or wholesale provider because of
    questionable call traffic, the offending traffic often still made its
    way to the provider--just through additional wholesale providers, or
    ``hops.'' In the ITG's experience, illegal robocalls average six hops
    before they get to the call recipient.
        Given these challenges, in July 2016, then-AT&T CEO Randall
    Stephenson responded to then-Federal Communications Commission (FCC)
    Chairman Tom Wheeler's request to establish an industry task force to
    address the growing robocall problem. The result was the industry-led
    Robocall Strike Force, through which a broad cross-section of the
    industry brainstormed creative solutions to abate the proliferation of
    illegal and unwanted robocalls and promote greater consumer control
    over the calls they wish to receive. The Strike Force ultimately made
    numerous recommendations to the industry as well as to the FCC,
    including but not limited to deploying the STIR/SHAKEN call
    authentication framework and expanding traceback efforts.
        The deployment of the STIR/SHAKEN call authentication framework has
    undoubtedly made it harder to get spoofed calls through to consumers.
    In response, we have seen a shift to a practice called ``number
    rotation,'' where callers making hundreds of thousands of robocalls no
    one asked for cycle through assigned - not spoofed--numbers, sometimes
    averaging only 1.2 calls per number. This practice--designed to evade
    the protections that the industry has deployed--not only harms
    consumers, it also harms legitimate callers. That is because the
    analytics show that a new calling number is far more likely to be a
    spam call than a real call, impacting how calls from such numbers are
    treated by analytics providers and their carrier partners.
        The Industry Traceback Group was a voluntary industry initiative
    established by USTelecom in 2015. USTelecom initially established it as
    a working group to explore the notion of industry tracebacks, and then
    evolved it to a broader and more formal industry effort to
    systematically conduct tracebacks. The effort expanded to include
    representatives beyond USTelecom members and from across the
    telecommunications industry. The TRACED Act then created a formal role
    for industry traceback through the establishment of the registered
    traceback consortium, which the FCC followed up with a mandate to
    cooperate with traceback requests from the consortium. We are proud
    that the FCC recently designated the ITG as the official traceback
    consortium for the fourth year in a row.
        Prior to the ITG's establishment, the true origin of illegal
    robocalls was difficult to discern given the interconnected nature of
    the phone network, the potential for multiple voice service providers
    to be involved in the path of a single call, and the limited
    information that each provider has about the traffic they receive with
    any given call. Industry traceback solves for these challenges. As a
    general matter, all any voice service provider in the call path knows
    is the direct upstream provider from whom it received the call. And
    that is the primary information we request from each voice service
    provider in the call path of a traceback. Through this process, the ITG
    is able to rapidly piece together the path of any given suspected
    unlawful robocall, regardless of the number of providers in the call
    path.
        The ITG obtains data of suspected illegal call examples from
    various sources, including analytics companies, honeypots, or referrals
    from law enforcement or others harmed by the calls. The ITG team
    reviews the examples to ensure that we have information to support a
    reasonable suspicion that the given call campaign and examples are
    fraudulent, abusive, or otherwise unlawful. We then initiate tracebacks
    that are representative of hundreds of thousands or millions of illegal
    calls. Our system sends notifications to each provider in the call path
    and continues hop to hop to hop until we identify the provider that
    originated the call as well as its customer. We also find out other
    information along the way, including the provider that let the call
    into the country, in instances where the call originated overseas.
        Today, providers from across the phone ecosystem support and guide
    the ITG effort, and hundreds more cooperate, including hundreds of
    providers located abroad that send calls to the United States. We often
    get results within a day or two, whereas it would take two or three
    months for an enforcement agency to get the same information through
    subpoenas and investigative demands. And through the ITG's ongoing
    innovation and enhancements to the process, we are conducting
    tracebacks at much greater scale across a wider set of campaigns and
    calls.
        Generally speaking, there are three types of calls that the ITG
    traces back:

       Government and Brand Imposter Calls. Fraudulent high-volume
            robocalls that impersonate the Social Security Administration,
            sheriff offices, utilities, financial institutions, technology
            companies, and the like. In our experience, these calls
            predominantly originate abroad.

       Unsolicited Lead Generation Telemarketing Calls. Unsolicited
            high-volume lead generation telemarketing calls. These calls
            seek to sell a service or product, e.g., warranty, insurance,
            or debt reduction products, but in violation of consent
            requirements, and sometimes trademark law as well. These are
            the robocalls that your constituents are most likely to receive
            today.

       Malicious Live Calls. Targeted attacks, often with a live
            caller. These include voice phishing (or ``vishing'') attempts,
            ``Grandma scams,'' swatting calls, and more. For instance,
            earlier this year, the ITG worked with a local police
            department in Indiana to traceback a series of spoofed calls,
            including bomb and mass shooting threats to a high school and a
            swatting call targeting a student in the school, helping the
            police apprehend the suspect before any harm was done.

        Tracebacks generate information about the entities responsible for
    the illegal calls, and traceback has enabled more FCC, Federal Trade
    Commission (FTC), and other Federal and state enforcement actions to be
    efficiently and quickly brought against robocallers and their enablers
    than ever before. But equally important, even absent any affirmative
    enforcement actions, tracebacks also disrupt the flow of illegal calls
    in real time. Nearly 85 percent of completed tracebacks result in the
    originating provider warning or firing its offending customer, which is
    up almost 20 percent from 2022.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Providers that do not cooperate with tracebacks, or fail to comply
    with straightforward FCC rules like filing in the FCC's Robocall
    Mitigation Database, are identified, and the providers that accept
    their traffic are put on clear notice that the provider they are
    accepting traffic from is not complying with applicable rules. This
    puts the downstream provider in a position to take corrective action or
    face a potential Federal or state enforcement action.
        But beyond immediate disruption, the collective work of industry
    and government is having a more persistent impact. According to YouMail
    data, scam robocall volumes have dropped 50 percent since January 2019,
    and 55 percent since they peaked in October 2019. Once prevalent
    robocalls purporting to be the Social Security Administration and other
    government entities are increasingly rare, a trend that correlates to
    an overall decline in government impersonation scams.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        The drop in scam robocalls has unfortunately been supplanted by a
    substantial rise in unsolicited telemarketing calls. The lead
    generators responsible for these billions of unwanted robocalls do not
    sell any product or service; rather, as the government has alleged in
    one case, they act as ``a massive `consent farm' enterprise, using
    deceptive ads and websites to induce nearly one million consumers a day
    to provide their personal information and purported consent to receive
    telemarketing calls.'' \1\ These lead generators then sell these
    questionably obtained consents to various third parties. For example, a
    consumer may sign up for a job listing website or to participate in a
    raffle, but that person almost certainly missed the fine print that
    links to a second page of ``Marketing Partners'' and purportedly gave
    consent to receive robocalls from hundreds, or even thousands, of
    entirely unrelated entities. Worse, the ITG has seen some evidence that
    suggests these already flimsy claims of consents could actually be
    entirely falsified, where a bot used public data to consent on behalf
    of consumers for calls they never asked for and do not want.
    ---------------------------------------------------------------------------
        \1\ Complaint for Civil Penalties, Permanent Injunction, Monetary
    Relief, and Other Relief  2, United States v. Fluent, LLC, No. 923-cv-
    81045, (S.D. Fla. July 17, 2023), ECF No. 1, https://www.ftc.gov/
    system/files/ftc_gov/pdf/1923230fluentcomplaintandattachment.pdf
    ---------------------------------------------------------------------------
        But even with these illegal robocalls, consumers are in fact seeing
    the positive impact of the ITG's efforts and Federal and state
    enforcement actions. The billions of unsolicited robocalls offering
    auto warranties which you and your constituents almost certainly
    received have dropped almost to zero after FCC and state attorney
    general enforcement based on ITG data. Unwanted student loan robocalls
    have also faced a similar fate, now operating at a fraction of peak
    levels.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Americans are starting to notice these differences. There were over
    560,000 Do Not Call complaints to the FTC in March 2019. Complaints
    declined after passage of the TRACED Act before peaking again in March
    2021. Since then, however, there has been a steady and persistent
    decline--one that aligns with the industry's deployment of caller ID
    authentication as well as the ramping up of ITG-powered enforcement.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        FCC complaint data shows an equivalent trend.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        To be clear, there are still too many complaints, and there
    continues to be far too many illegal robocalls and too much fraud
    initiated by phone. Consumers still are afraid to answer their phone
    when they do not know the number calling. In fact, that's precisely the
    advice often given by experts: Do not pick up if you do not know the
    caller.
        There also are new trends of concern, including growth in dollars
    lost per victim of fraud, driven by targeted and increasingly
    sophisticated attacks. New technologies are also creating new
    challenges. In some of our tracebacks, we have seen automated robocalls
    that pretend to be a live caller, asking the call recipient about how
    they are doing and how their day is going. Regardless of how you
    respond--maybe with an assessment of your day and the weather, or with
    annoyance or confusion about receiving the call--the message continues
    and delivers the robocaller's offer.
        For our part, the ITG is constantly adapting to bad actors' latest
    tactics to target and bombard consumers with illegal calls. We have
    expanded partnerships with entities in other sectors to help protect
    their customers victimized by fraudulent calls and we are constantly
    working to make the traceback process more efficient and more
    effective.
        While the work of the ITG and that of Federal and state enforcement
    agencies to protect consumers from illegal robocalls continues, there
    are steps Congress can take to further empower these efforts:

       Criminal Enforcement. Congress should ensure that the U.S.
            Department of Justice (DOJ) has the resources, authorities, and
            prioritization it needs to prosecute the criminals behind
            unlawful robocalls, including fraudsters overseas as well as
            recidivist robocallers that stand up new entities under
            pseudonyms as soon as their prior ones are shut down. The
            criminal fraudsters overseas make their livelihood by
            defrauding Americans in some form, and will continue even if
            they cannot do so through robocalls. Likewise, recidivist
            robocallers are not deterred by financial penalties because
            these bad actors will never pay their fines. The threat of
            criminal enforcement for the fraud they have committed will
            make them think twice, however.

       Support FTC and FCC Clarifications of Consent for Lead
            Generation Telemarketing. The FTC recently released updated
            guidance under the Telemarketing Sales Rule regarding a
            consumer's consent to receive lead generation calls. The FCC
            has an open proceeding to clarify its view of consent for lead
            generation calls under the Telephone Consumer Protection Act.
            These efforts are important to ensure that bad actors cannot
            continue delivering millions of robocalls each day that no one
            asked for or wanted under flimsy-at-best claims of consent.
            Congress should support efforts to ensure that any
            telemarketing robocalls consumers receive are ones that they in
            fact consented to and are expecting to receive.

       Number Trace. To address problematic number rotation,
            Congress should formally expand the role of the traceback
            consortium to investigate how bad actors get access to the
            thousands and thousands of numbers they rotate through. Just as
            tracebacks have infused accountability about how unlawful calls
            get onto the phone network, number traces will infuse more
            accountability into how unlawful callers get numbers through
            the number wholesale market.

       Re-Introduce and Pass the Robocall Trace Back Enhancement
            Act or Similar Protection. The registered traceback consortium
            should have protection from frivolous and nuisance lawsuits
            intended to undermine the traceback process and detract
            resources of the consortium. Those resources are better
            dedicated to continuing to enhance the traceback process and
            its disruption of illegal robocalls and support of Federal and
            state enforcement.

       Extend Consortium Designation Process to Every Three Years.
            Under the TRACED Act, the registered traceback consortium must
            be designated by the FCC annually. The FCC's review and
            oversight are integral to confirming that the consortium
            operates in a neutral and non-discriminatory manner. Conducting
            the designation process on an annual basis, however, ties up
            the Commission's resources as well as those of the consortium.
            Those resources could be better dedicated to investments in
            continuing the fight against illegal robocalls.

        Thank you again for the opportunity to speak, and we look forward
    to continuing to collaborate with this Subcommittee, the FCC, FTC, DOJ,
    and other Federal and state government partners on solving the illegal
    robocall problem.

        Senator Lujan. Mr. Bercu, thank you very much for your
    testimony today as well. Mr. Rudolph, you are recognized for 5
    minutes. The floor is yours.

        STATEMENT OF MICHAEL RUDOLPH, CHIEF TECHNOLOGY OFFICER,
                             YOUMAIL, INC.

        Mr. Rudolph. Thank you for the opportunity to speak today
    regarding robocalls, robotexts, targeted attacks like vishing
    and smishing.
        I am a CTO, so I am going to introduce a whole bunch of
    acronyms and new terms, I apologize. And the evolving landscape
    of threats, tools, and enforcement. My name is Mike Rudolph,
    and I am the CTO at YouMail. YouMail provides a service that
    protects individuals from harmful calls and texts, and we
    publish the robocall index summarizing nationwide and State
    robocall data.
        We also provide blocking, analysis, audit, and
    investigative services to communication providers, enterprises,
    investment firms, and Government agencies. Prior to YouMail, I
    worked with many Fortune 500 companies helping mitigate risk
    through automated controls and policies to comply with things
    like the Sarbanes-Oxley Act and implement processes performing
    background checks and pre-employment screening.
        I see similar patterns and needs emerging and
    communications now as robocall mitigation controls and know
    your customer policies that balance the levers of risk and
    revenue at communication providers who can control those
    levers.
        I am honored to work with talented--the talented YouMail
    team on the front lines of investigations, disruptions, and
    enforcement. Our team is small given the demands to monitor
    tens of thousands of monthly and weekly active messaging and
    voice campaigns targeting consumers. Some of our prioritized
    targeted success here in industry is well chronicled, working
    with states, particularly Attorney General's offices, Federal
    agencies, and private industry, such as one of Wylie's clients,
    resulting in 90 to 100 percent reduction when we target
    specific robocall campaigns.
        I thank and commend those partners that made the
    identification and disruption of those campaigns a top priority
    for their fraud, cyber, or legal teams. Without their
    collaboration, it is significantly harder to escalate a
    robocall campaign from simply being unwanted and deceptive, all
    the way up to unlawful and eagle, so we can take--unlawful and
    un-legal, so we can take action. When the FCC identified
    specific robo-campaigns as poison pills for industry, I
    observed many providers that were previously uncertain about
    how to treat those calls suddenly decide with decisive action
    how to stop them.
        We can credit 2022 as the year unwanted auto warranty calls
    were stopped. However, now we have home warranty, debt
    reduction, Government grant, loan and insurance calls taking
    their place.
        Robo operators feverishly evolve their tactics in this cat
    and mouse game, and some embrace new techniques and tactics
    like generative AI, shifting from spoofing of numbers to using
    real numbers, and have adopted strategies to minimize the
    evidence they leave behind, which is necessary for companies
    like ours and the ITG and the FCC to ultimately stop these bad
    actors.
        Who is to serve as our TSA screening guardian that stops
    bad actors from flying the skies of the public telephone
    network? These accounts at providers, checked only the first
    day they want to make a call, or are they checked routinely
    every time they want to traverse the network like airline
    travelers every time they fly?
        By our estimates, we have endured over 250 billion, that is
    a quarter trillion, robocalls since 2019, about a thousand per
    American adult. We have taken a bite out of several of the most
    prolific robocall operations responsible for these few billion
    calls.
        It is not just the sheer volume game, as every robocall
    campaign is different, and we are now in an era where there are
    fewer but more advanced calls causing more harm per call. There
    is no shortage of work to do if we are to continue to make
    progress. I look forward to your questions.
        [The prepared statement of Mr. Rudolph follows:]

       Prepared Statement of Michael Rudolph, Chief Technology Officer,
                                 YouMail, Inc.
        Chairman Lujan, Senator Thune, and Members of the Committee, I
    thank you for the opportunity to appear and testify today regarding the
    current state of the operations, investigations and enforcement actions
    relative to omni-channel robo-communications--both robocalls and
    robotexts as well as phishing tactics and platforms including vishing,
    smishing, and generative AI.
        I provide my testimony today as Chief Technology Officer of
    YouMail, a privately held company whose mission is to protect the
    public from harmful communications and to restore trust in our
    communications networks.
    I. Introduction
        YouMail is often recognized for its role providing data in the
    behind-the-scenes battle against unwanted voice calls. The company's
    origins, as its name suggests, trace back to being one of the
    innovators and first providers of visual voice-mail and cloud-based
    voice-mail answering services in the United States.
        As early as 2009, YouMail recognized that the demand for its
    solutions was linked to individuals who relied heavily on receiving
    dozens to hundreds of daily live, inbound calls to their personal
    mobile phone number. These individuals spanned a wide range of high-
    touch professions that are considered very small businesses (VSBs) in
    America: fitness trainers, tutors, repairman, electricians, plumbers,
    exterminators, realtors, interior designers, handymen, contractors
    (floor, paint, tile, carpentry, construction), appraisers, notaries,
    mobile mechanics and detailers, dog sitters/walkers, photographers,
    event planners, florists, babysitters, caterers, bakers, accountants,
    financial planners, landscapers, movers, stylists, barbers,
    beauticians.
        It's important to acknowledge that professionals such as these find
    their success and income depends on how they respond to incoming calls
    from unknown numbers. Before unwanted and illegal calls from unknown
    numbers invaded our phone network, these calls from outside of contact
    lists typically meant a potential new customer for this VSB. For sole
    proprietors, unknown calls signaled an opportunity to connect with a
    prospective local customer to generate income to provide for themselves
    and their families. Failure to answer the live incoming call often
    meant the potential lead for their small business would move on to call
    the next highest rated provider, discovered on search engines or
    websites such as Yelp, that may have a lower rating, but were available
    at just that moment to answer the live call and interact with the
    caller. At one time, and still perhaps today, answering live calls from
    unknown numbers was a critical path to success for small businesses.
        As any good business asking its customers what they needed next,
    YouMail recognized the need to silence the ringer for these subscribers
    when the call was almost certainly spam, but also to ensure real local
    customers calls would ring through to be answered live to then ideally
    become appointments and customers for very small businesses. As a
    visual voice-mail and answering service, and not just a device ring
    blocker, YouMail provided a fallback as voice-mail audio is converted
    into readable text and a small business, like any user, could quickly
    determine the purpose of the call.
        In 2009, YouMail began investing in technology and techniques to
    identify calls as spam or unwanted, both in order to prevent ringing
    and also to move unwanted messages into a Spam folder, as most users
    are accustomed to experience with e-mail.
        Eventually, as unwanted robocalls became an evidence signal in
    everyone's voice-mail box, YouMail launched the Robocall Index in 2015,
    which over time has become recognized as the standard for industry
    metrics on robocalls occurring nationwide, as well as per-state and
    per-metro region.
        YouMail's role as an over-the-top app, trusted to provide answering
    services to millions of telephone numbers across all major U.S. and
    Canadian carriers, provided it with unique capabilities to respect
    consumer privacy while tracking and grouping unlawful communications
    throughout the mobile phone networks. It is worth noting that YouMail
    data is nearly entirely based on what reaches consumer handsets, and
    does not extend to communications blocked at the network of the
    underlying carrier, which certainly would indicate even more by way of
    voice and SMS communications attempting to reach consumers.
        In late 2019, YouMail launched its YouMail Protective Services
    division, which assists law enforcement, financial services,
    enterprises, and communications providers with its data, evidence,
    intelligence, and investigative services.
        As YouMail's role in industry has expanded, innovative bad actors
    behind unlawful and unwanted communications have become aware of
    YouMail's industry role. YouMail is already observing efforts by both
    telemarketing and threat actors to evade YouMail's methods of detection
    by minimizing calls and voice evidence to YouMail users or by trying to
    directly obtain access to YouMail data for similar evasive purposes.
    II. Caller and Call Recipient Relationships
        As many state and Federal agencies have reported over the years,
    unwanted communications, particularly robocalls and robotexts, rank
    among the top complaints received by their offices.
        One of the difficulties in analyzing communications is determining
    whether a communication is spam, generally unwanted by most recipients,
    or is perpetrating a scam or committing fraud. This is particularly
    challenging as the content of a communication may be nearly identical
    when it comes from an enterprise such as a bank, utility, or government
    agency as it is when it originates from an imposter.
        It is helpful to consider different classes of originating callers
    from the perspective of an average person, as this classification helps
    to understand a common, generally desirable experience based on the
    relationship between that average call recipient and the calling party.
        In the examination of types of caller relationships, we may
    consider why an individual may be at a moment in their life that would
    affect their susceptibility to answering a live, incoming communication
    from an unknown, non-contact telephone number.

       Personal--these are communications between two individuals
            who know each other and may or may not yet be saved contacts on
            the device. These are friends, family, colleagues, co-workers,
            classmates, acquaintances who usually have a direct, personal
            relationship, or may be introduced through a mutual
            acquaintance. If you or your child have joined a new school or
            club, you may be expecting a call or text message from a
            teacher or coach from an unknown number. While it's nearly
            universal, personal calls are not always wanted such as cases
            of harassment or stalking, but any desired blocking in this
            case is between two individuals for personal reasons.

       Local Business--these are not often personal relationships,
            but between an individual or household and small local
            businesses or services. This would include your dry cleaner
            communicating your garments are ready, or a local restaurant
            confirming a reservation, or your handyman, gardener,
            babysitter, dogwalker, trainer, or healthcare professional
            discussing an appointment, problem or matter. These are
            sometimes saved contacts, but often when someone has an urgent
            need, they may be expecting calls from several potential
            unknown numbers that provide a local service in order to
            address that time-based matter or need. While this is also
            nearly universal, sometimes disputes between a customer and
            service provider may lead to an individual wishing to block
            these communications. Or, if a local business has crossed a
            line from communicating about appointments/inquiries/problems
            into using the communication channel for marketing or lead
            generation, these calls may drift into unwanted and blocked
            territory. Once again though, these types of calls are almost
            universally wanted apart from the situation where two parties
            have a personal conflict.

       Non-Local Business--these are communications between a
            national, regional or online business and an individual and are
            also where most universally unwanted communications occur,
            although not all communications between individuals and
            households and non-local businesses are unwanted. These
            interactions typically fall into a few sub-categories:

         Essential: these would be appointment reminders and
                confirmations, one-time or password reset events, critical
                account/emergency alerts where the individual's interaction
                is necessary (password reset or transaction confirmation)
                or the individual would be impacted based on their
                assumption of a time/place/occurrence.

         Marketing, Originated by Individual/Household, Follow-
                up: these communications rely on a triggering event
                typically where the individual expressed an interest in the
                business, ideally directly through a communication
                initiated by the individual/household that occurred online,
                in-person or by phone.

         Marketing, Originated by Non-Local Business, Goal-
                Driven: these communications usually begin with a sales,
                marketing or operations team at the business that is
                interested in demand generation to stimulate sales or
                engagement in products or services, regardless of any
                recent interaction by the individual/household.

       Scam/Fraud--these are communications which can be disguised
            to look like any of the above as they reach an individual or
            household and rely on TTPs (tactics, techniques, and
            procedures) that emulate a real individual, local, or non-local
            business, as described previously, as closely as possible in
            order to maximize their success.
    III. Call Recipients Want To Know Who Called
        Society has been shifting away rapidly from voice calls, as the
    voice communications network has become filled with unwanted and
    unlawful voice calls.
        When someone receives a call from an unknown number, they want to
    know who called and the reason the call was made.
        Individuals and households are particularly susceptible to
    answering calls from unknown numbers based on time and situation-based
    events in their lives. The originators of unwanted and unlawful calls
    make repeated call attempts, hoping to get their timing right for these
    live answer opportunities.
        Call recipients generally fall into one of two camps during these
    moments of answering susceptibility--those who will answer all unknown
    numbers during these windows of vulnerability, and those who allow the
    calls go to voice-mail, hoping to identify the anticipated call and to
    call it back if it matched an expected call. In the case of returning a
    call based on a voice-mail, this can mean having to wait on hold and
    navigate an interactive voice response (IVR), and a loss of time simply
    due to a best practice of screening incoming calls from unknown
    numbers.
    When a legitimate caller has a significant enough situation to merit a
            voice call as the chosen medium of communication and places a
            call, they have no good reason to not leave a message.
        Consider all the potential relationships and legitimate reasons for
    a call between a lawful caller and call recipient. If the caller
    suspects the call recipient doesn't know who it is based on the high
    likelihood it is not a personal contact saved to the device, the caller
    would want to identify themselves and their reason for calling to
    encourage engagement from the called party, since there was an
    important reason for initiating a voice call.
        As we expand into the ``Marketing, Originated By Non-Local
    Business, Goal-Driven'' relationship and use case above, the company
    that is using the voice channel to engage in telemarketing, if they
    possess the conviction that their marketing offer is worth initiating
    the voice call, should maintain that conviction that the call is
    important enough to identify themselves and the purpose of their call
    initiation in a voice-mail message.
        By not leaving a message, the call initiator could suggest their
    additional attempts, making many more calls to the recipient, are
    because they are still trying to deliver the message. The subsequent
    attempts may not be necessary if the message was left on the first
    attempt and the individual was able to make a decision based on this
    evidence to respond to the communication by any indicated, allowable
    channels.
        YouMail attempts to classify calls received by consumers into
    several categories and has been tracking this data for several years.
    YouMail relies on lawful, legitimate call originators, or bad actors
    imitating those call originators, obeying this societal protocol that
    if it was important enough to initiate a voice call, it was important
    enough to indicate who you are and why you called.
        YouMail, via the Robocall Index \1\, observed a significant
    increase in indeterminate, non-categorizable robocalls beginning in
    September 2022.
    ---------------------------------------------------------------------------
        \1\ https://www.robocallindex.com

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        Because the telephone numbers linked to indeterminate robocall
    behavior do not possess a history of delivering desirable/wanted
    communications, YouMail infers that they are linked to unwanted and
    undesired behavior, as they do not provide audio evidence of their
    identity or reasons for calling recipients.
        This increase in indeterminate calls also correlates to a decline
    in observable calls linked to scams and telemarketing, so it is
    reasonable to assume some of the parties behind those calls have
    shifted their tactics to call and hang up in order to evade consumer
    recognition, as well as detection by services such as YouMail that
    utilize audio evidence in voice-mail to prevent and support enforcement
    against unwanted and unlawful communications.
        Present enforcement and traceback efforts often rely on the audio
    content of the call in order to wield it as evidence of unlawful
    activity in an investigative process. If a robocall operation is
    sophisticated enough to use evasive strategies such as utilizing
    attested calls made in very low volumes across an inventory of real
    numbers, and across a span of enabling providers, while leaving no
    audio evidence (permitting access to CPNI under the Communications Act
    Section 222-d-2), it becomes much more difficult to track, investigate,
    and prevent.
        Establishing a requirement for business communications to leave a
    voice-mail when they introduce a new originating number to communicate
    with a specific call recipient not only serves the interest of
    consumers who want identity and purpose to accompany unanswered,
    unknown calls, it also serves the legitimate business to solicit
    reciprocal engagement from the recipient, assuming this communication
    achieved the litmus test of having been worth initiating a call in the
    first place.
        Further, voice service providers can track this behavior in new and
    existing accounts, ensuring that their logs of calls from accounts that
    have identified as a business that need to make hundreds, thousands or
    millions of calls are making calls of a duration long enough to permit
    them to convey their identity and reason for calling. Accounts refusing
    to follow this policy would have no reasonable explanation, as their
    communications are either not valuable enough to pay for the extra 5-30
    seconds per call (and thus were not valuable enough in the first place
    to disturb and disrupt the recipient's day), or they did not want
    recorded evidence by way of voice-mail of their operations and were
    likely unlawful or illegal.
    IV. Omni-Channel Marketing & Communications
        Marketing technology, communications technology, and their
    subsequent integration into consolidated platforms have made
    significant advances in the past decade. A litany of acronyms from the
    tenured CRM (Customer Relationship Management) and CPaaS
    (Communications Platform as a Service) to more recent upstarts such as
    CDP (Customer Data Platform) and CEP (Customer Engagement Platform)
    highlight the rapid innovation and convergence of automated omni-
    channel marketing applied to integrated recipient data.
        Omni-channel marketing engages a single recipient through many
    media, sometimes simultaneously, sometimes as a scripted sequence of
    conditional events. A good omni-channel marketing platform allows the
    marketer to upload a list of recipients and to buy ad placements on
    search engines or websites, send e-mails, generate calls and send TXTs,
    engage in messaging conversations and host a telephone number with a
    menu for incoming calls. Domain registration and website building has
    become trivial enough that some tools can be given a domain and create
    a similar looking website with a few clicks for under $20.
        A competent individual can invent a company and deploy a
    sophisticated omni-channel marketing operation in hours and at low
    cost, choosing from hundreds of vendors, ranging from fledgling start-
    ups to publicly traded firms. Some platforms, seeking to accelerate
    their own growth through streamlined onboarding, allow communicating
    with a customer list on trial plans with no financial transaction (or
    vetting) necessary. The barriers to ``looking big'' and ``communicating
    wide'' have never been lower, which is tremendous for encouraging new
    entrepreneurial ventures in competitive markets, but also enables a
    tremendous opportunity for bad actors mimicking these real businesses
    to gain access to these advanced tools.
        Though YouMail and its Robocall Index have observed that robocall
    volumes have declined slightly from 58 billion in 2021 to an estimated
    53 billion by end of 2023, the FTC and FBI both indicate rising
    reported losses in the complaints gathered from consumers. These are
    only the losses reported to these specific agencies, and significantly
    understate the true consumer harm, as only a subset of losses is ever
    reported.
        The FTC Consumer Sentinel Network Tableau site \2\ shows a 400
    percent increase in Business Imposter dollar losses reported since Q2
    2022.
    ---------------------------------------------------------------------------
        \2\ https://public.tableau.com/app/profile/
    federal.trade.commission/viz/FraudReports/FraudFacts

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        The FBI IC3 Data \3\ shows a rise in reported financial harm from
    Government Impersonation and Tech and Customer Support losses. These
    are the categories of losses in which voice or SMS were used to
    impersonate a known organization.
    ---------------------------------------------------------------------------
        \3\ https://www.ic3.gov/Media/PDF/AnnualReport/2022_IC3Report.pdf

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        Legitimate enterprises have shifted to omni-channel marketing as it
    is more effective in soliciting customer engagement and inducing more
    transactions. Advanced threat actors who wish to successfully
    impersonate an organization study the organization's current practices
    and, recognizing the user of omni-channel communication (ads, online,
    web, e-mail, voice, SMS, app), it should be no surprise that the threat
    actors embrace similar tactics and platforms to increase their success
    rates with victims.
        Even more advanced threat actors take advantage of APIs provided by
    these platforms and entrench themselves across multiple accounts and
    multiple platforms to reduce the impact of a single disruption or take-
    down. As astute recipients/targets report the attempt by the threat
    actor, only one of hundreds or thousands of accounts are deactivated,
    and criminal operation continues with minimal operational impact.
    V. Generative AI & Pig Butchering
        Since 2022, many omni-channel marketing and communications
    platforms have been rapidly introducing and announcing the benefits of
    integrating capabilities of LLMs (large language models) and generative
    AI.
        The benefits to a legitimate marketing operation should be
    obvious--you can simultaneously communicate with more people on a
    personal level through almost every available medium of communication.
    One marketer in a small operation can leverage generative AI to speak
    personally and fluently in nearly any supported language with tens of
    millions of recipients daily.
        Prior to widespread use of generative AI, YouMail would observe
    `broken English' in robocall or robotext campaigns that identified as a
    bank. Poor command of the English language serves as an obvious tell,
    indicating a campaign is operated by a fraudulent imposter.
        One such example YouMail has shared is in generating the script
    ``press 1 to connect to a fraud specialist'' to emulate a financial
    services firm, a Chinese-speaking threat actor with limited skills at
    English may use a simplistic tool to translate the Chinese word
    ``[handwritten characters]'' (shengcheng) to either ``generate'' or
    ``connect''. YouMail's investigators would observe the audio ``press 1
    to generate to a fraud specialist'' as an indication of fraud as it is
    highly unlikely a US-based financial services firm would make such a
    mistake. With threat actors leveraging well-trained, fluent generative
    AI platforms, such mistakes rarely occur, which then requires
    additional investigative resources and collaboration to separate
    legitimate and imposter communications from one another.
        As YouMail has expanded its investigative and protective solutions
    to cover SMS, MMS, RCS and other messaging technologies, it has
    observed conversations that are clearly evidence of ``pig butchering''
    attacks.
        ``Pig butchering'' often begins by using a messaging platform such
    as SMS to initiate a conversation that is otherwise indistinguishable
    from personal conversation by saying something like ``Hi'' or ``Hey
    Ben, it was good talking last week''. If engaged, the conversation
    apologizes awkwardly for the accidental message but maintains a
    friendly, charismatic tone and works to establish a casual friendship
    as a goal. Often, the threat actor is awkward and apologetic, citing
    English as a second language to cover for any misunderstandings.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Over time, the threat actor builds a rapport and encourages its
    target to take certain actions which range from things that may feel
    trivial like checking out an app or visiting an interesting website.
    Ultimately, they are more successful the more they appear authentic and
    patient and don't force their target to immediately connect Apple Pay
    to their bank account or begin ``investing'' in cryptocurrency.
        A single threat actor using generative AI connected to the
    communications network can run hundreds to thousands of simultaneous
    conversations, refining its model while learning from mistakes and
    exercising patience in rapport-building indistinguishable from a real
    person. The technology already exists to generate synthetic yet
    authentic appearing images, video and audio, if those prove necessary
    hurdles in carrying out further artificial trust-building to support
    the criminal endeavor.
        Messaging continues to trend towards technologies with E2E (end-to-
    end) encryption (iMessage, RCS, WhatsApp, Telegram) and advanced pig
    butchering initiated by SMS often tries to move the conversation to an
    E2E encrypted medium in order to evade detection via unencrypted
    channels as it reaches deeper, detectible evidence of malfeasance in
    later steps of its script.
        A recent blog \4\ from digital risk protection vendor Phishlabs
    includes several screenshots of how quick and easy an aspiring threat
    actor can make a few clicks using a PhaaS (Phishing-as-a-Service)
    platform to deploy automated omni-channel phishing services with out-
    of-the-box capabilities to impersonate 11 U.S. financial services
    institutions. The site regularly holds sales.Recent rates to send SMS
    messages ranged from $130 to send 5,000 SMS messages or $620 to send
    25,000 SMS messages.
    ---------------------------------------------------------------------------
        \4\ https://www.phishlabs.com/blog/threat-actor-profile-strox-
    phishing-as-a-service/

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    VI. Tools, Resources, Success
        While the FTC and FBI data indicates an increase in reporting of
    individual financial harm from communications, despite stability in
    total robo-communication volumes, the media, trade shows and industry
    investments reveal a sprint to connect advanced tools such as
    generative AI and omni-channel marketing platforms to the communication
    network. Nonetheless, progress has been made in industry to use new
    tools and techniques to curb high-volume robocall operations that once
    upon a time plagued consumers.
    STIR/SHAKEN
        STIR/SHAKEN is one of most cited tools to assist in the combatting
    of unwanted, unlawful robocalls, with many deadlines for implementation
    passing in 2022 and 2023.
        YouMail tracks the certificates on the voice calls that terminate
    at its network, and where the voice call matches a known unwanted,
    unlawful, or illegal campaign, it links the originating or gateway
    provider that indicated it owns responsibility for attesting to that
    call.
        As of September 2023, YouMail was observing nearly 800 distinct
    certificates per week in the calls that it answers. YouMail has yet to
    publicly publish statistics on its observed certificates, but YouMail's
    observations match the approximately 800 signers in data published \5\
    by TransNexus. TransNexus also notes the approximate number of 1,200
    SHAKEN-authorized providers as of September 2023.
    ---------------------------------------------------------------------------
        \5\ https://transnexus.com/blog/2023/shaken-statistics-september/
    ---------------------------------------------------------------------------
        As of October 18, 2023, YouMail observes that there are 17,900
    entries in the FCC 499 Filer database \6\. 4,789 entries identify their
    principal communication type as `Interconnected VOIP'. As of October
    18, 2023, the FCC Robocall Mitigation Database \7\(RMD) contained 8,562
    entries. 2,891 of the RMD entries state ``Complete S/S Implementation''
    and 1,980 entries state ``Partial S/S Implementation, Performing
    Robocall Mitigation'' for a total of 4,871, indicating some STIR/SHAKEN
    implementation.
    ---------------------------------------------------------------------------
        \6\ https://apps.fcc.gov/cgb/form499/499View.htm
        \7\ https://fccprod.servicenowservices.com/rmd?id=rmd_welcome
    ---------------------------------------------------------------------------
        It would appear that there are somewhere between 8,000 and 20,000
    entities that acknowledge themselves as relevant voice communication
    providers, so these 800 certificates presently active in September 2023
    are potentially only indicating origination information for 4-10
    percent of communication providers.
    STIR/SHAKEN & Sample YouMail Investigations
        YouMail, as an answering service for customers of mobile network
    operators (Verizon, T-Mobile, AT&T, et al.), relies on customers
    setting up their call forwarding feature to divert unanswered calls to
    YouMail's service. Consequently, YouMail, and services like YouMail's,
    rely upon voice providers implementing the IETF RFC 8946 Personal
    Assertion Token (PASSporT) Extension for Diverted Calls in order to
    carry the originator certificate through to YouMail as the final
    termination point for a call. When unimplemented at a network, YouMail
    typically observes a mobile network operator introducing its own
    certificate (at the lowest level of attestation, a C-attestation) in
    place of the originating provider's A-attestation, when diverting
    calls. This negatively affects transparency regarding the origination
    of unlawful call campaigns carried in the ecosystem on diverted calls
    going to voice-mail services like YouMail.
        When the originating provider's certificate carries successfully to
    the call termination point, companies such as YouMail can perform
    aggregate analysis on the calls received from an originating provider
    by matching content (such as voice-mail) to the originating service
    providers.
        Below is a sample pie chart indicating the content carried by an
    originating provider's traffic for a month:

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        This pie chart reveals:

       a light grey area where callers left no message

       a dark grey area where a message was left but did not match
            the template of a known robocall

       a red area, representing calls for which the audio matched
            audio of a call suspected to be a scam

        It is often helpful to exclude the light and dark grey areas (to
    remove calls not providing audio evidence and calls where the audio
    evidence wasn't able to be matched to known good or bad robocalls) in
    order to produce a drill-down pie chart of all recognized robocalls at
    that provider.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        This pie chart reveals that, of the tracked robocalls at this
    provider, the majority appear linked to scam campaigns, with only a
    small green wedge linked to potentially legal/lawful alerts and
    reminders.
        Underlying this pie chart, YouMail can examine the exact campaigns
    and their relative volumes as they compose this provider's traffic
    profile. At the time of this testimony, the current campaigns
    identified here are linked to their best, most likely classification,
    so this is not intended to be definitive attribution of a campaign to
    illegal behavior but rather the current suspected nature of these
    campaigns.
        In the case of this sample provider, it reveals A-level
    attestations were given to audio and calls determined to be carrying
    illegal, unlawful content. It would indicate accounts that should be
    terminated if the activity is confirmed within the provider's records
    and a legal imperative to perform an investigation to find and
    terminate accounts carrying similar traffic. In the case below, the top
    campaigns found were ``Google Business Listing Scams'', ``Amazon Alexa
    Scams'', and ``Government Grant Scams''. What is also of note is that
    this provider has very little traffic that indicates lawful, desirable
    robocalls to be received by consumers (such as a prescription reminder,
    or change-of-venue alert, etc.).

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        YouMail's position is that STIR/SHAKEN is an extremely valuable
    tool that is still in the process of industry adoption, despite recent
    FCC deadlines. It is a tool presently lacking sufficient resourcing to
    carry out investigative, compliance, and enforcement efforts and
    success in curbing robocalls ultimately depends on the resources
    applied to ensure data is not only properly collected but integrated
    into the ecosystem to maximize transparency.
        It is a non-trivial undertaking to prioritize and investigate
    thousands of active robocall campaigns each month, understand their
    legality and effect corrective action where necessary.
    KYC (Know-Your-Customer), KYT (Know-Your-Traffic), Know-Your-Upstream
            (KYUP)
        During our investigation-related discussions with voice service
    providers, they regularly indicate that they were unaware that the
    indicated account was carrying the communications provided in the
    supporting evidence attached to the reported incident. Conversations
    such as these indicate that many providers, intentionally or
    unintentionally, do not truly know their customers.
        Over the past few years, a few parties have weighed in on best
    practices and requirements for communication providers to ``know your
    customer'' or ``know your traffic''. The FCC recently also included
    ``know your upstream provider'' \8\ to this growing lexicon on April
    27, 2023.
    ---------------------------------------------------------------------------
        \8\ https://docs.fcc.gov/public/attachments/DOC-392975A1.pdf
    ---------------------------------------------------------------------------
        When illegal communications are injected into public
    communications, it should not matter whether the account holder is
    considered a ``customer'', ``peer'' or a ``provider'' and it should not
    matter what the enabling platform considers itself (gateway,
    intermediate, facilities-based, etc). All platforms enabling
    communications share responsibility in preventing accounts originating
    illegal, unlawful communications.
        An FCC filing \9\ by private company Numeracle, on April 27, 2023,
    included Numeracle's Model Standards v1.1 for KYC, which includes a
    list of questions to ask new customers. Numeracle's list is
    comprehensive, including asking the prospective customer to share
    marketing materials, reveal prior actions or judgements, provide
    descriptions of the calls along with consent collection and legal
    compliance practices. Another example of good KYC policies and controls
    can be found in settlements between recidivist providers enabling
    robocalls, such as the March 6, 2023 settlement between State of Texas
    et al and Rising Eagle Capital Group LLC \10\ .
    ---------------------------------------------------------------------------
        \9\ https://www.fcc.gov/ecfs/search/search-filings/filing/
    1042778647719
        \10\ https://www.texasattorneygeneral.gov/sites/default/files/
    images/press/Spiller%20Stipu-
    lated%20Order.pdf
    ---------------------------------------------------------------------------
        An account faced with strenuous onboarding Q&A that is planning to
    initiate illegal or grey-area telemarketing communications is unlikely
    to proceed with establishing the account at a provider using processes
    such as these, as it indicates the bad actor is likely to be either
    rejected before they can start sending communications, or if they
    misrepresent themselves, their ability to communicate would be short-
    lived before they face a permanent termination.
        YouMail is often asked to comment on KYC Practices and observes
    many communication providers want to keep their current practices
    private, because they are viewed as both:

       a legal liability, if revealed (and ultimately proven
            intentionally or unintentionally insufficient)

       a competitive advantage

        Interestingly, interpreting the KYC process as a competitive
    advantage perception cuts two ways. Some providers view their ``light
    touch'' policies, procedures, and controls as an advantage because they
    maximize their revenue in turning away only the most egregious new
    accounts, while permitting less egregious yet still unlawful revenue-
    bearing accounts to onboard. On the other side, providers with stricter
    controls and policies comment they are playing the ``long game'' and,
    while they lose out on this potential revenue in the short term, they
    envision they will eventually see account migrations from peers and
    competitors, as those peers and competitors are publicly identified as
    a risky supplier for legitimate high-revenue enterprises.
    KYC, Analytics, Call Labeling & Blocking
        Numeracle filed further comments \11\ with the FCC on August 9,
    2023, through which they addressed the current state of analytics,
    labeling, and blocking. Some of Numeracle's \12\commentary was
    furthered by an FCC filing made that same day by United Office \13\,
    who included screenshots demonstrating how their customers' calls were
    displayed on Android and iOS devices across major carriers.
    ---------------------------------------------------------------------------
        \11\ https://www.fcc.gov/ecfs/search/search-filings/filing/
    108102252803712
        \12\ https://www.fcc.gov/ecfs/search/search-filings/filing/
    108092119116596
        \13\ https://www.fcc.gov/ecfs/search/search-filings/filing/
    108092119116596
    ---------------------------------------------------------------------------
        Both Numeracle and United Office cite working with customers who
    had their calls labeled as `Spam Likely' or `Scam Likely'. Seeking to
    remediate the labeling on behalf of their customers, they worked
    closely with them to get to know them and determine whether these calls
    were mislabeled, often to provide evidence to call analytics companies
    and voice providers in order to correct the mislabeling.
        YouMail has observed that telephone numbers of legitimate calling
    parties (banks, government, security alerts, emergency, and disaster
    alerts) drift from accurate labeling to `Spam Likely' or `Scam Likely'
    treatment over time at individual mobile operators,without any evidence
    to show that the numbers have been compromised or spoofed by a threat
    actor. As the mislabeling occurs, YouMail also observes that its
    customers with the YouMail app installed on their device no longer
    answer these calls, indicating that mislabeling an incoming call
    effectively results in the same outcome as blocking the call as it
    drifts into an answer rate below 5 percent when prior answer rates
    exceeded 50 percent.
        Typically, engagement with services or solutions that would
    remediate and clear up this mislabeling corrects the issue. As
    expected, this generates revenue for vendors that provide these
    solutions and results in increasing the costs of this business
    communicating with its customers, which could eventually mean this
    business passes those higher costs to communicate along to its
    customers.
        YouMail has also observed in its investigations that many robocalls
    received by consumers receive a ``green checkmark'' treatment as they
    appear on devices. TransNexus indicated in their September 2023
    blog.\14\ that among prolific robocall signers, 88.46 percent of calls
    they signed with B-level attestation were robocalls and 79.4 percent of
    calls they signed with A-level attestation were robocalls. Robocalls
    with C-level attestation trend downward (from <40 percent in April 2023
    to <20 percent as of September 2023).
    ---------------------------------------------------------------------------
        \14\ https://transnexus.com/blog/2023/shaken-statistics-september/
    ---------------------------------------------------------------------------
        Robocall operators are the most engaged, active calling parties
    seeking to stamp their calls with legitimacy in their quest to maximize
    engagement and answer rates. As a result, they have become the most
    prolific early adopters of new services that promise them A
    attestations for their calls. This presents distinct challenges to
    measure the benefit of labeling and display indicators like checkmarks
    to the public when legal, legitimate call originators are slower to
    adopt than the operators of suspect, grey-area or unlawful calls.
        It is unclear how ``pay to display'' dynamics in the robocall
    labeling industry will ultimately play out. YouMail observes that calls
    with a green STIR/SHAKEN checkmark and display name generally have
    lower answer rates than calls without a green checkmark, which runs
    counter to the results promised by vendors charging call originators
    for these solutions. On the other hand, at the present time, this
    merely indicates the financial commitment of the marketing
    professionals operating highest volume telemarketing robocalls to spend
    to achieve their revenue goals and quotas, and their willingness to
    absorb an extra cost for the calls they place.
    TCPA Class Actions
        TCPA class action litigation can have a powerful effect on reducing
    unwanted robocalls. YouMail selected two recent class action
    settlements and the effect on calls received by Americans per month.
        In 2022, DirecTV settled \15\ a $17M TCPA class action lawsuit.
    DirecTV`s robocalls per month reached a peak of an estimated 87 million
    calls received in the U.S. in September 2021. This data does not
    necessarily reflect which calls were subject to the TCPA actions in the
    assorted TCPA lawsuits filed against DirecTV, but provide YouMail's
    estimate of DirecTV robocalls per month over time where the surge in
    calls accounted for approximately 858 million total calls.
    ---------------------------------------------------------------------------
        \15\ https://topclassactions.com/lawsuit-settlements/closed-
    settlements/directv-unsolicited-calls-17m-class-action-settlement/

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        As can be seen, the class action litigation has reduced DirecTV
    robocalls by over 99 percent, which from its total volume has had a
    material impact in the total robocalls received by the public.
        Also in 2022, National Grid settled \16\ a $38.5M TCPA class action
    lawsuit. National Grid robocalls reached a peak of 2 million monthly
    calls by mid-2022, increasing 1500 percent from their pre-surge monthly
    volumes of 150,000 per month.
    ---------------------------------------------------------------------------
        \16\ https://topclassactions.com/lawsuit-settlements/closed-
    settlements/national-grid-pre-recorded-phone-calls-38-5m-class-action-
    settlement/

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        YouMail only analyzed and modeled calls identifying as National
    Grid or referencing ngrid.com and did not include calls identifying as
    other entities from the class action suit (KeySpan Gas Corp, Brooklyn
    Union Gas Co, Niagra Mohawk Power Corp, Boston Gas Co, Colonial Gas Co,
    Massachusetts Electric Co, Nantucket Electric Co, Narragansett Electric
    Co). It is entirely possible that the robocall operation distributed
    call volume into different campaigns that no longer identified directly
    as National Grid at a point in time.
        Based on YouMail estimates and models, the TCPA class action
    litigation appears to have caused a 45 percent reduction in monthly
    robocalls directly identifying at National Grid.
    State & Federal Enforcement Actions & Coordination
        YouMail works closely with partners in state and Federal
    enforcement agencies to model, track, investigate, provide, and analyze
    evidence of unlawful robocall campaigns. These efforts are largely
    concentrated on a campaign topic--robocalls that consumers recognize as
    carrying specific messaging to induce certain actions from them such as
    to purchase a vehicle warranty contract or to obtain loan assistance
    services. As consumer complaint data collected at a state or Federal
    level indicate specific areas of problematic robocalls, YouMail's
    ability to isolate the robocall campaigns from other communications
    enables real-time tracking, investigation, and enforcement action.
    Student Loan Campaigns
        In 2022, concerted efforts by state and Federal enforcement, in
    partnership with YouMail have effected a dramatic reduction in
    robocalls carrying student loan related campaigns. YouMail has modeled
    and tracked 234 distinct robocall campaigns related to student loans
    over the past 3 years and recent work to curb these robocall campaigns
    has resulted in a massive decrease in these calls received by
    consumers. YouMail attributes the December 8, 2022, FCC order \17\ to
    all US-based carriers as the definitive signal to industry to no longer
    allow such robocalls in the network. After being made aware of this
    order, YouMail noted that many providers who had previously tolerated
    such calls began to adopt non-tolerance stances.
    ---------------------------------------------------------------------------
        \17\ https://www.fcc.gov/document/fcc-orders-voice-service-
    providers-block-student-loan-robocalls

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        YouMail does believe that many of these robocall operations have
    shifted from advertising as `student loan' support to advertising their
    services as `debt reduction', `government grant' or other similar
    financial assistance offers in order to evade the FCC order restricting
    student loan robocalls. In this manner, providers cooperating with
    grey-area telemarketing operations providing underlying services have
    complied with the ``no student loan robocalls'' order by shifting their
    offering to ``general loan'' services. Further efforts to curb all loan
    and debt-related robocalls would be necessary to observe an overall
    reduction in total robocalls received by the public from these
    operations.
    Auto Warranty Campaigns
        YouMail estimates auto warranty robocalls peaked at 150M weekly
    calls. Joint efforts by state and Federal enforcement from late 2021
    through 2022 have effectively eliminated the auto warranty robocalls
    with a 99 percent reduction to weekly auto warranty robocalls. At
    present, the small number of remaining auto warranty calls in the
    ecosystem,which are so small relative to the period of 2020-2022 in the
    graph they are only a few pixels tall on the graph, appear to be
    lawful, legal calls.
        The final blows to these calls were delivered by the FCC on July
    21, 2022, with an order \18\ to all U.S. providers to avoid or cease
    carriage of auto warranty robocall traffic.
    ---------------------------------------------------------------------------
        \18\ https://www.fcc.gov/document/robocall-enforcement-order-all-
    us-based-voice-service-providers

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Traceback & Transparency
        On September 29, 2023, the FCC released a Traceback Transparency
    report \19\that detailed 844 tracebacks (1,043 tracebacks records, IDs
    12808-13882) from the period of April 1, 2023, through June 30, 2023.
    ---------------------------------------------------------------------------
        \19\ https://docs.fcc.gov/public/attachments/DOC-397295A1.pdf
    ---------------------------------------------------------------------------
        The 844 tracebacks were grouped in campaigns from 21 campaign
    topics tracked by YouMail. These campaign topics were: Amazon Imposter,
    Authorized Order, Auto Warranty, Customs & Border Patrol Imposter, Camp
    Lejeune Solicitation, Financial Services Imposter, Package Delivery
    Imposter, Debt Reduction/Elimination, Financial Hardship, Healthcare
    Assistance, Home Services, CSP Imposter, Loan Approval, Medicare Offer,
    Mortgage Assistance, Disability Assistance, Contest/Sweepstakes, SSA
    Imposter, Student Loan Assistance, Tax/Debt Relief, Utility Imposter.

    ------------------------------------------------------------------------

    ------------------------------------------------------------------------
    US Originating Providers (ORG)                                      61
    Non-US Originating Provider (IOR)                                   14
    Point-of-Entry Providers (POE)                                      51
    Non-Responsive Providers (NR)                                       59
    TOTAL Distinct Providers                                           174
    ------------------------------------------------------------------------

        Of the 174 unique providers receiving the 844 tracebacks, there was
    an average of 4.87 per quarter per provider, or 1.6 per month per
    provider.
        In many cases, multiple tracebacks within the same day reached the
    same provider. If we recognize this as a ``daily provider traceback
    incident'' covering multiple tracebacks within the same day, there were
    371 ``daily provider traceback incidents'' in the 3-month span across
    the 174 providers. The average provider received 2.1 ``daily provider
    traceback incidents'' in the period, or just 0.7 ``daily provider
    traceback incidents'' per month.
        A provider receiving just a single ``daily provider traceback
    incident'' (1 per month) would be higher than the average provider (0.7
    per month).
        YouMail is often asked in industry discussions to reflect on how
    many tracebacks in a period are too many? This report is the first such
    report in which these types of averages can be calculated per provider,
    day, or campaign, which can enable any analyst engaged by a voice
    provider to measure relative concern when receiving a traceback.
        Based on this now-public data, YouMail encourages providers to take
    even 1 isolated traceback as a serious matter to apply investigative
    resources to find all eliminate all present substantially similar
    traffic, while also implementing preventative controls to disallow new
    account creations that will bring back the same traffic under a new
    name. However, it is important to realize that every hour spent by a
    provider investigating beyond the minimum increases costs and decreases
    revenue, so the teams at these providers tasked with this
    responsibility are often at odds to the rest of their organization
    seeking to minimize costs and maximize revenue.
    One Shutdown Equals Dozens of Sales & Revenue Opportunities
        Voice service providers have tremendous freedom in how they react
    to becoming aware of unlawful traffic traversing their network. Some
    may shut down just a single account as their ``responsible action''
    because that is all the evidence indicated to them was problematic.
    Providers currently employing policies of quickly shutting down a
    single account without an extensive investigation not only save
    expenses on investigating the traffic, but they also retain revenue by
    turning a blind eye to other accounts carrying similar traffic. In not
    introducing extra steps and friction into their new account onboarding
    process, they maximize the conversion rates and success of onboarding
    new, incoming revenue.
        If a provider with effective investigative processes and strong
    controls succeeds in exterminating these accounts, while industry
    operates without an advisory to not enable the actor (such as the ones
    that industry received regarding auto warranty and student loan
    robocalls), the robocall bad actors have learned that they should use
    the services of multiple voice providers in order to have back-up
    routes to deliver their traffic and often contact dozens of voice
    providers over the next week to re-establish their operations. Thus,
    one decisive action by a thorough provider creates a sales opportunity
    for dozens of their less careful competitors, especially when those
    dozens do not employ strict requirements to verify the customer or
    their traffic, or obey similar no-tolerance policies before and after
    onboarding new accounts.
    YouMail Direct Disruptions
        Using intelligence and evidence from its own proprietary data
    sources, YouMail Protective Services conducts direct disruptions of
    illegal communication campaigns at cooperating communication service
    providers. These communications disruptions include voice calls, SMS,
    MMS, RCS and iMessage channels.
        For the period of June 2023 to September 2023, YouMail Protective
    Services disrupted 2,366 non-voice messaging vectors, enabling illegal
    imposter communications over SMS, MMS, RCS and iMessage channels.

    ------------------------------------------------------------------------

    ------------------------------------------------------------------------
    June 2023                                                          700
    July 2023                                                          674
    August 2023                                                        603
    September 2023                                                     389
    ------------------------------------------------------------------------

        YouMail is expanding these capabilities, working jointly with
    enterprises in communications, finance, retail and hospitality, as well
    as trade associations, with the goal that once the illegal campaigns
    have been modeled and confirmed by the impersonated enterprise, they
    can be shut down at cooperating enabling communications platforms
    within their first minutes to first hour of operation.
    VII. Concluding Remarks
        My testimony reflects a brief assessment of industry relative to
    the current state of robocalls, robotexts, omni-channel marketing
    platforms used by telemarketers and threat actors, potential impacts of
    generative AI, and the successes and challenges in industry compliance
    and enforcement.
        Significant enforcement progress has been made through Federal and
    state efforts, and I am proud that YouMail and its team have played an
    important role in some of the most notable successes, particularly when
    the crosshairs have been trained on specific unlawful robo-
    communication operations (robocalls, robotexts, and robo-messages on
    private platforms).
        Communications have evolved significantly over the past decade, and
    businesses and individuals communicate through more channels and
    mediums than ever before in human history. As generative AI finally
    brings a robot, indistinguishable from a human to robo-communications,
    the public has never been at greater risk.
        I urge Congress, as well as state and Federal agencies, to
    recognize that the digitalization of society, along with automation of
    and ease of accessibility to communication platforms, could very well
    mean that U.S. citizens are now at greater risk of harm sourced
    digitally than by physical threat. Agencies should strongly consider
    expanding their budgeted resources to increase investigative and
    enforcement capabilities, while simultaneously considering new policies
    to address bad early adoption threat actors, capitalizing on next-
    generation robo-communication tools.
        Thank you for your time today. I am happy to answer any questions.

        Senator Lujan. Mr. Rudolph, thank you so very much as well
    for being with us today. I am going to recognize myself for 5
    minutes for your questions. Now, as you all can see on the
    image behind me, there are multiple examples of scammers
    impersonating companies to trick consumers and steal their
    information.
        Now, these are real messages collected by my staff, but the
    links were changed so that we don't inadvertently encourage
    people to go to these links as well and therefore supporting
    that fraud. Now, this is a problem for so many industries, from
    delivery services, to streaming platforms, to financial
    institutions, to Government agencies.
        And I very much appreciate the groups that are walking in
    now. I don't want to detract from the questions that I have,
    but you all know what robocalls are and robotexts are with your
    devices. I am seeing a lot of heads nodding yes. I am sure you
    are tired of them, and you want them to end.
        That is what this hearing is about. And so, if you all have
    ideas as well, we would invite them to be submitted to us. So,
    the class or the trip that you are on, we may be leaning out to
    you to be able to solicit that information with what is
    happening to each and every one of you.
        Now, Ms. Brown, yes or no, does the prevalence of texts and
    calls impersonating U.S. companies negatively affect the
    ability of your member companies to reach and build
    relationships with consumers?
        [Technical problems.]
        Senator Lujan. Your microphone----
        Ms. Brown. Oh, got it. Got it. Sorry. Thank you. Sorry
    about that. I don't know that it lends itself to a clean yes or
    no. The Chamber is really concerned about business
    impersonation fraud and the texts that you see. But I think, I
    don't know that we have seen a noticeable harm to the overall
    business relationship with our customers.
        Like it is a part of the package and I think our--the
    Chamber members do a good job of keeping those relationships.
    But it is a worry, the brand dilution. And for instance, the
    Marriott case that I mentioned earlier, it is a concern that
    you know, the brands will be diluted by this kind of fraud.
        Senator Lujan. And I will share with you my experience, Ms.
    Brown. There are some companies when they are calling my phone
    now, I will not answer, because I have been hit over and over
    by robocalls from them. There are some companies where they
    have been spoofed before, but it has not been time and time
    again. But I am less likely to answer them, or I am very
    cautious as well.
        Now, that is my behavior. I don't know if that is
    consistent with others across the room. When I was asking them,
    I saw a lot of heads nodding yes. And so, we want to make sure
    that there is that trust that can be established with this form
    of communications. I appreciate that.
        My follow up is, Ms. Saunders, I wanted to talk about the
    impact on consumers specifically. Can you share examples how
    messages and calls such as these defraud customers and limit
    access to goods and services?
        Ms. Saunders. Was that to me?
        Senator Lujan. Yes.
        Ms. Saunders. Yes. I have an example of an elderly woman in
    Virginia who answered a prerecorded call purporting to be from
    the Social Security Administration that it had found drugs in a
    car associated with her and that if she didn't pay a certain
    amount of money to do a certain--take a certain number of
    steps, she would lose her Social Security.
        And as a result, she actually ended up losing hundreds of
    thousands of dollars of savings. I have many more examples. I
    don't know how much time you want me to take with them, but
    there are--a lot of them are written up in our scam report that
    is on our website.
        Senator Lujan. And Jeff, what I may do is, if we can get
    that report, we will ask unanimous consent to submit that into
    the record as well, Ms. Saunders, just so that it is part of
    the record for this particular hearing.
        [The report referred to can be found at the following
    link:]

        https://www.nclc.org/resources/scam-robocalls-telecom-providers-
    profit/.

        Senator Lujan. So, thank you so very much. Mr. Bercu, one
    of the recommendations in your testimony supports the FTC and
    FCC clarifications of consent for safe calls.
        Earlier this year, as you said, Senator Markey had worked
    on some other issues, but Senator Markey and I had also led a
    letter to the FCC Chairwoman asking the Commission to update
    guidance along the lines of the FTC, reinstating long held
    requirements for unwanted telemarketing calls.
        Now, Mr. Bercu, you also cited evidence that consumer
    consent for telemarketing is increasingly falsified. Automated
    bots and other artificial intelligence systems are using public
    data to consent on behalf of a consumer for calls they never
    asked for or do not want.
        How can industry, FTC, and FCC update guidance to develop
    standards that would limit the use of automated bots to falsify
    consent for robocalls?
        Mr. Bercu. Thank you, Chair Lujan. I think on this issue, I
    think the courts and the guidance that is out there are pretty
    clear already. You need an actual consumer's consent, and if it
    is falsified, it is not consent.
        So, I think those are clear, and if there is any ambiguity,
    happy to work with you and your staff on resolving that
    ambiguity, because consumers should only be in the calls they
    actually consented to.
        Senator Lujan. I appreciate that very much. Ms. Fischer,
    the floor is yours for questions.
        Senator Fischer. Thank you, Chairman Lujan. To begin with,
    I would like to ask unanimous consent that a statement from
    Senator Thune, and a letter from ACA International and the
    Credit Union National Association be made part of the hearing
    record.
        Senator Lujan. Without objection.
        [The information referred to follows:]

     Prepared Statement of Hon. John Thune, U.S. Senator from South Dakota
        Good morning and thank you Chairman Lujan for holding today's
    hearing.
        Protecting Americans from illegal robocalls has long been a
    priority of mine while serving on this committee.
        Illegal robocalls are not only a major nuisance, but they can be
    dangerous and defraud consumers out of money or steal a consumer's
    identity information.
        Many individuals who fall prey to these scammers can spend months
    or even years getting their life back.
        At the same time, it's important to remember that not all automated
    calls are inherently negative.
        Many important services are carried out via robocall where
    companies and call recipients have pre-established relationships and
    where the consumer has agreed to participate in these types of calls.
        For example, some entities like hospitals and pharmacies use
    robocalls to remind a patient of an upcoming appointment or that a
    prescription is ready for pick-up; airlines use automated calls to
    notify a consumer if their flight is canceled; and credit card
    companies may use calls to notify consumers of important fraud alerts.
        In an effort to reduce fraudulent and illegal robocalls, I authored
    the Telephone Robocall Abuse Criminal Enforcement and Deterrence
    (TRACED) Act with Senator Markey, and the legislation was signed into
    law in 2019.
        The TRACED Act made several important steps to fight the scourge of
    robocalls by providing regulators with the tools to discourage illegal
    robocalls and crack down on offenders.
        It provided the FCC with more time to identify robocallers who
    intentionally violate the law.
        It established rules to protect consumers from the issue of so-
    called one-ring scams, where international scammers try to get
    individuals to return their calls so they can charge them exorbitant
    fees.
        TRACED required carriers to adopt an industry-developed standard
    for call authentication.
        And it helped bolster private-led efforts to trace the origin of
    unlawful robocalls.
        These are just a few of the provisions in the TRACED Act that are
    helping make it safer to answer your phone again.
        We knew the TRACED Act wouldn't stop every illegal robocall, but
    the good news is that since the TRACED Act was signed into law, illegal
    and scam robocalls are down.
        When TRACED Act was signed into law, consumers were receiving over
    2 billion scam calls a month.
        Since that time and with the implementation of the TRACED Act, scam
    robocalls have nearly been cut in half.
        While that is a significant improvement, it's not to say there
    isn't more work to be done.
        The prosecution of illegal robocallers can be difficult since many
    scammers are based abroad and can quickly shut down before authorities
    get to them.
        New technologies have made it easier for scammers to hide from law
    enforcement and deceive consumers, such as using deepfakes produced by
    artificial intelligence to mimic family members' voices.
        However, Congress has provided the regulators with several tools to
    go after illegal robocallers, and we need to also make sure the
    relevant agencies are using those tools to deter bad actors.
        The Department of Justice is responsible to prosecute forfeiture
    orders issued by the FCC.
        Despite having the clear authority to collect these unpaid fines,
    it appears the DOJ has not been carrying out this responsibility.
        If we're going to hold bad actors accountable and truly tackle the
    issue illegal robocalls, it's going to require cooperation from all of
    the relevant Federal partners and industry.
        So I'm interested in hearing from our panel today about what steps
    are needed to continue to reduce illegal robocalls because one of the
    biggest negative effects of these illegal robocalls is that they
    frustrate recipients to the point that they are less likely to answer
    legitimate calls.
        I'll continue my work to protect Americans from illegal robocalls.
        Today, I'm eager to hear about the TRACED Act's implementation, and
    what more needs to be done.
        I appreciate each of the witnesses being here today and look
    forward to your testimony.
        Thank you, Chairman Lujan.
                                     ______

                                              ACA International
                                                       October 24, 2023

    Senator Ben Ray Lujan,
    Chair of the Subcommittee on Communications, Media, and Broadband,
    Washington, DC.

    Senator John Thune,
    Ranking Member of the Subcommittee on Communications, Media, and
    Broadband,
    Washington, DC.

    Dear Chairman Lujan and Ranking Member Thune:

        On behalf of ACA International, the Association of Credit and
    Collection Professionals (ACA), I am writing regarding the Subcommittee
    on Communications, Media and Broadband hearing titled ``Protecting
    Americans from Robocalls.'' ACA represents approximately 1,700 members,
    including credit grantors, third party collection agencies, asset
    buyers, attorneys, and vendor affiliates, in an industry that employs
    more than 133,000 people worldwide. Most ACA member debt collection
    companies, however, are small businesses. The debt collection workforce
    is ethnically diverse and 70 percent of employees are women.
    Background about ACA International
        ACA International members play a critical role in protecting both
    consumers and lenders. ACA International members work with consumers to
    resolve consumers' debts, which in turn saves every American household,
    on average, more than $700, year after year. The accounts receivable
    management (``ARM'') industry is instrumental in keeping America's
    credit-based economy functioning with access to credit at the lowest
    possible cost. For example, in 2018 the ARM industry returned over $90
    billion to creditors for goods and services they had provided to their
    customers. And in turn, the ARM industry's collections benefit all
    consumers by lowering the costs of goods and services--especially when
    rising prices are impacting consumers' quality of life throughout the
    country.
        ACA International members also follow comprehensive compliance
    policies and high ethical standards to ensure consumers are treated
    fairly. The Association contributes to this end goal by providing
    timely industry-sponsored education as well as compliance
    certifications. In short, ACA International members are committed to
    assisting consumers as they work together to resolve their financial
    obligations, all in accord with the Collector's Pledge that all
    consumers are treated with dignity and respect.
        ACA members support FCC efforts to target illegal scam calls and
    text messages. Illegal fraudsters should be eliminated from the
    marketplace. However, certain FCC policies have done little to stop bad
    actors who do not care about the law, and instead have resulted in
    limiting legitimate informational calls that consumers need. ACA
    supported the Pallone-Thune Telephone Robocall Abuse Criminal
    Enforcement and Deterrence Act (TRACED Act), because of its efforts to
    target bad actors harming consumers. However. Carriers and the FCC have
    not kept up with their end of the bargain in this important law.
    Instead of providing clear standards for transparency and redress
    options when calls and texts are blocked from legitimate businesses,
    the FCC has allowed for opaque and incomplete standards that allow
    carriers to continue blocking needed calls with must know information.
    We ask that Congress consider the following concerns:
    FCC's Work on Text Message Blocking
        This spring the Federal Communications Commission (FCC) proposed
    (1) to require terminating mobile wireless providers to investigate and
    potentially block texts from a sender after they are on notice from the
    Commission that the sender is transmitting suspected illegal texts, (2)
    to apply the National ``Do Not Call'' Registry's restrictions to text
    messages, and (3) to restrict the ability of entities to obtain a
    consumer's single consent and use that consent as the basis for
    multiple callers to place marketing calls to the consumer.
        The Commission should not impede the completion of text messages
    sent by legitimate businesses to their customers and other consumers.
    To protect text messages from legitimate companies, the Commission
    should require mobile wireless providers to notify the sender
    immediately when the provider has blocked the sender's text message and
    to resolve disputes no longer than six hours after receiving the
    dispute. ACA with a large group of other stakeholders has outlined
    (here) actions the FCC can take to protect legitimate callers and
    consumers.
        A sender of text messages can only take action to dispute an
    erroneous block if the sender knows that its text message has been
    blocked. Unfortunately, the FCC's erroneous thinking in this area in
    its Report and Order inaccurately stated that carriers are ``already
    providing adequate notice when they block texts.'' The Commission
    should require immediate notification of blocking.
    Call Blocking Activity
        In May, the FCC put out another call blocking order and further
    notice for combatting illegal robocalls. The FCC unfortunately has
    missed the mark on requiring carriers to put effective processes in
    place to ensure call blocking is done with transparency and redress
    options, as Congress required in the TRACED Act. A large group of
    impacted callers outlined a number of concerns as they work towards
    seeking appropriate redress.\1\ As noted, several industries report
    that the informational calls that they place, including fraud alerts
    and servicing calls, continue to be mislabeled as ``spam'' based on the
    analytics of voice service providers or their third-party analytics
    service providers. This can discourage customers from answering the
    call or lead voice service providers or third-party analytics service
    providers to block the call. Both of these results prevent consumers
    from receiving important and often time sensitive information.
    ---------------------------------------------------------------------------
        \1\ https://policymakers.acainternational.org/wp-content/uploads/
    2023/08/ABAJointTrades
    CommentCallBlocking-FCCEighthNPRM-August2023.pdf.
    ---------------------------------------------------------------------------
    Revoking Consent
        The FCC's 2015 TCPA Order clarified that consumers may revoke
    consent using any reasonable means and barred callers from designating
    the exclusive means of consent.\2\ This past summer the FCC proposed to
    codify this requirement. The notice specifically proposes to codify its
    ``previous decision that consumers only need to revoke consent once to
    stop getting all robocalls and robotexts from a specific entity.'' The
    Commission, however, does not cite any previous decision where it has
    ruled that a single revocation stops everything. The Commission here
    also seems to be creating a new regulation rather than codifying an
    existing ruling. Most concerning, the FCC proposes to require callers
    to honor revocation requests within 24 hours of receipt. This is a
    dramatic departure from existing practice that, coupled with banning
    use of exclusive procedures and deeming the revocation to apply to all
    future robocalls and robotexts, creates an impracticable standard.
    ---------------------------------------------------------------------------
        \2\ Rules and Regulations Implementing the Telephone Consumer
    Protection Act of 1991, CG Docket No. 02-278, WC Docket No. 07-135,
    Report and Order, 30 FCC Rcd 7961 (2015) (``2015 TCPA Order''). 3
    Notice para. 8 (emphasis added).
    ---------------------------------------------------------------------------
        The Commission predicates its 24-hour rule on the use of automated
    systems to process revocation or opt out requests. Requests to revoke
    consent do not, however, always utilize automated systems and the
    Commission's rules will allow a number of different channels to submit
    such requests. Even where automated systems are used, they only work to
    quickly process requests when consumers utilize prescribed means, which
    the proposed rules would disallow. For example, text messages almost
    universally enable consumers to cancel further messages by texting
    STOP. If a consumer instead texts a word that the system is not
    programmed to recognize, or sends a phrase, sentence, or emoji, the
    requests will not be processed automatically. Even if the consumer uses
    the prescribed method, the sender may process the revocation request
    only with respect to the category of information or channel of
    communication involved in the original message.
        The proposed rule that a single revocation stops all future
    robocalls and robotexts requires coordination and communication
    throughout the enterprise and among the various third-party vendors a
    company may use for communications. The confluence of precluding
    exclusive means, an unlimited scope of revocation, and the 24-hour rule
    creates a standard that is impossible to meet in many cases, and at the
    very least creates compliance uncertainties.
    Congressional Discussions
        Congressman Frank Pallone, Jr. (D-NJ) issued a statement,
    ``denouncing the ongoing epidemic of abusive robocalls practices,''
    which he says have been exacerbated by the Supreme Court's ruling in
    Facebook, Inc. v. Duguid, which interpreted the Telephone Consumer
    Protection Act's definition of ``autodialer''. The Supreme Court
    correctly found that to qualify as an ATDS under the TCPA, a device
    must have the capacity to either: Store a telephone number using a
    random or sequential number generator, or produce a telephone number
    using a random or sequential number generator. In other words,
    equipment that can store or dial telephone numbers without using a
    random or sequential number generator does not qualify as an ATDS under
    the TCPA.\3\ While the plaintiffs' bar surely regrets the clarity that
    the 9-0 decision from the Supreme Court provided on this issue, it is
    an important development for a host of businesses making informational
    calls with much needed information for consumers. It has also decreased
    class action litigation under the TCPA.\4\ Fraudulent calls aimed to
    harm consumers should be limited. However, the wide variety of
    financial services calls that consumers need including account updates,
    information about stolen credit cards, and other must know financial
    information should be supported by Congress.
    ---------------------------------------------------------------------------
        \3\ In April 2021, the U.S. Supreme Court issued a 9-0 decision in
    e your browser tools to copy the text, then click Close. Facebook, Inc.
    v. Duguid, 141 S. Ct. 1163, finding that many lower courts were
    improperly interpreting what types of technology were considered an
    ATDS. The Supreme Court justices were clear that Congress drafted the
    TCPA to address abusive telemarketing, not to punish legitimate
    business callers.
        \4\ WebRecon Stats Dec '22 & Year in Review, available at https://
    webrecon.com/webrecon-stats
    -dec-22-year-in-review/?utm_source=ActiveCampaign&utm_medium=e-
    mail&utm_content=WebRe
    con+Stats+Dec++22+%26+Year+in+Review&utm_campaign=Dec+2022+Newsletter&vg
    o_ee=AqSu
    xCM3%2B72kAO9%2FZXuiVzpLB9tk6tN1Fm%2BmFY3WWOeL8u0%2BWBCfKIYwvb2riYN9.
    (noting that For the full year 2022, FDCPA (-31.3 percent) and TCPA (-
    10.8 percent) were both down significantly over 2021).
    ---------------------------------------------------------------------------
        We understand the serious problem that fraudulent nuisance calls
    present for consumers and it is important to consider public policy
    objectives to limit them. However, the truth is that illegal scam
    artists do not care about the law and as evidenced in recent years, do
    not pay fines even when presented with them. More should be done to
    address this without laws or regulations that in an overreaction
    actually stop calls and texts with needed information.
        Thank you for your attention to the concerns of the ARM industry.
    Please let me know if you have any questions.
                                                 Scott Purcell,
                                               Chief Executive Officer,
                                                         ACA International.
                                     ______

                              Credit Union National Association
                                       Washington, DC, October 24, 2023

    Hon. Ben Ray Lujan,
    Chairman,
    Committee on Commerce, Science, and Transportation,
    Subcommittee on Communications, Media, and Broadband,
    United States Senate,
    Washington, DC.

    Hon. John Thune,
    Ranking Member,
    Committee on Commerce, Science, and Transportation,
    Subcommittee on Communications, Media, and Broadband,
    United States Senate,
    Washington, DC.

    Dear Chairman Lujan and Ranking Member Thune:

        On behalf of the Credit Union National Association (CUNA), I am
    writing regarding the Subcommittee's hearing entitled, ``Protecting
    Americans from Robocalls.'' CUNA represents America's credit unions and
    their more than 135 million members.
        We share with Congress the overriding goal of restoring trust in
    communications networks that has been tarnished by unscrupulous persons
    preying on consumers or companies that make no serious efforts to
    comply with the Telephone Consumer Protection Act (``TCPA). Illegal
    robocalls not only harm consumers but also legitimate businesses that
    are increasingly being impersonated by fraudsters that send texts or
    make calls claiming to be one of our member credit unions. Fraud
    facilitated by illegal robocalls and robotexts causes financial harm to
    both members and their credit unions. Thus, we whole-heartedly support
    efforts to target bad actors, get them off and keep them off the
    network.
        Unfortunately, the TCPA has little, if any, deterrent effect on bad
    actors' intent on defrauding consumers. Fraudsters are often located in
    other countries beyond the TCPA's reach or they simply ignore the law
    knowing they are unlikely targets of private litigation. Instead, all
    too often the TCPA, which combines strict liability with statutory
    damages, has become a mechanism to extract monetary settlements through
    threats of class action litigation against companies that are making
    good faith efforts towards compliance. America's credit unions spend
    substantial resources to comply with TCPA's complex array of regulatory
    requirements yet face litigation risk for making innocent mistakes,
    such as calling a wrong number. Further expanding the TCPA will not
    materially advance the goal of restoring trust in our communications
    network.
        Recognizing the limitations of the TCPA to deter bad actors, the
    FCC has turned to technological solutions such as automated calling
    number authentication (STIR/SHAKEN), call blocking regime, and caller
    traceback. We applaud the Commission's recent successes in using these
    tools to identify and shut down some of the worst abusers. These tools
    are still evolving and, while aiding in identifying the worst actors,
    also result in legitimate calls being blocked or mislabeled.
        Achieving a balance between facilitating legitimate calls while
    preventing illegal calls is necessary to restore trust in our
    communications network. Fortunately, Congress created a mechanism to
    achieve that balance. In the TRACED Act, Congress directed the FCC to
    ensure transparent and effective redress for companies whose calls are
    mishandled, and we have sought to work with the FCC to achieve the
    admittedly difficult balancing act of stopping bad calls without
    blocking good ones. We urge the FCC to move forward with the adoption
    of call blocking notification standards so that testing and
    implementation of this technology can begin.
        On behalf of America's credit unions and their more than 135
    million members, thank you for holding this important hearing and
    considering our views on the subject.
                Sincerely,
                                                    Jim Nussle,
                                                     President and CEO.

        Senator Fischer. Thank you. I agree with the Chairman that
    this committee's focus on enforcement today is key.
        First and foremost, though, I think we need to ensure that
    our laws and rules that are on the books are being enforced to
    the fullest extent. Since 2020, the FCC has issued 700 million
    in forfeiture orders for TCPA violations.
        However, hardly any of these have been collected mostly due
    to the Justice Department's failure to pursue these cases in
    court. In its obligations under the TRACED Act, the DOJ also
    seems to have missed the opportunity to submit a report with
    meaningful recommendations.
        Ms. Brown, do you believe that the Justice Department is
    doing enough to ensure that bad actors carrying out illegal
    telemarketing and robocall schemes pay the penalties that the
    FCC assesses?
        Ms. Brown. Thank you for the question. And in my written
    testimony, we explain, no, I don't believe the Department of
    Justice is doing enough, and you can sense that frustration
    from the FCC Chairwoman.
        They certainly at the department have a lot of tools that
    they can use, both to enforce FCC orders, but on their own to
    bring righteous mail fraud, wire fraud cases, and enforce the
    laws that you all have passed.
        So, yes, we believe the United States Department of Justice
    should do more, and as a former DOJ official, I think it is a
    missed opportunity for them.
        Senator Fischer. So, what can we as Congress do to make
    sure that they do enforce those rules, that as you said, they
    have the tools. So how do we get them to use them?
        Ms. Brown. Well, I think that one challenge is it is hard
    for Congress to direct the Department of Justice to take
    specific action due to separation of powers. But you have a lot
    of power to nudge, cajole, and shape expectations.
        And in my written testimony, we offer a few examples. In
    the TRACED Act, for example, you impose some pretty robust
    reporting obligations on the Federal Communications Commission.
    We think similarly you could impose those kinds of updates,
    mandates on DOJ to let you all know what they are doing.
        We also suggest that DOJ should prioritize funds for
    investigations and enforcement, and you all can direct some of
    that. And then requiring DOJ, for example, to establish a
    robocall enforcement and education office.
        Right now, at the Department, I think much of their
    robocall effort is housed under an elder justice initiative,
    and I think that is really important, obviously, but they can
    do more. And I think Congress can really look into that and
    impress upon them that this is a priority.
        Senator Fischer. You know, to me, this focus on enforcement
    really is two pronged. We want to make sure that the Government
    is going after the bad actors, and we want to avoid opening up
    legitimate actors to frivolous lawsuits.
        Abusive litigation against businesses acting in good faith
    does nothing to stop criminals. Ms. Brown, would you provide
    some examples of TCPA filings that you view as litigation
    abuse?
        Ms. Brown. Certainly, thank you. And unfortunately, there
    are a lot, and I would commend to anyone's attention the work
    that the Chamber's Institute for Legal Reform has done. They
    have had several reports that give examples.
        But one example that stuck out to me recently, the City of
    Albuquerque was sued after sending text messages to local
    residents during the COVID-19 pandemic to notify them of the
    opportunity to participate in socially distanced town halls.
        And ultimately, Senator, I believe the city was able to get
    out of that lawsuit, but not after burdensome litigation. And
    that is just one example of many that seems to go after
    beneficial communications, or at least not the bad actors that
    I think we are here mostly to talk about.
        Senator Fischer. You know, we have many members on this
    committee who represent very rural states.
        There is a lot of vastness in our states, and we want to
    make sure that rural Americans receive services, Governmental
    services, but also services from private industry. And many of
    rural America is still connected with copper mines and they are
    vulnerable when we look at these fraudulent schemes that are
    out there.
        Mr. Bercu, what are the challenges that remain for these
    copper based voice service networks in terms of stopping
    illegal robocalls and their telemarketing schemes? And does
    this lack of fiber that we see in rural areas, does that have
    an outsized effort on most of our rural constituents that we
    have?
        Mr. Bercu. Thank you. I think there are challenges. I know
    the industry is very committed to moving to IP and that work is
    ongoing. Yes, when STIR/SHAKEN information can't be passed to
    the legacy networks.
        But what I would say is that the protections in place are
    helping all consumers. When we trace back calls, those calls
    are hitting people in New York. They are hitting people in
    rural America as well.
        And so, when we get them off the network, that is helping
    everyone. Same with STIR/SHAKEN. It is helping infuse
    accountability that benefits everyone, whether they are getting
    their calls with STIR/SHAKEN or not.
        Senator Fischer. Yes, thank you. Thank you, Mr. Chairman.
        Senator Lujan. Thank you very much. Senator Markey, you are
    recognized for your questions.

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

        Senator Markey. Thank you, Mr. Chairman. In 2019, I was
    proud to partner with Senator Thune to pass the Telephone
    Robocall Abuse Criminal Enforcement and Deterrence Act, the
    TRACED Act, which directed the Federal Communications
    Commission to issue critical new rules to crack down on illegal
    robocalls.
        The TRACED Act has helped stop some of the worst practices
    by robocallers, but robocalls remain a plague on our telephone
    system. My constituents in Massachusetts received over 623
    million robocalls last year, nearly 20 robocalls per second.
    This year, Massachusetts residents are on pace to receive 800
    million robocalls.
        Across the country, Americans are on pace to receive 54
    billion robocalls this year. Some robocalls are lawful, but of
    course the numbers of unlawful calls are astonishing. To each
    of the witnesses, starting with Ms. Saunders, do you agree that
    robocalls remain a serious problem for consumers, yes or no?
        Ms. Saunders. Yes.
        Senator Markey. Ms. Brown.
        Ms. Brown. Unlawful and illegal robocalls certainly do.
    Yes--whoops, sorry.
        Senator Markey. Yes. Mr. Bercu.
        Mr. Bercu. Yes, illegal robocalls remain a problem.
        Mr. Rudolph. Yes, absolutely.
        Senator Markey. Thank you. These fraudulent robocalls cost
    consumers tens of billions of dollars every year and undermine
    trust in the telephone system. That is a serious problem,
    period.
        And I want to turn to one particular element of the TRACED
    Act. The law directed the FCC to require the telephone
    providers adopt a technical standard to verify that caller ID
    information was accurate.
        Senator Thune and I drafted this provision to stop bad
    actors from falsifying caller ID information, a practice known
    as spoofing. Robocallers often spoof calls to make the caller
    ID indicate that a call is coming from a local number.
        I am pleased that the FCC has worked expeditiously to
    implement this provision, but I am also deeply alarmed by the
    sheer number of fraudulent robocalls and scams. Robocallers
    seem to be changing their methods faster than we can adjust.
        Ms. Saunders, do you agree that the TRACED Act has been
    helpful in reducing the number of spoofed calls, but that
    robocallers have found ways to circumvent these rules?
        Ms. Saunders. Yes, sir, I do.
        Senator Markey. And Mr. Rudolph, do you agree with Ms.
    Saunders' assessment?
        Mr. Rudolph. Absolutely. I know we see less spoof numbers
    than ever before. We see that the threat actors, especially
    those impersonating banks, getting real active phone numbers.
    And also jumping when a bank branch closes down, grabbing that
    number and then using that number to contact people.
        Senator Markey. Yes. It is unbelievable. Targeting
    robocallers is like an endless game of whack a mole, and so far
    the moles are winning by an astonishing margin in this battle.
    If the robocallers have evaded the caller ID system by
    exploiting how phone numbers are distributed, then we may need
    to adapt our regulations as well.
        And I want to say one final word about the FCC's robocall
    mitigation data base. Every telephone provider must register
    with that database at the Federal Communications Commission,
    and companies that have not yet implemented the caller ID
    verification system must submit a plan for addressing illegal
    robocalls.
        Last week, the FCC took an important step to begin removing
    20 noncompliant companies from the robocall mitigation data
    base. Some of the companies' filings were laughable. Here is
    one. Here is one of the filings right here. Pretty simple to
    see. It is a blank piece of paper.
        That is what they have submitted in terms of their
    compliance with the law. Another filing was a picture of the
    company's logo. Another provider submitted a document that said
    nothing in capital letters on the sheet of paper on the
    website, nothing.
        I am glad the FCC has launched enforcement proceedings
    against these obviously problematic filings, and I appreciate
    the ideas that Ms. Saunders has suggested to further strengthen
    the robocall mitigation data base.
        I look forward to continuing to work with the Commission
    and my colleagues on this issue. It goes right to the heart of
    the issue that just drives every American crazy every single
    day, the unwanted robocalls coming into their lives all day
    long at the most inconvenient times, almost knowing that you
    are home, and you are having dinner with your family to be the
    perfect time to get the whole family angry at these companies.
        So, we thank you, Mr. Chairman, for having this hearing,
    and we just have to keep our focus on this issue. Thank you all
    so much for everything that you are doing.
        Senator Lujan. Senator Markey, thank you very much. And
    especially bringing attention to the filings at the end of your
    testimony today. I am reminded that some of those filings also
    include menus from restaurants as being submitted as official
    documents as well.
        So, thank you very much on bringing more and more attention
    to the enforcement side of this. Thank you very much, Senator,
    and your work on this. Senator Budd, you are recognized for 5
    minutes.

                      STATEMENT OF HON. TED BUDD,
                    U.S. SENATOR FROM NORTH CAROLINA

        Senator Budd. Thank you, Chairman. And I thank you for the
    witnesses for being here today. You know, when I talk to folks
    from North Carolina, they ask me about this topic a lot. They
    talk about robocalls, and they express their frustrations, some
    of them. They don't want to download the app that helps screen
    these things or pay a few extra dollars for that. So, they are
    frustrated. They want some solutions.
        When I was in the U.S. House a year ago, I was proud to be
    an original co-sponsor of the TRACED Act, which I think it is
    making a difference. According to YouMail, scam, robocall
    volumes have declined about 55 percent since their peak in
    October 2019. Tools like Industry--the Industry Traceback Group
    and deployed authentication technologies like STIR/SHAKEN--
    great name, by the way, they better detect spoofing. They seem
    to be working.
        So, I think we all still agree, however, that there's still
    a lot of work to do. So, Mr. Bercu, in your written testimony
    you noted that, ``Government and brand imposter calls
    predominantly originate abroad.
        These are scams where someone claims to be calling from the
    IRS regarding back taxes or from the local power company on an
    overdue bill. These scams are particularly dangerous because
    they pretend to be communication from important institutions
    like Government agencies, utilities, or from banks.''
        In your working with the Industry Traceback Group, have you
    identified any gaps in Federal efforts to prevent illegal scam
    robocalls that make going after those foreign callers
    difficult?
        Mr. Bercu. Thank you. Yes, it is difficult because they
    feel they are not going to face justice because they are not
    based here. They use shell companies. They get kicked off a
    network and find a new one. So, absolutely, we have been very
    effective in disrupting them. We have seen some of the impact,
    especially on the robocall side, that the scam volume is way
    down.
        But, you know, it is one of the reasons, you know, I agree
    with my colleague here, Megan, that criminal enforcement
    against these individuals, these groups that is organized crime
    abroad doing this is absolutely critical because that--the only
    way they are going to stop trying to defraud Americans is if
    they are taken off the board. So, we think that is very
    important.
        Senator Budd. Thank you. So, you mentioned for--you
    mentioned the enforcement agencies. What could some of them do
    to improve the success rate of stopping these foreign placed
    robocalls?
        Mr. Bercu. So again, I think criminal enforcement is key.
    When the--a few years ago, when the Department of Justice, FBI
    worked with the Central Bureau of Intelligence in India to raid
    some of these call centers, Government impersonation scams went
    down almost overnight. So, that is key. It is really working
    with those partners abroad and bringing people to justice, I
    think is the key.
        Senator Budd. Thank you. Ms. Brown, in your testimony you
    discussed how the Department of Justice does not sufficiently
    prioritize prosecuting bad actors who break robocall laws and
    they attempt to defraud Americans.
        How does a lack of enforcement action influence efforts to
    shut down scams and make the cost of illegally robocalling
    significant enough to dissuade criminals?
        Ms. Brown. Thank you for the question, Senator. I think the
    lack of DOJ enforcement kind of shows that the FCC's efforts
    really run out of steam if the department is not there to sort
    of get them across the finish line to actually collect on some
    of those forfeitures.
        Similarly, there are open and notorious scammers that seem
    to me very clearly violating the wire fraud and the mail fraud
    statutes. And I think sending a message, as Josh was just
    saying, whether it is to overseas scammers or domestic
    scammers--I mean, some of the folks the FCC has brought
    enforcement actions are right here in the United States.
        And the Department has taken a few actions to bring some
    cases, but I think they could do far more to send that message
    that we are not going to tolerate these scams and the fraud
    that Margot discussed.
        Senator Budd. Thank you. So how would small businesses, who
    themselves can be victims of these robocalls and illegal scam
    calls, how would these small businesses benefit from increased
    DOJ enforcement of the existing laws?
        Ms. Brown. Is that to me, Senator?
        Senator Budd. Sure.
        Ms. Brown. Great. I think they would benefit in the same
    ways that consumers would if they are being victimized and they
    don't have the resources to deploy sophisticated anti-fraud,
    then sending that message to take, as Josh said, some of these
    bad actors off the board, I think would be really, really
    helpful to them in much the same way that consumers are being
    defrauded.
        Senator Budd. Anyone else helping small businesses?
        Mr. Rudolph. First, I would like to commend your Attorney
    General. North Carolina is one of the top leaders in robocall
    enforcement at the State level.
        I would say that small businesses, we have data that shows
    some of the threat actors understand that they have got deeper
    pockets, I suppose, as a targeted victim. So, we are seeing a
    rise in specifically the robocalls and robotexts.
        They are trying to hit small business owners and convince
    them, you know, to engage in their campaigns.
        Senator Budd. Thank you. My time has expired.
        Senator Lujan. Thanks, Senator Budd. Senator Tester, you
    are recognized for questions.

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

        Senator Tester. I want to thank you for holding this
    hearing, you and the Ranking Member. I appreciate it very much.
    I want to thank the folks who are testifying today.
        We got murderers, we got child molesters, we got rapists,
    we got drug peddlers, we got people who commit armed robbery,
    and then we got robocallers, OK. And it distresses me a lot
    when I hear that there is $700 million of fines that have been
    levied and no collections.
        Ms. Brown, you were--were you with the U.S. Attorney's
    Office at one point in time in your career. Is that what I
    gathered?
        Ms. Brown. I was at Main Justice at the Department of
    Justice.
        Senator Tester. Well, that is good enough. So, look, they
    got all this stuff. I know the U.S. Attorney in Montana, for
    example, is very, very busy running down people who are doing
    horrific crimes.
        By the way, I could make a claim that this is nearly as
    horrific as any of those ones I mentioned before. Why? Because
    I have got a business. I was on top of a combine this year. The
    phone is ringing. I am expecting a call from my wife. I bust
    off the combine, damn near break my leg.
        I get to the call and the guy is asking me if I paid my
    loan for when I was in school. I haven't been in college in 45
    years, and I didn't have a loan when I went then because it was
    a different time, OK.
        So, these guys are bad, bad people. The question I have is,
    the DOJ has levied these fines and none of it has been
    collected. There is an effort here in this body to defund the
    Department of Justice. Do they have enough people? For you, Ms.
    Brown.
        Ms. Brown. Well, having been at Main Justice, I know they
    have a lot of priorities. They have a lot of people. I do think
    the department can probably walk and chew gum at the same time
    and prioritize a few more of these cases, if that is what you
    are asking.
        Senator Tester. I would love it, because we can pass all
    the laws we want here and we can take credit for passing these
    laws, but unless somebody drops the hammer on these clowns and
    makes them pay a price, puts them out of jail, or better yet
    even puts them in jail, and I would pay more taxes to put these
    people in jail, I think it is going to continue to happen.
        And it is going to happen--when I was in the State
    legislature, 20 years ago, we passed the do not call list. I
    have signed up for multiple do not call list, and I get more
    robocalls today than I did back in 2003, for example, 20 years
    ago. So, the question is, does Congress need to do any more, or
    is this all about enforcement?
        Ms. Brown. For me, again, Senator?
        Senator Tester. Ms. Saunders, I will let you go. Ms. Brown
    got the last one, so we will spread it around.
        Ms. Brown. Yes. It is your turn.
        Ms. Saunders. Our main point in our test--in the testimony
    that I have submitted is that the incentives need to be
    changed, whatever way it is done.
        Senator Tester. Well, I understand if you hit somebody in
    their wallet, that kind of hurts.
        Ms. Saunders. Right, right. And what we have proposed is
    that the FCC adopt a methodology such as is permitted under the
    Federal rules of civil procedure to get a temporary
    restraining----
        Senator Tester. And they have not done that yet?
        Ms. Saunders. No. So that once a particular voice service
    provider is found to be a repeat offender----
        Senator Tester. Yes.
        Ms. Saunders.--and to continue to process illegal calls
    after it has been notified previously----
        Senator Tester. Yes.
        Ms. Saunders.--the FCC should be--should suspend
    immediately its ability to----
        Senator Tester. OK. Do the rest of the people on the panel
    agree with that perspective? Ms. Brown.
        Ms. Brown. I haven't reviewed closely Ms. Saunders'
    proposal, but I am not sold that we need new authorities over
    at the FCC to do the kind of suspensions that she is talking
    about. I think they have got----
        Senator Tester. But do you think those suspensions would be
    OK if they did them?
        Ms. Brown. On the voice service side, I am not sure exactly
    whether there would be some unintended consequences there of
    what she is proposing, but they certainly can do more with
    their cease and desist orders and notices.
        Senator Tester. Mr. Bercu.
        Mr. Bercu. So, I think when we are talking about fraud, one
    of the themes is that the fraud actors change their behavior.
    They have moved from robocalls to more targeted calls.
        And some of the tools we have built for robocalls don't
    work as well for a live call. There is a big difference from I
    let someone on my network make----
        Senator Tester. But you know what, I don't--I very seldom
    get live calls. I get a call from a damn computer that sounds
    like a live person that then if I stay on long enough, goes to
    a live person who I ask, why don't they get a real job because
    there is plenty of jobs out there in society now instead of
    being a crook. So why is there a difference here?
        Mr. Bercu. So, in that, that would be a pre-recorded call.
    But I still think enforcement against the fraudsters is really
    the key there, because they are going to keep adapting as the
    rules and the protections change. It doesn't mean we shouldn't
    keep adding more protections, but they will always keep working
    to try to get around them.
        Senator Tester. I got it. That is what a crook does. They
    look for the--and by the way, these are crooks. They look for
    the weakest link in the fence.
        So, I came to this hearing hoping that I would hear from
    some of you, and I did hear from Ms. Saunders, your view, what
    we can do to stop. Not to slowdown. We have been slowing down
    forever. But to stop these folks. Anybody have anything that
    Congress can do to stop them or--I haven't asked you a question
    yet, Mr. Rudolph.
        Mr. Rudolph. You referenced, you received a loan robocall,
    right.
        Senator Tester. Yes. I have taxes, loan robocalls. And by
    the way, it is the same voice, the same computer, the same
    call, sometimes called from my neighbor's phone, by the way.
    So, I don't know if that is illegal now or not.
        I had a neighbor that got a call from his own phone number
    one time. I mean, this is crazy. This is crazy stuff that this
    country doesn't need in their economy. Keep going.
        Mr. Rudolph. So, your loan robocall, I would strongly
    suggest that is domestic originated and that is an area that I
    would call gray area telemarketing.
        So, in this case, right now we don't have--we track
    thousands of active campaigns per week and current enforcement
    efforts are just working on the highest volume, prioritized
    campaigns.
        So, your specific robocall, if you can get your state or
    you can get the FCC to put that on the priority list, that is
    one that we have got the tools and the techniques to diffuse.
    There is just not enough manpower to, you know, have a priority
    list that goes more than 10, 15 campaigns deep.
        So, if we can get--if we can start working, you know, 50,
    100 campaigns deep on a week to week basis, the FCC has showed
    effectively, you know, that the highest volume campaigns can be
    stopped.
        Senator Tester. Just for the record, if any of you know how
    many these are done out of State versus in country, out of
    country, I would love to know that information. Thank you all.
    This is a bunch of crap, I will just tell you. We need to stop
    this. This is not good for anybody. And for the robocallers out
    there, go get a damn job.
        Senator Lujan. Thank you very much, Senator Tester. Senator
    Vance, the floor is yours for questions.

                    STATEMENT OF HON. J. D. VANCE,
                         U.S. SENATOR FROM OHIO

        Senator Vance. Great. Thank you, Mr. Chair. And I agree
    with Senator Tester, and my questions are going to pick up
    largely in the same vein. Mr. Bercu, the thing that I struggle
    with sort of reviewing materials that my staff prepared for me
    for this hearing and just obviously experiencing this
    particular problem as a human being.
        And I--you know, my own mom just a couple of weeks ago sort
    of called me and gave me the quick hits of a particular scam
    that had been--targeted her. And it seems like we keep on
    tinkering around the edges here a little bit. We sort of do
    these little things and maybe they slow it down to Senator
    Tester's point.
        But we are fundamentally allowing crooks to prey on some of
    the most vulnerable people in our country, people who are
    living on fixed incomes and so forth. And I guess I am just
    wondering if we were willing to do something big.
        And it is one of the few things maybe that you could get
    bipartisan majorities in this House or this chamber to do. If
    we wanted to do something really big here, what could actually
    stop this, right.
        So, the example that we talked about, or that I was talking
    about earlier just with a friend, is, you know, you ban
    robocallers from calling a particular number, but then let's
    say an individual goes and signs up on something online and
    they don't read the 75 pages of fine print, and one of those
    pages of fine print effectively signs their number up to be
    robocalled and that opens up the floodgates that allows
    criminals to go after them.
        I am just wondering like what can we actually do to stop
    this thing? I want to pick up where Senator Tester left off.
        Mr. Bercu. Thank you, Senator, for the question. I think
    one of the challenges here is the phone system by its nature is
    a series of interconnected networks. So, the providers that are
    providing service to us, all they know is like your mailman
    would know, what is the address? Where is this going?
        They don't know what's inside the content. So that is the
    fundamental challenge. And what we do in Traceback, we trace
    back the illegal calls and we hit five, six, seven, eight
    providers that all touch it on way, and it mixes in with legal
    traffic as well.
        So, I think that is where--I think what is big is criminal
    enforcement. It is the theme that I am going to keep hitting
    here because if--even if we stopped every single robocall, the
    criminals who do this, their day job is still defrauding
    Americans, and they will just find a new version.
        So, the only way to get them to stop defrauding Americans
    is criminal enforcement.
        Senator Vance. Do we have a sense of how many of these
    people are actually in America versus how many of them are
    overseas?
        Mr. Bercu. So, in our experience, it varies a little bit
    based on the type of call. So, the pure fraud robocalls, the
    pure fraud vishing calls, voice phishing calls, et cetera,
    those are predominantly coming from overseas.
        The unsolicited telemarketing calls, those may originate
    here and be done by people here. But to what Megan said before,
    we--one of the reasons it is hard to collect fines against them
    is they pop up a new shell company, dissolved the old one, and
    are now doing new robocalls under a new name.
        And I do think there are some laws that might apply and
    that might make that criminal.
        Senator Vance. And where are they coming from, the ones
    overseas? I mean, are there particular areas? You know, you
    sort of hear about Eastern Europe or Nigeria, sort of--where
    are these things actually coming from?
        Mr. Bercu. A lot are from India, some are from Dominican
    Republic, some other countries as well. But India is a big
    portion of the calls.
        Senator Vance. And has there been any effort sort of
    diplomatically, legally, to interface with some of the
    countries where this fraud is most common and actually use the
    extraordinary leverage the United States has to bring some of
    these folks to justice?
        Or is there sort of an attitude like once it is in another
    country, it is such small ball things relative to other
    international crime, we don't focus on it, but of course, it is
    not small ball to the people who are affected by it.
        Mr. Bercu. There has been collaboration. And when there is
    collaboration, when our FBI works with the Central Bureau of
    Intelligence in India and raids these call centers, we see the
    impact. YouMail data will show just Government imposter scams
    dropped immediately after those raids. So, I think that is a
    testament to why we should keep prioritizing that, because it
    does work.
        Senator Vance. OK. One final question here. We are actually
    going to an artificial intelligence briefing with some industry
    leaders later this afternoon. What could we do to help AI
    platforms and social media companies shield their data or tools
    from being used for more elaborate, you know, family emergency
    scams, things like that?
        Mr. Bercu. You know, happy to work with you on that. You
    know, I am not sure how--what exactly you could do on the
    social media side. But one thing I will say is that the TCPA
    right now makes illegal robocalls to cell phones, and robocalls
    are making the calls with a pre-recorded or artificial voice.
    So, I think there--just one thing there is the TCPA I do
    believe applies.
        Senator Vance. OK, great. Thanks, Mr. Chair. I yield.
        Senator Lujan. Thank you, Senator Vance. Senator Klobuchar,
    you are recognized----

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

        Senator Klobuchar. Thank you, Mr. Chair. A lot of questions
    here. I will go fast. First of all, we know that after the
    TRACED Act passed in 2019, after new FCC rules were in place,
    the number of scam robocalls declined by almost half. Now we
    are having all kinds of new issues.
        And Mr. Bercu, you noticed in your--noted in your testimony
    that we--that there is collaboration between industry and the
    FCC. How can we make sure that tracing illegal calls to their
    origin results in actual enforcement action?
        Mr. Bercu. So, I think what we have seen, the FCC's
    approach with the cease and desist, I think it has been highly
    effective. They have targeted certain campaigns. They have
    dropped off the face of the earth almost.
        So, I think we are making great progress. I think the more
    we do--some of the rules the FCC did about know your provider,
    I think it is a process, and over time that is going to keep
    going the right direction. So, I think we have done a lot of
    great work there.
        Senator Klobuchar. OK. Good. Ms. Saunders, why do you think
    particularly these telemarketing calls, that these volumes are
    so high? I mean, I was just looking. We have got so many
    people, 221 million numbers registered on the do not call list,
    and still, we are seeing a number of people call about
    violations. What solution should we prioritize here?
        Ms. Saunders. So first, let me say that I believe that the
    number of scam calls there have appeared to be reduced because
    there has been a reorganization or recategorization of many of
    those calls. Many of the calls that had previously been
    identified as scams have now been identified as telemarketing
    calls.
        And as Mr. Bercu said, most of the telemarketing calls
    originate in the United States. We think that what needs to be
    done is the FCC should adopt a quick acting, temporary
    restraining order type of methodology, and once a voice service
    provider is found to have repeatedly, after notice, processed
    scam or telemarketing calls, they should be suspended
    immediately from the robocall mitigation data base. That will
    cost them money. And even if they--after they have----
        Senator Klobuchar. So, that will make--that will be an
    incentive to be more careful.
        Ms. Saunders. That is correct.
        Senator Klobuchar. OK. All right. I like it. AI voice
    cloning. Senator Vance mentioned this. We actually had, I had
    someone I know that got one of these calls. His son serving in
    the Marines, deployed. So, he knew he was deployed, didn't know
    where. They get a call, because they scraped his voice off the
    internet, asking for money to be delivered to somewhere in
    Texas.
        I have had two other military families tell me this story
    in Minnesota. I don't--this is unbelievable to me. So, what are
    service providers, Mr. Bercu, what are they doing to get ahead
    of these robocalls made using voice calling?
        These are obviously targeted ones with the person's voice,
    but all kinds of things could happen. And what can we do, Mr.
    Rudolph, to mitigate this?
        Mr. Bercu. Thank you. You know, the voice service providers
    take protecting their customers very seriously. They are always
    looking at the greatest technology. They have implemented
    blocking and labeling. They have analytics running on their
    network.
        So, I think they will continue to try to find out how they
    can identify those scams and how they can take action
    accordingly. One of the things with our Traceback effort,
    whether it is a robocall or one of those calls, we can trace
    those back.
        We can find out who is making them. We can find out who put
    it on the network. So, I think Traceback will be a really
    important part of stopping those going forward as well.
        Mr. Rudolph. Your specific use case is a targeted attack.
        And based on the investigations that we have done so far
    into similar attacks, those are threat actors who have gotten a
    personal phone and a personal phone number, just like anybody
    going into a store to get a device.
        So those are extremely hard for a communication provider to
    deal with. It looks just like a customer making those phone
    calls, yes.
        Senator Klobuchar. Right. I understand. I get it, I get it.
    Yes, I am not--actually, I am just using it as an example. Then
    it could get worse, right?
        Mr. Rudolph. Absolutely.
        Senator Klobuchar. And to the voice of general in that they
    know I am famous commander or something, anything, and it would
    go to all the military families, or it would go to people
    thinking it is a political person and turns into a robocall.
    So, I do think this adds to the danger.
        Last thing, robotexts. There were over 12 billion spam
    texts to Americans just last month. I think I got half of them.
    And these texts often include links that install malware and
    spyware on a consumer's device. In March, the FCC adopted
    rules. Ms. Saunders, what other measures should they consider
    to go with these illegal robotexts?
        Ms. Saunders. We have recommended to the Commission that it
    adopt special security rules for robotexts that include URLs
    just because of this significant damage. Congress could also
    pass regulations that--or statutes that provided more
    protection for consumers once they have had their money stolen
    from their bank accounts. There are--that would be a big help
    as well.
        Senator Klobuchar. All right. Thank you. Thank you, Mr.
    Chairman.
        Senator Lujan. Thank you, Senator. Senator Welch, you are
    recognized.

                    STATEMENT OF HON. PETER WELCH,
                       U.S. SENATOR FROM VERMONT

        Senator Welch. Thank you very much. I mean, you are hearing
    the incredible frustration all of us have. You heard Senator
    Vance, Senator Tester, Senator Klobuchar. I mean, it is really
    driving our constituents crazy.
        Vermont with 3.5--small State, 3.5 million robocalls just
    last month. It is like six calls per Vermonter. And it is
    really--it is really, really unsettling, especially to older
    people, who think they may be getting a call from a grandchild
    or a son or a daughter and they have to pick it up and figure
    out what is going on.
        And I know you are trying to do stuff, but it is not
    working. It is not working in the way it needs to. You know, I
    joined Senator Lujan and Senator Markey in asking the FCC to
    align its do not call registry guidelines with those of the
    FTC, as well as prohibit telemarketers from calling consumers
    without explicit consent.
        Ms. Saunders, do you believe these actions would benefit
    consumers? And what additional steps can Congress take to push
    the FCC and better protect consumers from robocalls?
        Ms. Saunders. Thank you for the question, Senator. We have
    been pushing the FCC for months now to simply reiterate that
    the language in its current regulations mean what it says. And
    instead, the FCC has proposed regulation that would reduce
    protections from the current regulations, and we have been very
    afraid of this. So, actually----
        Senator Welch. Why is that? Why are they doing that?
        Ms. Saunders. We--I am not sure whether it is a
    misunderstanding or whether the lead generators and the sellers
    who are benefiting from these telemarketing calls have gotten
    to them, frankly.
        But the proposed regulation or anything like it is very
    dangerous. The FCC issued regulations 20 years ago explicitly
    requiring that every telemarketing call is only legal if it is
    prerecorded. If the consumer has provided a signed, written
    consent allowing that caller to make calls to that consumer.
        And the proposed regulations would allow more calls per
    consent. Would not require a writing--and so, I can't tell you
    why they are issued--why they are proposed. But I can say that
    if you can encourage the FCC not to proceed in this way, it
    would be beneficial.
        Senator Welch. All right. Let me move on to a question for
    Mr. Rudolph. It is about generative AI. And, you know, there is
    some argument that that could help actually push back on the
    scammers, but it also obviously is a tool that is going to be
    used by scammers, especially generating a familiar voice.
        Can you tell me how the evolving landscape for generative
    AI impact the ongoing efforts to combat fraudulent
    communications and protect consumers?
        Mr. Rudolph. First, I would like to recognize your State as
    well. There is robocall platforms and robocall operations that
    refuse to call Vermont. That state is too hot to call.
        So, your constituents benefit from your Attorney General's
    work in that regard. On the topic of generative AI, clearly
    threat actors have flocked to it. It allows them--allows one
    person to do the work of hundreds. Generative AI doesn't have
    ethics or questions about what it is doing as it is affecting
    social engineering.
        On our side, on the good guys side defending against, you
    know, what is going on in industry--a Senator earlier showed a
    blank piece of paper as a robocall mitigation plan. Generative
    AI can--or a large language model can rip through the robocall
    mitigation database filings and actually synthesize and
    understand if there are sufficient or lacking sufficient
    controls.
        So that is a great place where we can apply that technology
    and probably discard half the entries in the database in an
    afternoon or a week of work.
        Senator Welch. All right, Mr. Saunders, again, thank you.
    The STIR and SHAKEN, I want to go through it. You know it. But
    how can the FCC incentivize providers to use the available
    tools to block calls?
        Ms. Saunders. I think the FCC has done a very good job at
    implementing STIR/SHAKEN. And the problem with STIR/SHAKEN is
    not the particular technology. It is the fact that there is
    this whole other method for robocallers to use borrowed
    numbers, rotating numbers for--as Mr. Rudolph explained, for a
    minute or for a particular call.
        And the ability of robocallers to use the numbering
    resources or misuse them in this way completely undermines the
    whole purpose of STIR/SHAKEN. So, I think now it is time for
    the FCC to drill down on the numbering resources misuse.
        Senator Welch. And thank you. I yield back, Mr. Chairman.
        Senator Lujan. Thank you, Senator Welch.
        Senator Hickenlooper, you are recognized.

                 STATEMENT OF HON. JOHN HICKENLOOPER,
                       U.S. SENATOR FROM COLORADO

        Senator Hickenlooper. Thank you, Mr. Chair. And thank all
    of you. What a fascinating issue that--I mean, you look at some
    of the issues around the world and this seems relatively small,
    and yet when you talk to constituents in any of our states, we
    see this is top of mind, something that drives people batty. I
    mean, just they can't function.
        Ms. Saunders, a number of cyber security experts have
    raised the issue of some companies functioning as consent
    farms. They are essentially tricking the consumers into, you
    know, they may be browsing a website, but they are tricked into
    basically signing on to--a consent to receive robocalls.
        And first, I can't imagine how anyone--whether anyone,
    people actually intentionally would do that. I guess they must.
    Anyway, the FTC has launched investigations into companies who
    are behaving this way, acting as consent farms.
        And my question to you is, do you believe that a stronger
    cybersecurity practices or clearer online disclosures would be
    sufficient and would be successful protections for consumers
    who obviously don't want to get the calls?
        Ms. Saunders. No, sir, I do not. I think that disclosures
    are, unfortunately, uniformly ineffective at protecting
    consumers. I think the problem needs to be that the rules need
    to be sufficiently clear. That the sellers who are using the
    telemarketers to make these calls and benefiting from these
    calls will be much more careful who--which callers they employ
    to make the calls. Because if they are not careful, they will
    be zinged with a TCPA class action.
        And unfortunately, although I understand the frustration of
    the Chamber of Commerce with inappropriate class actions at the
    moment, the danger of class actions is also one of the prime
    ways that incentivizes sellers and callers to comply with the
    law.
        So, we want the law to be clear, and we want the law to
    create those incentives to comply with it.
        Senator Hickenlooper. Great. And, Mr. Rudolph, I would ask
    you just, and this is off--my staff will chide me later, but I
    am curious, it seems like there is a market there. This is so
    frustrating to people that for a relatively low monthly cost,
    lots of people, I think, would buy protection. In other words,
    you know, does generative AI have the potential to really
    effectively protect people from these kinds of scammers?
        Mr. Rudolph. Going back to the question you just asked
    Margot, I want to really reinforce the robocall operator who
    can use tens of thousands or millions of numbers to contact
    you. If you think about what we can do on a device, it is very
    easy to block an individual number.
        And while it is not actually officially signaling to that
    company, hey, I am taking my consent back. But by blocking that
    single number, you are preventing it from communicating with
    you. If we can require companies, when you grant consent to
    say, I am going to consent to that one number, right.
        And if they, if a bot granted it or you accidentally
    unintentionally grant it, at least it was pinned to that one
    number, and you can control the caller originating from that
    one number and revoke that consent.
        So, if we can just change how we--change our policies about
    when you have got an entity and how many numbers it tries to
    rotate through to evade these tools that we have in our hand.
    You don't need generative AI. You just need to make sure that
    you pin robo-operations, robo-communications to using a number
    which matches their identity as they communicate that with you.
        Senator Hickenlooper. Interesting. Yes, great. Ms. Brown,
    in your testimony, you described how businesses use automated
    messages to reach their customers. So, when these bad actors
    flood an individual with robocalls, people lose their trust in
    answering the phone. The best example, I always--I have my
    phone.
        If I were to call you, comes--I, you know, it doesn't give
    my number, because whether for whatever right or wrong reason,
    sometimes rarely a constituent or a journalist might decide
    they want to get a hold of me frequently.
        So, I have, you know, caller ID blocked. No one will take
    my call. So, I have to send someone a text before they will
    take my call because they think that that is always going to be
    a robocall. Whereas now the robo guys are so smart that they
    never use it anymore.
        I keep trying to convince even my family that they should
    accept blocked numbers, but they don't. Anyway, Ms. Brown, how
    would you think small businesses would benefit if we could
    reduce the volume of illegal or unwanted calls?
        Ms. Brown. Thank you for the question. I think small
    businesses are victimized by fraudulent and illegal calls in
    much the same way that Ms. Saunders was talking about consumers
    at the front end.
        So, I do think the steps Congress has taken to prevent
    caller ID spoofing, to try and clean up the ecosystem, and some
    of the work that Josh and the Industry Traceback Group do is
    really important to try to instill or protect confidence in the
    calling ecosystem so people do want to pick up their phone.
        Small businesses both make calls and receive calls, and I
    think everyone is benefited if there can be trust that who is
    calling you is who it purports to be and not an overseas
    scammer, for example.
        Senator Hickenlooper. Yes. The small businesses I know are
    irate because they have to take every call, and so they are the
    ones that are constantly distracted at certain times of the day
    when the robocalls are coming in waves. Anyway, thank you all
    for taking time out of your busy schedules to be here. I yield
    back to the Chair.
        Senator Lujan. Thank you so much, Senator Hickenlooper.
    Senator Rosen, you are recognized. Senator Rosen, we cannot
    hear you right now.

                    STATEMENT OF HON. JACKY ROSEN,
                        U.S. SENATOR FROM NEVADA

        Senator Rosen. Oh. I am off mute. Can you hear me now?
        Senator Lujan. Yes, we can, Senator. The floor is yours.
        Senator Rosen. Oh, perfect. Thank you. All right.
    Technology is great when it works. And sometimes technology is
    not so great when it gives you a million phone calls all at
    once. So, there you go.
        Thank you, everybody, for being here today. And I am going
    to just get right into it on scams, of course, in Nevada.
    Because according to the FTC, in 2022 alone, Nevada had the
    third highest rate of fraud and the fifth highest rate of
    identity theft.
        So, every year, millions of Americans, of course, we know,
    including many of my constituents, fall victim to these
    predatory robocallers. The scammers, they create elaborate
    schemes through robocalls.
        They say they are calling from Government agencies or other
    entities attempting really just to convince people to provide
    their personal identifiable information or that they are
    legitimate.
        And so, for example, Nathan is one of my constituents in
    Las Vegas. He is a veteran of the Air Force, the U.S. Air
    Force. He wrote to my office sharing about a spam call he
    received from the Veterans Benefit Center. They asked him to
    refinance his mortgage. He said at one point he was receiving
    10 to 15 calls a day from this Veterans Benefits Center.
        But thankfully, Nathan recognized the scam. Many others
    don't. And veterans like him who serve our country should not
    be targeted with these kinds of calls. It is unacceptable. We
    have to do more to protect all of our constituents and combat
    these criminal schemes.
        So, Ms. Saunders, what advice would you give to Nevadans,
    and of course, to everyone, particularly in more vulnerable
    communities perhaps, like seniors and veterans, who are
    targeted by scammers and are impacted at, I would say,
    disproportionate rates?
        Ms. Saunders. We have--thank you for the question. We have
    one clear piece of advice to give all American subscribers
    until this problem has been solved. If you receive a call from
    anybody, unless you are absolutely positive you know--that you
    know the person that has called you, do not give access to your
    bank account or any other money to that caller.
        If you receive a call from somebody purporting to be from
    the Veterans Administration and you want to make sure that your
    benefits are protected, then hang up, look up the number for
    the Veterans Administration or whoever it is that supposedly
    called you and call them directly.
        But don't give--and we don't do that even when we receive
    solicitations from a charity that we believe in. We never, ever
    give over the phone payment information.
        Senator Rosen. Yes, that is a great advice, and we are
    going to have to keep putting it out there over and over again,
    so people are continuing to hear this message.
        But Mr. Bercu, can you tell us a little bit about how
    companies are working together to ensure that people are aware
    of these scams? We have to get it out there again over and over
    to keep reminding people.
        Scams like the ones that Nathan called this about. What are
    you doing to make sure your advocacy is reaching every corner
    of every state, urban and rural?
        Mr. Bercu. Thank you for the question. The industry is very
    active educating their consumers and their customers. I think
    they all have information out there. But one of the other
    things is all voice service providers virtually today have
    protections in place too. They--not only STIR/SHAKEN, which we
    talked about, but all the major wireless carriers have blocking
    and labeling. So, there is actually a lot of work to directly
    protect their customers as well.
        Senator Rosen. Thank you. And speaking about customers, and
    now you are trying to make your workforce who is creating all
    these ways to protect consumers, workforce and technology, it
    is so important.
        You know, as a former computer programmer, I have a unique
    understanding of both the benefits and challenges that
    technology presents. So, in this case, we have this great
    technology, but it allows for more sophisticated use of
    robocalls and robotexts. And hopefully on the same side, we
    have presumably enough resources to combat that.
        So, Ms. Brown, law enforcement officers, they really need
    access to training and technology to talk about the more
    advanced scams, especially as we see AI start to play a role in
    these scam robocalls.
        And so, based on your experience, what kind of technology
    and training do you think, you know, Congress can support to
    bolster these resources as these scams just get more and more
    vicious, I would say?
        Ms. Brown. Thank you for the question, Senator. You know, I
    haven't given a lot of thought to specific training for State
    and local law enforcement, but it makes me think back to the
    importance of the Department of Justice and that collaborative
    work that the State Attorneys General are already doing with
    the Federal Communications Commission and otherwise.
        So, my perception is there are a lot of resources that are
    available, some of which are similar to what Ms. Saunders was
    talking about in terms of consumer facing. But I would expect
    that the Department of Justice, the Federal Trade Commission,
    can sort of dig into those resources and help State and local
    law enforcement.
        But I will say the State Attorneys General have been very
    active on these issues, and I think they are uniquely
    positioned to help State and local law enforcement identify
    some of these more exotic, shall we say, scam attempts that my
    panelists were discussing.
        So, I think it is a great area to think about, particularly
    if you have constituents who it sounds like may not be getting
    that kind of information and support.
        Senator Rosen. No. Especially as we deal with deepfakes and
    other things. And of course, we are just going to keep working
    on building out our STEM workforce and keep working to protect
    the consumers.
        Mr. Chairman, thank you for this hearing. I yield back.
        Senator Lujan. Senator Rosen, thank you so very much. I am
    going to recognize myself for some additional questions.
        Mr. Rudolph, everyone is talking about AI in some degree
    and using it differently. Just yesterday, the Chairwoman of the
    FCC, Jessica Rosenworcel, proposed a new notice of inquiry that
    would take a closer look at how artificial intelligence impacts
    illegal and unwanted robocalls and texts.
        Specifically, this would investigate how the Commission
    might use AI technologies to protect consumers under the
    Telephone Consumer Protection Act.
        Now, YouMail specializes in stopping scam calls and texts,
    so thank you for that. How do you envision using artificial
    intelligence to protect consumers from robocalls and robotexts?
        Mr. Rudolph. It is a great question. Thank you. I would
    almost make a joke that we are going to enter a Black Mirror
    episode and each of us will be protected by our own bot that is
    going to screen every inbound communication, and eventually we
    have got just all these telemarketing bots talking to all these
    consumer protection bots, and the polar ice caps melting for
    all the GPU's having to run that.
        But that joke aside, one of the suggestions I had earlier
    was to use a large language model to go through robocall
    mitigation database filings and toss out all the ones that are
    junk. So LLMs can be trained pretty quickly to synthesize that
    data and understand the intent, and you know, what that
    robocall mitigation filing would--if it is even feasible to,
    you know, implement the controls at those providers.
        If you look at the Herculean lift of enforcement, the same
    thing could be done where if you wanted to investigate a
    communication service provider and you were given logs from
    that provider or given internal communications or memos that,
    you know, discuss the policies or controls those providers
    implemented, an LLM could quickly, you know, process that data
    and come to an understanding of what was actually happening.
        So, I would say, you know, we are really facing a problem
    of scaling enforcement labor to, you know, make industry
    compliant here, and that is a great place to deploy that
    technology.
        Senator Lujan. I very much appreciate that response. And
    also, bringing attention to the line of questioning from
    Senator Markey around how so many are thumbing their nose at a
    requirement with the mitigation plan and submitting blank
    documents, documents that are intended to be rude, or menus, or
    whatever nonsense is also being submitted.
        It shows that it is not working. That there is a loophole
    somewhere that has been created. That there is no attention to
    the prosecution side, if you will, or the requirements from a
    mitigation plan.
        And using tools to identify where those are is going to be
    critically important to ensure that we are able to enforce the
    mitigation plan when someone is found to be doing this illegal
    activity. I also appreciate, Ms. Saunders, your response to
    several colleagues' questions about what could be done in the
    area of looking at where traffic is being carried.
        Data that I have seen suggests that not all carriers may be
    knowingly doing this, but it seems to be that there is a
    smaller number of carriers that carry more of the calls. That
    is revenue. If someone is told, you are carrying these calls
    that are stealing billions of dollars of American people, and
    they do it over and over, and then they submit a mitigation
    plan that is a blank document, it is the cost of doing
    business.
        I want to equate this to financial institutions in America
    who are laundering money for cartels. And the cost of doing
    business is paying a fine. Some really smart people created
    these loopholes. Well intentioned, but there is loopholes and
    people have learned to take advantage of them.
        What I would hope is that we can all agree to the ending of
    those loopholes. I remarked on this when this committee, the
    Commerce Committee, had a hearing on a rail derailment. Well-
    intentioned legislation, well-intentioned testimony, people
    working together, but when the rulemaking gets started, then
    there is all kinds of stuff submitted into the Federal
    registry.
        A lot of them are loopholes that get codified into the
    rules creating loopholes. Loopholes can lead to problems, as
    well-intentioned as they may be for whoever is submitting them.
    I hope that we can pull back the curtains on this to stop this.
        With the transition to telecommunications being digital, it
    is not analog--Mr. Bercu, you can trace this stuff back
    wherever it goes. Mr. Rudolph, YouMail can stop it because you
    know where it is coming from. It is digital. You can follow it.
        So, why is this so hard? If the traffic is in a small area,
    let's work with them, either to create the technical
    capabilities for the small carriers to have those capabilities,
    but for the whole industry also to self-police, to say you are
    the problem, you need to stop this.
        Because if a small carrier has an agreement with one of the
    major carriers in America, and they are knowingly doing this,
    when I look at 12 percent of the traffic that is coming from
    some of the bigger names in the country, stop it. And I am
    hoping that we can get there. So, I appreciate that, that line
    of questioning and those responses.
        I will close with this particular question toward you, Ms.
    Saunders, around AI generated scam calls. Now, we also know
    there is an urgent need to mitigate risks and establish
    responsible guardrails around AI.
        And we have seen many examples around here. Scammers are
    cloning people, children's voices. We heard the testimony from
    our colleagues with veterans or active military whose voices
    are being spoofed all to steal financial resources from
    families.
        Now, Ms. Saunders, yes or no, do current laws and
    regulations around robocalls cover these types of AI generated
    scam calls?
        Ms. Saunders. The Telephone Consumer Protection Act has
    been found to cover robot generated scam calls and
    telemarketing calls, yes.
        Senator Lujan. Would anyone else respond to that? Ms.
    Brown.
        Ms. Brown. And I think the view is the TCPA is well suited
    to adapt to that sort of new technology. And I was just going
    to commend to you a report that the Chamber put out on a
    bipartisan basis.
        They have an AI Commission, and I think there is a lot to
    learn from the NOI that the Chairwoman of the FCC has kicked
    off about how all of this will play out. But I do think the
    TCPA reaches some of these voice cloned concerns.
        Senator Lujan. Mr. Bercu.
        Mr. Bercu. I concur.
        Senator Lujan. Mr. Rudolph.
        Mr. Rudolph. I think anybody who is doing voice cloning to
    make calls doesn't care about the TCPA. So, they are committing
    criminal acts and TCPA, they would ignore it.
        Senator Lujan. I appreciate that. Ms. Saunders.
        Ms. Saunders. The problem is that the TCPA is not effective
    against scam calls. It is effective against telemarketing
    calls, but it is not effective against scam calls.
        And the only way to stop the scam calls is to deal with the
    providers who are providing access to the communications
    network for those scammers. And we don't have a law like the
    TCPA that applies to the voice service providers, nor are we
    necessarily recommending that there be one.
        So, Ms. Brown, you don't need to worry. But what we are
    recommending is that the FCC be encouraged or enabled,
    whichever is appropriate, to act much more quickly against
    those problem voice service providers that are inserting the
    bad callers--the bad calls into the network.
        Senator Lujan. I appreciate that. I am concerned that it
    does not. I think it handles calls in one format, but I am
    concerned in this other space as well. And look,
    understandably, when it was written, this technology did not
    exist to the degree that it exists today.
        One of the faults with many pieces of legislation is when
    it is thought up, and by the time it passes, technology has
    accelerated, you know, a generation or two ahead of what the
    well intentioned proposal was as well. But that is where the
    rulemaking bodies are supposed to keep up with what?s happening
    here.
        And also, industry. When something bad is happening that
    cannot be self-policed, ask for help. How do we stop the
    nonsense? $39 billion being stolen in a year. That should rise
    to any prosecutor's attention. If the Department of Justice is
    not going to do this, then how do we find other partners that
    are willing to?
        How do you work with the FCC such that if a fine is put
    forth and then there is not a prosecution, then what? And I
    will also say that if there is a small number of entities that
    are responsible for the majority of traffic, and they have been
    warned about it, and it continues, something needs to be done
    there because, again, it is the cost of business, it is
    revenue.
        And if you can make $100 million and pay a $10 million
    fine, some people are willing to take that deal. And it is just
    not right, because who is at the end of this?
        Ms. Saunders, do you have some thoughts on what Congress
    could be doing to protect Americans from AI generated scam
    calls and robotexts? And I will ask the rest of the panel to
    address that as well, and then we will close out the hearing.
        Ms. Saunders. I think that I have articulated it already. I
    think that the FCC is uniquely poised to be the prime policeman
    on the block regarding the voice service providers.
        What I want to explain is that the reason the terminating
    providers who are all in agreement that these calls should not
    be processed, the reason they cannot stop them, they can't
    block them is because the scam calls are mixed with the legal
    calls, so it is impossible for them, for the terminating
    providers to identify them.
        Senator Lujan. But Ms. Saunders, if I may interject. I am a
    former public utility commissioner.
        So, while the calls may be mixed in, they can tell where
    the calls are originating, and then they also know if the
    investigators are doing their job, you are burying this traffic
    from, you know, Mr. John in whatever location, whether it is in
    the United States or in other part of the world.
        Why are you carrying all this traffic where it appears that
    90 percent of it is bad stuff as well?
        Ms. Saunders. Well, I am not sure that the terminating
    providers can always identify exactly where the calls are
    originating. They see--all they see is that the calls are
    coming from the upstream intermediate provider.
        And so, the key is to somehow encourage all of the
    providers in the network to only carry legal calls or else it
    will cost them. And we provided in our testimony in the last
    section an example of how the legal callers can use their power
    in the marketplace to encourage their voice service providers
    to only carry their calls and thus isolate the illegal calls,
    which we think would enable the terminating providers to better
    identify them and block them.
        Senator Lujan. Appreciate that. I am going to go to Mr.
    Bercu and I will come back to Ms. Brown. How are you able to
    follow the calls then, if--how do you know where they are
    coming from?
        Mr. Bercu. So that is what our trace back process
    accomplishes. Because as Ms. Saunders said, often all a
    provider knows is who they got from, and our process does that.
    We just go hop, by hop, by hop. Who did you get the call from?
    Who did you get the call from? Until we find out exactly where
    it came from.
        Senator Lujan. That is proprietary technology?
        Mr. Bercu. It is our--we have a portal that all the
    providers log into and they do it in the portal. We have
    automation. If someone doesn't respond, they get shamed for not
    responding in time. They get warnings. The provider downstream
    gets shamed if they continue to take traffic from robocallers,
    and all this information is made available to the enforce.
        Senator Lujan. Repeat that last part, Mr. Bercu. What
    happens if they take calls from folks that are responsible for
    robocalls or where they are known to come from?
        Mr. Bercu. So, the way our--we designed our system, if
    providers upstream is the originator of the illegal robocalls
    we trace, the downstream provider knows that. They are put on
    notice that their upstream partner keeps giving them bad
    traffic. And again, all this information makes its way to the
    enforcement community.
        Senator Lujan. So, based on that common carrier or whatever
    the agreement is between one carrier and another, your
    technology allows for those two entities to know that there is
    a problem with these fraudulent calls?
        Mr. Bercu. Yes, absolutely. And we see, to Ms. Saunders'
    point, we see all the time carriers taking action. We see them
    fire their wholesale providers. The challenge is because it is
    an interconnected network, it is--we have--you know, I have
    heard from providers that said, OK, we got too much bad traffic
    from these providers and fired all of them. The calls still hit
    their network. It just was another hop or two that were added
    in between.
        Senator Lujan. And Mr. Rudolph, with that being said, where
    traffic can be identified, YouMail can stop this from hitting a
    consumer, dramatically reduce, stop to protect people. Is
    YouMail also--is YouMail able to identify where it originates?
        Mr. Rudolph. So as calls reach the consumer, right, we have
    got two very amazing ways to understand which communication
    providers were the originators or the gateway providers for
    those traced back.
        If the call was not a test, using STIR/SHAKEN. And if it
    has a STIR/SHAKEN packet, basically with it, it is clear as day
    that these are the seven voice providers that are currently
    harboring that account that is making the loan calls, you know,
    as a--identifying as a VA or interrupting other centers--so,
    you know, if you ask me right now, you know, who are the
    providers who have these calls. We can look at STIR/SHAKEN and
    get a lot of that.
        And then the ones we don't see the STIR/SHAKEN yet carry,
    the trace back process can illuminate that. What we are missing
    is the signal to industry, those specific calls are bad, knock
    those off, right.
        The FCC has done that twice auto warranty calls and student
    loan calls. And now providers have a clear signal from the FCC,
    don't carry those. And what happens is, you know, trace back
    runs, or YouMail will directly contact a provider and say, hey,
    this call looks like it is committing fraud. Maybe you should
    knock it off. That account gets kicked off that provider and
    goes and finds a new home.
        So, unless the entire ecosystem is notified, don't take
    this account on, someone is going to look at that new sign up
    and think, oh, that is revenue. I am going to take that new
    account on and kind of look the other way about whatever that
    account might be communicating.
        Senator Lujan. What process is required to ensure the whole
    ecosystem knows about the one fraudulent call and the
    communication to the one company?
        Mr. Rudolph. Can you say that again? Sorry.
        Senator Lujan. What would be required to share that
    information that YouMail may be having with one carrier, or
    anyone maybe having with one carrier to say this called
    fraudulent, you should kick it--you should probably kick it
    off, so that it goes across the entire ecosystem.
        Mr. Rudolph. So, we work regularly, every other week, with
    the FCC and we go through the prioritized calls that are on
    that hotlist of investigations. And we will provide that and
    those discussions about, hey, these are the providers that we
    are seeing that are carrying those calls presently.
        Senator Lujan. Appreciate that. Ms. Brown.
        Ms. Brown. Do you want me to address AI, which I think is
    what you started with a little while ago?
        Senator Lujan. In this space with AI, also given the
    responses associated with being able to narrow where there may
    be a fraudulent call with the carrier, is there something that
    could be done to share it within the ecosystem?
        Is it something that the companies could adopt to share--
    and through that process? Is it something the FCC should be
    doing with existing authorities that this is just--this is what
    is going to happen every time that we see this, and it is
    proven that there is a fraudulent call. If you could touch in
    those three areas.
        Ms. Brown. Sure. I will do my best. Thank you, Senator. I
    am actually sort of optimistic and I think the Chamber would be
    that AI will sort of juice up what the ITG and YouMail are
    already doing.
        And I think, so that gives me optimism that those anti-
    fraud efforts and the ability to detect bad traffic is going to
    get better over time. And I think at a recent workshop the FCC
    held back in September with the National Science Foundation,
    they heard about that as well.
        So that is kind of my response on the AI piece of this, or
    the AI approach. It sounded to me from what Mr. Rudolph and Mr.
    Bercu were saying, that the FCC is intimately involved in
    getting this information, I think it is maybe a question of
    scale, to address the issue that you were raising.
        Again, maybe AI, maybe some additional technology can help
    there. I don't have visibility, whether it is a manual process
    or if it is really phone calls with the Enforcement Bureau,
    which it probably is, which makes me sad for the Enforcement
    Bureau staff.
        But again, I think there is a reason to be sort of
    cautiously optimistic that maybe they haven't cracked the code,
    but there can be additional steps. And then if the FCC can be
    encouraged to do more of what it did in the auto warranty space
    and student loan space.
        I think the report the FCC gave to Congress under the
    TRACED Act had some really remarkable data in it about the
    decrease in calls after they took those actions. So, I am sort
    of cautiously optimistic about that process working.
        I don't see right now a need for new regulatory authorities
    to be given because it feels like that process is actually
    working fairly well, even if it is a little opaque. Sorry for
    that long answer.
        Senator Lujan. Oh, I appreciate the response very much.
    Thank you all for being here today, and to all my colleagues
    for attending today.
        This is important testimony and there is, as you all know,
    an immense interest with the American people in this space and
    immense frustration with the American people about what happens
    to them every minute of every day as well.
        And I want to commend you for helping to solve this
    challenge, for helping consumers one at a time, for providing
    support to help the process, understand where and what is
    happening every day, looking at the ability of rules that
    exist, exploring those that may be needed to make things better
    in this space.
        So, thank you so very much. And remaining challenge and a
    very complex issue. With that, I will close the hearing. And
    should members have additional questions for the witnesses for
    the record, I ask that they submit them to the Committee within
    two weeks, and witnesses will have an additional two weeks to
    respond. Thank you, everybody.
        [Whereupon, at 11:51 a.m., the hearing was adjourned.]

                                A P P E N D I X

       Response to Written Questions Submitted by Hon. Maria Cantwell to
                            Margot Freeman Saunders
    Innovation and Adoption
        Robocallers are taking advantage of technological innovations to
    flood our phones with calls and texts. It seems to me that other forms
    of technological innovation--like machine learning and generative
    artificial intelligence- hold the most promise for combatting this
    flood of illegal robocalls.

        Question 1. How can Congress and the FCC encourage
    telecommunications companies to embrace innovative technologies and use
    new tools responsibly to protect consumers from robocalls?
        Answer. By creating incentives for telecommunications companies to
    protect consumers--either with the ``carrot or the stick.''
        The carrot might involve the FCC establishing a system of public
    rewards, such as positive ratings for trustworthiness for those
    companies who have no history of transmitting illegal calls in the
    previous 12 months. Legal robocallers (such as banks, health care
    providers, and pharmacies sending desired alerts to consumers) could
    use this information to choose their originating voice service
    providers for their calls.
        The stick should be clear and immediate consequences which are
    costly to the providers who persist after notice in transmitting
    illegal calls. These must be meaningful and not merely ``the cost of
    doing business.''
    AI and Deepfake Calls
        I recently heard about an alarming situation in my state. A family
    in Pierce County, Washington received a deepfake call, where a scammer
    used AI to spoof their daughter's voice saying that she had been in a
    car accident and that a man was threatening to harm her unless they
    wire $10,000. No family should have to face this.

        Question 1. How can Congress empower consumers, regulators, and law
    enforcement to stay ahead of the increasingly sophisticated
    technologies scammers use?
        Answer. As explained more fully in response to the question ``How
    can Congress best ensure that the FCC uses its enforcement authority
    effectively?'' We believe that in addition to close monitoring of the
    voice service providers who repeatedly transmit these dangerous scams
    after notice, and punishment Congress should authorize the FCC to
    suspend the ability of complicit voice service providers to transmit
    calls into the network. This is described more fully in Section II of
    NCLC's testimony. In addition, Congress should require the Department
    of Justice to pursue and prosecute the perpetrators of these scams.
    Heightened Enforcement
        Congress passed the TRACED Act in 2019 to enhance the FCC's
    enforcement authority and increase penalties for illegal robocallers.
    Since then, scam robocalls have dropped 50 percent, but they remain a
    serious problem.
        It's true that, on paper, there appears to have been a 50 percent
    reduction in scam robocalls. However, this is a result of
    reclassification of calls that were previously classified as scam
    calls, and are now classified as telemarketing calls. Please see the
    illustration of this in the table on page 4 of NCLC's testimony to this
    Committee on October 24, 2023.\1\
    ---------------------------------------------------------------------------
        \1\ https://www.commerce.senate.gov/services/files/92F8E35B-F203-
    49FD-BA53-E9F8816
    A19F2
    ---------------------------------------------------------------------------
        As illustrated in that table, when the scam calls and telemarketing
    calls are combined, these calls peaked at more than 3 billion calls per
    month in September 2019. There were similar levels of these combined
    calls in March 2021. In September 2023, the combined number of these
    unwanted calls was at 2 billion a month, but as recently as March 2023,
    the numbers had been as high as 2.5 billion.
        Additionally, the FTC reports that while the reports of scams were
    lower in 2022 than the previous year, the amount of losses reported
    increased substantially to $8.8 billion.\2\
    ---------------------------------------------------------------------------
        \2\ https://www.ftc.gov/business-guidance/blog/2023/02/ftc-
    crunches-2022-numbers-see-where-scammers-continue-crunch-consumers.
    Regarding scams conducted over phone or text specifically, the FTC
    noted $830 million in consumer-reported scam losses in 2021 as compared
    with $1.13 billion in 2022; in the first three quarters of 2023 alone
    the FTC has already seen $922 million in reported consumer losses from
    text and phone call scams. https://public.tableau.com/app/profile/
    federal.trade.commission/viz/FraudReports/FraudFacts
    ---------------------------------------------------------------------------
        Last year, scam robocalls cost American consumers a total of $39
    billion. This includes 1.1 million people in the State of Washington.
    Clearly, we can do more to crack down on these scams.

        Question 1. The FCC already has civil enforcement authority over
    robocalls. How can Congress best ensure that the FCC uses its
    enforcement authority effectively?
        Answer. As described in section II of NCLC's testimony, we
    recommend that the FCC establish a system to suspend complicit voice
    service providers after one verified notice that the provider has been
    transmitting illegal calls. In a nutshell, we are proposing that the
    FCC should be authorized to quickly remove the ability of complicit
    voice service providers to transmit calls into the U.S. telephone
    network. This can be accomplished by suspending these repeated
    offenders from the Robocall Mitigation Database. Below is an excerpt
    from the testimony that summarizes this recommendation.

            We believe that the FCC should be empowered to use immediate--
            but temporary--suspension \3\ from its Robocall Mitigation
            Database as a mechanism to protect telephone subscribers from
            receiving illegal calls, pending investigations and due process
            determinations. This would prioritize protecting U.S. telephone
            subscribers from criminal scam calls over providing originating
            and gateway providers access to the U.S. telephone network.\4\
            Once a provider has been notified by any of the government
            enforcement agencies, or their service providers, that it has
            been found to be transmitting illegal calls, such notification
            should serve as legal notice that the next time it is
            determined to be transmitting illegal calls, it will be
            suspended from the RMD. These suspensions should be temporary
            and short-lived, but immediate, pending a due process review.
            The due process review would determine whether this latest
            finding that the provider was transmitting illegal calls was a
            mistake that will not be repeated, or whether it justifies
            permanent removal from the RMD.
    ---------------------------------------------------------------------------
        \3\ Suspension should result in legally effective removal from the
    RMD. This can be accomplished via a prominent notation that the
    provider's status is suspended. See, e.g., In re Advanced Methods to
    Target and Eliminate Unlawful Robocalls et al., Comments of ZipDX
    L.L.C., Fifth Further Notice of Proposed Rulemaking in CG Docket No.
    17-59, and Fourth Further Notice of Proposed Rulemaking in WC Docket
    No. 17-97, at  64 (filed Dec. 7, 2021), available at https://
    www.fcc.gov/ecfs/document/12080110629539/1 (``We would note that
    `delisting' should not actually constitute complete removal from the
    database; rather, an entry should be retained so that it is clear to
    all others that the problematic provider has been explicitly designated
    as such. This will ensure that if (when) the problematic provider
    attempts to shift their traffic to a new downstream, that downstream
    will become aware of the situation before enabling the traffic.'').
        \4\ Most, if not all, of the offending voice service providers are
    VoIP (Voice over Internet Protocol) services. VoIP is a technology that
    accesses the telephone network through the internet, and is commonly
    used by many large telecommunications providers in place of traditional
    landlines to provide service to residential and business customers.
    Often, the telephone service is paired with Internet access and cable
    television service.

        Question 2. Are there additional tools that Congress should empower
    the FCC with to combat illegal robocalls?
        Answer. In our 2022 Report ``Scam Robocalls: Telecom Providers
    Profit,'' \5\ we also suggested that the FCC employ a more robust
    licensing system to police voice service providers that have a history
    of non-compliance with the FCC's rules. This would establish a simple
    method for the FCC to govern recalcitrant providers.
    ---------------------------------------------------------------------------
        \5\ https://www.nclc.org/resources/scam-robocalls-telecom-
    providers-profit/ at 32.
    ---------------------------------------------------------------------------
        The VoIP providers that process the illegal robocalls are generally
    small, often simply one or two individuals with minimal investment or
    technical expertise who have set up a service in their home or other
    temporary quarters and offer services through online advertisements.
    See FCC 2021 Report to Congress, supra note 15, at 12 (``The
    Commission's experience tracing back the origins of unlawful call
    traffic indicates that a disproportionately large number of calls
    originate from Voice over Internet Protocol (VoIP) providers,
    particularly non-interconnected VoIP providers. Moreover, the Industry
    Traceback Group has found that high-volume, rapid-fire calling is a
    cost-effective way to find susceptible targets, although it does not
    collect data about which robocall originators are VoIP providers.'').
        Just as states require testing and licenses before people are
    permitted to drive on public roads to protect the public from dangerous
    drivers, the FCC should require licenses, that must be renewed on a
    regular basis for all voice service providers. Repeated notices of non-
    compliance should be grounds for revoking a provider's license to
    transmit calls into the system.
    Strengthening Rules
        I understand that you have previously called for the FCC to
    strengthen its rules to address the marked rise in unwanted robocalls.
    Our robocall enforcement efforts cannot be successful without strong
    robocall rules in place.

        Question 1. What can be done to modernize robocall rules?
        Answer. The FCC has recently announced its intention to adopt a
    strong regulation governing consent for telemarketing rules.\6\ Final
    approval and enforcement of this amended regulation ``will prohibit
    abuse of consumer consent by'' lead generator websites.
    ---------------------------------------------------------------------------
        \6\ https://docs.fcc.gov/public/attachments/DOC-398661A1.pdf
    ---------------------------------------------------------------------------
        Similar actions should be taken to modernize the rules governing
    calls to lines registered on the Do Not Call Registry, such as--

      a.  Limiting the time for which a consumer's consent to be called
            should be considered (changing it from no time limit to 30
            days), and clarify that once the consumer says ``stop calling
            me'' or anything similar that indicates a desire for the caller
            to stop calling.

      b.  Unequivocally stating that once a consumer revokes consent to a
            telemarketer calling on behalf of a seller, the seller is
            responsible for ensuring that the telemarketer reports that
            revocation immediately to the seller, who in turn must
            immediately inform any other telemarketers making calls on that
            seller's behalf that calls to that consumer must stop.

      c.  Establishing that a caller that fails to use the Reassigned
            Number Database to check that it is calling the person who
            provided consent for the call, cannot escape liability for
            placing that call under any of the Commission's rules.

      d.  Restoring meaningful restrictions on calls and texts sent using
            an automated telephone dialing system.

        Question 2. What additional actions can the FCC take to stop
    illegal calls and texts?
        Answer. As is described in NCLC's testimony, one of the primary
    reasons that terminating providers are unable to block scam robocalls
    is because complicit voice service providers mix the illegal calls with
    the calls from ``legal callers.'' Legal callers are sending robocalls
    that consumers want and for which they have consented, such as medical
    appointment reminders, fraud alerts, and prescription refills.
        The difficulties with reliably completing these wanted calls are
    apparently increasing. Legal calls are mixed with a torrent of illegal
    calls at shared originating and intermediating providers, causing legal
    calls to be tainted by illegal calls in the same call path. The result
    is that legal calls end up mislabeled or blocked by downstream
    providers seeking to protect subscribers from illegal calls.
        We have proposed that the Commission facilitate leveraging the
    considerable marketplace power of these legal callers to assist in the
    efforts to eliminate dangerous and unwanted calls--scam and illegal
    telemarketing calls. If legal callers are armed with the information
    about how to avoid using the providers that are processing illegal
    calls, this would prevent the legal calls from being used to mask the
    illegal calls.
        The sheer economic power of legal callers may be sufficient to
    force voice providers to stop transmitting illegal calls. A market-
    based approach like this would a) provide strong financial incentives
    to originating and intermediate providers to avoid transmitting illegal
    calls; b) facilitate the transmission of legal calls through call paths
    that would eliminate the likelihood that the calls would be labeled
    improperly or blocked by downstream or terminating providers; and c)
    supplement the other mechanisms created by the Commission intended to
    address illegal calls. The foundation of a market-based approach is
    providing legal callers with the information that they need to keep
    their calls separate from illegal calls. As explained in the testimony,
    this information is already available from private analytics-based
    platforms. The Commission need only lead the way.
    STIR/SHAKEN Call Authentication
        In 2019, Congress passed the TRACED Act to require phone carriers
    to adopt STIR/SHAKEN call authentication standards. These standards
    create a digital signature that identifies the calling party and allows
    phone carriers to verify calls, while weeding out calls from
    illegitimate sources.
        While these standards have helped in the important fight against
    robocalls, they have certain limitations. For example, they will not
    work for all telephone calls. We have seen illegal robocallers change
    tactics, moving away from using fake phone numbers to buying real phone
    numbers that trick spam-blocking software into allowing the calls
    through.

        Question 1. What is your assessment of STIR/SHAKEN?
        Answer. A primary goal of the TRACED Act \7\ was to facilitate the
    identification of callers so that illegal and unwanted calls can be
    blocked by either subscribers or downstream providers.\8\ However, the
    temporary rental of telephone numbers by bad actor voice service
    providers who advertise to callers the availability of Dynamic Caller
    ID, or Direct Inward Dialing numbers (DIDs), completely undermines the
    effectiveness of even the most robustly enforced caller ID
    authentication methodologies. The identity and the real telephone
    number of the caller is functionally obscured when a caller uses a
    disposable number that is local to the called party.
    ---------------------------------------------------------------------------
        \7\ Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and
    Deterrence (TRACED) Act, Pub. L. No. 116-105, Sec. 4(b), 133 Stat. 3274
    (2019) [hereinafter ``TRACED Act''].
        \8\ TRACED Act at Sec. 7(b)(2).
    ---------------------------------------------------------------------------
        Some telephone providers routinely rent telephone numbers or make
    ``dynamic caller ID'' available to callers to facilitate deliberate
    evasion of the FCC's requirements for callers to identify themselves
    properly. For example, one telephone provider--CallHub--advertises that
    its service can be deliberately manipulated to make calls appear to be
    from local numbers \9\--which they are clearly not, or this service
    would not be necessary:
    ---------------------------------------------------------------------------
        \9\ https://callhub.io/dynamic-caller-id/ (emphasis added) (last
    visited June 5, 2023).

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Some VoIP providers openly advertise the use and the effectiveness
    of these services, emphasizing that even calls from international
    ---------------------------------------------------------------------------
    numbers will appear that they are from a local business:

            Is it possible to change an outgoing caller ID? Yes, with the
            VoIP feature, dynamic caller ID, your business can display a
            local or toll free number instead of a long-distance or
            international number.\10\
    ---------------------------------------------------------------------------
        \10\ https://www.unitedworldtelecom.com/learn/what-is-a-dynamic-
    caller-id-for-voip/ (emphasis added) (last visited June 5, 2023).

        The use of rented telephone numbers just for the purpose of
    matching the area code to which the calls are directed, rather than
    matching the actual geographic source of the call, conflicts with
    several specific requirements imposed by Congress and the Commission
    designed to give called parties reliable and truthful information about
    the identity of callers. A fraudulent or scam caller that rents
    telephone numbers on a temporary basis for the purpose of displaying a
    deceptive caller ID violates 47 U.S.C.Sec. 227(e)(1)'s prohibition of
    misleading caller ID. When the calls are telemarketing calls, the use
    of rented numbers or dynamic caller ID also conflicts with 47 CFR
    Sec. 64.1601(e), which requires telemarketers to transmit specific
    caller identification information regarding the seller or the
    telemarketer. This regulation serves no purpose if callers are
    permitted to rent telephone numbers that provide no information about
    the caller or seller whose product is subject to the call. This is
    illustrated by the advertisement on another website.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Callers use bulk rented numbers is to deceive the called party into
    believing the caller is local, to mask the caller's actual identity,
    and to avoid the ``scam likely'' analytics of terminating providers.
        Applying the STIR/SHAKEN authentication closes one door to
    falsifying caller-IDs, while leaving another one wide open. While
    considerable progress on the spoofing front has been made,\11\ the
    problem continues. Quoting from previous findings, the Commission has
    recently noted that it has received--``hundreds of comments from
    consumers . . . stating that they no longer answer their phone when it
    rings,'' and has concluded that ``[i]t is obvious that the volume of
    unwanted calls is reducing the value of telephony to anyone who makes
    or receives calls.  . . . Unwanted robocalls, for example, often are
    either delivered with inaccurate caller ID information deliberately
    designed to trick the called party into answering the telephone. . .''
    \12\
    ---------------------------------------------------------------------------
        \11\ See e.g., FCC Closes Gap in Caller ID Authentication Regime
    (Mar. 17, 2023), https://www.fcc.gov/document/fcc-closes-gap-caller-id-
    authentication-regime-0.
        \12\ In re Rules and Regulations Implementing the Telephone
    Consumer Protection Act of 1991, ACA International, the Edison Electric
    Institute, the Cargo Airline Association, and the American Association
    of Healthcare Administrative Management Petition for Partial
    Reconsideration, Enterprise Communications Advocacy Coalition Petition
    for Reconsideration, Order on Reconsideration and Declaratory Ruling,
    CG Docket No. 02-278 at  33 (Dec. 22, 2022), https://www.fcc.gov/ecfs/
    search/search-filings/filing/12271082616240.
    ---------------------------------------------------------------------------
        Even the most perfect and robust use of STIR/SHAKEN will not stop
    callers from hiding their real name, location, and telephone number
    unless the use of rented DIDs is also eliminated. Failing to eliminate
    the use of rented numbers while requiring strict compliance with STIR/
    SHAKEN requirements is like adding a deadbolt to a closed door to keep
    the flies out, while leaving a window wide open.

        Question 2. If STIR/SHAKEN is not enough, what more do we need to
    effectively curb illegal robocalls?
        Answer. Voice service providers should be prohibited from renting
    outbound numbers for short-term temporary use, with specific exceptions
    permitted for appropriate business reasons.
                                     ______

       Response to Written Questions Submitted by Hon. Ben Ray Lujan to
                            Margot Freeman Saunders
    Facebook v. Duguid
        Question 1. How will the Supreme Court's ruling in Facebook, Inc.
    v. Duguid et al., impact litigation brought under the TCPA?
        Answer. It has effectively eliminated all challenges to automated
    live calls and non-telemarketing texts, as well as telemarketing texts
    made to cell phones that are used for business purposes.

        Question 2. In Duguid, the Supreme Court reasoned that the narrow
    statutory design of the definition of the technology that constitutes
    an automatic telephone dialing system (``autodialer'') under the TCPA
    was deliberately designed to address ``nuanced problems.'' If Congress
    were to expand and redefine the technology that constitutes an
    autodialer, what would the definition need to include to protect
    Americans from unwanted robocalls?
        Answer. We suggest that the new definition for ATDS should be along
    the following lines:

            ``(1) The term ``automatic telephone dialing system'' means
            equipment that--

                    a. produces a set of telephone numbers to be called;
                    and

                    b. dials the set of numbers using automation or partial
                    automation.

            (2) ``produce'' means to select, create, or recreate from a
            file, database, or other form of data storage, or to generate
            using number generators;

            (3) ``automatic telephone dialing system'' does not include any
            application that comes preinstalled with the operating system
            of any consumer device.''

        Question 3. The National Consumer Law Center (NCLC) submitted an
    amicus brief to the Supreme Court in support of Duguid. The NCLC
    cautioned that ``unwanted automated calls significantly invade the
    privacy of Americans, diminish the usefulness of cellular telephones,
    and threaten public safety.'' How does narrowing the TCPA undermine
    commerce and telecommunications in America? Specifically, how will the
    post-Duguid narrowing of the TCPA impact small businesses and low-
    income Americans?
        Answer. Narrowing the definition has led to the proliferation of
    unwanted texts to cell phones, as well as more unwanted and
    unconsented-to automated live calls. The only protection against
    unconsented-to texts or automated calls (that do not include a
    prerecorded voice) to cell phones apply only if the message involves
    telemarketing, and only if the cell phone is used for residential
    purposes, and only if the cell phone telephone number is registered on
    the Do-Not-Call Registry. However, there are no protections against
    unwanted and unconsented-to texts or automated live calls for cell
    phones used for business purposes.

        Question 4. The Supreme Court reasoned that a more expansive
    definition of an autodialer could expand the TCPA's liability
    provisions and affect ordinary cell phone owners in the course of
    common place usage. If the TCPA definition of an autodialer were to be
    expanded, how would that impact American cell phone owners?
        Answer. It would dramatically cut down on the number of
    unconsented-to texts received by American cell phone owners.
    Additionally, the definition that we propose ensures that calls from
    consumers using their cell phones would not be inadvertently included.
                                     ______

      Response to Written Question Submitted by Hon. John Hickenlooper to
                            Margot Freeman Saunders
    Traceback Transparency
        The Industry Traceback Group (ITG) conducts thousands of tracebacks
    to find the source of illegal traffic by tracing each provider along
    the call path who helped facilitate the illegal call. However, raw
    traceback information is only released privately or on a case-by-case
    basis to law enforcement.

        Question. Should raw traceback information be made available to the
    public? What are the benefits, and potential risks, of traceback
    information becoming public?
        Answer. We have advocated that traceback information regarding the
    originating and/or gateway provider, as well as the first intermediate
    provider, be made available to the public. This would enable the world
    to see which providers are responsible for transmitting illegal calls.
        The telephone industry argues that revealing the tracebacks
    publicly will reveal confidential contractual arrangements involving
    least-cost routing between providers. The issue is which is more
    important--protecting these contractual secrets or protecting consumers
    from the scam calls that these providers are transmitting, even after
    repeated notices that they are responsible for these calls.
                                     ______

        Response to Written Questions Submitted by Hon. Peter Welch to
                            Margot Freeman Saunders
        Question 1. What challenges does the FCC face in reducing unwanted
    and illegal calls?
        Answer. We think the most significant challenges that the FCC faces
    are:

        First, the lack of clear authority and instruction from Congress to
    move quickly to shut down the providers who are repeatedly transmitting
    the illegal calls and texts into the U.S. telecommunications system, as
    I described in detail in Section II of the testimony to this
    Committee.\13\
    ---------------------------------------------------------------------------
        \13\ https://www.commerce.senate.gov/services/files/92F8E35B-F203-
    49FD-BA53-E9F8816
    A19F2
    ---------------------------------------------------------------------------
        And second, insufficient funding to hire more staff to deal with
    the problem.

        Question 2. The STIR and the SHAKEN framework is slated to be fully
    implemented by December 31, 2023. How can STIR/SHAKEN protocols be
    improved before they are fully implemented?
        Answer. Please see the response provided to the question on STIR/
    SHAKEN from Chairwoman Cantwell, above.
                                     ______

          Response to Written Questions Submitted by Hon. Ted Cruz to
                            Margot Freeman Saunders
    Cy Pres Awards
        When class action award funds are unable to be awarded to class
    members directly, or are unclaimed by class members, courts will use cy
    pres awards and distribute those funds to nonprofit entities instead of
    class members. The National Consumer Law Center (NCLC) actively
    solicits and receives such cy pres awards in Telephone Consumer
    Protection Act (TCPA) class actions.\1\ Given that most class actions
    result in class member claims rates of well less than 10 percent, these
    residual distributions could be substantial.\2\
    ---------------------------------------------------------------------------
        \1\ For example, NCLC lists ``ways to give'' on its website,
    including through cy pres nominations (NCLC--Cy Pres). It features cy
    pres stories and successful nominations in its newsletter. ``NCLC--
    Consumer Impact Spring 2021'' lists over 60 successful nominators and
    ``NCLC--Consumer Impact Spring 2019'' mentions a TCPA cy pres award
    (though not the amount). NCLC is reported to be the designated
    beneficiary of TCPA class actions, including Krakauer v. Dish Network
    at $1,708,810. Other TCPA suits designate NCLC to receive any residual
    funds not distributed to class members and the final amounts NCLC
    receives are unclear.
        \2\ Fed. Trade Comm'n, Consumers and Class Actions: A retrospective
    and Analysis of Settlement Campaigns, at 11 (Sept. 2019), https://
    perma.cc/CM66-ZVCX; Consumer Financial Protection Bureau, Arbitration
    Study, at Section 8, page 30 (reporting a weighted average claims
    rate'' in class actions of just 4 percent), https://perma.cc/8AX5-AYWN;
    see also Mayer Brown Study at 7 & n.20 (in the handful of cases where
    statistics were available, and excluding one outlier case involving
    individual claims worth, on average, over $2.5 million, the claims
    rates were miniscule: 0.000006 percent, 0.33 percent, 1.5 percent, 9.66
    percent, and 12 percent), https://www.mayerbrown.com/files/uploads/
    Documents/PDFs/2013/December/DoClassActionsBenefit
    ClassMembers.pdf.

        Question 1. How much revenue has NCLC received from cy pres awards
    each year for the past five years (CY2019 to CY2023)?
        Answer. NCLC has been determined to be an appropriate recipient of
    cy pres awards by many courts across the Nation over the past 5 years.
    From CY2019 through CY2023 (through 12/1/2023) the amount of cy pres
    awards we have received is:

            2019--$2,471,054.58

            2020--$5,139,211.54

            2021--$1,892,346.33

            2022--$4,329,220.91

            2023--$3,645,940.60

        Question 2. What percentage of NCLC's cy pres revenue was generated
    from TCPA class actions each year for the past five years (CY2019 to
    CY2023)?
        Answer. Most class action cases involve multiple causes of action.
    The percentage of total cy pres revenue generated from class actions
    that involved a TCPA claim as one of the causes of actions (that we
    have been able to identify) each year for the past five years is:
    2019--30 percent; 2020--7 percent; 2021--38 percent; 2022--44 percent;
    2023--48 percent.

        Question 3. What limitations exist on the use of any revenue NCLC
    receives from TCPA cy pres awards?
        Answer. Limitations on the use of TCPA cy pres awards are
    determined by the court that enters the order approving the award in
    each case. NCLC abides by all court orders.

        Question 4. Are these funds resulting from cy pres awards comingled
    with any other revenue streams?
        Answer. Cy pres awards that are purpose-restricted by a court are
    not comingled with any other revenue streams.

        Question 5. How has NCLC used revenue from TCPA cy pres awards each
    year for the past five years (CY2019 to CY2023)?
        Answer. In the past five years, NCLC has used revenue from TCPA cy
    pres awards to support work to protect consumers from unwanted and
    dangerous calls and texts and, where permissible under the court order,
    to support our research, training, and advocacy on behalf of low-income
    and other vulnerable consumers who have been or are at risk of being
    abused, deceived, discriminated against, or denied access to justice.
        This work includes advocacy before the Federal Communications
    Commission (FCC) to stop unwanted and dangerous calls and texts,
    especially those that defraud consumers. In the past several years our
    work has included the filing of 44 comments and ex parte notices to
    encourage more effective protections against invasive and dangerous
    calls. These filings have been in multiple dockets, including but not
    limited to the TCPA docket.
        During this time our advocacy has been instrumental in improved
    consumer protections against these calls and texts, including:

      a.  The FCC's determination that ringless voice-mail messages are
            covered under the TCPA, which protects consumer and business
            cell phone subscribers from having their voice mailboxes filled
            with unwanted robocalls.

      b.  The FCC's new limits on non-telemarketing prerecorded calls to
            residential lines that were previously exempt from any
            restrictions. These calls are now limited to only 3
            unconsented-to calls a month; this particularly protects
            consumers from overzealous debt collection efforts.

      c.  Our 2022 Scam Call report on the causes and consequences of the 1
            billion plus monthly scam calls has received widespread
            attention, reinforcing the efforts we launched with our
            national partners to urge the FCC to apply more aggressive
            measures to block these calls. Some of the proposals that the
            FCC is now considering appear to be in response to many of the
            issues we raised. We have also done considerable work to assist
            consumers in recovering money stolen through scam robocalls and
            texts.

      d.  NCLC is also leading an effort to drastically reduce illegal
            telemarketing calls (currently over 1.2 billion monthly) by
            prohibiting lead generators and data brokers from trafficking
            in the consents that are used to justify these calls. The
            Federal Trade Commission has issued guidance supporting this
            position, and along with a dozen national partners we have
            filed comprehensive comments and held numerous meetings with
            the FCC, urging it to do the same. Twenty-eight state attorneys
            general have supported these efforts, as has USTelecom, the
            trade association for the telephone providers. Indeed, the FCC
            has recently announced its intention to implement many of our
            recommendations in an amended regulation that the FCC says will
            ``prohibit abuse of consumer consent by'' lead generator
            websites.

      e.  NCLC has testified before Congress on ways to limit dangerous and
            unwanted robocall multiple times, including before this
            Committee in 2016, 2018 and 2019, and before the House
            Subcommittee on Communications and Technology in 2019.

      f.  NCLC writes and publishes a treatise titled Federal Deception
            Law, which includes two chapters providing a detailed analysis
            of all significant TCPA decisions and FCC actions, updated
            regularly (most recently in early 2023).

      g.  NCLC provides multiple Continuing Legal Education (CLE)-eligible
            trainings to consumer lawyers each year on the intricacies of
            the TCPA and related regulations.

        Our broader efforts to protect low-income consumers are documented
    on www.nclc.org, which includes thousands of pages of detailed reports,
    testimony, advocacy, and resources directed at achieving economic
    justice for people with low incomes. NCLC's research and advocacy helps
    protect every consumer who buys a house or a car, uses a credit card,
    opens a banking account, makes a payment, incurs a medical debt,
    obtains utility services, or takes out a student loan from unfair,
    abusive, and deceptive financial practices.
        NCLC's work includes publishing comprehensive legal treatises,
    widely considered to be the Nation's leading source of consumer law
    analysis, which are often cited in judicial opinions by courts across
    the country, including the U.S. Supreme Court. The 21-volume Consumer
    Law Practice Series and the NCLC Digital Library are used over 35,000
    times each month by attorneys working to detect and remedy illegal
    robocalls, obtain redress from scams and fraud, challenge arbitration
    clauses, clear credit reporting errors, protect consumers from abusive
    debt collection practices, use bankruptcy to obtain a fresh financial
    start, stop threatened foreclosures, and much more.
        NCLC's expertise is often called upon by public officials, courts,
    attorneys, and other advocates focused on addressing the needs of low-
    income and other disadvantaged consumers. NCLC provides comprehensive
    continuing legal education on consumer law. More than 10,000 consumer
    attorneys, advocates, and service providers attend an NCLC conference
    or receive training from an NCLC attorney through a webinar or in-
    person training session each year.

        Question 6. How does NCLC advocate and/or engage in activities
    designed to encourage and/or maximize the amount of cy pres awards
    provided to NCLC in TCPA actions?
        Answer. NCLC encourages class action attorneys to consider
    nominating NCLC to receive cy pres awards in appropriate cases through
    occasional mailings, e-mails, newsletters, and mentions at relevant
    conferences and trainings. NCLC does not seek to ``maximize'' cy pres
    awards; our advocacy consistently supports the maximum distribution of
    settlement funds to class members.

        Question 7. Has anyone who nominated NCLC for a cy pres award in a
    TCPA class action in the past five years (CY2019 to CY2023) received
    any payment, benefit, award or honorarium from NCLC because of, or in
    connection to, such nomination for or actual receipt of a cy pres
    award? If so, please describe any such payment, benefit, award, or
    honorarium received.
        Answer. NCLC does not offer or issue any payment, benefit, award or
    honorarium ``because of, or in connection to'' nominations for or
    receipt of cy pres awards. We do provide some forms of non-monetary
    recognition to attorneys who nominate NCLC to receive cy pres awards,
    including lapel pins, plaques, and public expressions of appreciation
    for the attorney's work to protect consumers on nclc.org, at
    conferences, and/or in our bi-annual newsletter.
        From 2019-2023, NCLC has issued 20 awards: five Vern Countryman
    Awards for consumer attorneys whose special contributions to the
    practice of consumer law have strengthened and affirmed the rights of
    low-income and other vulnerable consumers, and 15 Rising Star Awards to
    attorneys newer to practice who have made major contributions to
    consumer law within the past two years by trying or settling a case of
    great success and significance. Of these 20 individual attorneys, one
    award winner nominated NCLC for a cy pres award in a TCPA class action,
    and the award was based on that recipient's career accomplishments
    assisting low-income consumers. Award recipients receive a trophy and
    $500 in recognition of their lifetime achievements.
    Provider Suspension Process
        Question 1. In your written testimony, you advocated for the
    Federal Communications Commission (FCC) to immediately suspend a
    provider from the Robocall Mitigation Database if that provider
    transmits as few as two calls deemed to have been illegal by a
    government agency or a government contractor. Your proposed scheme
    seems like a two-strike system: You get one notification that a problem
    has occurred, and then if it happens again, you get an immediate
    suspension and have to cease all operations for 10+ days.

        a. In your view, should a voice service provider be forced to cease
    all operations, sacrifice two weeks of revenue, and defend itself
    before the FCC if it merely lets just two illegal robocalls pass
    through its network?
        Answer. No. The notifications and the suspensions we are proposing
    are only triggered by numerous (thousands, or tens of thousands) of
    similar calls transmitted through the same provider.

        b. What evidence of wrongdoing should be required before the FCC
    takes such measures?
        Answer. Repeated transmission of illegal calls after notification
    from a Federal or state enforcement agency, or a designated contractor
    of one of these agencies, that the provider is continuing to transmit
    illegal calls.

        Question 2. Your proposal contemplates allowing a suspended
    provider to have a hearing before the FCC's Administrative Law Judge
    (ALJ) by the end of its 10-day initial suspension. However, there is
    currently only one ALJ working at the FCC. How will the hearing process
    move on ``an expedited basis'' as you describe?
        Answer. If necessary, we propose that the FCC employ more ALJs to
    deal with these hearings. And, if more funding is necessary, we are
    advocating that Congress should allocate sufficient funds to the FCC to
    enable it take appropriate steps to stop these illegal calls.
        Currently the illegal scam and telemarketing calls cause billions
    of dollars to be stolen annually by scam callers, and significant
    losses of time and privacy for almost all telephone subscribers in the
    United States. These calls are also a primary contributor to overall
    denigration of the American telephone system. These costs surely
    provide sufficient justification for additional funding to the FCC to
    employ the necessary number of ALJs and other staff.

        Question 3. If the hearing can take place immediately after the 10-
    day period, why do you believe the suspended voice provider will be
    ready by then?
        Answer. As with the hearings that follow temporary restraining
    orders (TRO) issued pursuant to Rule 65(b) of Federal Rules of Civil
    Procedure, the 10-day period is for the benefit of the recipient of the
    orders to request that the TRO be lifted. If the provider requests an
    extension of time before the hearing, we doubt anyone would object.

        a. Why is it a reasonable expectation for every voice provider to
    have sufficient in-house counsel or teams of lawyers on retainer that
    can spring into action, gather evidence, write briefs, and prepare
    arguments within ten days?
        Answer. Not every voice provider would need these resources--only
    those providers whose practices either support or permit the illegal
    calls to continue after being given notice. The potential for
    suspension would create incentives for providers to comply with the
    law.
        Additionally, it is highly unlikely that providers who receive
    these notices would be unaware that they are flouting the law. Indeed,
    it is more typical for repeated notices to be sent to complicit
    providers who ignore them and continue to transmit the illegal calls.
    This dynamic was described in a recent case brought by the Attorney
    General of Florida against a voice service provider for repeatedly
    transmitting illegal calls after notice: ``Plaintiff alleges that
    Defendant was notified approximately 250 times of fraudulent calls it
    has transmitted, despite having this knowledge it continued to connect
    these calls, profited from these fraudulent calls, refused to implement
    a means to check for these robocalls, and the calls would not have
    connected but for Defendant's decision to allow them to transit its
    network.'' Office of the Attorney General v. Smartbiz Telecom LLC,--
    F.Supp.3d--, 2023 WL5491835116 at 4, (S.D.Fl. August 23, 2023).

        Question 4. If a voice provider is wrongfully suspended--say,
    because the suspected illegal robocalls were actually legal, or because
    the initial notice of having transmitted illegal robocalls was never
    provided to them--would the provider have any recourse from the FCC for
    the wrongful suspension?
        Answer. Just as with the current process for a court to issue a
    TRO, one prerequisite would be the requirement for specific facts and
    evidence of those facts to show that the calls continued after the
    required notification was given to the voice service provider. (See
    FRCP Rule 65(b)). We have not outlined every specific facet of the
    procedure, only the general outline. The expedited, ex parte process
    used for TROs is a well-developed process in the Federal and state
    courts, used to prevent irreparable injury, loss, or damage that would
    result if the complained-of acts were allowed to continue. We are
    recommending that the FCC be authorized to establish and pursue a
    similar process to cut down on these invasive and dangerous calls.
        The original notifications should be based on verified information,
    using any one or several of the available service providers that
    identify the illegal calls. The FCC should only issue the suspension
    after ascertaining that the required notifications have been issued.

        Question 5. If a voice provider was wrongfully suspended, could
    they recover damages for the ten days of lost revenue?
        Answer. The answer to this question should be based on whether
    defendants in similar expedited processes (such as TROs issued under
    Rule 65)) may be entitled to such damages.

        a. What about reputational damages they may suffer by being
    publicly suspended from the Robocall Mitigation Database?
        Answer. Please see the answer to question # 5, above.
    Lead Generators
        Question 1. In your oral testimony, you stated: ``Telemarketers
    routinely ignore [FCC] regulations and make . . . about a billion
    illegal telemarketing calls every month. Then they defend themselves
    from government and private enforcement by relying on specious consent
    agreements that were either completely fabricated or based on supposed
    consent agreements, sold and resold, and sold again by lead
    generators.''

        a. Yes or no. If a consumer provides express written consent to a
    lead generator to be contacted by other businesses, and then their
    information is sold either to an aggregator or directly to a seller of
    the good or service the consumer wanted, would you consider any
    subsequent phone call from such businesses to be illegal?
        Answer. Yes. As we and numerous others have stated in comments
    filed with the FCC (see answers above), under the applicable rules for
    telemarketing calls made with an artificial or prerecorded voice, a
    lead generator can only collect consent for calls for one seller at a
    time in one agreement with the consumer. The FTC has already declared
    that calls made after consents for calls using prerecorded voice are
    traded are illegal under the Telemarketing Sales Rule.
        Furthermore, as we and others have also explained in comments filed
    with the FCC, under the applicable rules for telemarketing calls and
    texts to lines registered on the DNC Registry, the agreement that is
    necessary to make those messages legal can only be entered into between
    the seller and the consumer. No lead generator can be involved unless
    it is an agent of the seller.

        Question 2. In your oral testimony, you stated that the FCC should
    ``eliminate [the] entire business model'' of lead generation. Although
    there are bad actors within the industry, there are also legitimate
    companies, including small businesses, that rely on purchasing leads to
    grow their business and reach consumers who have given consent to be
    contacted. Could a categorical ban on lead generators harm these
    legitimate businesses?
        Answer. We have not called for eliminating the lead generation
    industry, only the practice of selling consumers' purported consent for
    telemarketing calls. There is a distinction between purchasing leads
    with the contact information of consumers who are interested in
    particular products or services, and purchasing the consent agreements
    that are necessary for telemarketing calls to be considered legal under
    the FCC's regulations. I was only addressing the practice of lead
    generators of trading the agreements for consent, which we believe to
    be already illegal, but which the FCC's amendment to the TCPA
    regulations ``unequivocally'' makes illegal.
                                     ______

          Response to Written Questions Submitted by Hon. Ted Cruz to
                                 Megan L. Brown
    FCC Robocall Forfeitures
        Federal Communications Commission (FCC) Chairwoman Jessica
    Rosenworcel has sought additional authority to make up for the
    Department of Justice's (DOJ) failure to pursue Telephone Consumer
    Protection Act (TCPA) violations. While I understand the importance of
    recovering penalties and fines, I am concerned about giving this
    additional authority to the FCC. It raises separation of power concerns
    and could shift the FCC's focus away from pursuing bad actors.

        Question 1. Can you please describe the implications of giving
    prosecution authority over forfeiture penalties to the FCC?
        Answer. Authorizing the Federal Communications Commission (FCC) to
    pursue forfeitures directly in Federal court, instead of relying on the
    DOJ, would be an expansion of authority and change the role of the
    FCC's Enforcement Bureau. It may open the door to future expansions of
    broad direct prosecution authority to the FCC and other agencies. At a
    time when courts are looking skeptically at Federal agencies' general
    ability to both interpret and enforce statutes, Congress should not
    expand the FCC's ability to go straight to court without DOJ. To the
    contrary, many statutes rely on DOJ enforcement of other agency
    actions, which makes sense because DOJ is well positioned to prioritize
    enforcement, exercise prosecutorial discretion, and promote consistency
    in the positions of the United States before Federal courts. Putting a
    new responsibility on the FCC may require additional resources and is
    beyond the agency's procedural and substantive areas of expertise.
        It is unnecessary to make such a fundamental change at this time.
    The FCC has been capably investigating and acting on abuses of the
    TCPA, the Truth in Caller ID Act, the TRACED Act, and its rules,
    including recent actions to address police misstatements and defects in
    the Robocall Mitigation Database (RMD).\1\ As FCC Chairwoman Jessica
    Rosenworcel recently noted, in the last two years since passage of the
    TRACED Act, the FCC has ``stopped more big robocall schemes than at any
    point in [the FCC's] history.'' \2\ The FCC can continue to pursue bad
    actors, increase its efforts to clean up the RMD, communicate with
    industry when it identifies problematic traffic, and increase its
    collaboration with the agency's registered traceback consortium under
    the TRACED Act, the Industry Traceback Group. As the FCC itself has
    noted, when it sends clear messages to stop facilitating bad traffic,
    the results are impressive. For example, in a recent enforcement action
    targeting the bad actors behind more than 5 billion fraudulent auto
    warranty robocalls, FCC Chairwoman Rosenworcel noted that subsequent to
    its enforcement action, the volume of these calls fell by 99
    percent.\3\ In recent Senate testimony, Chairwoman Rosenworcel
    emphasized similar results in student loan scam calls, which were
    reduced by 88 percent.\4\
    ---------------------------------------------------------------------------
        \1\ See Press Release, FCC Seeks to Remove Companies from Key
    Database for Non-Compliance with Anti-Robocall Rules, FCC (Oct. 16,
    2023), available at https://docs.fcc.gov/public/attachments/DOC-
    397737A1.pdf. The FCC's press release discusses the issuance of 20
    Enforcement Bureau orders to begin removing specified non-compliant
    voice service providers from the agency's RMD, due to their submission
    of allegedly deficient robocall mitigation plans. Their removal from
    the RMD would require all intermediate providers and terminating voice
    service providers to cease carrying the companies' traffic, these
    companies' customers would be blocked, and no traffic originated by
    these companies would reach the called party.
        \2\ See Statement of Chairwoman Jessica Rosenworcel, Advanced
    Methods to Target and Eliminate Unlawful Robocalls, CG Docket No. 17-
    59; Call Authentication Trust Anchor, WC Docket No. 17-97; Seventh
    Report and Order in CG Docket CG 17-59 and WC Docket 17-97, Eighth
    Further Notice of Proposed Rulemaking in CG Docket 1759, and Third
    Notice of Inquiry in CG Docket 17-59 (May 18, 2023); available at
    https://docs.fcc.gov/public/attachments/FCC-23-37A1.pdf.
        \3\ Statement of Chairwoman Jessica Rosenworcel, In the Matter of
    Sumco Panama SA, Sumco Panama USA, Virtual Telecom kft, Virtual Telecom
    Inc., Davis Telecom Inc., Geist Telecom LLC, Fugle Telecom LLC, Tech
    Direct LLC, Mobi Telecom LLC, and Posting Express Inc., File No.: EB-
    TCD-21-00031913, Forfeiture Order, FCC-23-64 (August 3, 2023) (Sumco
    Panama Forfeiture Order).
        \4\ https://docs.fcc.gov/public/attachments/DOC-397034A1.txt
    ---------------------------------------------------------------------------
        Given the ability of DOJ to go to court, there is no demonstrable
    need to fundamentally change the agency's relationship with the FCC and
    the courts. In fact, when Congress in the 1970s gave some direct
    litigating authority to the Federal Trade Commission, it was responding
    to demonstrated disagreement between the DOJ and the FTC that was
    affecting litigated cases.\5\
    ---------------------------------------------------------------------------
        \5\ See S. Rep. No. 93-151, at 29 (1973) (``This section insures
    that the Commission will be able to represent itself in any civil
    proceeding involving the Federal Trade Commission Act. At the present
    time, the Commission must, in many situations, rely on the Department
    of Justice, which has been sluggish in the past in enforcing regulatory
    agency decisions in Federal courts.'').
    ---------------------------------------------------------------------------
        The prior ``division of labor created problems when the FTC and DOJ
    disagreed on substantive areas of antitrust law and policymaking
    efforts and resulted in poor representation of the FTC's positions
    through filing delays, settlements that did not reflect the agency's
    policy goals, and even the refusal to file cases in the first
    place.''\6\ There is no apparent disfunction between DOJ and the FCC
    over collection of forfeitures, so it appears premature at best to
    expand the role of the FCC.
    ---------------------------------------------------------------------------
        \6\ Eliott Karr, Independent Litigation Authority and Calls for the
    Views of the Solicitor General, 77 Geo. Wash. L. Rev. 1080, 1091 (June
    2009).

        Question 2. Do you agree that we should focus on getting the DOJ to
    do its job rather than giving this power to an independent agency?
        Answer. The Chamber agrees that it would be preferable to encourage
    the DOJ to prioritize the collection of FCC forfeitures and the pursuit
    of other claims--civil and criminal--against those who abuse the
    communications system to seek to defraud Americans. There are many ways
    the DOJ, using existing authorities, can investigate and prosecute bad
    actors and fraudsters, with the FCC and on its own. As I explained in
    my written testimony, Congress can do several things to encourage DOJ
    to take more action:

       Require DOJ to file an annual report with Congress
            explaining enforcement activity it has undertaken in the last
            calendar year to combat illegal robocalls and its handling of
            FCC referrals, including the pursuit of forfeiture amounts.
            This requirement would be similar to the TRACED Act's annual
            TCPA reporting requirement for the FCC and should require DOJ
            to explain if and why it has not pursued FCC referrals.

       Prioritize DOJ funds for investigations and enforcement
            actions against illegal robocallers.

       Require DOJ to establish a robocall enforcement and
            education office.
    TCPA Abuse
        Question 1. In your testimony, you point out that TCPA class action
    litigation filings are once again on the rise even in in the wake of
    Facebook v. Duguid.\7\ Why is that and why should the public and
    lawmakers be concerned?
    ---------------------------------------------------------------------------
        \7\ Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021).
    ---------------------------------------------------------------------------
        Answer. It appears that class action lawyers and plaintiffs are
    turning to other parts of the TCPA, and also that they continue to try
    to limit and undermine the decision in Duguid.\8\ Post-Duguid, TCPA
    litigation has remained steady with the overall number of cases
    dropping slightly at first and gradually increasing.\9\ Additionally,
    the plaintiffs' bar has used techniques to prolong litigation to the
    summary judgment stage instead of being dismissed at the pleadings
    stage, giving plaintiffs' attorneys leverage to coerce companies into
    massive settlements in a post-Duguid world.\10\ Because of the
    statutory damages and near strict liability of the TCPA, it simply
    remains too attractive to class action lawyers.
    ---------------------------------------------------------------------------
        \8\ See, e.g., Borden v. eFinancial, LLC, 53 F.4th 1230 (9th Cir.
    2022) (rejecting attempt to distinguish Duguid); Brickman v. Meta, 56
    F.4th 688 (9th Cir. 2022) (same). The U.S. Chamber participated as
    amicus in Brickman, and explained to the Ninth Circuit that ``the TCPA
    plaintiffs' bar has continued after Duguid to bring putative class
    actions under the statute seeking exorbitant statutory damages. Like
    many TCPA plaintiffs since Duguid, Brickman makes an argument that
    relies heavily on a single sentence within a single footnote in
    Duguid--footnote 7. As a recent report released by the Chamber's
    Institute for Legal Reform explains, that footnote ``has become the
    battleground in much of the post-Duguid TCPA litigation.'' Brief Amicus
    Curiae, United States Chamber of Commerce, Brinkman v, Meta, 9th Cir.
    No. 21-16785 (filed Apr. 18, 2022) https://www.uschamber.com/assets/
    documents/U.S.20Chamber20Amicus20Brief20-
    20Brickman20v.20United20States2028Ninth20Circuit29.pdf (citing U.S.
    Chamber Inst. for Legal Reform, Turning the TCPA Tide: The Effects of
    Duguid 13 (Dec. 2021), https://institute
    forlegalreform.com/wp-content/uploads/2021/12/
    1323_ILR_TCPA_Report_FINAL_Pages.pdf).
        \9\ Turning the TCPA Tide: The Effects of Duguid, U.S. Chamber
    Institute for Legal Reform (Dec. 2021), https://
    instituteforlegalreform.com/wp-content/uploads/2021/12/1323_ILR_TCPA
    _Report_FINAL_Pages.pdf, (``Between October 1, 2020 and March 31, 2021,
    975 TCPA-related Federal cases were filed. Duguid was decided on April
    1, 2021. In the six succeeding months, up to September 30, 2021, 674
    TCPA-related cases were filed in Federal court--a decrease of roughly
    31 percent.''). According to data from Westlaw Litigation Analytics,
    more than 50 percent of the 2,640 TCPA cases in Federal court in 2022
    and so far in 2023 have been class actions. In October 2023 alone, 64
    percent of all TCPA lawsuits were class actions. (In Westlaw Analytics,
    we reviewed docket analytics under the ``Experience'' (Telephone
    Consumer Protection Act) tab for 1/01/2022 to 11/20/2023 to identify
    the total cases (2,640). We reviewed how many were class action
    (1,463). We also looked at the cases in the date range 10/1/2023-10/31/
    2023 (122) and reviewed how many were class actions (79) to determine
    that in October 2023 alone, 64 percent of TCPA lawsuits were class
    actions.) (last visited Nov. 20, 2023)).
        \10\ Id.
    ---------------------------------------------------------------------------
        The proliferation of TCPA class actions should be a concern for
    policymakers because they generate costly litigation and encourage
    settlements that may not reflect violations of the law but that greatly
    benefit lawyers. This is why the TCPA remains a lucrative specialty for
    the plaintiffs' bar. Because the TCPA operates as a strict liability
    statute, legitimate businesses that make a mistake can be caught in its
    cross hairs. And the threat of expensive litigation and enormous
    damages can lead companies to settle cases even where they have solid
    defenses and did nothing wrong. For example, even where a company
    claims it has adequate consent for the communication, it can be
    difficult to establish consent in early motions practice at the class
    certification stage. This means a defendant faces enormous litigation
    costs, creating a strong incentive to settle.
        Fundamentally, this sort of punitive TCPA litigation environment
    does nothing to discourage the fraudsters and scammers that
    intentionally violate the law and are responsible for the overwhelming
    majority of illegal robocalls and texts.

        Question 2. On October 24th, Ms. Saunders of the National Consumer
    Law Center testified that while she ``understand[s] the frustration of
    the Chamber of Commerce with inappropriate class actions at the moment,
    the danger of class actions is also one of the prime ways that
    incentivizes sellers and callers to comply with the law.''

        a. Do you agree or disagree that the ``danger of TCPA class
    actions'' helps consumers and is effective in reducing illegal
    robocalls?
        Answer. I disagree. The fear of TCPA liability chills legitimate
    and lawful communications campaigns and imposes additional burdens on
    companies. Legitimate American businesses have robust compliance
    programs to meet the demands of the TCPA as well as the Telemarketing
    Sales Rule and other requirements. And the calling ecosystem has
    extensive codes of conduct and programs that are built on consent and
    compliance. The bad guys, fraudsters, and criminals abusing our
    communications networks do not care about compliance and are not
    deterred by our laws or the threat of class actions. TCPA litigation
    ensnares legitimate U.S. businesses that already have robust compliance
    programs and ample incentive to comply with the law.
                                     ______

         Response to Written Questions Submitted by Hon. John Thune to
                                 Megan L. Brown
        Question 1. The TRACED Act increased the FCC's ability to initiate
    enforcement actions against illegal robocallers who are intentionally
    violating the law by extending the statute of limitations from 1 year
    to 3 years, and it eliminated the citation requirement for such
    violations. Has this provision helped enable the FCC to stop illegal
    robocallers?
        Answer. Yes, this part of the TRACED Act appears to have helped the
    FCC investigate and bring actions against illegal robocallers. The FCC
    has been bringing substantial enforcement actions since passage of the
    TRACED Act, the FCC appeared to have used this provision on at least
    three occasions. For example, on August 24, 2021, the FCC issued a
    Notice of Apparent Liability for Forfeiture (NAL) proposing a
    $5,134,500 fine against John M. Burkman, Jacob Alexander Wohl, and J.M.
    Burkman & Associates LLC for apparently making 1,141 unlawful robocalls
    to wireless phones without prior express consent in violation of the
    TCPA.\11\ The FCC noted that this was the first case in which the FCC
    used the TRACED Act's authorization to issue an NAL for apparent TCPA
    violations without first issuing a citation.\12\ The FCC appears to
    have leveraged this provision on at least two other occasions.\13\
    ---------------------------------------------------------------------------
        \11\ See John M. Burkman, Jacob Alexander Wohl, and J.M. Burkman &
    Associates LLC, Notice of Apparent Liability for Forfeiture, FCC 21-97
    (Aug. 24, 2021).
        \12\ Id. at  2.
        \13\ See e.g., Gregory Robbins; Interstate Brokers of America LLC;
    National Health Agents LLC, Notice of Apparent Liability for
    Forfeiture, FCC 22-16 (2022); see also Thomas Dorsher, ChariTel Inc.,
    OnTel Inc., ScammerBlaster Inc., Notice of Apparent Liability for
    Forfeiture, FCC-22-57 (2022).

        Question 2. Does the FCC have the authority to revise the
    definition of an ATDS without a clear directive from Congress following
    the Supreme Court's decision in Duguid?
        Answer. No. The Supreme Court's unanimous opinion definitively
    interpreted Sec. 227(a)(1)(A) of the statute, defining what is required
    to constitute an autodialer. The Court held that ``a necessary feature
    of an autodialer under Sec. 227(a)(1)(A) is the capacity to use a
    random or sequential number generator to either store or produce phone
    numbers to be called.'' \14\
    ---------------------------------------------------------------------------
        \14\ Facebook v. Duguid, 141 S. Ct. 1163, 1173 (2021).
    ---------------------------------------------------------------------------
        The FCC does not have authority the revise the statutory
    definition, as interpreted by the unanimous Supreme Court, nor should
    it attempt to do so on its own.

        Question 3. Could you provide some examples of TCPA filings that
    you would categorize as litigation abuse?
        Answer. There are so many cases that involve beneficial
    communications, as well as legitimate companies, non-profits and
    government actors. And in many instances, court rulings prevent speedy
    resolution of dispositive questions like whether there was consent or
    whether a call is for telemarketing. Because there is no cumulative
    limit to damages, plaintiffs' lawyers will continue to seek mind-
    boggling damages awards. Further, massive classes--such as a recent
    class certification of over one million people--encourage settlement
    even where a company has strong defenses. The Chamber provides a few
    examples:

       Silver v. City of Albuquerque\15\: The City of Albuquerque
            was sued after sending text messages to local residents during
            the COVID-19 pandemic, notifying them of the opportunity to
            engage in socially-distanced town halls. The City had to engage
            in substantial litigation over communications that were
            intended to help the community participate in local government.
    ---------------------------------------------------------------------------
        \15\ No. 1:22-CV-00400, 2023 WL 2413780 (D.N.M. Mar. 8, 2023).

       Barton v. Serve All, Help All, Inc.\16\: Serve All, Help
            All, a non-profit company that provides financial aid and
            assistance to those with housing needs, was sued by a serial
            pro se litigant for an automated phone call offering a Public
            Service Announcement for homeowners in default.
    ---------------------------------------------------------------------------
        \16\ No. 3:21-CV-05338, 2023 WL 1965905, at *1 (W.D. Wash. Feb. 13,
    2023), motion to certify appeal denied, No. 3:21-CV-05338-RJB, 2023 WL
    2372904 (W.D. Wash. Mar. 6, 2023).

       Eller v. Uber Technologies, Inc.\17\: Plaintiff sued Uber
            after receiving text messages that, ``Your Driver's License is
            expired, please head to the app to update it.'' Plaintiff
            alleges Uber failed to honor opt-out requests and makes a
            number of process-based claims about internal policy problems
            such as lack of sufficient training. Since this case was filed
            in September 2023, no merits briefing has taken place, but it
            appears this case will seek enormous damages and fees ($1500
            per text for alleged knowing and willful conduct). It appears
            this case is on shaky ground. The plaintiff alleges this is a
            telemarketing text, but it does not appear to be, and it is not
            clear that the plaintiff followed the opt-out mechanism
            provided by the company.
    ---------------------------------------------------------------------------
        \17\ No. 4:23-CV-03526 (S.D. Tex. Sept. 19, 2023).

       Head v. Citibank, N.A.\18\: Plaintiff sued a credit card
            company in a putative class action alleging that she received
            unsolicited calls about past-due credit card debt incurred by
            another person. Citibank argued that the Plaintiff ``does not
            identify a single similarly situated person or phone number
            that received allegedly wrong number calls.'' Citibank argued
            against certification of a class action because, among other
            things, its internal ``wrong number codes'' are used for a
            variety of reasons, and do not necessarily indicate unconsented
            calls. The court disagreed and certified the class, reasoning
            that ``[i]n light of the enormous rate at which Citibank places
            calls to delinquent accounts, it seems virtually impossible''
            that Citibank has not called ``at least 40'' non-customers,
            warranting class certification. This ruling is based on
            speculation but subjects Citibank to expensive litigation and
            burdensome discovery, delaying resolution and increasing the
            pressure to settle despite what appear to be meritorious
            defenses.
    ---------------------------------------------------------------------------
        \18\ 340 F.R.D. 145, 149 (D. Ariz. 2022).
    ---------------------------------------------------------------------------
       Hylton v. Titlemax of Virginia, Inc.\19\: This is a
            reassigned number case, a type of TCPA case in which companies
            are sued for making communications to numbers that, unbeknownst
            to the company, were reassigned from someone who had provided
            consent to a new user who then sues for the mistake. The
            plaintiff, Hylton, received communications because Titlemax was
            trying to contact an individual who had the number prior to
            Hylton and had consented to calls with a pre-recorded message
            and agreed to inform Titlemax of any change in his provided
            number but failed to do so. After receiving calls, Hylton
            called Titlemax on five occasions, but did not inform Titlemax
            that she had received the calls on the number they thought
            belonged to another person nor requested that Titlemax stop
            calling Hylton's number. Though the defendant was not on notice
            of the reassigned number and had consent from the previous
            holder of the number, the court found that ``neither the text
            of the TCPA nor the FCC's recent rulemaking supports the
            creation of a defense or exemption for those who can show that
            they reasonably relied upon their intended recipient's prior
            express consent when calling a reassigned number,'' and denied
            Titlemax's motion for summary judgement.
    ---------------------------------------------------------------------------
        \19\ No. 4:21-CV-163, 2022 WL 16753869, at *1 (S.D. Ga. Nov. 7,
    2022).

       Wick v. Twilio, Inc.\20\: Plaintiff accessed a website,
            Crevalor, which offered a nutrition supplement. To receive a
            free sample, the plaintiff submitted his name, address and cell
            phone number into a form on the website. Plaintiff was then
            directed to a webpage that provided pricing information.
            Plaintiff decided against continuing with the order and closed
            the webpage. Immediately after plaintiff submitted his
            information, defendant Twilio, which provides automated text
            messaging services, sent the plaintiff a text message stating:
            ``Noah, Your order at Crevalor is incomplete and about to
            expire. Complete your order by visiting http//hlth.co/xDoXEZ.''
            Plaintiff filed suit under the TCPA, alleging that the text
            constituted telemarketing. The Court disagreed, reasoning that
            ``it is not telemarketing for the service or product provider
            to inform plaintiff how to complete'' an order process . . .
            Because plaintiff consented to the communications at issue when
            he submitted his telephone number during the Crevalor order
            process, plaintiff fails to plead a TCPA violation.'' This case
            show how even valid defenses and consent cannot stop litigation
            of spurious claims that requires expensive defense costs for
            targeted companies.
    ---------------------------------------------------------------------------
        \20\ 2016 WL 6460316, at *1 (W.D. Wash. Nov. 1, 2016).

        Question 4. You list caps on attorneys' fees as a means to deter
    abusive TCPA litigation. What is your view on limiting the availability
    of class actions under the TCPA, which could also deter out-of-control
    attorneys' fees?
        Answer. Limiting the availability of class actions under the TCPA
    would be an effective way to help reduce enormous attorney's fees.
    According to data from Westlaw Litigation Analytics, more than 50
    percent of the 2,640 TCPA cases in Federal court in 2022 and so far in
    2023 have been class actions. In October 2023 alone, 64 percent of all
    TCPA lawsuits were class actions. The class action vehicle is a major
    driver of TCPA litigation. The combination of statutory damages ($500
    or $1500) multiplied across large numbers of purported class members
    creates a threat of crushing liability; this leads to large
    settlements, of which a third or more can go to the lawyers.
        The Chamber has long criticized the utility of the class action
    vehicle because it is often used to target large companies and exact
    enormous fee awards, with little direct benefit to class members (for
    example in coupon settlements) or consumers.
                                     ______

       Response to Written Questions Submitted by Hon. Maria Cantwell to
                                Joshua M. Bercu
    Heightened Enforcement
        Congress passed the TRACED Act in 2019 to enhance the FCC's
    enforcement authority and increase penalties for illegal robocallers.
    Since then, scam robocalls have dropped 50 percent, but they remain a
    serious problem.
        Last year, scam robocalls cost American consumers a total of $39
    billion. This includes 1.1 million people in the State of Washington.
    Clearly, we can do more to crack down on these scams.

        Question 1. How can we ensure that the partnerships between state
    law enforcement and the private sector effectively supplement what the
    FCC and the FTC do on a Federal level?
        Answer. State enforcers are critical partners in the fight against
    illegal robocalls. The ITG works closely with attorneys' general
    offices from across the country, including Washington. States, like
    their colleagues at the FCC and FTC, are bringing more enforcement than
    ever before in large part based on ITG traceback data. For instance,
    earlier this year, 49 attorneys general sued one provider they deemed
    responsible for illegal robocalls based on traceback data.
    Robocall Mitigation Tools
        You spoke of the various types of robocall ``mitigation tools''
    that providers are deploying, which help consumers block unwanted
    calls.

        Question 1. Do the various tools you described work with all
    technologies and devices?
        Answer. Providers have deployed a variety of tools to protect their
    customers, and most have different tools deployed at different layers
    of their network and operations. For instance, many providers block
    calls highly likely to be illegal within the network long before they
    reach the consumer. Sometimes they do so because the calls are
    purportedly from numbers on the ITG's Do Not Originate list, a list
    composed of government and enterprise numbers intended only for inbound
    calls and never used to make calls.
        Providers also have deployed tools that block and label illegal and
    unwanted calls on a per-call basis. The tools can vary provider-to-
    provider and vendor-by-vendor, and implementation for wireline can
    differ from wireless. In addition to the tools deployed by providers
    and their partners, consumers can obtain over-the-top applications to
    supplement protections, such as from YouMail, Nomorobo, and Robokiller.

        Question 2. How do we ensure that these mitigation tools can evolve
    quickly enough to counter scammers' changing tactics?
        Answer. The tools deployed by providers rely on machine learning
    and other cutting-edge technologies and methods to detect scammers'
    latest tactics and address them. As I noted in my testimony, one
    challenge for providers and legitimate callers alike are bad practices
    of scammers like number rotation, designed specifically to evade
    blocking and labeling protections. More oversight and curbing of such
    practices will help to further isolate illegal calling from legal
    calling, helping to better mitigate the former while minimizing
    inadvertent blocking and labeling of the latter.
                                     ______

       Response to Written Questions Submitted by Hon. Ben Ray Lujan to
                                Joshua M. Bercu
    Handset Operating Systems
        Question 1. Fewer and fewer families subscribe to landline
    telephones, and the great majority of consumers receive robocalls and
    robotexts through handsets that use Apple iOS or Google Android. How do
    these handset providers work with STIR/SHAKEN to ensure call recipients
    have the best information about a call? Do Apple and Google participate
    in industry groups dedicated to limiting illegal and unwanted calls and
    texts?
        Answer. Neither USTelecom nor the ITG works directly with Apple or
    Google on robocall or robotext mitigation applications, but it is my
    understanding that Apple and Google work closely with wireless carriers
    to continue to improve the customer experience.
                                     ______

     Response to Written Questions Submitted by Hon. John Hickenlooper to
                                Joshua M. Bercu
    Artificial Intelligence
        The Federal Communications Commission (FCC) is launching a proposed
    inquiry to examine how Artificial Intelligence (AI) can be used as a
    tool to detect robocalls and robotexts.

        Question 1. How have members of U.S. Telecom utilized traditional
    AI/machine learning for both detecting robocalls and conducting
    traceback campaigns? Are members of U.S. Telecom exploring methods to
    detect AI-generated robocalls?
        Answer. USTelecom members are at the forefront of deploying
    cutting-edge technology to protect their customers. Providers and their
    analytics partners have long relied on machine learning and other tools
    to detect and stop scammers' latest practices. Providers choose the
    technologies and methods most effective for that goal. As a general
    matter, providers and their analytics partners are focused on
    identifying patterns of bad calling activity based on numerous factors.
    Their tools often focus primarily on such patterns, and capture illegal
    robocall activity whether generated by AI or not.
    Traceback Transparency
        Industry Traceback Group (ITG) traceback information is only
    released to selected parties and not made publicly available. In
    November 2022, ITG stated in their public comments submitted for the
    Federal Communications Commission's (FCC) annual report to Congress
    that releasing raw traceback information to the public could be
    ``misleading and harmful'' without proper context.

        Question 1. What steps is ITG taking to increase real-time
    transparency about scam calls to the public? Can generative AI be used
    in a virtual assistant to provide the necessary context to consumers
    such that they can easily digest raw traceback information?
        Answer. The ITG relies on third parties, such as YouMail,
    Robokiller, and individual providers, for real-time information about
    ongoing scam call campaigns. The ITG's traceback data is limited to
    information about suspected illegal call examples and how those calls
    transited from provider to provider across the telephone network. Such
    information does not offer either beneficial or actionable information
    directly to individual consumers, but it is critical to enforcement. In
    that regard, last year, the ITG launched a portal to provide direct
    access to traceback data to the FCC and other Federal and state law
    enforcement agencies. The ITG also responds to hundreds of subpoenas
    from such agencies to support their enforcement efforts.
                                     ______

         Response to Written Question Submitted by Hon. John Thune to
                                Joshua M. Bercu
        Question. In your testimony, you mention that the registered
    traceback consortium established under the TRACED Act has been an
    effective tool for identifying illegal robocalls. Are there steps
    Congress should take to further advance industry efforts to crack down
    on illegal calls? How would the Robocall Trace Back Enhancement Act,
    legislation I led last Congress with Senator Markey, help bolster
    privately led efforts to trace illegal robocalls?
        Answer. The Robocall Trace Back Enhancement Act would advance the
    ITG's efforts in combating illegal robocalls by extending liability
    protection to the ITG as the registered traceback consortium
    responsible for traceback. The legislation would allow the ITG to
    continue to be aggressive in disrupting illegal call flows through
    sharing of traceback-based data within the industry and with government
    entities by protecting the ITG as the registered consortium from
    frivolous lawsuits aimed at undermining the traceback process.
        The ITG would also support Congress extending the consortium
    designation process to every three years. Under the TRACED Act, the
    registered traceback consortium must be designated by the FCC annually.
    The FCC's review and oversight are integral to confirming that the
    consortium operates in a neutral and non-discriminatory manner.
    Conducing the designation process on an annual basis, however, ties up
    the Commission's resources as well as those of the consortium. Those
    resources would be better dedicated to investments in advancing the
    fight again illegal robocalls.
                                     ______

       Response to Written Questions Submitted by Hon. Maria Cantwell to
                                Michael Rudolph
    Innovation and Adoption
        Robocallers are taking advantage of technological innovations to
    flood our phones with calls and texts. It seems to me that other forms
    of technological innovation--like machine learning and generative
    artificial intelligence- hold the most promise for combatting this
    flood of illegal robocalls.

        Question 1. How can Congress and the FCC encourage
    telecommunications companies to embrace innovative technologies and use
    new tools responsibly to protect consumers from robocalls?
        Answer. The biggest current challenge meriting Congressional and
    FCC assistance to combat illegal robocalls and robotexts is assisting
    in the adoption of effective, innovative technologies.
        Presently, telecommunication companies are not incentivized to
    solve these problems as solving the problems not only costs time, and
    resources, but the eventual outcome is lost revenue from the now
    missing robocommunications.
        Robocalls are introduced into the phone network because the ``chain
    of trust'' has been broken, and a telecommunication company has allowed
    a nefarious, bad acting account or other telecommunication company to
    enter the network and bring along unwanted, unlawful communications.
        At present, telecommunication companies, being profit-driven
    enterprises, seek to maximize revenue. Maximizing revenue means
    carrying as many robocalls as reasonably possible while signaling to
    investigators and enforcement that ``just enough'' mitigation effort is
    applied and a conveying ``just enough'' responsiveness to investigative
    demands.
        For example, take recent evidence from the public record in the
    Florida Southern District Court from Office of Attorney General, State
    of Florida vs Smartbiz Telecom LLC (1:2022cv23945). Document 50-32
    contains 18 pages of invoices of a provider accused of being a conduit
    of millions of unlawful robocalls. The very first invoice indicates
    that the provider earned $140,063 of revenue in 1 month via 1
    relationship for 96 million calls, or $0.0015 per call. Documents for
    this case further include 444 pages of traceback e-mails received by
    this telecommunication provider for 261 traceback notifications
    starting in 2020. In just one route of this provider's business,
    approximately 814 million calls from July 2022 through June 2023
    generated $1.22 million in revenue.
        US Telecom recently indicated that the average traceback travels
    6.1 hops \1\ which could then be applied to form an approximate
    ``industry revenue model'' for 814 million such calls by using the
    .0015/call rate and 10 percent wholesale margins. In total for the six
    provides involved, 814 million similar calls generate $5.7M in
    telecommunications revenue, with $720,000 for the final provider
    servicing the call recipient.
    ---------------------------------------------------------------------------
        \1\ https://docs.fcc.gov/public/attachments/DOC-390423A3.pdf

    ----------------------------------------------------------------------------------------------------------------
        Hop 1            Hop 2               Hop 3               Hop 4               Hop 5           Term  (Hop 6)
    ----------------------------------------------------------------------------------------------------------------
    $1.22M                   $1.10M               $988K               $889K               $800K               $720K
    ----------------------------------------------------------------------------------------------------------------

        The current state in industry for innovative solutions that
    identify which accounts and partners carry these calls faces tremendous
    resistance if a telecommunications company can achieve sufficient
    robocall mitigation compliance by simply responding to individual
    incident reports (direct or via traceback) and taking down individual
    numbers on accounts as they are reported rather than seek to
    exterminate all similar traffic from their networks. The decision to
    not adopt comprehensive solutions not only saves the provider from
    paying for the cost of those solutions, but also allows the provider to
    retain as much revenue from allowing the remaining unreported,
    uninvestigated, unlawful traffic to continue transiting their networks.
        In 2002, the Sarbanes-Oxley Act was passed with votes of 423-3 and
    99-1 that mandated certain practices in financial record keeping and
    reporting for corporations. Minimal or non-existent detection,
    investigation and mitigation controls at communications companies are
    predominantly responsible for the plague of robocommunications. Present
    reductions have only been achieved due to FCC orders \2\ that create a
    no-tolerance policy for certain topical robocalls and then follow it up
    orders with direct evidence, outreach and enforcement to eliminate the
    traffic exhaustively throughout the telephone network.
    ---------------------------------------------------------------------------
        \2\ https://www.fcc.gov/document/robocall-enforcement-order-all-us-
    based-voice-service-providers
    ---------------------------------------------------------------------------
        If communication platforms servicing unlawful robocommunication
    operations were subjected to regular assessments similar to those
    within Section 404 of Sarbanes-Oxley requiring management and external
    auditors to report on the adequacy of a company's internal controls
    (and to also improve deficient controls, even if that meant losing
    material revenue), it would dramatically shift the risk/revenue balance
    throughout industry with new standards for conduct, tolerance and
    accountability.
        As the problem is rooted in functions balancing risk with revenue,
    it is not solved without further Congressional action to change the
    balance of the equation where providers seek to eliminate the risk
    rather than protect revenue.
    AI and Deepfake Calls
        I recently heard about an alarming situation in my state. A family
    in Pierce County, Washington received a deepfake call, where a scammer
    used AI to spoof their daughter's voice saying that she had been in a
    car accident and that a man was threatening to harm her unless they
    wire $10,000. No family should have to face this.

        Question 1. How can Congress empower consumers, regulators, and law
    enforcement to stay ahead of the increasingly sophisticated
    technologies scammers use?
        Answer. This particular scam is one of the most difficult ones to
    stay ahead of, as it:

       Uses a phone number that appears as unknown to the recipient

       Uses a convincing ``deep fake'' voice of someone the
            recipients knows and cares about

       Explains the rational for using a suspicious, unrecognized
            number is part of the reasoning for the crisis requiring
            sending money

        Technology innovators thrive in a continuous effort to stay ahead
    of the scammers, but are certainly only permitted to innovate solutions
    within the confines provided by Google on Android devices and Apple on
    iOS devices.
        The scam perpetrator in this case may:

       be using a VOIP number obtained from a CPaaS platform

       have walked into an actual store and obtained a phone or
            plan

       may be using an ``over the top'' (i.e., ``burner'') phone
            number app they downloaded (perhaps even for free)

        Presently, companies like YouMail possess data that indicate the
    origination and history of the number. If the scammer is saying they
    ``have borrowed a friend's phone'', there is data to refute this and
    indicate that the number is recently acquired and could indicate
    details for the source and geography. If allowed by Google or Apple,
    this information could be displayed alongside the call so the recipient
    could ``check the facts''.
        YouMail, as a device installed app on Android or Google, enables
    individuals to link their address book data. In many cases, because so
    many people do not answer calls from unknown numbers, this particular
    scam leaves a voice-mail message. YouMail transcribes every voice-mail
    message left for its users and does ``extract'' the identity the caller
    provided for themselves (i.e., ``Hi, this is your grandson, Mike. .
    .''). YouMail can use this content to provide a live warning or caution
    indicator to the recipient that provides more details on the call
    origination and educates the customer live at the time of interacting
    with the call and reduces the chance the call is returned, or a
    subsequent live call from that number is answered.
        Ultimately, this particular communication was criminal, and law
    enforcement must apprehend the criminal parties behind the call. By
    partnering with law enforcement, YouMail has enabled identification of
    the parties operating scams such as these using same-day, live data and
    domestic threat actors can be pursued by enforcement while and in-
    network countermeasures can be put in place at cooperating network
    providers for communications originating from outside the U.S.
    Heightened Enforcement
        Congress passed the TRACED Act in 2019 to enhance the FCC's
    enforcement authority and increase penalties for illegal robocallers.
    Since then, scam robocalls have dropped 50 percent, but they remain a
    serious problem.
        Last year, scam robocalls cost American consumers a total of $39
    billion. This includes 1.1 million people in the State of Washington.
    Clearly, we can do more to crack down on these scams.

        Question 1. How can we ensure that the partnerships between state
    law enforcement and the private sector effectively supplement what the
    FCC and the FTC do on a Federal level?
        Answer. YouMail partners directly with many State Attorneys General
    offices to monitor, investigate, disrupt and enforce laws against
    robocall operations. YouMail thanks the State of Washington for its
    active role and partnership investigating certain robocall campaigns
    over the past few years and its participation in the multi-state Anti-
    Robocalling Task Force.
        YouMail has provided data indicating the robocall reduction since
    the passage of the TRACED Act directly ties to state and Federal
    efforts to investigate and shut down the highest volume robocall
    operations--such as the robocalls impersonating the Social Security
    Administration, offering extended warranties or providing student loan
    assistance. YouMail presently applies investigative resources to track
    several thousand active robocall campaigns each month for directly
    classifying and stopping these calls from harming YouMail users
    directly. Additionally, YouMail works to provide evidence to state and
    Federal investigative and enforcement resources but observes those
    resources only have bandwidth to investigate a few dozen of these
    active campaigns at a time. YouMail has observed certain states (North
    Carolina, Ohio, Florida, Indiana, Vermont, Washington) have taken more
    active roles in the Anti-Robocalling Task Force. If each state would
    contribute resources proportional to its population affected by
    robocalls, current investigative and enforcement impacts would be
    increase significantly and more active robocommunication threats could
    be investigated and disrupted.
        Robocommunications that are criminal or unlawful require an
    appropriate amount of policing to prevent and deter. State enforcement
    can operate with greater agility than Federal enforcement, particularly
    when issuing CID or subpoenas on robocommunications operations, but the
    amount of criminal or unlawful activity it can pursue is proportional
    to the number of real people that have those responsibilities set as
    their weekly priority within their respective offices.
        In simpler terms, there are not enough state and Federal police
    proportional to rising crime occurring via the telephone network and
    digital communication platforms.
    Robocall Mitigation Tools
        You spoke of the various types of robocall ``mitigation tools''
    that providers are deploying, which help consumers block unwanted
    calls.

        Question 1. Do the various tools you described work with all
    technologies and devices?

        Question 2. How do we ensure that these mitigation tools can evolve
    quickly enough to counter scammers' changing tactics?
        Answer. It should be reinforced that not all robocalls are scams.
    YouMail has partnered with certain states to review direct consumer
    complaint data and tie those consumer complaints to the calling
    campaigns or even the exact call made related to that complaint.
    Generally, the majority of robocall complaints received by a State are
    ``grey area telemarketing'' rather than true criminal-intent scams.
    Further scoping this to complaints received by a State that are
    criminal in nature identifies hundreds of threat actors operating at
    lower volumes.
        YouMail operates as a bridge between consumers receiving
    communications on their devices, their mobile network operators, the
    communication networks in between the originator and recipient, any
    business or entity that may have been impersonated and finally state
    and Federal enforcement agencies with committed resources to combatting
    these communications.
        YouMail presently works from an evidence capture perspective on
    both Android and iOS devices and can relay this data through to
    enforcement resources that same hour/same day. However, some phone
    carriers do not allow consumers to use a service such as YouMail to
    become the `answering service' for their calls. Engaging a solution
    like YouMail directly on your device as a consumer also potentially
    suffers from a fair amount of friction to `activate' it successfully
    depending on the willingness of the handset maker or the carrier to
    allow third-party solutions.
        There are significant ``boxes of evidence'' that have yet to be
    opened up for agile detection and enforcement. For example, consumers
    can report unwanted SMS to their carrier by sending it to ``7726'' or
    tapping ``Report Junk''. Presently this data resides within each
    carrier to evaluate or improve its own analytics (as a competitive
    enabler) and does not leave that carrier's databases for broader
    consumer protection or benefit. Both Apple and Google have material
    live intelligence of communication threats (particularly via iMessage
    and RCS) and consumers have no convenient method to indicate they are
    willing to also grant independent security applications (i.e., YouMail,
    McAfee, Aura, Gen/Norton, etc) access to this threat data for direct
    consumer benefit.
        Encouragement for the carriers and platforms/operating systems to
    make changes that would allow consumers to share their reports and to
    share threat intelligence improves the collective response time of
    industry to identify threats as they are occurring and implement
    countermeasures that enhance consumer safety and security.
    STIR/SHAKEN Call Authentication
        In 2019, Congress passed the TRACED Act to require phone carriers
    to adopt STIR/SHAKEN call authentication standards. These standards
    create a digital signature that identifies the calling party and allows
    phone carriers to verify calls, while weeding out calls from
    illegitimate sources.
        While these standards have helped in the important fight against
    robocalls, they have certain limitations. For example, they will not
    work for all telephone calls. We have seen illegal robocallers change
    tactics, moving away from using fake phone numbers to buying real phone
    numbers that trick spam-blocking software into allowing the calls
    through.

        Question 1. Your testimony notes that STIR/SHAKEN currently has
    insufficient resources to carry out the investigative and enforcement
    efforts needed to stop illegal robocalls. What can Congress, the FCC,
    and providers do to address this resource gap and other limitations?
        Answer. From an industry-wide perspective, effective
    robocommunication mitigation is achieved through joint efforts of all
    parties when live communications evidence captured at the consumers'
    device is available that same day (or as soon as possible thereafter)
    to be used for committed investigative and enforcement resources
    combatting those particular communications. In the cases of vehicle
    warranty spam and scam calls, and student loan spam and scam calls,
    prioritized investigation and elimination of those calls met with
    success in ``short circuiting'' the calls as they reached consumers,
    disrupting those calls at their point of origination and identifying
    the parties behind those calls. Scaling this formula for success with
    additional state, Federal and private resources so the capacity to
    mitigate dozens to hundreds of active campaigns rather than just a few
    is essential to have ``eyes on all the present tactics''.
        Communication networks have evolved into digital streets that some
    consumers travel more often than real, physical streets. Threats and
    crime have followed opportunity to these streets as they are less
    protected, policed and understood. As private enterprises,
    communication providers pursue their self-interests and revenue goals
    and do not bear substantial obligations to protect the general public
    in the same manner as state or Federal agencies. There are state-
    specific robocommunications attacks occurring in states without any
    material state resources to police the threat. There are nation-wide
    attacks with an expanding but still resource-constrained FCC to stay
    abreast of every robocommunications campaign every month. Based on
    active participation in joint efforts in 2021-23, total funding by
    states and Federal agencies for robocommunications investigation,
    mitigation and enforcement relies on the work of 15-20 individuals,
    many who balance other non-robocommunications matters in their monthly
    responsibilities. With several thousand robocommunication campaigns
    active each month, the ratio of threat to nationwide individual
    reacting to the threat is between 300:1 and 500:1.
                                     ______

       Response to Written Questions Submitted by Hon. Ben Ray Lujan to
                                Michael Rudolph
    Handset Operating Systems
        Question 1. Fewer and fewer families subscribe to landline
    telephones, and the great majority of consumers receive robocalls and
    robotexts through handsets that use Apple iOS or Google Android. How do
    these handset providers work with STIR/SHAKEN to ensure call recipients
    have the best information about a call? Do Apple and Google participate
    in industry groups dedicated to limiting illegal and unwanted calls and
    texts?
        Answer. As the handset platform/operating system providers, Apple
    and Google can play significant roles in combatting illegal and
    unwanted calls and texts.
        Since there is such an expansive amount of unwanted communications,
    it's possible to meet twenty people who complain about an unwanted or
    illegal call or text and for each of those twenty individuals, stopping
    their particular unwanted communication requires a different approach.
    Depending on the scam and the approach, further success has
    dependencies on both technology but also policy and regulatory change
        As one example, package delivery scams have evolved from using SMS
    messaging to instead use iMessage or RCS messaging:

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        If the recipient of most of these recent messages looks closely,
    while they may have been perceived as an SMS message, it may show an
    indication that the message was an ``iMessage'' or ``RCS chat''. The
    way RCS or iMessage work is they send the messages over the data
    channel of your carrier (Verizon, AT&T, T-Mobile, etc) so those mobile
    carriers cannot do anything to identify nor stop that message from
    reaching your device. From their origination point, they are encrypted
    and travel through your data connection (and not SMS or voice channels)
    and only upon reaching the recipient device, are decrypted. Thus, any
    assumption that a carrier or app-based solution can address these
    unwanted or illegal communications is false as any solution depends on
    Google or Apple providing such visibility or capabilities to touch that
    message.
        With regards to handset providers working with STIR/SHAKEN to
    assist call recipients, the most common indication that there is some
    perceivable benefit to a call recipient is the ``green checkmark'' next
    displayed next to an incoming call on Android devices. Google has
    provided the most access to the ``verification status'' of a call which
    is essentially asking ``was the call signed properly?''). This small
    window of access is possible via a
    ``getCallerNumberVerificationStatus'' method made available to
    developers in Android 11 developer APIs \3\ in 2020 but has evolved
    little since. iOS13, released in 2019, or newer devices will show
    similar information, but in the call log after the call has completed
    rather than when the call is actively presented on the device to make
    an answering decision.
    ---------------------------------------------------------------------------
        \3\ https://developer.android.com/reference/android/telecom/
    Call.Details#getCallerNumber
    VerificationStatus()
    ---------------------------------------------------------------------------
        Joint investigation efforts by YouMail, major banks and law
    enforcement has typically found that the ``green check mark'' is often
    utilized by threat actors to make their calls appear more legitimate,
    rather than an indication of trust. Specifically, bank imposter calls
    will obtain real numbers that carry authentic STIR/SHAKEN data through
    to display the ``green check'' on the consumer device.
        Industry has long benefited from innovative companies that can
    assist consumers with problems such as these, but at present neither
    Android nor Apple make it easy for third-parties to augment an incoming
    or historical call with valuable, assistive information. As an example,
    in partnership with several banks, YouMail knows exactly which numbers
    are used by those banks to originate their legal voice calls or SMS
    messages and could use this intelligence to indicate to a consumer that
    an incoming or previous communication with content claiming to be the
    bank from a number outside this known set of numbers is very highly
    likely an impersonation of that bank with a clear consumer warning
    rather than an obtuse ``Scam Likely'' warning.
        At present, neither Apple nor Google play material, active roles in
    these groups or trade associations where network providers, banks or
    enforcement agencies convene on robocall/robotext matters. Given the
    unique data they collect from the handset devices or consumer reports
    using features like the `Report Junk' ability on an Apple device, they
    possess highly valuable intelligence that can be a leading indicator of
    major threats targeting Americans. Carriers, banks, consumers and other
    organizations can benefit from these signals to put countermeasures in
    place as well as educate consumers to threats before and during their
    rise rather than days later. However, this intelligence is also a
    tremendous competitive advantage for companies to use in order to
    compete with one another, so there are factors contributing to minimal,
    if any, intelligence sharing in industry.
        Minimal access to enhance consumer safety is provided by Apple and
    Google devices for third-party innovators, and often what little is
    provided has major hurdles that introduce friction into providing the
    solution for consumers. YouMail is fortunate enough to have over 13
    million registered U.S. users in its decade of directly providing safe
    communication solutions to U.S. consumers, but faces many challenges in
    its end-users getting setup correctly due to consumers needing to jump
    in and out of the app in order to manage settings at the operating
    system level outside of the app itself. It would be transformative if
    Android and Apple made it easier for consumers to leverage innovative
    solutions directly that give them more control over which
    communications they allow to reach them and how they are allowed to do
    so.
                                     ______

        Response to Written Questions Submitted by Hon. Peter Welch to
                                Michael Rudolph
        Question 1. FCC Chairwoman Jessica Rosenworcel has expressed
    interest in exploring how generative artificial intelligence might be
    used to stop robocall and robotext scams.

        a. How is generative AI being explored to combat robotext scams,
    and what potential advantages does it offer for identifying and
    blocking fraudulent text messages?

        b. Are there ethical or privacy concerns associated with using
    generative AI to filter or create text messages, and how can these
    concerns be addressed?

        c. As Congress considers potential legislative responses to
    emerging AI technologies, what steps--if any--should it take to protect
    consumers from generative AI scams, while preserving the ability of
    Federal regulators and industry to innovate?
        Answer. Artificial Intelligence (AI), Machine Learning (ML) and
    Natural Language Processing (NLP) have long been used to analyze and
    identify communications, using both behavior of senders/numbers
    (volume, reach, frequency), the communication content carried by those
    senders/numbers, or to analyze individual consumer complaints about
    senders/numbers.
        Advances by ChatGPT, Large Language Models (LLMs), Generative AI
    and Discriminative AI have brought a lot of attention to their
    potential as tools to combat fraudulent communications. YouMail is just
    one of many companies using generative and discriminative AI to analyze
    text message content to separate lawful messaging from illegal
    messaging. The more powerful, modern models require less development
    resources to effectively and accurately perform these tasks that can
    follow threat actor messaging campaigns over time as they impersonate
    multiple institutions. They can evaluate conversations that otherwise
    look like personal communications and observe indications of potential
    social engineering, and alert customers to concerns about that
    communication (if allowed to by the handset manufacturer). AI-assisted
    evidence collection has been and continues to be provided by YouMail
    directly and regularly to many state and Federal enforcement agencies
    for action against specific topical, prioritized threats.
        AI scanning personal communications is a slippery slope when it
    comes to ethical or privacy concerns. As an example, your Internet
    provider could scan every single file you download without your
    knowledge and decide which files arrive on your computer unaltered or
    potentially decide to block those outright. Or, as a consumer you could
    choose which utilities you trust to perform this job for you and
    enable/disable them as you control them outright (i.e., anti-virus
    software such as that by McAfee, Microsoft or Norton). The same
    slippery slope exists for communications--voice calls and messaging
    such as SMS. Consumers have a variety of use cases where some folks may
    be extremely susceptible to social engineering scams and want their
    inbound communications to essentially be limited to trusted, close
    acquaintances. Small businesses, like a plumber or electrician, may
    want every potential call or message coming through to their business
    line since every communication could be an essential lead for their
    business that day or week.
        In essence, utilities and filtering powered by generative or
    discriminate AI are not unlike virtual robotic assistants you could
    choose to employ at your discretion, and you could select the one that
    is most appropriate for your needs. 2020-2030 will see science fiction
    is no longer far from reality where your incoming communications can be
    screened by artificial intelligence where each embodiment of AI behaves
    slightly differently depending on how it has been trained or
    programmed.
        There are certainly concerns in a future if consumers rely on an
    unseen AI presence operating at the handset or within the network (or
    multiple networks in tandem) that is unknown with questions over how
    they have been tuned to filter or block communications that are in a
    `grey area'. Consider political communications that travel systems with
    AI models that consider them as `potentially scam' for one political
    party and `not spam' for the other political party. Any time any
    filtering is performed for a consumer, they should be able to control
    who performs the filtering and ideally consumers would select solutions
    that transparently show them what they were protected from (i.e., in a
    spam folder or quarantine folder) so the audiences of those solutions
    can be held accountable for the standards those consumers expect from
    them. This provides consumers with the choice to select aggressive or
    passive systems to use as their defenses. YouMail provides many
    settings to its end-users to decide how its AI-enabled solutions
    classify and treat incoming calls and messages and ultimately consumers
    can always visit their `Spam folder' to see if these settings need to
    be changed because they want more or less calls like the one they are
    viewing. Similarly, YouMail does believe any solution given such a
    power to act as a barrier or shield to communications should be one
    that consumers have total control of choice and configuration in how it
    works for them.
        As Congress considers legislative responses, it is presently too
    early to provide a definitive recommendation on steps it should take.
    One of the challenges with generative AI is that it has evolved to a
    point that it is extremely difficult to distinguish from a real person
    when authoring text or audio content. While a text message or audio
    file could be examined and a likelihood assigned that it may have been
    created by generative AI, investigative and enforcement efforts need to
    reach higher levels of certainty by collecting hard evidence that
    generative AI was utilized by threat actors (i.e., finding logs of
    sessions with LLMs on the threat actor devices).
        Congress should continue to encourage efforts like the FCC's recent
    Notice of Inquiry \4\ on November 16 2023. Even if this NOI produces
    few response filings by December 18, 2023, Federal agencies charged
    with protecting consumers from unsafe communications benefit from
    increased encouragement to apply resources and take quick action
    against rapidly evolving threats causing harm. Representatives can of
    course direct additional funding to their respective destinations, at
    the state and Federal level, which will not only enable more personnel
    to police and enforce laws against these unlawful communications, but
    also stimulate innovation in solutions used by these personnel to
    achieve this policing and enforcement at better scale.
    ---------------------------------------------------------------------------
        \4\ https://www.fcc.gov/consumer-governmental-affairs/fcc-launches-
    inquiry-ais-impact-robocalls-and-robotexts
    ---------------------------------------------------------------------------

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