[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]




 
           MODERNIZING THE TELEPHONE CONSUMER PROTECTION ACT

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

                                HEARING

                               BEFORE THE

             SUBCOMMITTEE ON COMMUNICATIONS AND TECHNOLOGY

                                 OF THE

                    COMMITTEE ON ENERGY AND COMMERCE
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED FOURTEENTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 22, 2016

                               __________

                           Serial No. 114-172


      Printed for the use of the Committee on Energy and Commerce

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                            _________ 

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                    COMMITTEE ON ENERGY AND COMMERCE

                          FRED UPTON, Michigan
                                 Chairman
JOE BARTON, Texas                    FRANK PALLONE, Jr., New Jersey
  Chairman Emeritus                    Ranking Member
JOHN SHIMKUS, Illinois               BOBBY L. RUSH, Illinois
JOSEPH R. PITTS, Pennsylvania        ANNA G. ESHOO, California
GREG WALDEN, Oregon                  ELIOT L. ENGEL, New York
TIM MURPHY, Pennsylvania             GENE GREEN, Texas
MICHAEL C. BURGESS, Texas            DIANA DeGETTE, Colorado
MARSHA BLACKBURN, Tennessee          LOIS CAPPS, California
  Vice Chairman                      MICHAEL F. DOYLE, Pennsylvania
STEVE SCALISE, Louisiana             JANICE D. SCHAKOWSKY, Illinois
ROBERT E. LATTA, Ohio                G.K. BUTTERFIELD, North Carolina
CATHY McMORRIS RODGERS, Washington   DORIS O. MATSUI, California
GREGG HARPER, Mississippi            KATHY CASTOR, Florida
LEONARD LANCE, New Jersey            JOHN P. SARBANES, Maryland
BRETT GUTHRIE, Kentucky              JERRY McNERNEY, California
PETE OLSON, Texas                    PETER WELCH, Vermont
DAVID B. McKINLEY, West Virginia     BEN RAY LUJAN, New Mexico
MIKE POMPEO, Kansas                  PAUL TONKO, New York
ADAM KINZINGER, Illinois             JOHN A. YARMUTH, Kentucky
H. MORGAN GRIFFITH, Virginia         YVETTE D. CLARKE, New York
GUS M. BILIRAKIS, Florida            DAVID LOEBSACK, Iowa
BILL JOHNSON, Missouri               KURT SCHRADER, Oregon
BILLY LONG, Missouri                 JOSEPH P. KENNEDY, III, 
RENEE L. ELLMERS, North Carolina         Massachusetts
LARRY BUCSHON, Indiana               TONY CARDENAS, California
BILL FLORES, Texas
SUSAN W. BROOKS, Indiana
MARKWAYNE MULLIN, Oklahoma
RICHARD HUDSON, North Carolina
CHRIS COLLINS, New York
KEVIN CRAMER, North Dakota

             Subcommittee on Communications and Technology

                          GREG WALDEN, Oregon
                                 Chairman
ROBERT E. LATTA, Ohio                ANNA G. ESHOO, California
  Vice Chairman                        Ranking Member
JOHN SHIMKUS, Illinois               MICHAEL F. DOYLE, Pennsylvania
MARSHA BLACKBURN, Tennessee          PETER WELCH, Vermont
STEVE SCALISE, Louisiana             JOHN A. YARMUTH, Kentucky
LEONARD LANCE, New Jersey            YVETTE D. CLARKE, New York
BRETT GUTHRIE, Kentucky              DAVID LOEBSACK, Iowa
PETE OLSON, Texas                    BOBBY L. RUSH, Illinois
MIKE POMPEO, Kansas                  DIANA DeGETTE, Colorado
ADAM KINZINGER, Illinois             G.K. BUTTERFIELD, North Carolina
GUS M. BILIRAKIS, Florida            DORIS O. MATSUI, California
BILL JOHNSON, Missouri               JERRY McNERNEY, California
BILLY LONG, Missouri                 BEN RAY LUJAN, New Mexico
RENEE L. ELLMERS, North Carolina     FRANK PALLONE, Jr., New Jersey (ex 
CHRIS COLLINS, New York                  officio)
KEVIN CRAMER, North Dakota
JOE BARTON, Texas
FRED UPTON, Michigan (ex officio)

  
                             C O N T E N T S

                              ----------                              
                                                                   Page
Hon. Greg Walden, a Representative in Congress from the State of 
  Oregon, opening statement......................................     1
    Prepared statement...........................................     3
Hon. Anna G. Eshoo, a Representative in Congress from the State 
  of California, opening statement...............................     4
Hon. Frank Pallone, Jr., a Representative in Congress from the 
  State of New Jersey, opening statement.........................     6
Hon. Fred Upton, a Representative in Congress from the State of 
  Michigan, prepared statement...................................    60

                               Witnesses

Michelle Turano, Vice President, Public Policy and Government 
  Affairs, Wellcare Health Plans.................................     8
    Prepared statement...........................................    11
    Answers to submitted questions...............................   112
Shaun Mock, Chief Financial Officer, Snapping Shoals Electric 
  Membership Corporation.........................................    19
    Prepared statement...........................................    21
    Answers to submitted questions...............................   116
Spencer Weber Waller, Professor and Director, Institute for 
  Consumer Antitrust Studies, Loyola University Chicago..........    29
    Prepared statement...........................................    31
    Answers to submitted questions...............................   122
Richard Shockey, Principal, Shockey Consulting...................    35
    Prepared statement...........................................    36
    Answers to submitted questions...............................   127

                           Submitted Material

Statement of Indiana Attorney General Greg Zoeller, submitted by 
  Mr. Walden.....................................................    62
Statement of the National Association of Federal Credit Unions, 
  submitted by Mr. Walden........................................    64
Statement of several non-profit consumer groups, submitted by Ms. 
  Eshoo..........................................................    74
Statement of several banking associations, submitted by Mr. 
  Walden.........................................................
Article entitled, ``The Telephone Consumer Protection Act of 
  1991: Adapting Consumer Protection to Changing Technology,'' 
  Loyola Consumer Law Review, 2014, submitted by Mr. Walden \1\..    62
Statement of the Electronic Privacy Information Center, submitted 
  by Ms. Eshoo...................................................    89
Statement of America's Health Insurance Plans, submitted by Mr. 
  Latta..........................................................    93
Statement of the Credit Union National Association, submitted by 
  Mr. Latta......................................................   107

----------
\1\ Available at: http://docs.house.gov/meetings/IF/IF16/
  20160922/105351/HHRG-114-IF16-20160922-SD008.pdf.


           MODERNIZING THE TELEPHONE CONSUMER PROTECTION ACT

                              ----------                              


                           SEPTEMBER 22, 2016

                  House of Representatives,
     Subcommittee on Communications and Technology,
                          Committee on Energy and Commerce,
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 11:00 a.m., room 
2322, Rayburn House Office Building, Hon. Greg Walden (chairman 
of the subcommittee) presiding.
    Present: Representatives Walden, Latta, Shimkus, Blackburn, 
Lance, Guthrie, Pompeo, Bilirakis, Long, Collins, Eshoo, Doyle, 
Welch, Clarke, McNerney, and Pallone (ex officio).
    Also Present: Representative Schakowsky.
    Staff Present: Rebecca Card, Assistant Press Secretary; 
Gene Fullano, Detailee, Telecom; Kelsey Guyselman, Counsel, 
Telecom; Grace Koh, Counsel, Telecom; David Redl, Chief 
Counsel, Telecom; Charlotte Savercool, Professional Staff, 
Communications and Technology; Dan Schneider, Press Secretary; 
Gregory Watson, Legislative Clerk, Communications and 
Technology; Jeff Carroll, Minority Staff Director; David 
Goldman, Minority Chief Counsel, Communications and Technology; 
Elizabeth Letter, Minority Professional Staff Member; Jerry 
Leverich, Minority Counsel; Lori Maarjberg, Minority FCC 
Detailee; Dan Miller, Minority Staff Assistant; Matt 
Schumacher, Minority Press Assistant; and Andrew Souvall, 
Minority Director of Communications, Outreach and Member 
Services.

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

    Mr. Walden. We will call to order the subcommittee on 
Communications and Technology and welcome our witnesses here 
today. We look forward to your participation in this hearing.
    We are here today to talk about modernizing the Telephone 
Consumer Protection laws. As you all know, it has been 25 
years, 25 years, quarter of a century since Congress passed the 
Telephone Consumer Protection Act. And I don't have to tell you 
the world has changed pretty dramatically in that time period. 
Back in '91, virtually everybody had a landline, and that is 
what they used to call each other on. Today, half of U.S. 
households or thereabouts have become wireless-only, 
eliminating their landline phones entirely. And there are more 
cell phones than people in the United States.
    Current law is not reflective of these incredible 
technological changes in our culture. Despite an extraordinary 
number of lawsuits over the years, calls and texts from bad 
actors continue to happen. Clearly, this approach isn't a 
deterrent to those who place harassing, malicious calls. We all 
share the goal of preventing harmful phone calls, but it is 
increasingly clear that the law is outdated and, in many cases, 
counterproductive. We will hear about that today from our 
witnesses.
    The attempts to strengthen the TCPA rules have actually 
resulted in a decline in legitimate informational calls that 
consumers want and need. The FCC has granted narrow exceptions 
to specific industries in attempts to clear up ongoing 
uncertainty, but the number of petitions still pending before 
the Commission demonstrate that it is time to examine how 
effective this approach has been.
    Industries across the board have real needs to communicate 
with their customers in a positive and beneficial way, and 
today we will hear from those whose daily operations have been 
impacted by this 25-year-old law. We have a public utility co-
op from Georgia that needs to inform their customers of 
neighborhood tree maintenance, for example, and ways to reduce 
their energy footprint during peak energy consumption periods.
    We will also hear from a managed health care provider that 
is seeking clarification to be able to provide critical 
information to patients to help lower the cost of their health 
care. And these folks, like many others, struggle with how to 
serve the needs of the consumers and the economy with the lack 
of clarity in the current law.
    I heard from a staffing company that operates in Oregon and 
in my district that connects blue-collar workers to temporary, 
short-term job opportunities. It used to be these workers would 
have to sit around the waiting room all day waiting to hear if 
a job that met their skill set was available. The company 
figured a way to use technology to improve the lives of these 
people, the company instead used text messages to communicate 
with workers when a job that matched their skill set is 
available. That gave the people looking for the jobs the 
opportunity to continue with the rest of their lives rather 
than sitting around a waiting room, while still finding the 
chance to work, which sounds great and efficient and kind of 
the modernization of the workplace we all expect today.
    Unfortunately, the 25-year-old law, TCPA, they were smacked 
with a lawsuit for their efforts. For a business like this, a 
massive class-action lawsuit could actually mean bankruptcy.
    So I think we can all agree there is a big difference 
between the call fraudulently purporting to be the IRS and a 
legitimate reminder from the doctor's office of an upcoming 
appointment or a job agency of a temporary job now available. 
This is the critical distinction we need to recognize in order 
to strike the correct balance.
    How can we protect consumers from the harassing, spoofed 
calls they do not want to receive--none of us do--while at the 
same time ensuring they do receive the legitimate calls that 
improve quality of life? What are the solutions out there that 
can be used to determine the differences, and are there changes 
to the law that would actually help consumers?
    I want to thank my Democratic colleagues for requesting 
this hearing and all of our members for the commitment to a 
productive conversation about taking a look at a 25-year-old 
law.
    Just yesterday, the full committee passed the Anti-Spoofing 
Act in a bipartisan manner, legislation prohibits bad actors 
from deliberately manipulating a text message number for 
illegal purposes. Spoofing is a major component of the robocall 
problem, but just one piece of this complicated puzzle. There 
is no silver bullet here to solve the problem of unwanted 
calls, but if there are legislative changes that will protect 
our constituents, we owe it to them to make every effort to 
mitigate the problem. So I hope the momentum from our 
accomplishments yesterday can carry on to our efforts today to 
work toward the shared goal of protecting consumers from 
illegal phone calls.
    We have a unique set of perspectives here today that I hope 
will guide us through a productive discussion. From a professor 
who has studied the law extensively, to a couple of businesses 
concerned about violating the law while trying to providing 
their services, and those who have been developing technical 
solutions to these issues at stake; this hearing should set the 
stage for a constructive consideration about protecting 
consumers in this new technological era.
    So I thank our witnesses for being here and our members and 
look forward to the discussion we are going to have today.
    [The prepared statement of Mr. Walden follows:]

                 Prepared statement of Hon. Greg Walden

    We are here today to talk about modernizing the telephone 
consumer protection laws. It has been 25 years since Congress 
passed the Telephone Consumer Protection Act, and the world has 
changed dramatically since then. When the law was signed back 
in 1991, consumers relied primarily on landline phones to 
communicate, but today almost half of U.S. households have 
become ``wireless-only,'' eliminating their landline phones 
entirely, and there are more cell phones than people in the US.
    The current law is not reflective of these technological 
advances. Despite an extraordinary number of lawsuits over the 
years, calls and texts from bad actors continue to happen-
clearly this approach isn't a deterrent to those who place 
harassing, malicious calls. We all share the goal of preventing 
harmful phone calls, but it is increasingly clear that the law 
is outdated and in many cases, counter-productive. The attempts 
to strengthen the TCPA rules have actually resulted in a 
decline in legitimate, informational calls that consumers want. 
The FCC has granted narrow exceptions to specific industries in 
attempts to clear up ongoing uncertainty, but the number of 
petitions still pending before the Commission demonstrate that 
it's time to examine how effective this approach has been.
    Industries across the board have real needs to communicate 
with their customers in a positive and beneficial way, and 
today we'll hear from those whose daily operations have been 
impacted by the TCPA. We have a public utility co-op from 
Georgia that needs to inform their customers of neighborhood 
tree maintenance and ways to reduce their energy footprint 
during peak energy consumption periods. We'll also hear from a 
managed healthcare provider that is seeking clarification to be 
able to provide critical information to patients to help lower 
the cost of health care. These folks, like many others, 
struggle with how to serve the needs of their customers and the 
economy with the lack of clarity in the law.
    I heard from a staffing company that operates in my 
district that connects blue-collar workers to temporary, short-
term job opportunites. It used to be that those workers would 
have to sit around the waiting room of a staffing agency all 
day, waiting for a job to come up, or not. Thanks to 
technological advances, this company instead uses text messages 
to communicate with workers when a job that matches their skill 
set is available, giving the workers the opportunity to 
continue with their lives while still having the chance to find 
work. Sounds great, right? Unfortunately, thanks to the TCPA, 
they were smacked with a lawsuit for their efforts. For a 
business like this, a massive class-action lawsuit could mean 
bankruptcy.
    I think we can all agree that there is a big difference 
between the call fraudulently purporting to be the IRS and the 
legitimate reminder from the doctor's office of an upcoming 
appointment. This is the critical distinction we need to 
recognize in order to strike the right balance. How can we 
protect consumers from the harassing, spoofed calls they do not 
want to receive, while at the same time ensuring that they do 
receive the legitimate calls that improve their quality of 
life? What are the solutions out there that can be used to 
determine the difference and are there changes to the law 
needed to bring them to consumers?
    I want to thank my colleagues on the Democratic side for 
requesting this hearing and for all of our members for the 
commitment to a productive conversation about modernizing an 
outdated law. Just yesterday, the full committee passed the 
Anti-Spoofing Act in a bipartisan manner, legislation that 
prohibits bad actors from deliberately manipulating a text 
message number for illegal purposes. Spoofing is a major 
component of the robo-call problem, but just one piece of this 
complicated puzzle. There is no silver bullet to solve the 
problem of unwanted calls, but if there are legislative changes 
that will protect our constituents, we owe it to them to make 
every effort to mitigate the problem. I hope the momentum from 
our accomplishment yesterday can carry on through our efforts 
today to work towards the shared goal of protecting consumers 
from illegal phone calls.
    We have a unique set of perspectives here today that I hope 
will guide us through a productive discussion. From a professor 
who has studied the law extensively, to businesses concerned 
about violating the law while providing their services, and 
those who have been developing technical solutions to these 
issues at stake; this hearing should set the stage for a 
constructive consideration of protecting consumers in a new 
technological era. I thank all of our witnesses for being here 
and I look forward to hearing your testimony.

    Mr. Walden. And I will yield back the remaining 3 seconds 
of my time and recognize my friend from California, Ms. Eshoo, 
for her opening comments.
    Ms. Eshoo. Thank you, Mr. Chairman----
    Mr. Walden. But before I do, could I ask unanimous consent 
to insert into the record a letter from the Indiana Attorney 
General Greg Zoeller, a letter from the National Association of 
Federal Credit Unions, a letter signed by several consumer 
groups, a statement from several banking associations, along 
with the very, very distinguished paper from our professor 
today and from 2014, the Telephone Consumer Protection Act of 
1991: Adapting Consumer Protection to Changing Technology. \1\ 
Without objection, we will enter those into the record.
    [The information appears at the conclusion of the hearing.]
---------------------------------------------------------------------------
    \1\ The information has been retained in committee files and is 
also available at: http://docs.house.gov/meetings/IF/IF16/20160922/
105351/HHRG-114-IF16-20160922-SD008.pdf.
---------------------------------------------------------------------------
    Mr. Walden. Now, I recognize my friend from California.

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

    Ms. Eshoo. Thank you, Mr. Chairman. Good morning, everyone. 
Welcome to the witnesses.
    There is one issue that I hear consistently about from my 
constituents, and that is the need to put an end to unwanted 
phone calls. Whether I am in the grocery store--now, I am going 
grocery shopping late at night so that I can just get it done 
quickly because, people see me, recognize me, and this is what 
they come up to me to talk about. And they are 40,000 feet and 
climbing over it. Their sleep is interrupted. The day doesn't 
belong to them. It is a consistent form of harassment the way 
they view it. For many seniors, there are many scams, and they 
are susceptible to them.
    So this barrage of unwanted calls using auto-dialers and 
prerecorded messages, they are disruptive to say the least and 
they really are intrusive. And I can speak for myself when I 
get them because I consider my home my oasis, and I can't stand 
hearing from these people.
    Now, how bad is the problem? Obviously, from what I have 
said, it is pretty bad. And estimates have found that robocalls 
make up nearly 35 percent of calls that consumers receive 
today. And it keeps climbing. The robocall blocking service 
YouMail tracked the number of robocalls made last month, August 
of this year alone, and found that there were 2.64 billion with 
a B. We usually talk about dollars with a B, these calls. That 
is a 9 percent increase over the previous month of July of this 
year. And that is just one month's worth of robocalls, so it is 
no wonder that these kinds of calls are the number-one source 
of consumer complaints at the FCC.
    Now, Congress sought to address this 25 years ago, a 
quarter of a century ago, by passing the Telephone Consumer 
Protection Act, the TCPA. At that time the law put important 
protections in place to restrict the use of technology used to 
place robocalls. We took other steps to crack down on unwanted 
calls, including the passing of the Do Not Call list. That 
worked for a long time. People were really thrilled with it. 
And I was proud to be a cosponsor of that effort. So the TCPA 
was, for a long time, an effective way to limit the number of 
unwanted calls.
    Now, the FCC, I think, has done its best to implement the 
law in a way that keeps pace with today's practices. But the 
law, along with the technologies that were embedded in it or 
referred to, have aged in plenty of ways. And it is up to us 
and I think it is very clear to us that it is time to start 
thinking about how we can update the TCPA to better protect 
consumers. And it is exactly why Ranking Member Pallone, 
Congresswoman Jan Schakowsky, and I called for a hearing on 
this. And thank you, Mr. Chairman, all our thanks on behalf of 
our constituents that we are doing this today.
    Now, there are a number of issues for us to consider as we 
examine the TCPA. For instance, does the FCC and the FTC have 
the tools they need to effectively enforce the law? Well, we 
are going to examine that. Are intentional violations 
sufficiently punished under the current structure of the law? 
We have come to a time and a place in our country where people 
break the law and then they settle with the regulators, and no 
one is punished really for anything. And that is a great source 
of frustration to people, and I don't think it is fair. How do 
we target calls from overseas? This is a big thing because so 
much is coming from overseas that can result in fraud.
    So I look forward to hearing from the witnesses.
    And I think one thing Congress should not be doing is 
passing more exemptions to the TCPA. The 2015 Budget Act 
contains an exemption allowing robocalls for Federal debt 
collection, including calls to cell phones. So I am glad that 
the FCC put some limits on that exemption, but the fact remains 
that we still--and our constituents most importantly, people 
across the country--are asking us for more protection, not more 
loopholes. And I think we have to keep our eye on that ball, 
too, Mr. Chairman.
    So, again, thank you for holding this hearing today, and I 
look forward to hearing from today's witnesses and some solid 
suggestions about how we can actually update the TCPA to 
eliminate these issues that are plaguing all of our 
constituents.
    Thank you, and I yield--I have no time to yield back. Thank 
you.
    Mr. Walden. The gentlelady yields back.
    The chair recognizes the vice chair of the subcommittee, 
Mr. Latta.
    Mr. Latta. Well, thank you, Mr. Chairman, and thanks for 
holding today's hearing. The Telephone Consumer Protection Act 
is clearly outdated and needs to be reformed to accommodate 
current technological challenges. It is not reasonable to 
govern communications based off technology available in 1991. 
While it is essential we continue to protect consumer privacy, 
we must find the right balance between consumer rights and 
expectations and allowing institutions to provide information 
to their customers.
    Additionally, we must recognize the importance of 
distinguishing the content of communications on modernizing 
this act. Our goals should be to deter the bad actors and not 
punish businesses and organizations with the best of 
intentions.
    The FTC has attempted to modernize the TCPA. However, these 
reforms have not necessarily made the law better and it still 
remains far from perfect. In fact, the broad interpretation of 
the FTC's definition of auto-dialer is concerning as it creates 
greater uncertainty for consumers and companies.
    Today's hearing will provide robust conversation and ideas 
on how to best update the TCPA, and consumers' privacy needs to 
be protected and businesses need an avenue to inform and 
communicate with their customers.
    And with that, Mr. Chairman, I yield back.
    Mr. Walden. The gentleman yields back.
    Any others seeking time?
    Then we will go to Mr. Pallone, the ranking member of the 
full committee, for opening comments.

OPENING STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE 
            IN CONGRESS FROM THE STATE OF NEW JERSEY

    Mr. Pallone. Thank you.
    If you think you are getting more robocalls than ever, you 
are probably right. Just this past month, a record 2.6 billion 
robocalls flooded our cell phones, work phones, and home 
phones. And these calls are more than just a nuisance; they can 
add up to harassment or even outright fraud.
    When Congress first passed the Telephone Consumer 
Protection Act 25 years ago, we stated that consumers were 
already ``outraged over the proliferation of intrusive nuisance 
calls their homes.'' Back then, we sought to balance individual 
privacy rights, public safety interests, and commercial 
freedoms of speech and trade. And for a time, the law worked.
    Unfortunately, a little over a decade later, these nuisance 
calls were on the rise again, but this time the calls did not 
only cause a nuisance, many of them sought to defraud 
consumers. According to the FTC, consumer complaints of 
unwanted telemarketing calls increased over 1,000 percent 
between '98 and 2002. Congress stepped in once more to stop 
this dramatic surge in calls, and we required the FTC to create 
a Do Not Call Registry, among other things, again turning back 
the tide of unwanted calls.
    But almost like clockwork, however, nuisance calls were 
rebounding again nearly a decade later. Robocalls were finding 
new ways to circumvent the system, and the law simply wasn't 
keeping up.
    The FCC tried to reduce these robocalls, but they keep 
coming. By 2012, the FCC was receiving an average of over 
10,000 complaints per month from mobile phones alone, and that 
number has only continued to grow to a point where last year, 
the FCC received more than 170,000 robocall and telemarketing 
complaints.
    So last month, the FCC convened a new Robocall Strike Force 
hoping to leverage the industry in the FCC's ongoing effort, 
and I commend the Commission for working so diligently to 
address this issue. But the fact that the FCC's actions are not 
reducing the number of robocalls demonstrates that it is time 
for Congress to once again step in.
    So I urge the strike force to continue to look for 
technical and regulatory solutions to this problem, but 
Congress has a role as well. So that is why I joined Ranking 
Member Eshoo and Schakowsky last month in asking that the 
committee hold a hearing on updating the TCPA. Our constituents 
are rightfully growing impatient with these calls, and they 
expect us to fix the problem.
    And I appreciate that Chairman Walden agreed to our request 
for this hearing, and I also want to thank the phone carriers 
for offering to work with us to address this problem. It is not 
a moment too soon, and we all need to work together to solve 
it.
    Now, we acted to protect consumers in '91 and 2003. Now, 13 
years later, we should again put the FTC and the FCC back on 
firm footing so they can step up to protect consumers from 
these annoying and so often dangerous called.
    And again, I want to thank our witnesses, and I yield the 
balance of my time to Ms. Schakowsky.
    Ms. Schakowsky. I am so grateful for the opportunity to 
join you today. I thank Ranking Member Pallone for yielding 
time to me.
    As has been mentioned, last month, I joined Ranking Members 
Eshoo and Pallone to request a hearing on updating the 
Telephone Consumer Protection Act for the 21st century. This 
year marks the 25th anniversary of TCPA. Congress has made some 
updates over that time such as the Do Not Call Registry, but 
the law is beginning to show its age.
    Consumer complaints about unwanted calls are on the rise. I 
think Ranking Member Eshoo really described what all of us are 
hearing. I have heard from many constituents in recent months 
trying to stop robocalls. I have received many on my cell 
phone. We need to close loopholes and improve enforcement 
tools.
    My Democratic colleagues and I have introduced many bills 
to protect consumers as they use their phones. For instance, I 
introduced the Protect Consumers from Phony Pay Charges Act in 
June to stop telephone companies from including unauthorized 
charges on phone bills. Until we act on such improvements, we 
are going to continue to see family meals disrupted, fraudsters 
exploiting seniors, consumers subjected to unwanted charges. 
And it is time to reform TCPA.
    I am going to apologize that I have to leave in a moment 
because the Consumer, Manufacturing, and Trade Subcommittee, on 
which I am the ranking Democrat, is also having its hearing 
right now. But that said, I hope this is just the beginning of 
this discussion and that we will have the opportunity for joint 
hearings with this subcommittee and the CMT in the future.
    The Federal Trade Commission and Federal Communications 
Commission frequently work together on these issues and the 
subcommittees with jurisdiction over those agencies should as 
well.
    So I thank the opportunity to be here this morning, and I 
yield back.
    Mr. Walden. All time has been consumed. I will now go to 
our witness panel. And again, thank you all for being here this 
morning.
    And our first witness is Michelle Turano--we appreciate you 
being here--Vice President, Government Affairs and Public 
Policy for WellCare. Good morning.
    Ms. Turano. Good morning.
    Mr. Walden. Pull that microphone fairly close. Make sure 
the light is on on the base there, and you are good to go.

 STATEMENTS OF MICHELLE TURANO, VICE PRESIDENT, PUBLIC POLICY 
  AND GOVERNMENT AFFAIRS, WELLCARE HEALTH PLANS; SHAUN MOCK, 
 CHIEF FINANCIAL OFFICER, SNAPPING SHOALS ELECTRIC MEMBERSHIP 
  CORPORATION; SPENCER WEBER WALLER, PROFESSOR AND DIRECTOR, 
  INSTITUTE FOR CONSUMER ANTITRUST STUDIES, LOYOLA UNIVERSITY 
  CHICAGO; AND RICHARD SHOCKEY, PRINCIPAL, SHOCKEY CONSULTING

                  STATEMENT OF MICHELLE TURANO

    Ms. Turano. Thank you. Mr. Chairman, Representative Eshoo, 
Ranking Member Pallone, members of the committee, I am Michelle 
Turano, vice president of Public Policy and Government Affairs 
for WellCare Health Plans. Thank you for your invitation to 
appear today.
    We fundamentally agree with the premise of this hearing 
that we need to minimize nuisance and unsolicited phone calls 
while ensuring laws and regulations keep pace with the 
evolution of telecommunications technology. We also share the 
goal of maintaining privacy, consistent with strict Federal 
standards such as under the Health Insurance Portability and 
Accountability Act, or HIPAA.
    Let me begin by telling you a little bit about WellCare. 
Headquartered in Tampa, Florida, WellCare focuses exclusively 
on providing government-sponsored managed health care through 
Medicare Advantage, Medicaid, and Medicare prescription drug 
plans to families, children, seniors, and individuals with 
complex medical needs.
    Our members tend to be vulnerable older or disabled 
Americans with limited access to resources who are often 
transitory and rely heavily on cell phones versus a dedicated 
landline, which underscores the need for laws and regulations 
to be updated to reflect cell phone use.
    I would like to be clear. Our communications with these 
members is for the purpose of sharing health care information, 
not for sales and not for marketing. WellCare has statutory and 
contractual mandates from Federal and State governments to 
serve our members. Communication with our members to coordinate 
and assist with care often requires the use of a cell phone. In 
many cases, we receive an enrollee's contact information via 
the State or Federal Government.
    Beneficiaries can be randomly assigned to WellCare and 
might not apply to us directly. Sometimes we have no way of 
verifying if the number provided to us is a cell phone or a 
landline, yet we are still required to contact them.
    State Medicaid contracts require WellCare to make telephone 
contact with members for health-related purposes. For example, 
Florida requires outreach to enrollees within 30 days to 
complete a health risk assessment. Georgia requires outreach to 
parents with newborns within 7 days to inform them of certain 
health services. These are not marketing calls but are directly 
tied to providing critical care to our members and making the 
best and most efficient use of taxpayer dollars.
    The uncertainty surrounding the FCC's interpretation of the 
TCPA has had a chilling effect on the ability of WellCare and 
other managed health care plans to conduct this kind of 
outreach to members. This adds cost while reducing efficiency 
and negatively affects the health of our members.
    While the TCPA serves an important privacy-enhancing 
purpose, the FCC's interpretation does not acknowledge that 
there is comprehensive regulation of the use of protected 
health information by HIPAA that governs not only treatment, 
payment, and health care operations messages but severely 
restricts marketing communications.
    Recent interpretations of the TCPA could be read to provide 
that companies like WellCare cannot conduct automated outreach 
to a cell phone to deliver a health care message unless the 
calling party can also prove prior express consent, a 
requirement that the HIPAA privacy rule expressly does not 
require. These are the exact same phone calls that health care 
providers like doctors and pharmacies can make today. But the 
FCC has excluded managed health care firms from making these 
same sorts of calls.
    WellCare and others recently petitioned the FCC seeking 
clarification around the use of member telephone numbers under 
the TCPA compared to the use of the same information under 
HIPAA. In doing so, we are hoping the Commission will protect 
non-telemarketing calls allowed under TCPA in light of their 
unique value to and acceptance by consumers and do so in an 
expedited manner.
    Legislatively, it would be helpful if Congress could 
clarify that the provision of a phone number to a HIPAA-covered 
entity or business associate constitutes prior express consent 
for health care communications to that number. The TCPA's 
protection of a consumer's right to control unwanted calls 
would still be respected by allowing the consumer to revoke 
that consent at any time.
    In closing, I want to reiterate that the health and well-
being of our enrollees is WellCare's top priority. We need to 
work together and we look forward to working together with this 
committee and Congress on modernizing the TCPA.
    Thank you for your invitation to testify, and I look 
forward to answering your questions.
    [The prepared statement of Michelle Turano follows:]
    
    
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    Mr. Walden. Thank you, Ms. Turano. That was very helpful 
testimony as we look at this law and the consequences out in 
the real world.
    We will go now to Mr. Shaun Mock, who is chief financial 
officer of the Snapping Shoals Electric Membership Corporation.
    Mr. Mock, welcome. Thanks for being here. We look forward 
to your counsel.

                    STATEMENT OF SHAUN MOCK

    Mr. Mock. Thank you for the opportunity to address this 
committee regarding the impacts of the Telephone Consumer 
Protection Act on my electric cooperative, Snapping Shoals EMC. 
We are a nonprofit, consumer-owned co-op headquartered in 
Covington, Georgia, where we provide electric service to about 
97,000 mostly residential members southeast of Atlanta.
    Snapping Shoals has a proud tradition of member service and 
innovation. We constantly strive to improve our services not 
because of earnings targets but rather to improve the lives of 
our members.
    Our members of the 21st century expect and demand 
uninterrupted electric service, along with a host of modern 
communication tools. In recent years, our ability to 
communicate with our members has been stymied by the 
uncertainty surrounding existing TCPA regulations. Like most 
complicated matters, the existing regulations are neither all 
good nor all bad.
    We are absolutely in favor of protecting our members from 
unwanted communication. However, we are also in favor of 
removing undue liability found within the confines of the 
existing regulation. Our industry welcomed recent FCC rulings 
when the Commission recognized the importance of timely utility 
notifications. However, these orders did not go far enough in 
patching up the increasingly archaic regulations associated 
with existing law.
    Beginning in 2010, Snapping Shoals offered a prepaid 
electric program that now serves over 11,000 residential 
members. This program allows members to take control of their 
electricity usage much the same pay-as-you-go manner as fueling 
up the family car. In addition, there are no up-front deposits 
and no disconnect or reconnect fees.
    Upon consent, members are provided with low-balance and 
disconnect notifications. Most members establish a default low 
balance, which becomes the notification threshold once active. 
Timely information is vital to providing these members with a 
member-friendly program.
    Since launching the program, we have learned that our 
prepaid membership needs are very different than traditional 
members. We have found that not only does the typical prepaid 
member use less electricity but will also paid towards their 
electric balance at least five times each month.
    In short, prepaid members are more engaged with our co-op 
on a daily basis and require more up-to-date information than 
traditional members. We have found that our low-income 
populations are more likely to choose our prepaid billing 
option. This fact is especially relevant when we consider that 
liability concerns over current TCPA regulations prompted 
Snapping Shoals to discontinue all automated telephone 
notifications in June 2014.
    In late 2013, Snapping Shoals faced legal action alleging 
improper unsolicited phone calls under the strict liability 
portion of the TCPA statute. Although the case has since been 
resolved, Snapping Shoals made substantial negative changes to 
our member notification offerings as a result of this 
complaint.
    The mobile number at issue was provided by a prepaid member 
upon establishing service. The member provided consent and 
verified the phone number at least seven times through a series 
of member-initiated phone calls. Without our knowledge, 
sometime in late 2011, our member changed phone numbers but 
continued to receive electric service at the original address 
while also receiving almost daily email and phone low-balance 
notifications until disconnecting service in April of 2013. 
Daily notifications sound excessive but reflects the member's 
practice of paying small amounts, often daily, to maintain the 
lowest balance possible.
    Unfortunately, our original automated phone system did not 
allow for the member to simply opt out from within the phone 
call. Our automated systems were in their infancy, and we 
acknowledged that these systems should be improved and have 
continued to work with our service providers to develop a more 
robust member solution.
    The prepaid billion program at Snapping Shoals was 
certainly not the first within our industry, but the rapid 
growth of our program meant that we would be one of the first 
to experience the growing pains associated with reassigned 
phone numbers. At best, the FCC has offered a patchwork of best 
practices intended to protect members and reduce liability 
concerns. However, the strict liability provisions within the 
statute leave no room for reasonable application of the law 
that would reflect the modernization of communication.
    By June of 2014, our co-op reluctantly made the unpopular 
decision to discontinue all automated phone notices. Every 
attempt was made to notify our members of the change in hopes 
of avoiding any unnecessary service interruptions. Despite our 
best efforts, we still receive numerous complaints from angry 
members that had grown to depend on these phone notifications.
    The only remaining channel to safely and effectively 
communicate with our members is through email. Unfortunately, 
e-mail-only notifications can exclude a large portion of our 
membership who do not have Internet-connected devices or 
reliable Internet service. We need help from Congress and the 
FCC to mitigate concerns over costly and burdensome TCPA 
litigation for businesses like Snapping Shoals EMC.
    This hearing is a great first step, and I look forward to 
taking your questions today and working with you to improve the 
TCPA moving forward.
    [The prepared statement of Shaun Mock follows:]
    
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    Mr. Walden. Thank you, Mr. Mock. We appreciate the 
testimony, and sorry for what you all have gone through as a 
result of current status of this law.
    We will go now to Mr. Spencer Waller, interim associate 
dean for Academic Affairs and professor at Loyola University 
Chicago and director of the Institute for Consumer Antitrust 
Studies.
    Mr. Waller, thank you for being here. We look forward to 
your testimony.

               STATEMENT OF SPENCER WEBER WALLER

    Mr. Waller. Thank you very much. Chairman Walden, Ranking 
Member Eshoo, and other members of the subcommittee, I 
appreciate the chance to be here today and discuss with you the 
important issues raised regarding the continued effectiveness 
of the TCPA and appropriate proposals for its reform. I thank 
you for also including our 2014 study of the TCPA in the record 
of these hearings.
    The only thing I would emphasize is that I am here in my 
individual academic capacity and that our institute is 
nonpartisan. We don't take positions in individual cases.
    As I said, my comments are drawn from that 2014 study, and 
as the committee is aware, in the late 1980s, spurred by 
advances in technology, the telemarketing industry began to 
aggressively seek out consumers by the hundreds of thousands. 
They were able to do so as a result of then-technological 
advances involving robocalls, prerecorded messages, automatic 
dialing, and the development of what was then the fax machine.
    Consumers and businesses became overwhelmed with 
unsolicited telemarketing calls and fax advertisements. Calls 
for action grew louder. States enacted laws but could not reach 
the interstate aspects and international aspects of 
telemarketing. And after reviewing and debating 10 different 
pieces of legislation, Congress ultimately enacted the TCPA 
that we are here to talk about.
     And the TCPA was borne out of abusive telemarketing 
practices, made more invasive by the technology of that time. 
And since 1991, Congress has enacted other statutes relevant to 
the discussion of the TCPA, some of which have already been 
mentioned today.
    The original purpose of the TCPA was to regulate certain 
uses of technology that were abusive, invasive, and potentially 
dangerous and also to some extent cost-shifting to the 
consumers. And the TCPA effectively regulates those abuses by 
prohibiting certain technologies altogether, rather than 
focusing specifically on the content of the messages being 
delivered.
    And the expansion of the TCPA into areas outside of 
marketing and new technologies such as text messaging and cell 
phones over the years is consistent with its original purpose.
    On the enforcement side under the current scheme, private 
parties are largely responsible for the TCPA and have done so 
primarily through the class-action mechanism. This is in part 
due to the small statutory damages for any single plaintiff 
under the TCPA and the lack of statutory attorneys fees except 
through the class-action mechanism.
    And while this aspect of private enforcement has drawn some 
criticism because of the potential for large total damages 
faced by certain defendants, the threat of class actions has 
also provided significant direct and indirect deterrence to 
violators and is the only meaningful source of potential 
compensation to victims of TCPA violations.
    Historically, the Federal Government, through the FCC, has 
only enforced the TCPA directly against violators to a limited 
extent, and yet the statute has been relatively successful in 
reducing the conduct it was enacted to regulate.
    Obviously, technology continues to evolve rapidly, and 
there are a number of trends that are emerging. The number of 
entities that are operating in intentional disregard of the 
TCPA are growing, and they are using more sophisticated 
technology to evade detection and enforcement.
    According to the Federal Trade Commission, about 59 percent 
of phone spam cannot be traced or blocked because the calls are 
routed through ``a web of automatic dialers, caller ID 
spoofing, and voiceover-Internet protocols.''
    Although the traditional scheme of TCPA enforcement, with 
its strong reliance on private rights of action, has been 
successful in the past, two main issues are becoming clear. The 
private right of action is limited in terms of its ability to 
deter actions of intentional violators, and FCC direct 
enforcement through forfeiture proceedings is limited by its 
slow processes, limited resources, and limited remedies.
    So in order for the TCPA to continue to remain relevant and 
effective going forward, our report from 2014 makes the 
following recommendations: We recommended increasing government 
enforcement of the TCPA by providing State attorneys general 
with a larger incentive to bring TCPA cases and also 
authorizing the FTC to bring enforcement actions under the 
TCPA. It is involved in the enforcement of obviously portions 
of the laws relating to abusive telemarketing and is also the 
prime enforcer of most of our country's consumer laws, and we 
think they are better able to tackle this problem in concert 
with the FCC.
    We also recommended increased uniformity of the application 
of the TCPA by encouraging more frequent and quicker FCC 
rulemakings, focus more on the definition of terms and 
ambiguities in the law, less so with respect to carve-outs and 
exemptions for individual industries and actors.
    We hope to continue to protect cell phones by requiring 
express prior consent for any communication by call or text 
made to a cell phone. And we have other recommendations 
relating to the junk fax portion of the TCPA, which may also be 
of interest to the committee.
    We oppose efforts to remove or otherwise modify the private 
right of action in view of its importance in the enforcement of 
the statute, and we support placing increased restrictions both 
through law and through technology on entities that seek to 
manipulate caller ID.
    These recommendations and other issues are discussed more 
fully in our report. And I thank you for your time, and I am 
happy to answer any questions.
    [The prepared statement of Spencer Weber Waller follows:]
    
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    Mr. Walden. Thank you very much for your testimony.
    I will now go to our final witness, Mr. Richard Shockey, 
principal at Shockey Consulting. We are delighted to have you 
here, sir. Please go ahead.

                  STATEMENT OF RICHARD SHOCKEY

    Mr. Shockey. Chairman Walden----
    Mr. Walden. Be sure to push the button on your microphone 
there. There we go.
    Mr. Shockey. There we go. Chairman Walden, Ranking Member 
Eshoo, and members of this committee, thank you for the 
opportunity to speak with you today.
    My name is Richard Shockey, and I am a consulting 
telecommunications engineer by profession advising 
telecommunications companies, their supplier community, the 
investment community, and actually other national governments 
on any number of issues related to our communications networks.
    I am also the chairman of the board of the SIP Forum. SIP, 
or the Session Initiation Protocol, is the fundamental Internet 
building block by which all modern voice communications 
networks in the United States are designed around, including 
those deployed by cable, enterprises, including the Congress I 
might add, and advanced residential networks.
    I am only speaking for myself here and none of the other 
members of the SIP Forum, et cetera, et cetera.
    I have been a working member of the Internet Engineering 
Task Force for over 15 years, and I currently serve on the 
FCC's North American Numbering Council, and I have previously 
served on the FCC's Communications Security, Reliability, and 
Interoperability Council.
    I am here to discuss many of the technical issues involving 
TCPA, robocalls, caller-ID spoofing, which are interrelated 
with each other and inter-tangled with each other. This 
committee is clearly aware of the new Robocall Strike Force. 
Though I am not a member of the strike force, I am intimately 
aware of the work the engineering community is contributing to 
that effort and happy to share it with you.
    I look forward to answering your questions.
    [The prepared statement of Richard Shockey follows:]
    
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    Mr. Walden. All right. Thank you very much. And you win the 
prize for the shortest testimony. We appreciate all our 
panelists here and for what you have shared.
    I have got a couple of questions that came my way. 
Obviously, we all don't want the unwanted robocalls, the 
spoofing, all of those things, but I keep getting asked what is 
a robocall? What is an auto-dial call? And, Mr. Waller, maybe 
you can help because I haven't been able to get a definitive 
answer that if I pick up this device called a mobile phone and 
in the address book push a number, it auto-dials. Some would 
argue that constitutes an auto-dial, a robocall. If I manually 
dial the number, some would argue, well, that gets around it, 
but others say not necessarily because the device is capable of 
doing that. Do you believe there is clarity in the law on this 
matter, and if so, which is it?
    Mr. Waller. Mr. Chairman, it is a good question. I would 
have to go back and look carefully, particularly at the 2015 
FCC omnibus rulings to see what their current position is and I 
don't have that at the tip of my tongue.
    Mr. Walden. All right.
    Mr. Waller. I would certainly take the position, I think, 
that manual-dial call on a device is a manual-dial call and 
would not be captured by the auto-dial----
    Mr. Walden. Because one of the other issues that comes up 
is if you have a list of customers in a system and you need to 
communicate with them, does it really in today's technology 
make sense that you have to hire people to manually punch in a 
number that otherwise could come down and mechanically be 
dialed. That is treated as a robocall because it is auto-
dialed, right?
    Ms. Turano, you seem to be agreeing with me on this point. 
Is this something you all have run into? Mr. Mock?
    Ms. Turano. You are right. I am nodding over here.
    Mr. Walden. Why?
    Ms. Turano.I appreciate the question and I think there is 
an important distinction is because frankly of the cost related 
to those types of calls. For us to hire an employee to make 
manual phone calls, depending on the length of the call, it 
could be anywhere between $6 to $10. If it were an auto-dialed 
call, it could be anywhere between 35 to 65 cents. And so those 
are funds that could otherwise----
    Mr. Walden. And you are allowed to make that call one way 
or the other, right? If you have permission into the cell phone 
and to use a cell phone number, then you can do the auto-dial? 
You could use technology like we all do with our--anybody have 
an address book with phone numbers? Anybody really know phone 
numbers anymore? Do you still go around in the wheel? I don't 
think so, right?
    Ms. Turano. Right, the----
    Mr. Walden. But this antiquated law makes you do that, 
doesn't it?
    Ms. Turano. It distinguishes between a landline and a cell 
phone, yes.
    Mr. Walden. All right. Mr. Mock, what have you run into in 
that respect?
    Mr. Mock. Well, certainly, from Snapping Shoals' 
standpoint, we operate at cost for our members, and any 
additional manual processes that are added ultimately would 
have to be passed along through our electric rates onto our 
members.
    Just to give the committee an idea of volume and our issue 
with prepaid----
    Mr. Walden. Right.
    Mr. Mock [continuing]. Particularly highlights the volume 
of phone calls. But Snapping Shoals' 11,000 prepaid consumers 
in August of 2011 received in excess of 220,000 low-balance 
notifications. That is 23 notifications per member per month.
    Mr. Walden. Now, some people might say that is too much; I 
don't want that.
    Mr. Mock. I would absolutely agree, but we are dealing with 
a population that will quite literally pay $5 and $10 towards 
their electric account every single day. And so as we maintain, 
say, a $20 minimum balance and as that balance goes below $20, 
the member pays $10, that may only buy them a few days. In some 
cases with the lower payments, these members are receiving 
phone calls day after day after day and to have a small 
business such as ours place that volume of phone calls just 
simply is not feasible cost-wise or----
    Mr. Walden. Are these calls your consumers actually want?
    Mr. Mock. Absolutely. Since----
    Mr. Walden. What happens if they fall behind? Does their 
power get cut off? And what does that cost them if that 
happens?
    Mr. Mock. Because they are a prepaid member, there are no 
additional fees. At this point, once the balance falls below 
zero, the meter automatically disconnects. Once they make a 
payment, automatically comes on.
    Mr. Walden. All right.
    Mr. Mock. Outside of the prepaid program, we have also 
experienced some difficulty with our regular consumers. Just a 
simple phone call for a member of 20 years goes out of town for 
5 or 6 weeks, forgot to pay the bill before he left----
    Mr. Walden. Right.
    Mr. Mock [continuing]. Paid a little extra as a matter of 
fact but not quite enough, he comes home to a house with thawed 
freezers, ruined floors, and in conversations, he simply wanted 
a phone call. Prior to June of 2014, he would have received a 
phone call.
    Mr. Walden. But because of the class-action lawsuits or 
whatever else----
    Mr. Mock. Absolutely, and----
    Mr. Walden [continuing]. You have backed off doing that?
    Mr. Mock. We have a strong practice of verifying phone 
numbers at every opportunity.
    Mr. Walden. Right.
    Mr. Mock. And for us, the issue of reassigned phone numbers 
and the volume particularly that can stack up with a reassigned 
phone number is really where our----
    Mr. Walden. All right.
    Mr. Mock [continuing]. Material concern is.
    Mr. Walden. I wish I had more time. I would pursue that 
course because that is the next----
    Mr. Mock. Thank you.
    Mr. Walden [continuing]. Big issue on my list. But we will 
go now to the gentlelady from California, Ms. Eshoo.
    Ms. Eshoo. Thank you, Mr. Chairman, and thank you to the 
witnesses.
    I think what I would like to do is just ask a 
straightforward question of three out of the four of you. Mr. 
Waller, you made recommendations of what you thought we should 
do, and that is most helpful. So one or two sentenced, Ms. 
Turano. What do you recommend that we do to address what we are 
here for?
    Ms. Turano. Sure. Thank you.
    Ms. Eshoo. What is your top recommendation, quickly?
    Ms. Turano. Thank you. My top recommendation has to with a 
reconciliation comparing the language within TCPA and certain 
language within HIPAA. They are both statutes that govern this 
practice and the Medicare Advantage and Medicaid programs. 
However, there is a disconnect----
    Ms. Eshoo. I have it. I got it. OK.
    Ms. Turano. Thanks.
    Ms. Eshoo. Thank you. Mr. Mock?
    Mr. Mock. Thank you. I think our top recommendation simply 
would be to introduce some measure of reasonability in 
application into the law. Additional exemptions----
    Ms. Eshoo. But something specific. I understand everybody 
will say here, even if they disagree with each other, that they 
are all reasonable, so be specific.
    Mr. Mock. Thank you. The definition of called party at this 
particular point in time leaves absolutely no liability on the 
called party, and in our case, whenever the called party is not 
the intended, the reasonable application that might ask a----
    Ms. Eshoo. Well, I understand----
    Mr. Mock [continuing]. Called party----
    Ms. Eshoo [continuing]. What you are talking about, but in 
your written testimony, if I read it correctly, you all made 
500 calls over, I think, 13 months to a reassigned number. I 
mean, 500 calls and you want to put the burden on the person 
that receives the call? Is that what you are saying?
    Mr. Mock. Five hundred phone calls absolutely sounds 
excessive. Again, these----
    Ms. Eshoo. Well, it is excessive.
    Mr. Mock. These are members that have requested these daily 
notifications. If a member does not receive a notification, 
their power is out. In this particular case a reasonable 
application of the law might have looked at this case and just 
asked the question would it be reasonable----
    Ms. Eshoo. Well, I understand reasonable, and I don't know 
how we do this, but we can't reshape TCPA based on your co-
operative. We are going to have to look for something that is 
going to help you, but it is a very unusual, in my view, 
business model.
    Mr. Shockey?
    Mr. Shockey. These are policy questions, and I defer to the 
other witnesses----
    Ms. Eshoo. So ask the engineer and consultant? You don't 
have even one----
    Mr. Shockey. Well, I think you can't look----
    Ms. Eshoo [continuing]. Recommendation for us?
    Mr. Shockey. There are a number of things I would bring up. 
The number one thing I would is you can't look at TCPA in 
isolation. We are going to have to look at the Truth in Caller 
ID Act specifically. The act is creating a great deal of the 
problems with robocalls because the way it is constructed.
    Ms. Eshoo. But tell us the fix. Everybody is telling us the 
problems. We know what the end result of the problems. What do 
you recommend we fix? How would you do it? You are the expert. 
That is why you all came here to testify.
    Mr. Shockey. There are issues involving what I would 
consider adding safe harbor, as well as----
    Ms. Eshoo. Safe harbor for whom?
    Mr. Shockey. Safe harbor for the entity making the calls. 
And the telecommunications companies really do need to safe 
harbor. It is also in good-faith provisions that in good faith 
here for these entities such as a co-operative and health care 
providers and financial institutions that if they are trying to 
do this is in good faith, they should have some reasonable 
protection from unwarranted lawsuits.
    Ms. Eshoo. And what is----
    Mr. Shockey. What is in good faith?
    Ms. Eshoo. Are there limits to what they do or are there--I 
mean, is it you just enter a safe harbor and then do whatever 
you want?
    Mr. Shockey. No, that I think can be worked out----
    Ms. Eshoo. There are financial institutions but then there 
are some that abuse. They never stop calling to market their 
goods. Is that considered safe harbor in your view?
    Mr. Shockey. No, but safe harbor I would say there is a 
difference between marketing and also financial protection, 
which is I get occasionally both telephone calls as well as 
text messages when I make a purchase, say, for instance, over 
$500. I need that. I want that. And within reason I am willing 
to accept a certain amount of marketing materials one way or 
the other. It is a fine line. It is discretionary.
    However, I think that the problem we have seen in the act, 
in TCPA, is it has been unreasonable. And especially for 
smaller firms. It is one thing for AT&T or Bank of America or 
Dominion Resources to be able to protect themselves. It is 
another for a relatively small firm or manufacturing firm or a 
small electric co-operative to defend themselves against these 
kinds of class-action suits.
    My belief is we have to look at this as a larger machine. 
There is TCPA, there was the Truth in Caller ID Act. I believe 
the telecommunications firms are committed to injecting 
cryptographically secure material into the networks itself that 
begins to reduce the problem of spoofing and robocalls at its 
source.
    Mr. Walden. We need to----
    Ms. Eshoo. Yes. I am waiting for him to finish. Mr. 
Chairman, can I just ask unanimous consent to place Electronic 
Privacy Information Center's letter----
    Mr. Walden. Sure. Oh, absolutely.
    Ms. Eshoo [continuing]. In the record? Thank you.
    Mr. Walden. Yes, without objection.
    [The information appears at the conclusion of the hearing.]
    Mr. Walden. And I thank you for your answer.
    I will now go to the gentleman from New York, Mr. Collins, 
for questions.
    Mr. Collins. Thank you, Mr. Chairman.
    I think we are here today really talking about unintended 
consequences. And there is no perfect solution. There can never 
be a perfect solution. And certainly I appreciated Mr. 
Shockey's comments about safe harbor, common sense, and really 
small businesses--I am a small business guy--who really live in 
fear of some of these class-action lawsuits and in some cases 
might be withholding the information that somebody--like Mr. 
Waller saying, if somebody is going to--for every purchase over 
$500 I would like to know it just in case, things of that sort.
     But my question, Ms. Turano, is in your business--in fact, 
health care today, patients come in, they are treated, they may 
have a high deductible plan. They may not even realize that. 
After they have come, they have gone, they are treated, I would 
have to expect sometimes left with people owing substantial 
money. And you are in business and have to stay in business 
based on cash flow and collecting money. And you are not a 
telemarketer, but I have to expect you worry about and are 
frustrated by making a follow-up call to someone who, you know, 
through ObamaCare or some other reason is stuck in a high 
deductible plan. They could owe you thousands of dollars.
    You need that money to stay in business and provide your 
service, and yet, under the TCPA what are you? Are you a 
collection firm, which you are not, or are you just trying to 
protect the financial interests for all your other patients, 
and unfortunately, having to call folks to say you owe us some 
money, based on your insurance plan and high deductible, 
others, could you just maybe comment on some of those 
unintended consequences relative to you providing health care, 
something we all know we need?
    Ms. Turano. Sure. Thank you. And actually, the law provides 
that we do not make these types of phone calls to cell phones 
about payment. We make automated phone calls with consent for 
health-related purposes. So we are not behaving like a 
collections agency. In fact, we are only making calls, sharing 
health care information with the members.
    Mr. Collins. So what can you or can't you do relative to 
try to collect money that is owed to you by a patient that has 
come in, been treated, and now they owe you money?
    Ms. Turano. Well, I would assume use traditional other 
methods, whether that be sending them a bill in the U.S. mail 
or we certainly have the ability to, if there were a landline 
available, we could use that. But using an auto-dialer to a 
cell phone or using an auto-dialer to text a cell phone is not 
something that we would do to attempt to collect----
    Mr. Collins. Which, again, as the chairman noted in his 
opening comments, as many as half of Americans now don't even 
have a landline.
    Ms. Turano. Correct.
    Mr. Collins. Well, thank you very much. Again, it is the 
unintended consequences--I think really we all want the same 
thing. No one wants the annoying calls, trying to sell 
something but, where does the fine line come? And with the fear 
of litigation, at what point do good phone calls stop or 
reasonable phone calls?
    Mr. Shockey. Congressman, I think what a lot of people are 
struggling with here are what are genuinely legitimate calls 
from people who have a prior business relationship. And what 
some of us are worried about, which is the really fraudulent 
calls that are attacking vulnerable populations, the aged one 
way or the other, those of us such as myself and the 
engineering community, we would like to crush the fraudulent 
calls immediately. Hang them, please.
    But these issues that you are bringing up, Congressman, 
there are fine lines here, and I certainly understand the 
frustration of small business owners that they are getting 
entrapped with a lot of ambulance-chasers--let's put it 
bluntly--who are using TCPA to extract--it is fraudulent in its 
own sense to a certain extent.
    I am just a poor, dumb engineer here. It is very hard for 
me to distinguish issues involving policy versus issues 
involving engineering, but I certainly understand your concern.
    Mr. Collins. And I think this hearing is really an 
informational hearing to bring some of these issues forward. We 
are not going to solve the issues today, but your testimony is 
certainly much appreciated. And, Mr. Chairman, I think it is a 
very timely committee, and my time has run out so I yield back.
    Mr. Walden. The gentleman yields back.
    Ms. Turano, just before I go to Mr. Pallone, when you talk 
about sharing health care information, is that the results of a 
blood test? Is that what you are talking about?
    Ms. Turano. Those are the types of calls I am talking 
about, yes. It could be a reminder to fill a prescription, to 
pick up your prescription. It could be a reminder to receive or 
to seek out preventative tests or screenings. It is those types 
of calls that I am----
    Mr. Walden. OK.
    Ms. Turano [continuing]. Talking about.
    Mr. Walden. All right. Thank you.
    Mr. Pallone.
    Mr. Pallone. Thank you. I wanted to ask Mr. Shockey, in 
your written testimony you note that Congress can be helpful in 
ensuring that consumers benefit from the various technological 
solutions that can help reduce robocalls. Can you just tell me 
more specifically what technological steps you think Congress 
could take to better protect consumers and stop the robocalls?
    Mr. Shockey. Thank you, Congressman, for your excellent 
question there. The technological solutions that we are 
proposing, the engineering community, basically looks upon the 
fraudulent robocall problem as essentially a form of 
cybersecurity attack. Therefore, we need to go into the core of 
the voice communications network and use modern cryptographic 
methodology such as public infrastructure to basically sign the 
caller ID, sign the CNAME data, potentially make more 
information about the call party available to the consumer.
    One of the things that we are working very diligently on on 
a technology side is in those cases where there is a clear 
prior business relationship allowing for more information to be 
displayed to the consumer. We are looking at some things like a 
green check box which is this call has been validated, a big 
red check box, no, this is not really the IRS involved, some 
kinds of other form of visual indicators that the call, at 
least from the network's perspective, has been authenticated 
from the called party, and we can do better things like track 
and trace one way or the other.
    Those are the technological solutions that we have. As for 
whether or not Congress needs to further enhance the existing 
portions of title 47, I am not sure at this particular point. 
The relevant sections of the act that I know of, which are 
251(e)(1), which is plenary authority over the numbering plan. 
The Commission already has that. They use that for numbering 
plan administration, local number portability.
    I believe, at least in my own--I am not a lawyer and I 
don't play one on TV so I can't answer that question, but I 
think they actually have sufficient authority to act if other 
aspects of the statutes are clear as to what the true intent of 
Congress is.
    Mr. Pallone. OK. Rather than fraudulent calls, I wanted to 
talk about telemarketers that we never want or we never asked 
for. And, Professor Waller, you note in your written testimony 
that Congress should require that telemarketers receive express 
consent from consumers before they call their cell phones. Can 
you explain why you think strong consent is so important for 
consumers?
    Mr. Waller. Yes. Thank you. I think that the requirement of 
consent has been a core provision of the TCPA from the very 
beginning, and I would urge that it be strengthened if 
anything.
    The situation that Chairman Walden referred to with respect 
to text messaging, making temporary job opportunities available 
is a perfect illustration of how valuable it is when the 
consumer has consented and how it is simply unwelcome--perhaps 
not harassing but simply unwelcome and invasive in their lives 
if they have not consented.
    And some of the examples and many of the horror stories 
that are presented are really about consent, and services are 
valuable if the consumer has consented and services are 
unwelcome and telemarketing is unwelcome when they haven't, and 
that is a critical component of the act.
    Now, some of the other horror stories that have been 
presented are not about consent but about reassigned numbers 
and reaching out to people who perhaps they intended to get 
someone who had given consent but they didn't reach someone, 
and in that case, the person they reached has not consented. 
There are still cost consequences to the 75 million consumers 
who have some form of prepaid cell phones. These calls are 
unwelcome. And it is the caller or the people they use who are 
the best cost-avoiders in that circumstance using currently 
available databases and some of the things that are in 
development that Mr. Shockey has talked about.
    Mr. Pallone. Let me just ask quickly. The FCC has been 
issuing more rulings on the TCPA recently. Do you think this 
recent uptick in FCC action has been beneficial for consumers?
    Mr. Waller. I think it has. I think the 2015 omnibus ruling 
has been helpful by focusing on certain definitions, in 
particular, this reassigned number issue, the question of 
vicarious liability and the definition of auto-dialers that 
Chairman Walden was asking about. I think rulemaking by its 
very nature is a lengthy process and I commend the FCC for 
doing the best job it can, but it is really hit with a flood of 
petitions over and over again by the firms or industry seeking 
special treatment.
    Mr. Pallone. Thank you. Thank you, Mr. Chairman.
    Mr. Walden. OK. The gentleman's time is expired.
    I now go to the vice chair of the subcommittee, Mr. Latta.
    Mr. Latta. Well, thank you, Mr. Chairman, and thanks to our 
panel for being here this morning, appreciate it.
    Ms. Turano, if I could start with you, in your testimony 
you stated that health care-related texts and calls lead to 
more engaged patients, better patient outcomes, and lower 
health care costs for consumers. It seems obviously that public 
health and safety notifications, along with individual health 
reminders, are helpful and important. Under current law, am I 
right to believe that these types of notifications are 
underutilized due to liability risks?
    Ms. Turano. Yes, sir, I believe that is accurate.
    Mr. Latta. Let me follow up then. How can we better update 
then the TCPA to ensure that actors with good intentions are 
able to reach the consumers and patients to better serve them?
    Ms. Turano. Sir, currently, there is an exemption within 
the TCPA that is extended to health care providers to make 
these types of phone calls that I have been referring to. 
Unfortunately, that is a vague term. Within the HIPAA statute, 
however, there is language that could be imported that is far 
more clear and has a much more specific definition, and that is 
a term called HIPAA-covered entity. If that language were to be 
imported within the TCPA, that would make things much more 
clear for companies like WellCare, and that would allow us to 
make these types of phone calls.
    Mr. Latta. Well, I was going to follow up on that. And let 
me ask you this because under HIPAA is it more clear for 
landlines than it is for cell phones?
    Ms. Turano. Is it more clear within HIPAA for landlines----
    Mr. Latta. Right, is that----
    Ms. Turano [continuing]. Or cell phones? HIPAA covers all 
health care communications. It does not make a distinction 
between cell phones and landlines from my understanding.
    Mr. Latta. OK. But is there any type of confusion out there 
today for folks out there then----
    Ms. Turano. Operate----
    Mr. Latta [continuing]. If you are looking on the cell 
phone side?
    Ms. Turano. No.
    Mr. Latta. There isn't? So there is not a problem then for 
people that--especially for you all to go to contact folks on 
that and then----
    Ms. Turano. Well, if we were operating under HIPAA 
guidelines, those are very clear, and it is very prescriptive 
about what we can say, whom we can contact, how, and why. If 
those types of guidelines were transferred over to be 
consistent with the TCPA, it would be much more straightforward 
with us. There would be no gray area in terms of who we can 
contact, whether it is a landline or a cell phone.
    Mr. Latta. OK. Thank you.
    Ms. Turano. Thanks.
    Mr. Latta. Mr. Waller, I am wondering, how many of the 
complaints--and maybe if you might know this, how many of the 
complaints that the FCC and FTC receive are from the same 
numbers, any idea? Do we have any kind of knowledge out there 
as to who the bad actors are out there that are making a lot of 
these calls that people receive? Is there a way to find that 
out?
    Mr. Waller. It is my understanding that the way the FCC 
tracks complaints on this issue that they accumulate complaints 
with respect to specific numbers and senders when they can 
identify them. So I believe the FCC can provide that 
information. I am not clear on how the FTC tracks robocall 
complaints, but I am aware that they receive between 200,000 
and 300,000 per month.
    Mr. Latta. All right. Thank you.
    Mr. Shockey. Congressman, can I address some of that 
because----
    Mr. Latta. Yes. Yes.
    Mr. Shockey [continuing]. It is slightly tactical?
    Mr. Latta. Yes.
    Mr. Shockey. It is correct that the way that the FCC and 
the FTC track this is via the number, but the number is 
inaccurate because it has been spoofed----
    Mr. Latta. Right.
    Mr. Shockey [continuing]. In most of the cases.
    Mr. Latta. And as the chairman mentioned in his opening 
statement that we just passed out of full committee----
    Mr. Shockey. Correct.
    Mr. Latta [continuing]. The bill especially on the spoofing 
end, correct, yes.
    Mr. Shockey. And they are coming in through intermediary 
providers and the current legislation, which was passed 
yesterday, that requires intermediary transit providers to 
identify themselves with the FCC makes a great deal of sense.
    What we do know anecdotally, by the way, is that the number 
of actors creating particularly the fraudulent robocalls is in 
fact relatively small. They are quite sophisticated and I might 
add I have done consulting work for the CRTC in Ottawa and 
Ofcom in the United Kingdom, and on a per capita basis the 
problem in Canada and in the United Kingdome is in fact worse. 
And the technical solutions that we are looking at deploying 
may actually have international implications as well and offer 
United States leadership to our friends, allies, and partners, 
on this area as well.
    One of the things that I know law enforcement is concerned 
about is this track-and-trace issue and the call validation 
technology that we want to interject into the network should be 
able to provide law enforcement with considerably better tools 
than what they have now.
    Mr. Latta. Yes. Thank you very much, Mr. Chairman. My time 
is expired and I yield back.
    Mr. Walden. I thank the gentleman. And we have a list for 
the committee at some point here of the conflicts in statute 
that require people to make calls that then put them in 
conflict with TCPA. We do have that, too, as part of our 
discussion.
    Mr. Doyle.
    Mr. Doyle. Thank you, Mr. Chairman.
    Mr. Waller, I want to follow up on Mr. Pallone's questions 
about expressed consent. I want to ask you if you think we need 
to reexamine the rules about prior express consent through an 
intermediary because it seems to me recent court cases seem to 
affirm the notion that debt collectors can harass consumers 
even when they have not explicitly been given consent to do so.
    So I am concerned that this practice of consent through a 
third party sometimes leads to loopholes where consumers are 
harassed by debt collectors or advertisers in situations that 
they haven't expressly consented to. What problems do you see 
in this practice and how would we deal with that?
    Mr. Waller. I share your concern. Consent should mean 
express consent expressed in a reasonable fashion that is part 
of the TCPA. There is growing amount of case law, plus the 
notion of reasonableness as an accepted standard throughout 
consumer protection law, most of American law. Third-party 
consent I think should be extremely limited or simply abolished 
whenever humanly possible.
    The area that you talked about particularly with debt 
collection is one of the top areas of consumer complaints. I 
think it is unfortunate that there was a carve-out for debt 
collection from the Federal Government or its contractor 
recently in the Budget Reconciliation Act.
    So I think the number of people who are now exposed to 
those calls are certainly greater. It is 60-some million people 
depending on which debt programs you are talking about. So I 
would like to see a return to the definitions that were used 
when consumers directly consented, whether it is in writing or 
some other fashion that can be legitimately recorded by the 
sender so they get the information they want and simply not be 
deemed to consent by the actions of a third party.
    Mr. Doyle. Thank you. Let me ask you, historically, phone 
carriers have had an obligation to connect all phone calls, but 
recently, when the FCC loosens this restriction in order to 
promote the development and deployment of robocall-blocking 
technologies, I want to ask you, do you think the common 
carrier exemption should be reexamined as there will be an onus 
on carriers to connect the right calls? What safeguards are 
necessary to ensure that carriers aren't overzealous in their 
call-blocking?
    Mr. Waller. I think in some ways Mr. Shockey may be better 
able to answer that than I do, but I do think it is a 
combination of legal and technological solutions, so the gold 
standard would be a single rule that applies across all 
technology platforms, whether it is landlines, whatever is left 
of fax machines, cell phones, and whatever is yet to come--and 
e-mail obviously--where a consumer can opt out and be done with 
it where we would be, in my view, aiming for a universal do-
not-contact register, not just do not call, and that obviously 
involves a sensible drafting of interaction of legal and 
technological requirements.
    Mr. Doyle. Mr. Shockey, do you want to answer?
    Mr. Shockey. I agree with Mr. Waller completely, 
Congressman. I have serious problems with blacklists. We have 
problems with blacklists in the past in this country in one way 
or the other. The problem in getting on a blacklist is how do 
you get off of it, and I have personally run into this problem 
myself trying to send email to this committee because my 
domain, Shockey.us, was thrown into your junk mail pile and how 
do I get off.
    Ms. Eshoo. And look it, you got here.
    Mr. Shockey. I got here, yes. I had to use my Gmail 
account. But these are the kinds of things that concern me 
about blacklisting, which is why those of us in the engineering 
community have tried to look at this from a much more holistic 
point in the core of the network, namely, that the originating 
call is cryptographically signed by the call originating 
network, it is authenticated and verified by the terminating 
network, and that the call detail records and the call routing 
records reflect that so that we have got appropriate track-and-
trace mechanism here.
    And recourse in the event that you are thrown into a black 
hole has to be somehow constructed either possibly through 
regulation, hopefully by best current practices among the 
service providers one way or the other. If we march down this 
road, we are very, very concerned about that and we know where 
the problem is.
    Mr. Doyle. Thank you. Mr. Chairman, thank you.
    Mr. Walden. Thank you, Mr. Doyle.
    We will now turn to Mr. Long from Missouri.
    Mr. Long. Thank you, Mr. Chairman.
    And, Mr. Shockey, I hear from constituents about robocalls, 
as everyone else does, and we all find them extremely annoying, 
I believe. Finding a solution, of course, is very important so 
my question is this: This issue seems to involve all segments 
of telecom, including the carriers, equipment-makers, standard-
setting bodies, cable, voiceover-Internet protocol providers, 
basically everyone.
    Mr. Shockey. Yes.
    Mr. Long. You are nodding your head. So is it important to 
have these groups involved in finding a solution to stopping 
these unwanted calls? Is it important to have all these 
different folks at the table and involved?
    Mr. Shockey. Well, thank you, Congressman. The answer to 
your question is absolutely. And in fact I personally have been 
involved in this for the last 4 years with our nation's service 
providers. I have been involved in the tactical standards work 
directly involving all of this. Of course it is difficult to 
get all of these people to consensus. We are much like any 
other group of professionals in one way or the other. It is 
hard to get agreement, which is why it has taken so long.
    But I believe we have a general outline of a plan, and that 
is where we hope--and I believe the Robocall Strike Force, when 
it reports on October the 17th, can at least outline a plan. 
And this committee and the FCC can move forward with all 
deliberate speed in implementing those recommendations.
    Mr. Long. OK. Thank you. But my point is that everyone 
needs to be involved in this process.
    Mr. Shockey. And everyone is, sir.
    Mr. Long. Yes, OK.
    Mr. Shockey. I guarantee you that.
    Mr. Long. Ms. Turano, the types of calls that WellCare is 
making to its clients, you have mentioned it a few times but 
can you kind of just give an encapsulated what your company 
does, what these calls are?
    Ms. Turano. Certainly. Thank you.
    Mr. Long. Can you pull that a little closer to you? It has 
got a long cord on here. Pull her up. There you go.
    Ms. Turano. Is that better?
    Mr. Long. You bet.
    Ms. Turano. OK. Thank you. The types of phone calls that we 
are referring to really are about health care reminders----
    Mr. Long. And that is something somebody would want to hear 
about?
    Ms. Turano. One would think so, yes.
    Mr. Long. OK.
    Ms. Turano. Our members tend to be vulnerable older 
Americans, disabled Americans, or folks that have less access 
to resources, less access to an infrastructure, a support core 
if you will. And so we feel it is important to be able to make 
these calls to them. They increasingly rely on cell phones. We 
want to be able to help them with their health care, and this 
is an efficient and effective way of doing that.
    Mr. Long. OK. Well, I think I agree and most reasonable 
people would agree that those are the type of calls that folks 
are anxious to have, glad to have prescription reminders, 
whatever they may be. But has the FCC's order impacted 
WellCare's calling practices, and if so, how?
    Ms. Turano. Yes, absolutely. Currently, we do not make 
auto-dialer calls or texts to cell phones. That is a practice 
that there----
    Mr. Long. You mean you can still talk on a cell phone? You 
can still call?
    Ms. Turano. We could call you on your cell phone----
    Mr. Long. Really? I didn't even know you could talk on 
these anymore. I tell everyone to text me, and you are not 
allowed to text.
    Ms. Turano. I would be happy to text you a reminder to go 
pick up----
    Mr. Long. You could even call me.
    Ms. Turano [continuing]. Your prescriptions but----
    Mr. Long.. I haven't talked on a phone in so long----
    Ms. Turano [continuing]. I am currently not allowed to do 
that.
    Mr. Long. All right. Especially being from Mizzou, you 
know.
    Ms. Turano. Yes, sir.
    Mr. Long. Get that in there. So these patients will 
potentially not be able to get the information that they need 
for their health care, correct?
    Ms. Turano. If they are relying on a cell phone, I am----
    Mr. Long. Which everyone does.
    Ms. Turano [continuing]. Extremely hampered from being able 
to contact them.
    Mr. Long. OK. I have another question here for you. In your 
testimony you highlight the importance of using cell phones to 
reach all these--and you just now mentioned how important it 
is. Why not just communicate with mail or landlines?
    Ms. Turano. Well, sir----
    Mr. Long. Do you know what a landline is?
    Ms. Turano. I do, thank you. In fact, I think I might still 
have one. Because when you are talking about the members that 
we typically have, I think I mentioned that in many cases they 
have unstable housing, and therefore, they might not have a 
consistent home address so U.S. mail is not going to be an 
effective way to reach them.
    Relatedly, they might not have a consistent landline if 
they are not in stable housing, so therefore, those two methods 
can't be guaranteed to be an effective way of reaching them.
    Mr. Long. OK. Thank you. As they say, the commonsense 
problem is it is not common, and I think that some of these 
things we are looking at, a little common sense would help with 
the FCC.
    Ms. Turano. Thank you.
    Mr. Long. So, Mr. Chairman, I yield back.
    Mr. Walden. The gentleman yields back.
    The chair recognizes the gentleman from California, Mr. 
McNerney.
    Mr. McNerney. Wow, what a great hearing, Mr. Chairman. 
Thank you. And I thank----
    Mr. Walden. You got it.
    Mr. McNerney [continuing]. The panelists.
    Mr. Shockey, I was really thrilled to hear that public-key 
cryptography is used to authenticate caller ID.
    Mr. Shockey. It will be.
    Mr. McNerney. Oh, it will be? OK. That was my next 
question. How widely adopted is that technology? Or when is it 
going to be adopted in a wide fashion?
    Mr. Shockey. As Congressman Long pointed out, there are a 
lot of people here involved, obviously: Our nation's carriers, 
the equipment suppliers, the Congress potentially, but 
certainly the Federal Communications Commission. We have what 
we believe is the outline of a plan and how long that plan will 
take to implement I would choose not to speculate about.
    Mr. McNerney. OK.
    Mr. Shockey. However, it is reasonable--public-key 
cryptography is used all over our economy. The electric meter 
on the side of your house uses PKI, your credit card uses PKI, 
obviously the Web browsers when you buy something from Amazon 
use PKI. This is proven, well-understood technology.
    We have the standards now pretty much ready to go. All they 
need is testing. They need to be put into the actual kit that 
our nation's carriers have. We are very concerned that we don't 
break what we already have. We need to maintain the security, 
the reliability, and the interoperability of at least what we 
have today when we inject this new technology in there, but we 
can do this.
    Mr. McNerney. Well, thank you. I understand that another 
potential solution to unwanted and fraudulent calls is 
malicious call tracing. Can you describe that a little bit?
    Mr. Shockey. Well, malicious call tracing is in fact 
partially solved by this call validation technology using PKI 
because the basic concept--and I will just try and walk you 
through it. Basically, when you place a phone call from any 
access network--that would be cable or mobile or traditional 
landline or enterprise from within this building, the service 
provider would actually sign the underlying call signaling that 
says, yes, I am, well, AT&T and I want this other carrier to 
terminate the call.
    So it signs what is known as the SIP invite. It sends it 
along its merry way, and somewhere along the line level 3 gets 
the call. It uses PKI to verify that AT&T was sending this call 
and then terminates the call in the normal manner. So we 
actually now have an origination and a termination, 
cryptographically sound methodology for track and trace.
    Now, beyond that, we could actually display to the consumer 
validated, good to go. We could also display to the consumer 
such as on your mobile device, on your enterprise phone here in 
the Congress or on your television set if you are using 
advanced network, you know, more information about whether or 
not this call has been trusted or if it is valid or not. So 
empowering the consumer is one of the key advantages of trying 
to deploy this technology and give enforcement in law 
enforcement that are track-and-trace.
    Mr. McNerney. So the trace back is another form of this 
technology is that----
    Mr. Shockey. Yes.
    Mr. McNerney [continuing]. Right?
    Mr. Shockey. Yes.
    Mr. McNerney. And then I guess the last thing is the do-
not-originate. And again, they sound like they are all sort of 
based on the same technology, those three methods.
    Mr. Shockey. Do-not-originate is a little bit different.
    Mr. McNerney. Is it?
    Mr. Shockey. That is going to require, I think, a little 
bit of study. I know the public safety folks are extremely 
concerned about do-not-originate because of the various 
phishing attacks on public safety institutions one way or the 
other. It is certainly worth investigation, and people are 
actively talking about it. And I certainly want to wait and see 
what the final report of the strike force is before making a 
determination, but it is technologically feasible. Let's put it 
that way.
    Mr. McNerney. What is the most effective thing we can do 
here then is to----
    Mr. Shockey. Clarity. Again, as has been discussed by 
better policy experts than I am, having clarity in the 
legislation. I think you also have to look at the Truth in 
Caller ID Act. You also have to look at some other aspects of 
current legislation. Truth in Caller ID Act is bound to the 
problem with TCPA. If we can't secure the identity of the calls 
themselves, we can't fix the problem.
    Mr. McNerney. Mr. Chairman, I need another 5 minute but I 
will yield back anyway.
    Mr. Walden. Thank you. We will have more time later on 
probably to talk about this issue.
    But we will now, let's see, go to the gentleman from 
Florida, Mr. Bilirakis.
    Mr. Bilirakis. Thank you, Mr. Chairman. I thank the Ranking 
Member Eshoo as well for holding this very important hearing.
    Modernizing the 1991 TCPA statute has long been a goal of 
mine, and I am glad the subcommittee is holding this 
informational hearing today. I appreciate it so much.
    Ms. Turano--and I apologize if these questions were already 
asked. I understand that WellCare filed a petition with the FCC 
seeking clarity on the TCPA provisions. Can you briefly outline 
the basis for WellCare's petition, please?
    Ms. Turano. Certainly. Thank you. WellCare and others filed 
a petition asking for clarity around some of the language 
within the 2015 declaratory order. That order uses the term 
health care provider, which is basically undefined. And there 
is quite a bit of vagueness around what entities fall within 
that definition.
    What we have asked for instead is a reconciliation between 
the language in the TCPA and the language in HIPAA, which is 
our governing statute for health care communications from 
Health and Human Services. If FCC were to import the language 
and use the term ``HIPAA-covered entity,'' that would clear up 
a lot of confusion around who falls within that definition, 
what rules govern that communication, and that would go a long 
way towards clarifying the guidance.
    Mr. Bilirakis. OK. In your opinion, how long are petitions 
pending with the FCC before receiving a response?
    Ms. Turano. Well, we filed our petition--WellCare and 
others filed our petition July 28 of this year. My 
understanding of FCC's process is that there is a comment 
period for 30 days. Then, there are additional comment periods 
that stack up on top of that. However, my understanding is that 
there is no deadline or time frame within which the FCC has to 
respond. Therefore, we wait.
    Mr. Bilirakis. Wow. How would the failure----
    Ms. Eshoo. We can help you with that.
    Mr. Bilirakis. Excuse me.
    Mr. Walden. We have a bill to fix that.
    Ms. Turano. Thanks.
    Mr. Bilirakis. Let's fix it. How would the failure to 
receive a timely answer hurt your patients? That is the bottom 
line.
    Ms. Turano. Certainly. As we wait, the way our consumers 
are being impacted is that we are hindered from being able to 
use an efficient and effective means of communication with 
them. So that means for those of our members who rely on cell 
phones, we are not making calls or we are not using the auto-
dialer technology to make calls to remind parents about getting 
their children vaccinated. We are not using the most efficient 
technology to remind members to get preventative health 
screenings.
    And in what I think is a very significant example, if we 
were to have a member--and we frequently do have a member--
being discharged from the hospital, as I have said a couple of 
times already, if we have a member who doesn't have a strong 
support system around them, which is frequently the case, we 
feel like we take on some responsibility for assisting them in 
the care provided after their discharge. So we would want to be 
able to contact them using this technology via cell phone to 
remind them to get their medications, to remind them to take 
them as the doctor prescribed them, to remind them about proper 
wound care and follow-up care.
    If we are able to do all that, it is only going to help 
their outcome versus if they are without those types of 
reminders. You are looking at a potential for infection, you 
are looking for a potential for a hospital readmission, which 
is a problem for the whole system, which is something we are 
hoping to avoid.
    So as we wait, we are severely hampered in our ability to 
be able to do that in the most efficient and effective way 
possible.
    Mr. Bilirakis. Thank you. To the panel--and you know I 
submitted questions to FCC Commissioner O'Rielly asking if he 
supports expediting petitions to provide clarity on obligations 
under the TCPA pending any congressional action. The 
commissioner expresses support for such efforts. Is this 
something that members of the panel can support since we don't 
know how long it will take for Congress to act? But we will 
act. And I wanted to ask the panel. We will start with Ms. 
Turano, please.
    Ms. Turano. Yes, sir. That is certainly something we would 
support.
    Mr. Bilirakis. Please, sir.
    Mr. Mock. I think I can say absolutely we would support 
more timely response from the FCC. In our particular case there 
were facts within the lawsuit we were faced with that, had 
definitions been more clearly defined, the situation might have 
turned out very different, so absolutely.
    Mr. Waller. Congressman, we are on record in supporting 
expedited review, but sometimes you don't always get the answer 
you want.
    Mr. Bilirakis. Thank you.
    Mr. Shockey. The answer is yes, that would be perfect.
    Mr. Bilirakis. Very good. Thank you very much. I yield 
back, Mr. Chairman.
    Mr. Walden. The gentleman yields back.
    The chair recognizes the gentlelady from Tennessee, the 
vice chair of the full committee, for 5 minutes.
    Mrs. Blackburn. Well, thank you, sir. And I am so pleased 
that we have the hearing today, that it is on the agenda. And 
sorry that I was late. We have had other hearings that we are 
dealing with this morning, and since our main room is under 
construction, we have to go to the Capitol and use a room 
there.
    Mr. Mock, I want to come to you. When we were preparing for 
this hearing and talking with some folks that are in the health 
care space and all, I was struck by how trial lawyers have 
seemed to use this as a piggy bank with the lawsuits. And 
looking at from 2010 to 2015 there was a 940 percent increase 
in the lawsuits under the TCPA. And the average payout for an 
attorney filing one of those suits was $2.4 million. I mean, 
this is just unbelievable. That tells us something is terribly 
wrong with this process.
    So the Snapping Shoals experience, and you had said in your 
testimony although the case has since been resolved, Snapping 
Shoals made substantial negative changes to our member 
notification offerings as a result of the complaint. So I want 
you to elaborate just a little bit if you will for the record 
on your experience of being sued and how that movement, you 
know, how you followed through to that movement. I know you 
articulated the changes that you made, but talk a little bit 
about that experience. Just one minute will suffice.
    Mr. Mock. Well, thank you very much for the question.
    In our example, we really felt like these were 
communications that were requested by our member. At any time 
those notifications could be discontinued, numbers could be 
changed, and certainly as we have looked to the future, our 
goal is to provide more flexible notifications.
    I should say that over the last few years it has been a 
more-common-than-I-would-like practice to maybe see a 1-800 ad 
late at night for any unwanted communications. In our 
experience I really felt like it would have been a very 
reasonable thing for someone to have received 500 phone calls 
to complain at least once. And so I think that is where the 
good-faith provisions and safe harbor provisions----
    Mrs. Blackburn. Got it.
    Mr. Mock [continuing]. For small businesses----
    Mrs. Blackburn. Yes.
    Mr. Mock [continuing]. Like Snapping Shoals would be very 
important.
    Mrs. Blackburn. OK. Got that.
    Mr. Shockey, just a little bit on reassignment and the 
difficulty of these reassigned numbers and tracking that. 
Listening to all of this today makes you wonder why there isn't 
a way to track reassignment more carefully or more easily so 
that companies can determine when there has been reassignment 
of a number. Do you have anything to add to that?
    Mr. Shockey. Well, actually, there is one thing I would 
like to add. The problem of reassigned numbers is real. We do 
have numbering databases that are currently deployed. 
Obviously, the number portability database is one of them. 
These have been altered from time to time. They could be 
repurposed to be able to add some sort of a field in the 
databases on when they would have been modified in some way, 
shape, or form. I don't think we necessarily need a new 
database.
    The other thing is one of the issues that is actually 
personal to me and I think is also relevant is I also am a big 
believer in national number portability, which is why can't we 
just have one telephone number and keep it, basically whenever 
you move? Twelve percent of the entire United States population 
moves very single solitary year, and that is actually creating 
the churn in the system because even if you go from the west 
side of New York to the east side of New York, you actually 
have to change your phone number because you have actually 
moved out of a boundary. And that is actually pretty ridiculous 
for the consumer if you sort of ask me.
    So we in the North American Numbering Council have actually 
recommended to the Commission that they consider a notice of 
proposed rulemaking on national number portability, which could 
reduce the church that we see in the numbering plan quite a bit 
and increase the size of the North American Numbering Plan by 
20 percent virtually overnight so that we don't have the kinds 
of problems in 408 area code for constantly splitting and 
splitting and splitting one way or the other.
    So it needs a little bit of study. I don't necessarily want 
to recommend that in advance of where the strike force could be 
reporting on that in the middle of October, but it certainly 
needs active consideration.
    Mrs. Blackburn. OK. I appreciate that. And as we wrap up, I 
would like for each of you to send me the three things you 
think we need to make certain we change as we look at the 
updates on the TCPA. I would just love to see that in writing.
    And with that, I yield back. Thank you.
    Mr. Latta [presiding]. Thank you very much. The gentlelady 
yields back.
    And seeing no other members to ask questions, I have a 
letter from the American Health Insurance Plans, their comments 
that they submitted before the FCC and also the Credit Union 
National Association. And I ask unanimous consent that these 
letters be inserted in the record.
    [The information appears at the conclusion of the hearing.]
    Mr. Latta. And on behalf of the gentleman from Oregon, the 
subcommittee chair; the gentlelady from California, the ranking 
member; and myself, we thank you all for participating in this 
panel today. It has been very informative and we appreciate it.
    And if there is nothing else to come before the 
subcommittee, we stand adjourned.
    [Whereupon, at 12:38 p.m., the subcommittee was adjourned.]
    [Material submitted for inclusion in the record follows:]

                 Prepared statement of Hon. Fred Upton

    Today's hearing will focus on a topic that unfortunately 
most of us have dealt with on a personal level: pesky 
robocalls. Many constituents have contacted my office in search 
of a solution to stop the unwanted calls, and I am sure the 
same is true for my colleagues. Unfortunately, there just 
doesn't seem to be a current solution that is entirely up to 
the task. Registering your number on the Do-Not-Call List 
simply isn't enough these days, and it is time we begin a 
thoughtful dialogue on providing our consumers with relief.
    I'd like to thank Ranking Members Pallone, Eshoo, and 
Schakowsky for their letter requesting a hearing on this issue 
of modernizing the Telephone Consumer Protection Act and for 
adding their voices to the growing chorus for this outdated law 
to be updated to meet the challenges of the 21st century. The 
FCC, experts in industry and the business community, and folks 
back home are all in agreement that it is time to bring this 
outdated law into the 21st century. Our consumers no longer 
feel protected under the law; and with seemingly relentless 
attempts at fraud occurring over the phone, who can blame them?
    The TCPA is failing on two fronts. First, the number of bad 
actors who are intentionally disregarding the TCPA is growing, 
and until the act is modernized, consumers will be under siege 
by unwanted pre-recorded messages and solicitations. Second, 
recent reform attempts have instead captured unintended good 
actors in the crosshairs, who as a result, face litigation for 
non-compliance with the TCPA despite their good faith.
    While we are all probably familiar with the frustration 
that robocalls are causing us on the receiving end of the call, 
what some of us might be less familiar with are the challenges 
faced by legitimate businesses who have been inadvertently 
caught in the crosshairs of the TCPA. As bad actors 
increasingly flaunt the TCPA to gain access to millions of 
consumers' phone lines, it is important that we recognize that 
there is a legitimate use of auto-dialing technology that 
doesn't fall under the same malicious category.
    Unlike the well-known ``Rachel from Card Services'' scam, 
you can put a face on the folks operating in good faith-they 
look like your kid's school, or maybe your doctor's office, or 
even your local credit union. Businesses using auto-dialers 
often have good intent when contacting their customers, and 
moreover, their subscribers have come to expect and rely on 
these types of calls.
    An update to the TCPA will do more to prevent unwanted 
calls and provide clear rules of the road for our legitimate 
businesses who are operating in good faith. We ought to have a 
holistic approach towards finding a solution that our 
constituents can rely on to protect them from unwanted calls, 
and that legitimate businesses can navigate without hiring an 
army of attorneys to ensure they are within the letter of the 
law just to be in touch with their customers. As you will hear, 
this is no easy task, but today's discussion will be an 
important first step towards crafting a modern law that 
protects consumers.
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