On Friday, Nov. 4, Members of Congress weighed in publicly on the TCPA's autodialer-cellphone provision for the first time since its passage almost a decade ago, at a hearing of the House Energy & Commerce Subcommittee on Communications and Technology on November 4 about "the Mobile Informational Call Act" (H.R. 3035).
Echoing points made by MRA on Capitol Hill, Chairman Greg Walden (R-OR) introduced the hearing by referencing the era when Congress passed the TCPA, and the movie Wall Street: "Back then, the only person with a cell phone was Gordon Gecko... Today, many American households have given up the landline and rely exclusively on wireless service. Back then, wireless customers paid higher per-minute rates to receive calls; now, most consumers have buckets of minutes so that receiving an additional call costs them nothing. Given these changes to the market, now seems like a good time to revisit some of the rules the TCPA put in place."
Ranking Member Anna Eshoo (D-CA) recognized the changes in wireless population, but said her constitutents, "to a person", have told her they don't like this bill. She was also concerned about redefining "prior express consent" and the prospect of a wave of unsolicited text messages.
"My initial read of this bill causes me to worry", said Rep. Mike Doyle (D-PA), about its implications for individual privacy and on "consumers' pocketbooks."
Rep. Joe Barton (R-TX) noted that, "the current system is in place for a reasaon... to protect privacy."
Full Committee Ranking Member Hnery Waxman (D-CA) marvelled at the dramatic changes in technology, but worried about the privacy concerns and the costs to consumer of H.R. 3035. He rejected the rationale for the bill, saying all these informational calls are simple enough to do already, "just get express prior consent". He also worried about the problems that would be caused by the state preemption clause.
Rep. Ed Towns (D-NY), a cosponsor of the legislation, focused on the change as part of President Obama;'s deficit reduction proposal -- that would appear to be why he wanted to be a part of it.
Delicia Reynolds Hand, from the National Association of Consumer Advocates (NACA), raised the specter of millions of incessant commercial robocalls resulting from H.R. 3035. She proposed that, "any transaction or relationship will constitute consent to repeatedly call the consumer's cell phone even if the consumer does not give out her cell phone number, in perpetuity, and regardless of whether the consumer asks that she not be called."
The Attorney General of Indiana, Greg Zoeller, recounted to the Subcommittee his state's ongoing efforts to defend their ban on most automated or recorded telephone calls.
As emphasized by Michael Altschul, Senior Vice President and General Counsel for CTIA-The Wireless Association, bad actors are bad actors, period. He stressed the need to focus on lawbreakers, rather than penalizing ethical and law-abiding companies. He also pointed out that, absent passing H.R. 3035, it was questionable whether or not wireless companies could legally combat "bill shock" the way they've been asked to do so, since it involves texting their customers with alerts about reaching their thresholds of wireless and texting minutes.
The bill's sponsor, Rep. Lee Terry (R-NE), questioned Hand about her contention that H.R. 3035 would open a "Pandora's box" of unsolicited robocalls and text messages. He emphasized that the point of the bill was to ensure prevention of random or marketing calls while allowing for consensual telephone calls within established business relationships.
Hand replied that the redefinition of "automatic telephone dialing system" would exclude predictive dialers, which would allow for telemarketing calls that are currently illegal.
Rep. Eshoo emphasized that the "TCPA sets a floor, not a ceiling," and discussed with Attorney General Zoeller the need to let states experiment and his concerns about the preemption clause including law regarding "intrastate" calls, not just "interstate".
Rep. Cliff Stearns (R-FL) cited his authorship of the Do Not Call Registry, "the most popular bill I've ever passed... possibly the most popular bill Congress has ever passed." In response to the seeming disconnect between the bill's supporters and opponents, he proposed that the bill more affirmatively ban telemarketing autodialer calls. However, keying on Hand's concerns about "incessant calls"n he asked her what current law prevents incessant calling, a question she could not answer.
Rep. Terry proposed that the Subcommittee consider adding an opt out mechanism to the bill (since current law only requires opt out for telemarketing calls).
Faith Schwartz, executive director of HOPE NOW, a nonprofit dedicated to helping consumers in debt, agreed that abuse and repetitive calls should be prevented, but drawing the line can be delicate business.
Rep. Doyle asked if H.R. 3035 would equate an established business relationship as express prior consent. "Why do you think the giving of a phone number" should imply that I want to hear from any of these companies in the future. "Why don't you just ask for consent?" He specifically complained about the cost of H.R. 3035 to his kids, who have cell phones with small minute plans.
Subcommittee Chairman Greg Walden (R-OR) said the bill is not about random telemarketing calls -- "I don't want random calls on my cell phone", any more than anyone else does. He also smartly referenced a legal point MRA has been making for years, that according to the FCC, if a person dials a number from the cell phone's memory, that could constitute a violation of the TCPA right now.
Rep. Ed Markey (D-MA), the House author of the original TCPA, spoke of his campaign against "intrusive telemarketing calls" and to protect the sanctity of the family dinner time. He then asked if he called for takeout from 20 companies over the next month, would those 20 companies then be able to call him to try to sell him something forever thereafter and declared that scenario a "nightmare situation for families". He concluded that cell phones constitute a privacy "safety zone" and should remain that way.
While the hearing raised considereable heat, it is unlikely to advance under normal circumstances. However, current circumstances are not normal. If Rep. Terry can swiftly get a sufficiently rosy estimate of H.R. 3035's impact on government revenue from the Congressional Budget Office (CBO), this legislation could end up as part of the legislative proposal from the Joint Select Committee on Deficit Reduction ("super committee"). That was part of what the Obama Administration had in mind in proposing such a move.
However, it seems likely that H.R. 3035 will need several changes in order to overcome some of the loudest opposition, such as an affirmative prohibition on telemarketing calls absent express prior consent. The redefinition of an "automatic telephone dialing system" to exclude predictive dialers is not likely to survive.
If H.R. 3035 doesn't advance, a minor clarification of express prior consent (to include oral and written consent) and an exemption for 1-time business relationship interactions sounds like a possible legislative maneuver that could garner enough support to pass Congress.
Since H.R. 3035 does not directly impact survey and opinion research -- because research calls, even if conducted on behalf of a commercial entity, do not constitute "commercial" calls -- MRA does not have a direct stake in it's successful passage. However, we benefit from the opening of debate on the TCPA.
We can also learn what we may have to sacrifice in our efforts to exempt research calls from the TCPA. News stories, consumer activist groups' statements, and some of the Congressmen at the hearing, all keyed on text messaging and robocalls as their top concerns in the broader context. That indicates that Congress may never allow a research exemption from the TCPA that includes robopolls or text messages, when push comes to shove.
MRA is excited to see and hear Members of Congress interested and engaged on the TCPA's autodialer-cell phone provisions and continues to meet with Members and staff to explain the concerns of the research profession and make our case.