2Calendar No. 242 114TH CONGRESSSENATE .docx

2
Calendar No. 242
114TH CONGRESS SENATE
REPORT
2nd Session 104-
341
FOOD LABELING: REVISION OF THE NUTRITION AND
SUPPLEMENT FACTS LABELS
__________
NOVEMBER 16, 2017 – Ordered to be printed
_______
[Insert full name], from the Senate Committee on [Insert
Committee],
submitted the following
REPORT ON COMMENTS
[To accompany, S. 1043]
The Committee on FDA Affairs has analyzed the proposed
regulation and the accompanying comments, and recommends
that the regulation do not pass. Due to significant evidence
questioning the validity of the argument and data that the FDA

uses to support their proposed changes, it is recommended that
the rule should not be passed without further review and
editing.
PURPOSE
In the proposed rule, titled ‘Food Labeling: Revision of the
Nutrition and Supplement Facts Labels’, the Food and Drug
Administration (FDA) is making revisions to nutrition and
supplement facts labels in attempt to make the information
provided on food labels more accurate and useful to the general
public. The FDA will change several pieces of the labels.
Among the changes included will be the altering of daily intake
recommendations to more accurately represent the current state
of nutrition and health in America. Additionally, the “calories
from fat” section will be eliminated, and an “added sugars”
segment will be included. The FDA is also changing which
vitamins and minerals are featured, taking away values that
have less relevance and replacing those with more significant
values that will be of better use to consumers. The format will
also be changed to improve readability and accessibility of the
label, which includes font size changes and the relocation of
percent daily values from the right side to the left side of the
panel. Each of these changes proposed by the FDA aim to
increase consumer understanding and improve the health of the
nation.
ESTABLISHING THE DEBATE
Nutrition and supplement facts labels are topics that are of high
concern and debate because of their effect on all consumers in
the United States. The proposed rule attracted many comments,
both for and against the rulemaking.
Many comments posted were in favor of the government
intervention and the proposed changes. Individuals and
organizations alike see value in changing the information

provided on nutrition and supplement labels to improve the
health of the nation and see that it is necessary for the
government to intervene. The first comments that will be looked
at are from Unilever, which is one of the world’s largest
consumer product companies. Unilever includes many top
consumer brands in the United States, such as Ben & Jerry’s,
Klondike ice cream, Hellman’s mayonnaise, Promise and many
more, each of which will be affected by the changes proposed.
Unilever supports government intervention, which will provide
consumers with an easier understanding of nutrition information
in order to build healthy diet patterns. Their support aligns with
the Unilver’s Sustainable Living Plan that aims to improve
nutritional profiles of products through transparent
communication of nutrition information.
The next organization, the Union of Concerned Scientists
(UCS), is also in support of the proposed rule and believes that
consumption of added sugars is closely linked with higher risk
of heart disease, obesity, diabetes and dental issues and is in
support of the FDA’s attempts to increase consumer’s
understanding of these risks. They value scientific findings and
data, and see the worth of the scientific data the FDA used to
back up their work. Lastly, the Food Marketing Institute (FMI)
shows their support of the rule. As FMI members in the United
States operate over 40,000 retail food stores and represent
almost $770 billion of annual sales, they clearly have a large
stake in the food retail industry and see the need in the FDA’s
proposed changes. The FMI represents supermarket chains and
other retail food stores that all value providing consumers with
an abundance of options that support healthy and nutritious
lifestyles. The FMI believes that food choices are an extremely
important factor in affecting consumer’s health and therefore
support the FDA’s proposed rule.
However, there are also many informed citizens and
organizations that submitted comments in disagreement with the
government intervention and to express their hesitations and
dismay for the rulemaking. The first comment comes from the

Cape Cod Cranberry Growers’ Association (CCCGA), which
represents more than 325 cranberry growers in Massachusetts.
Cranberries are an agricultural commodity and have an annual
value of $99.8 million, creating nearly 7,000 jobs and bringing
millions of dollars to the Massachusetts economy (Wick, 2015).
The CCCGA values the profitability of the cranberry industry
and wants to keep thousands of jobs intact for the people who
rely on cranberry farming, hence why they do not support the
proposed regulation.
Another organization that disagrees with the FDA’s rulemaking
is The Juice Products Association (JPA), which consists of
processors and distributors of fruit juices and drinks. Fruit
juices and drinks typically have high values of added sugars and
the sales of these products could be deeply affected by the new
added sugars requirements on labels. The JPA values their
profits and their business will see significant losses if the
rulemaking is passed. Lastly, the Sugar Association represents
sugar cane farmers and refiners and promotes the safe
consumption of sugar in moderation as part of a balanced diet.
The Sugar Association advocates for the healthy consumption of
sugar, which quite actively goes against the ideas of the
proposed regulation. The Sugar Association is in disagreement
with the proposed rules’ percent daily values for added sugars
and disagrees with the FDA’s scientific evidence that it is using
to support its changes regarding added sugars. The Sugar
Association values their profits and success of their business,
just like the CCCGA and the JPA, and will see great losses if
the regulation is passed.
COMMENTS FOR PROPOSED RULE
The three comments published by Unilever, UCS and FMI are in
support of government intervention, reinforcing the proposed
rule’s attempt at providing consumers with more complete
knowledge. To start, Unilever offers the perspective of a
consumer food and beverage brand. The brand supports

providing consumers with improved knowledge of nutritional
elements of their products because they hope to “assist
consumers in developing healthy diets” (Balentine, 2015). They
acknowledge the dangerous effects of elevated sugar intake and
think it is critical that the FDA improve the information on
nutrition labels to make consumers more aware. Unilever cites
evidence from empirical studies in their comment to reinforce
their support of government intervention. Moreover, Unilever
could be motivated to support this rulemaking so that they can
keep up their public image as a brand that cares about their
consumers and cares about producing healthy food and
beverages. Their concerns are geared toward the general public
in offering a perspective that is in agreement with the
government and which expresses concern for the health of their
consumers.
Next, the Union of Concerned Scientists (UCS) fully endorses
the FDA’s proposed rule, specifically because of its focus on
sugars. The UCS recognizes the increased risk of heart disease,
weight gain, and diabetes for people who consume high rates of
added sugars, and believes that consumers have the right to be
fully informed about these risks and the sugars they are eating
(Phartiyal, 2015). The UCS represents scientists, public health
professionals, doctors, and other concerned individuals, all of
whom value empirical data, which is in agreement with the
FDA’s evidence. Their concerns are viable, but may be limited
in their representation of the general public, as the UCS
represents a more targeted group.
Furthermore, The Food Marketing Institute (FMI) submitted a
comment in support of the rule, however they were more
skeptical and constructive about certain aspects, such as added
possible customer confusion due to new added values. As a
group that advocates for the places (grocery stores, supermarket
chains and retail stores) that sell food products, the FMI has a
different perspective than the previous two comments analyzed.
The group is motivated to speak out though because although
they believe the revisions could cause significant cost increases,

the labeling initiative will inform consumers about important
nutrients in their foods (Barnes, 2014).
COMMENTS AGAINST PROPOSED RULE
Among the hundreds of comments advocating against
government intervention, the comments by the CCCGA, the
Juice Products Association and the Sugar Association all make
solid arguments supporting their side. The CCCGA, which
represents more than 325 cranberry growers, makes the
argument that the proposed changes will dramatically impact the
cranberry industry. Cranberries are a naturally tart fruit that are
very nutritious but unpalatable in their raw form. The CCCGA
is concerned that the new ruling will negatively affect the sales
of all cranberry products, causing a greater impact on the
greater economy through eliminating jobs and jeopardizing the
livelihood of the thousands of people who rely on cranberry
agriculture. The CCCGA writes, “Many of our growers are
already facing significant economic hardships and with the
prospect of these proposed labeling changes, their very
existence as farmers is in jeopardy” (Wick, 2015).The
association proposes that accommodations be made for
cranberry products and other similar products on the new labels
to allow consumers to be able to understand the complicated
background about the cranberry (Wick, 2015). The CCCGA’s
concerns are mainly geared toward protecting the specific group
of cranberry farmers and other people who rely on the cranberry
industry.
Furthermore, the Juice Products Association (JPA) uses
two external studies to support their argument against the
FDA’s proposed changes, with specific attention to the possible
format changes. By citing results from an eye-tracking study,
the JPA found that there was not enough evidence to support
that changing the format of the nutrition facts panel will help
consumers better understand the label (Faison, 2014). The JPA’s
comment also uses data from an experimental study, which

shows that consumers saw no apparent difference in levels of
understanding between labels with the new format versus the
old format. By citing these studies, the JPA appeals to the
concerns of the general public and uses logical and viable
studies to concretely back up their argument against government
intervention.
Lastly, the Sugar Association, an organization representing
over 90 percent of sugar/sucrose producers in the United States,
argues that the FDA does not properly justify their changes
regarding added sugars and daily sugar intake values. The
association itself is based upon the foundation of supporting and
promoting sugar in moderation as part of a balanced diet, a
value that comes into play throughout their argument against the
FDA’s proposal (Briscoe, 2014). The Sugar Association states,
“the FDA arbitrarily selected from general dietary guidance,
science of low evidentiary value and selective reports… to
support its proposal for ‘added sugars’ labeling and to set a
DRV for ‘added sugars’” (Briscoe, 2014). The comment also
directly attacks other evidence that the FDA uses, criticizing its
validity and pointing out various contradictions in the FDA’s
evidence. The Sugar Association clearly represents people and
organizations that depend on sugar production so it is obvious
that they are looking out for the best interests of the sugar
industry.
FINAL RECOMMENDATION
Based upon the comments received and analyzed, it is
recommended that the government does not intervene. The three
comments by the CCCGA, JPA and Sugar Association all make
strong points questioning the validity of the evidence that the
FDA uses to support their changes regarding added sugars and
formatting. It is necessary that the FDA use complete and
accurate data to support their proposed changes so that they can
completely justify the rulemaking and satisfy the views of the
general public. The CCCGA mentions the economic hardships

that the proposed rule changing could inflict upon cranberry
growers, jeopardizing the livelihoods of thousands of farmers.
The FDA must consider the lives they are putting at stake with
this rule, as many industries will suffer significant losses with
the passing of the rule. Additionally, the JPA uses significant
data from two respected studies citing the lack of validity
behind the format changes of the proposed nutrition facts labels.
The JPA states that there is no observable difference in
consumer nutritional understanding with the new format versus
the old panel formatting. Furthermore, the Sugar Association
justifies their argument through questioning the data that the
FDA uses, pointing out holes and the lack of complete
information in the FDA’s claims that contributed to their
changes regarding added sugars and daily sugar intake values.
The three organizations make diverse points that create a solid
argument against the FDA’s current proposed rule. The FDA
must consider the comments discussed, along with hundreds of
other comments, before they pass this regulation to address the
many concerns consumers and organizations have regarding the
rule.
References
Balentine, D. (2015). Unilever Comments Nutrition Labeling
Proposed Rules. fffffffComment on Food Labeling: Nutrition
and Supplement Facts Labels; fffffffRevision. Retrieved from
regulations.gov.
fffffffhttps://www.regulations.gov/#!documentDetail;D=FDA-
2012-N-1210-0410
Barnes, S. (2014). Food Marketing Institute FMINFP comments.
Comment on fffffffFood Labeling: Nutrition and Supplement

Facts Labels; Revision. Retrieved ffffffffrom regulations.gov.
2012-N-1210-0503
Briscoe, A. (2015). Comment from the Sugar Association.
Comment on Food fffffffLabeling: Nutrition and Supplement
Facts Labels; Revision. Retrieved from fffffffregulations.gov.
https://www.regulations.gov/#!documentDetail;D=FDA-
fffffff2012-N-1210-0805
Faison, P. (2015). Comment from the Juice Products
Association. Comment on fffffffFood Labeling: Nutrition and
Supplement Facts Labels; Revision. Retrieved ffffffffrom
regulations.gov.
2012-N-1210-0682
Food Labeling: Revision of the Nutrition and Supplement Facts
Labels. Vol. 79. fffffff11880. (March 3, 2014).
Phartiyal, P. (2015). Comment from Union of Concerned
Scientists. Comment on fffffffFood Labeling: Nutrition and
Supplement Facts Labels; Revision. Retrieved ffffffffrom
regulations.gov.
2012-N-1210-0711
Wick, B. (2015). Comment from the Cape Cod Cranberry
Growers Association. . fffffffComment on Food Labeling:
Nutrition and Supplement Facts Labels; fffffffRevision.
Retrieved from regulations.gov.
2012-N-1210-0852
BADM 2001W/Fall 2017

Assignment # 4: Senate Report
When a government agency proposes a rule, there is an
opportunity for interest groups to comment on the rule—
usually, these comments are either in favor of the rule or
against it. Sometimes, however, comments may be more about
government intervention – for example, they may argue against
a rule because it does not go far enough. You are a mid-level
staffer for a politically neutral senator, who has been tasked to
select three substantive comments for, and three comments
against, your rule.
For this assignment, you will discuss and evaluate the
arguments presented in three comments from different interest
groups on both sides of the rule proposal. This assignment will
be organized as a report to a neutral senator who is familiar
with the rule making process but not familiar with this rule (or
its comments) in particular. The report will be divided into:
· Introduction/Establishing the Debate: A brief summary of the
rule and a brief description of the groups whose comments you
will be reviewing. If groups are similar to each other, note in
what ways. If the groups appear totally different at the surface,
but share the same opinion on the proposal, address some
deeper social concerns they may arguably share. Keep the
discussion in the introduction to the interest groups only.
· Discussion of Three Comments For Intervention, supported by
the comments from the various groups. In this section, you’ll be
answering, but are not limited to, the following questions:
· What are the arguments that these interest groups are making?
· What evidence, logical or factual, supports their argument?
· Are there less obvious motivations for these groups to speak
out, such as seeking to create a competitive advantage or
avoiding the costs of finding a product that matches their

preferences?
· Are the concerns registered in the comments logical, viable,
and geared toward the public?
· Discussion of Three Comments Against Intervention:
Addressing the same questions as mentioned above, but with
interest groups who are against government intervention.
The questions need to be responded to, but are not the limits to
the assignment. Dependent upon the interest groups, they may
be responding to a number of concerns against the rule or the
proposing agency. The most important element of this
assignment is to be incredibly selective about the comments you
will be discussing. Only comments from authoritative interest
groups or well-respected community members should be
considered.
· Final Recommendation: Based on the comments of both sides
of interest groups, provide a sizable recommendation for or
against government intervention, justifying it through the
evidence provided in the previous two sections. The
recommendation may be different from previous assignments.
Formatting:
· 5 pages, single-spaced, double spacing between paragraphs,
(including the senatorial heading)
· Following standard senatorial reporting procedures in APA
format (CMS optional)
Assignment Due Date: Thursday, November 9th
Revised Assignment Due Date: Thursday, November 16th
Both completed versions (first and second) of the assignment
will be submitted as a hard copy and on Blackboard before class
begins. First drafts are Pass/No Pass, with “No Pass” resulting
in one letter grade reduction of final. All late assignments are

subject to a late penalty.
1
Calendar No. 242
114TH CONGRESS SENATE REPORT
2nd Session 104-341
TCPA: TELEPHONE CONSUMER PROTECTION ACTION
__________
_______
[Ziyi Yang], from the Senate Committee on [FCC],
REPORT ON COMMENTS

The Committee on FCC Affairs has initialized and improved
the proposed
regulation with the accompanying comments, and passes a list
of rules to regulate
robocalls. Due to the rules TCPA from FCC and Do-Not-Call
registry from FTC
2
which aiming at limiting robocalls, several different parties and
interest groups
are going on a debate for their own profits, pushing and pulling
arguments
between consumers and businesses.
PURPOSE
To protect people’s privacy, Federal Communications
Commission
decided to publish a list of the rule to limit the growing number
of illegal

robocalls. The TCPA(Telephone Consumer Protection Act)
enacted in 1991
gives the right to phone companies who can help consumers
block certain
commercial calls from certain invalid phone numbers.
Robocalls include
automatic telephone dialing systems and artificial or
prerecorded voice messages.
In this act, the phone prohibition includes two parts. First, the
dial-in calls which
contain unsolicited advertisement cannot be sent to a telephone
facsimile machine
whose owner has requested not to be sent such future
advertisements. Second,
utilizing a programmed phone dialing framework such that at
least two phone
lines of a multi-line business are locked in at the same time is
illegal. In 2003,
FCC revised the TCPA. A national Do-Not-Call registry, the
FTC(Federal Trade
Commission) continued to extend this policy.

The problem of robocalls has national implications. Nowadays
nearly
everyone in the United States has a cellphone, which means
everyone is possible
to be disturbed by unsolicited calls. However, restricting
robocalls will make the
telephone companies and the department stores who use
robocalls as one way to
attract potential customers to lose their profit. As a result,
different interest
groups always advocate for or against this rule intensely.
The biggest group who are benefited from TCPA is consumer
who are
annoying at unwanted robocalls. In the research done by
Kimball in 2014, "75%
of people listened to over 19 seconds of a robocall message and
the vast majority
of people, 97%, listen to at least 6 seconds. Even when the
recipient ignores or
declines the call, today spammers can send a prerecorded audio
message directly
Dominic McNear
Dominic McNear: may lose but without evidence you can't make

this claim with 100% certainty
3
to the recipient's voicemail inbox. Deleting a junk voicemail
wastes even more
time, taking at least 6 steps to complete in a typical voicemail
system" (Tu &
Doupe & Zhao & Ahn, 2016). About 97% people do not want to
receive
robocalls at all and they just desire to hang up immediately.
However, for these
group of people, they need to spend at least several seconds
first to understand the
intention of the calls, and then hung up. This is just a waste of
life to those who
do not want to such calls. This type of advertising will
eventually lead people to
feel annoying. If wasting time is just a small case, the
magnitude of the impact on
these groups will be a great deal when there are telephone
scams. Some
fraudulent calls allure people to buy their products, and
eventually, ask people to
tell them their credit card information. This will cause huge

loss if customers are
cheated by such fraudulent calls. People's personal information
is being exposed
under such condition. This group of consumers is victims of
unsolicited robocalls.
Now TCPA helps this group of consumers strictly limit the
robocalls. Telephone
companies who send robocalls to consumers without advanced
consent will be
punished.
So how can consumers use the rule to protect themselves? In the
case of
robocalls related to privacy issue, lawyers can always play an
important role in
the court. Consumers need lawyers to defend their rights to get
their wanted
compensation after being disturbed or hurt by robocalls. Also,
at the same time,
intelligent lawyers rely on such consumer victims to making a
living by appealing
for them and get part of compensation after the judge convict
those illegal
robocalls from telephone companies and industries. According
to a survey form

Bloomberg Law, “These rulings, coupled with the lure of
uncapped statutory
damages (as much as $1,500 for each call in violation), have
encouraged
consumer lawyers to file more and more TCPA claims. Class
actions that can
aggregate the claims of thousands of consumers can potentially
be worth
hundreds of millions of dollars—a tempting enticement for class
action lawyers
who ordinarily take home a percentage of that recovery” (Deane
& Williamson,
2017). The lawyers support for TCPA not only for consumers’
rights, but also for
their own profits.
The third party who supports for TCPA is Federal
Communications
Commission. FCC is an independent government agency of the
United States
who works for people and seeks to provide better service. It is
“created by statute
(47 U.S.C. § 151 and 47 U.S.C. § 154) to regulate interstate
communications by

radio, television, wire, satellite, and cable. The FCC works
towards six goals in
the areas of broadband, competition, the spectrum, the media,
public safety and
Dominic McNear
Dominic McNear: past tense not present
4
homeland security, and modernizing itself” (Wikipedia,). One
of FCC’s goal is to
ensure public safety, which is related to the issue that robocalls
may cause
telephone scams. Thus, it is one of FCC’s responsibility to
protect people’s
privacy and assets. It will absolutely maintain even expand
TCPA. Based on the
data, “FCC and court rulings have interpreted the TCPA in an
increasingly
expansive way” (Deane & Williamson, 2017). FCC desires to
get consent from
consumers.
When the rule TCPA is beneficial for consumers, it must take
off some

benefits from companies who depend on or use robocalls as one
way to make
money. The first interest group who is directly affected by this
policy is the
department stores who use robocalls as one way to appeal
customers. They will
definitely be against this rule. Originally, using telephone calls
to advertising was
one of the main ways which the enterprises could attract
consumers. Before,
people could often receive calls from malls and department
stores like Macy’s,
Nordstrom, Saks Fifth Avenue, Bloomingdale’s, Neiman
Marcus, etc. These
companies and industries relied on robocalls to increase sales.
After FCC
published this rule, part of the potential consumers has the right
to block the calls
forever. As a result, as the advertisement decreases, the
customers decrease.
Fewer customers imply fewer sales. Those firms’ output will
decrease and make
less profit. If they put all the same input as before but get less
money, in another

word, the cost increases.
The next interest group who earned money from those
department stores
by helping them advertising are the telephone companies, and
they are also
deprived part of the profits away by TCPA. In the past, the
telephone companies
and the department stores always set a business relationship. At
present, as the
department stores are strictly banned to advertising by
robocalls, the telephone
companies are also cut off this way to make money. The
telephone companies
now have no way to continue such a deal to get profit. As the
department stores’
profits go down with cost goes up, the telephone companies’
profits go down with
cost goes up, as well.
President Donald J. Trump and his Republican governing may
also be
against TCPA, despite he seems like to be totally different and
irrelevant with the
two interest groups above. President Trump was a prestigious
businessman

before he is elected as the president of the United States. His
successful election
cannot deprive from the support from his business networking
and support. After
he became president in 2016, the reform of the relationship
between consumers
and business marks a pivot point, and his agenda “is rolling
back what he deems
Dominic McNear
Dominic McNear: sentence doesn't make sense
Dominic McNear
Dominic McNear: evidence?
5
to be government overreach. He has promised to revive the
economy by removing
regulatory impediments to business success and growth” (Deane
& Williamson,
2017).
Consumers are the biggest victims of telephone scams.

According to the
data above, 97% of people just do not want to receive such
calls. However, to
hang up one robocall, people need to take at least several
seconds, and may even
be interrupted at all when they are dealing with some very
important the staff. In
a public place, a sudden robocall can disturb people around you,
break the silence,
and embarrass you. All things describing above are just in
small cases. The
biggest issue is telephone scam which can cause huge loss in
both assets and spirit
to consumer. From IEEE Xplore Digital Library, the authors
said that “Telephone
spam costs United States consumers $8.6 billion annually. In
2014, the Federal
Trade Commission has received over 22 million complaints of
illegal and wanted
calls. Telephone spammers today are leveraging recent technical
advances in the
telephony ecosystem to distribute massive automated spam calls
known as
robocalls” (Tu & Doupe & Zhao & Ahn, 2016). As a result, one

of the angry
recipient who receives “Congratulations! You’ve won a free
cruise!” phone call,
“Philip Charvat, claims that Resort Marketing Group — the
culprits behind some
of those robocalls — violated the Telephone Consumer
Protection Act” (Scotti,
2017). On the other hand, with more and more advanced
technology, customers
now are more used to reading advertisement such as e-mails and
text messages.
Reading is much quicker than listening to the same content of
words. By sending
text messages, people can save their time and feel less disturbed
and may be more
willing to make an order. This concerns from the victims’
comment contribute a
lot to the progress of TCPA.
Next, the group of lawyers support TCPA and since they need to
defend
their victim consumers. According to a In-House Counsel at a
higher education
institution, “TCPA Guardian from Jornaya helped me dismiss a
large Class

Action TCPA lawsuit that I estimate saved our business
$500,000 in legal fees
alone” (JORNAYA). It is the fact that they make huge profit
for those victims of
robocalls. However, they also make money for themselves
when they treat
defense as their job, which makes them less “innocent”. They
have the incentive
Dominic McNear
Dominic McNear: is this one of the comments you are
observing? unclear
6
more than just to maintain a healthy market. They are driven by
TCPA to find
more and more robocall cases even including legal one, because
“these rulings,
coupled with the lure of uncapped statutory damages (as much
as $1,500 for each
call in violation), have encouraged consumer lawyers to file
more and more
TCPA claims. Class actions that can aggregate the claims of
thousands of

consumers can potentially be worth hundreds of millions of
dollars—a tempting
enticement for class action lawyers who ordinarily take home a
percentage of that
recovery” (Deane & Williamson, 2017).
The official group who are for TCPA is FCC who wrote this
rule. FCC
desires to protect the right of consumers, and it does protect
people’s privacy by
restricting robocalls. In the recent years, “the Federal
Communications
Commission voted on Thursday to expand the scope of the
Telephone Consumer
Protection Act in an effort to crack down on robocalls from
telemarketers”
(Hoover, 2015). It does get certain big success that according
to a survey in Feb.
2004, 92% got fewer calls. However, FCC sometimes may be
too restrict to the
free market with hypercorrection that “dissenting Commissioner
Ajit Pai said it
does not properly distinguish between legitimate businesses
trying to reach their
customers and unwanted telemarketers but rather lumps them all

together despite
‘good faith efforts’ to conform to the TCPA” (Deane &
Williamson, 2017).
Many business interest groups have comment against the
existing TCPA,
and among them, the typical one should be The National Retail
Federation (NRF).
NRF is the world's biggest retail exchange affiliation, and it
represents discount
and department stores, home goods and specialty stores, and
Main Street
merchants in the United States and more than 45 nations. Those
department
stores who built a friendly and benign relationship with
customers are being
largely affected by the negative parts of TCPA. It claims that
those department
stores have the incentive to provide the better custom service
due to free market
competition. There are enough different telephone companies,
and they will

compete with each other to provide better service to the
consumers. If Company
A always sends robocalls automatically, the people who do not
want to receive it
will feel disturbed and upset. Then Company B knows the
situation. It can
smartly attract people with the choice of not receiving
robocalls. Part of
consumers originally from Company A will give it up and find
Company B for
7
service. After Company A realizes its mistake, it will
immediately design new
project to satisfy all of their potential costumers. As a result,
there is always a
competition between companies. To exist in the free market
and make more
profits, they will definitely always improve themselves and
provide better and
better service to consumers. Because of the competitive market,
“with these
factors in mind, many retailers strive to deliver only those
communications that

their customers want or reasonably expect to receive, and to
make this experience
as seamless as possible and not needlessly complicated.
Communicating with
customers as they prefer is good for consumers and good for
business”(NFR,
2017). NFR’s goal is to create a competitive advantage both for
industries and
consumers if there is less restriction to the existing beneficial
relationship
between them. Its reasonable argument will encourage a
healthier free market.
Furthermore, many organizations point the problem of
reassigned numbers.
Among this associations, Noble System Corporation can be a
representative.
NSC is provides customers with contact center software and
service in a variety
of industries and applications. In NSC’s opinion, it first
recognizes that TCPA
has the good theory, “but misguided attempt, to solve a
tangential and relatively
minor problem related to the overall problem of illegal
robocalls. While illegal

robocalls are the number one consumer complaint to the FCC
and the FTC, this
should not be conflated with the problem of inadvertent calls
being made to
reassigned numbers. The problem of inadvertent calls to
reassigned numbers
comprises a relatively small problem that is overshadowed by
the larger problem
of illegal robocalls in general. These are different problems, and
the scope of the
problem of the latter (illegal robocalls) does not justify the
solution proposed for
the former (reassigned number problem)” (NSC, 2017). NSC is
not the only
organizations who holds this argument. Other interest groups,
such as American
Bankers Association, Edison Electric Institution, and The
Electronic Transactions
Association all worry about the problem of resigned numbers.
This is the bad
effect TCPA brings to the industries, especially direct to
contacting system and
companies.

The last one, President Trump also desires to loose the act of
TCPA. One
of the reason is to build a better relationship between business
and customer in a
more free market. Although President Trump has not specially
mentioned TCPA,
he once said early 2017 that “I will keep working with
Congress, with every
agency and most importantly, the American people, until we
eliminate every
unnecessary, harmful and job-killing regulation that we can
find... . We have a lot
more coming” (Trump, 2017). However, there is deeper reason
behind his policy
8
that “President Trump's outline for his proposed 2018 budget
includes deep cuts
to several federal departments and agencies known for their
strict regulatory
regimes aimed at protecting individuals against business
interests” (Deane &
Williamson, 2017). People are not sure about where the cut
budgets will be used

at and whether the situation will be better or worse when there
is looser regulatory.
Problems of robocalls should not have any government
intervention
because it could be resolved by the market on its own.
Although at first, the
customers are victims, after a period of development and
competition, the market
will finally lower the price to the marginal cost, which
maximizes consumer
surplus. There are enough different telephone companies, and
they will compete
with each other to provide better service to the consumers. This
progress may
require some time, but the government's excessive interference
just leads the
market to another worse condition, which has caused huge
losses for both
industries and part of consumers who want to receive robocalls,
also to the
originally benign business relationship. On the other hand,

based on evidence,
there will be more and more advanced technology appearing in
the market. Malls
and department stores all offer people with the chance of
subscribing to their
newsletter by email. In a word, in today's society with more
and more
improvement, robocalls are being transformed to a more
efficient way like emails
and text messages to attract customers.
To the old who still do not learn the new technology and do not
know how
to read and write emails, collecting information from robocalls
is their usual way
to see an advertisement in daily life. Those old people really
need this. Our
policy should not ignore them at all. Although this group of
people is just a small
proportion, the market has the ability to resolve the issue on its
own to satisfy all
the people. Thus, why do we not just let the market have
positive free
competition? The telephone companies can send a default
robocalls to the house

telephones holder who is older than 50 years old. If they are
happy to receive
future calls, both phone companies and the older will be
benefited. The
government should allow the free market and allow everyone to
choose his or her
own desired lifestyle.
9
References
8, 2. M. (n.d.). The Uncertain Future of the TCPA in the Trump
Era. Retrieved
November 9, 2017

Federal Communications Commission. (2017, November 05).
Retrieved
November 9, 2017
Hoover, J. (n.d.). FCC Expands TCPA To Robocalls Despite
Litigation Fears -
Law360. Retrieved November 9, 2017
J. (n.d.). Jornaya TCPA Guardian. Retrieved November 9, 2017
National Retail Federation. COMMENTS OF THE NATIONAL
RETAIL
FEDERATION. Retrieved November 9, 2017
Noble System Cooperation. COMMENTS OF NOBLE
SYSTEMS
CORPORATION. Retrieved November 9, 2017
Scotti, A. (2017, August 18). Victim of a 'free cruise' robocall?
You might be
owed $900. Retrieved November 9, 2017
Tu, H., Doupe, A., Zhao, Z., & Ahn, G. (216). SoK: Everyone
Hates Robocalls: A
Survey of Techniques against Telephone Spam. Retrieved
October 12, 2017

2
Calendar No. 242
114TH CONGRESS SENATE
REPORT
2nd Session 104-
341
TCPA: TELEPHONE CONSUMER PROTECTION ACTION
__________
_______
[Ziyi Yang], from the Senate Committee on [FCC],
REPORT ON COMMENTS
The Committee on FCC Affairs has initialized and improved
the proposed regulation with the accompanying comments, and
passes a list of rules to regulate robocalls. Due to the rules
TCPA from FCC and Do-Not-Call registry from FTC which
aiming at limiting robocalls, several different parties and
interest groups are going on a debate for their own profits,
pushing and pulling arguments between consumers and
businesses.
PURPOSE

To protect people’s privacy, Federal Communications
Commission decided to publish a list of the rule to limit the
growing number of illegal robocalls. The TCPA(Telephone
Consumer Protection Act) enacted in 1991 gives the right to
phone companies who can help consumers block certain
commercial calls from certain invalid phone numbers.
Robocalls include automatic telephone dialing systems and
artificial or prerecorded voice messages. In this act, the phone
prohibition includes two parts. First, the dial-in calls which
contain unsolicited advertisement cannot be sent to a telephone
facsimile machine whose owner has requested not to be sent
such future advertisements. Second, utilizing a programmed
phone dialing framework such that at least two phone lines of a
multi-line business are locked in at the same time is illegal. In
2003, FCC revised the TCPA. A national Do-Not-Call registry,
the FTC(Federal Trade Commission) continued to extend this
policy.
The problem of robocalls has national implications. Nowadays
nearly everyone in the United States has a cellphone, which
means everyone is possible to be disturbed by unsolicited calls.
However, restricting robocalls will make the telephone
companies and the department stores who use robocalls as one
way to attract potential customers to lose their profit. As a
result, different interest groups always advocate for or against
this rule intensely.
The biggest group who are benefited from TCPA is consumer
who are annoying at unwanted robocalls. In the research done
by Kimball in 2014, "75% of people listened to over 19 seconds
of a robocall message and the vast majority of people, 97%,
listen to at least 6 seconds. Even when the recipient ignores or
declines the call, today spammers can send a prerecorded audio
message directly to the recipient's voicemail inbox. Deleting a

junk voicemail wastes even more time, taking at least 6 steps to
complete in a typical voicemail system" (Tu & Doupe & Zhao &
Ahn, 2016). About 97% people do not want to receive robocalls
at all and they just desire to hang up immediately. However,
for these group of people, they need to spend at least several
seconds first to understand the intention of the calls, and then
hung up. This is just a waste of life to those who do not want to
such calls. This type of advertising will eventually lead people
to feel annoying. If wasting time is just a small case, the
magnitude of the impact on these groups will be a great deal
when there are telephone scams. Some fraudulent calls allure
people to buy their products, and eventually, ask people to tell
them their credit card information. This will cause huge loss if
customers are cheated by such fraudulent calls. People's
personal information is being exposed under such condition.
This group of consumers is victims of unsolicited robocalls.
Now TCPA helps this group of consumers strictly limit the
robocalls. Telephone companies who send robocalls to
consumers without advanced consent will be punished.
So how can consumers use the rule to protect themselves? In the
case of robocalls related to privacy issue, lawyers can always
play an important role in the court. Consumers need lawyers to
defend their rights to get their wanted compensation after being
disturbed or hurt by robocalls. Also, at the same time,
intelligent lawyers rely on such consumer victims to making a
living by appealing for them and get part of compensation after
the judge convict those illegal robocalls from telephone
companies and industries. According to a survey form
Bloomberg Law, “These rulings, coupled with the lure of
uncapped statutory damages (as much as $1,500 for each call in
violation), have encouraged consumer lawyers to file more and
more TCPA claims. Class actions that can aggregate the claims
of thousands of consumers can potentially be worth hundreds of
millions of dollars—a tempting enticement for class action
lawyers who ordinarily take home a percentage of that
recovery” (Deane & Williamson, 2017). The lawyers support

for TCPA not only for consumers’ rights, but also for their own
profits.
The third party who supports for TCPA is Federal
Communications Commission. FCC is an independent
government agency of the United States who works for people
and seeks to provide better service. It is “created by statute (47
U.S.C. § 151 and 47 U.S.C. § 154) to regulate interstate
communications by radio, television, wire, satellite, and cable.
The FCC works towards six goals in the areas of broadband,
competition, the spectrum, the media, public safety and
homeland security, and modernizing itself” (Wikipedia,). One
of FCC’s goal is to ensure public safety, which is related to the
issue that robocalls may cause telephone scams. Thus, it is one
of FCC’s responsibility to protect people’s privacy and assets.
It will absolutely maintain even expand TCPA. Based on the
data, “FCC and court rulings have interpreted the TCPA in an
increasingly expansive way” (Deane & Williamson, 2017). FCC
desires to get consent from consumers.
When the rule TCPA is beneficial for consumers, it must take
off some benefits from companies who depend on or use
robocalls as one way to make money. The first interest group
who is directly affected by this policy is the department stores
who use robocalls as one way to appeal customers. They will
definitely be against this rule. Originally, using telephone calls
to advertising was one of the main ways which the enterprises
could attract consumers. Before, people could often receive
calls from malls and department stores like Macy’s, Nordstrom,
Saks Fifth Avenue, Bloomingdale’s, Neiman Marcus, etc.
These companies and industries relied on robocalls to increase
sales. After FCC published this rule, part of the potential
consumers has the right to block the calls forever. As a result,
as the advertisement decreases, the customers decrease. Fewer
customers imply fewer sales. Those firms’ output will decrease
and make less profit. If they put all the same input as before
but get less money, in another word, the cost increases.
The next interest group who earned money from those

department stores by helping them advertising are the telephone
companies, and they are also deprived part of the profits away
by TCPA. In the past, the telephone companies and the
department stores always set a business relationship. At
present, as the department stores are strictly banned to
advertising by robocalls, the telephone companies are also cut
off this way to make money. The telephone companies now
have no way to continue such a deal to get profit. As the
department stores’ profits go down with cost goes up, the
telephone companies’ profits go down with cost goes up, as
well.
President Donald J. Trump and his Republican governing may
also be against TCPA, despite he seems like to be totally
different and irrelevant with the two interest groups above.
President Trump was a prestigious businessman before he is
elected as the president of the United States. His successful
election cannot deprive from the support from his business
networking and support. After he became president in 2016, the
reform of the relationship between consumers and business
marks a pivot point, and his agenda “is rolling back what he
deems to be government overreach. He has promised to revive
the economy by removing regulatory impediments to business
success and growth” (Deane & Williamson, 2017).
Consumers are the biggest victims of telephone scams.
According to the data above, 97% of people just do not want to
receive such calls. However, to hang up one robocall, people
need to take at least several seconds, and may even be
interrupted at all when they are dealing with some very
important the staff. In a public place, a sudden robocall can
disturb people around you, break the silence, and embarrass
you. All things describing above are just in small cases. The
biggest issue is telephone scam which can cause huge loss in
both assets and spirit to consumer. From IEEE Xplore Digital

Library, the authors said that “Telephone spam costs United
States consumers $8.6 billion annually. In 2014, the Federal
Trade Commission has received over 22 million complaints of
illegal and wanted calls. Telephone spammers today are
leveraging recent technical advances in the telephony ecosystem
to distribute massive automated spam calls known as robocalls”
(Tu & Doupe & Zhao & Ahn, 2016). As a result, one of the
angry recipient who receives “Congratulations! You’ve won a
free cruise!” phone call, “Philip Charvat, claims that Resort
Marketing Group — the culprits behind some of those robocalls
— violated the Telephone Consumer Protection Act” (Scotti,
2017). On the other hand, with more and more advanced
technology, customers now are more used to reading
advertisement such as e-mails and text messages. Reading is
much quicker than listening to the same content of words. By
sending text messages, people can save their time and feel less
disturbed and may be more willing to make an order. This
concerns from the victims’ comment contribute a lot to the
progress of TCPA.
Next, the group of lawyers support TCPA and since they need to
defend their victim consumers. According to a In-House
Counsel at a higher education institution, “TCPA Guardian from
Jornaya helped me dismiss a large Class Action TCPA lawsuit
that I estimate saved our business $500,000 in legal fees alone”
(JORNAYA). It is the fact that they make huge profit for those
victims of robocalls. However, they also make money for
themselves when they treat defense as their job, which makes
them less “innocent”. They have the incentive more than just to
maintain a healthy market. They are driven by TCPA to find
more and more robocall cases even including legal one, because
“these rulings, coupled with the lure of uncapped statutory
damages (as much as $1,500 for each call in violation), have
encouraged consumer lawyers to file more and more TCPA
claims. Class actions that can aggregate the claims of thousands
of consumers can potentially be worth hundreds of millions of
dollars—a tempting enticement for class action lawyers who

ordinarily take home a percentage of that recovery” (Deane &
Williamson, 2017).
The official group who are for TCPA is FCC who wrote this
rule. FCC desires to protect the right of consumers, and it does
protect people’s privacy by restricting robocalls. In the recent
years, “the Federal Communications Commission voted on
Thursday to expand the scope of the Telephone Consumer
Protection Act in an effort to crack down on robocalls from
telemarketers” (Hoover, 2015). It does get certain big success
that according to a survey in Feb. 2004, 92% got fewer calls.
However, FCC sometimes may be too restrict to the free market
with hypercorrection that “dissenting Commissioner Ajit Pai
said it does not properly distinguish between legitimate
businesses trying to reach their customers and unwanted
telemarketers but rather lumps them all together despite ‘good
faith efforts’ to conform to the TCPA” (Deane & Williamson,
2017).
Many business interest groups have comment against the
existing TCPA, and among them, the typical one should be The
National Retail Federation (NRF). NRF is the world's biggest
retail exchange affiliation, and it represents discount and
department stores, home goods and specialty stores, and Main
Street merchants in the United States and more than 45 nations.
Those department stores who built a friendly and benign
relationship with customers are being largely affected by the
negative parts of TCPA. It claims that those department stores
have the incentive to provide the better custom service due to
free market competition. There are enough different telephone
companies, and they will compete with each other to provide
better service to the consumers. If Company A always sends
robocalls automatically, the people who do not want to receive
it will feel disturbed and upset. Then Company B knows the
situation. It can smartly attract people with the choice of not

receiving robocalls. Part of consumers originally from
Company A will give it up and find Company B for service.
After Company A realizes its mistake, it will immediately
design new project to satisfy all of their potential costumers.
As a result, there is always a competition between companies.
To exist in the free market and make more profits, they will
definitely always improve themselves and provide better and
better service to consumers. Because of the competitive market,
“with these factors in mind, many retailers strive to deliver only
those communications that their customers want or reasonably
expect to receive, and to make this experience as seamless as
possible and not needlessly complicated. Communicating with
customers as they prefer is good for consumers and good for
business”(NFR, 2017). NFR’s goal is to create a competitive
advantage both for industries and consumers if there is less
restriction to the existing beneficial relationship between them.
Its reasonable argument will encourage a healthier free market.
Furthermore, many organizations point the problem of
reassigned numbers. Among this associations, Noble System
Corporation can be a representative. NSC is provides customers
with contact center software and service in a variety of
industries and applications. In NSC’s opinion, it first
recognizes that TCPA has the good theory, “but misguided
attempt, to solve a tangential and relatively minor problem
related to the overall problem of illegal robocalls. While illegal
robocalls are the number one consumer complaint to the FCC
and the FTC, this should not be conflated with the problem of
inadvertent calls being made to reassigned numbers. The
problem of inadvertent calls to reassigned numbers comprises a
relatively small problem that is overshadowed by the larger
problem of illegal robocalls in general. These are different
problems, and the scope of the problem of the latter (illegal
robocalls) does not justify the solution proposed for the former
(reassigned number problem)” (NSC, 2017). NSC is not the
only organizations who holds this argument. Other interest
groups, such as American Bankers Association, Edison Electric

Institution, and The Electronic Transactions Association all
worry about the problem of resigned numbers. This is the bad
effect TCPA brings to the industries, especially direct to
contacting system and companies.
The last one, President Trump also desires to loose the act of
TCPA. One of the reason is to build a better relationship
between business and customer in a more free market.
Although President Trump has not specially mentioned TCPA,
he once said early 2017 that “I will keep working with
Congress, with every agency and most importantly, the
American people, until we eliminate every unnecessary, harmful
and job-killing regulation that we can find... . We have a lot
more coming” (Trump, 2017). However, there is deeper reason
behind his policy that “President Trump's outline for his
proposed 2018 budget includes deep cuts to several federal
departments and agencies known for their strict regulatory
regimes aimed at protecting individuals against business
interests” (Deane & Williamson, 2017). People are not sure
about where the cut budgets will be used at and whether the
situation will be better or worse when there is looser regulatory.
Problems of robocalls should not have any government
intervention because it could be resolved by the market on its
own. Although at first, the customers are victims, after a period
of development and competition, the market will finally lower
the price to the marginal cost, which maximizes consumer
surplus. There are enough different telephone companies, and
they will compete with each other to provide better service to
the consumers. This progress may require some time, but the
government's excessive interference just leads the market to
another worse condition, which has caused huge losses for both
industries and part of consumers who want to receive robocalls,
also to the originally benign business relationship. On the other
hand, based on evidence, there will be more and more advanced

technology appearing in the market. Malls and department
stores all offer people with the chance of subscribing to their
newsletter by email. In a word, in today's society with more
and more improvement, robocalls are being transformed to a
more efficient way like emails and text messages to attract
customers.
To the old who still do not learn the new technology and do not
know how to read and write emails, collecting information from
robocalls is their usual way to see an advertisement in daily
life. Those old people really need this. Our policy should not
ignore them at all. Although this group of people is just a small
proportion, the market has the ability to resolve the issue on its
own to satisfy all the people. Thus, why do we not just let the
market have positive free competition? The telephone
companies can send a default robocalls to the house telephones
holder who is older than 50 years old. If they are happy to
receive future calls, both phone companies and the older will be
benefited. The government should allow the free market and
allow everyone to choose his or her own desired lifestyle.
References
8, 2. M. (n.d.). The Uncertain Future of the TCPA in the Trump
Era. Retrieved November 9, 2017
Federal Communications Commission. (2017, November 05).
Retrieved November 9, 2017

Hoover, J. (n.d.). FCC Expands TCPA To Robocalls Despite
Litigation Fears - Law360. Retrieved November 9, 2017
J. (n.d.). Jornaya TCPA Guardian. Retrieved November 9, 2017
National Retail Federation. COMMENTS OF THE NATIONAL
RETAIL FEDERATION. Retrieved November 9, 2017
Noble System Cooperation. COMMENTS OF NOBLE
SYSTEMS CORPORATION. Retrieved November 9, 2017
Scotti, A. (2017, August 18). Victim of a 'free cruise' robocall?
You might be owed $900. Retrieved November 9, 2017
Tu, H., Doupe, A., Zhao, Z., & Ahn, G. (216). SoK: Everyone
Hates Robocalls: A Survey of Techniques against Telephone
Spam. Retrieved October 12, 2017

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