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Telecom Decision CRTC 2004-35
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Ottawa, 21 May 2004 |
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Review of telemarketing rules
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Reference:
8665-C12-13/01 |
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In this decision, the Commission implements
changes to the regulation of telemarketers with more specific identification
procedures, constraints on the use of predictive dialling devices and
mandatory reinforcement of do not call lists for all telemarketers. The
Commission also requires the tracking and reporting of complaints and
establishes a multi-faceted awareness program for both consumers and
telemarketers. The Commission recognizes the merits of expanded enforcement
but finds that additional regulatory action is contingent on increased powers
being provided through legislative change. |
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Introduction
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1. |
The Commission issued CRTC seeks public input
on telemarketing rules, Public Notice CRTC 2001-34,
5 March 2001 (Public Notice
2001-34) announcing its intention to review its rules, including
enforcement procedures, regarding unsolicited telecommunications for the
purpose of solicitation from persons who represented for-profit and
not-for-profit organizations, generally called "telemarketers". |
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2. |
In Public Notice
2001-34, the Commission
invited comments on: whether the current rules, along with enforcement
procedures, could be made more effective; whether new restrictions were
required on live voice calls from individuals, businesses and non-profit
organizations who solicit for money or money's worth; what restrictions, if
any, should apply to unsolicited communications which were not made for the
purpose of solicitation, such as market or survey research calls. Other
issues included the adequacy of current rules dealing with unsolicited
facsimile (fax) solicitation, whether such faxes should be entirely
prohibited; the effectiveness of do not call lists, any improvements, and who
should maintain the lists as well as dead air or hang up calls which may be
related to uncompleted telemarketing calls. In addition, parties were asked
to comment on whether the use of automatic dialing-announcing devices (ADADs)
should be permitted when communicating with a client with whom a firm has an
on-going business relationship. |
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3. |
The Commission noted that in the proceeding that
led to Telemarketing restrictions extended to all telecom service
providers, Order CRTC 2001-193,
5 March 2001 (Order 2001-193),
there had been a significant number of comments raised related to consumer
inconvenience and annoyance caused by unsolicited calls. The Commission also
noted that, in recent years, there had been a broad range of concerns and
complaints expressed about unsolicited communications using live voice calls
and fax transmissions and it had been monitoring complaints received from the
Canadian public concerning telemarketing practices. The Commission concluded
that the time had come to seek comments regarding both the effectiveness of
its rules and other options or measures to deal with these concerns. |
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4. |
In Public Notice
2001-34, the Commission made
the following Canadian carriers parties to the proceeding: Aliant Telecom
Inc. (Aliant Telecom), Bell Canada, MTS Communications Inc. (MTS),
Northwestel Inc. (Northwestel), Saskatchewan Telecommunications (SaskTel),
and TELUS Communications Inc. (TELUS). Forty-four additional parties
registered with the Commission as interested parties to the proceeding. |
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5. |
On 24 April 2001, the Commission received
submissions from Aliant Telecom, Bell Canada, MTS, Northwestel and SaskTel,
collectively called "the Companies", AT&T Canada Corp., on behalf of itself
and AT&T Canada Telecom Services, now known as Allstream Corp. (Allstream),
Action Réseau Consommateur, Fédération des associations coopératives
d'économie familiale du Québec and the Public Interest Advocacy Centre (ARC
et al.), Chris Aikenhead, Call-Net Enterprises Inc. (Call-Net), the Canadian
Association of Financial Institutions in Insurance (CAFII), the Canadian Fax
Telebroadcasting Coalition (CFTC), the Canadian Marketing Association (CMA),
the Consumers' Association of Canada (CAC), C-Comm Network Corp. (C-Comm),
EastLink Limited (EastLink), Fred Ennis, Games Trader Inc., InfoLink
Communications Limited (InfoLink), the Institute of Canadian Advertising
(ICA), the Manitoba Call Centre Association (MCCA), Microcell
Telecommunications Inc. (Microcell), Primus Canada Telecommunications Inc.
(Primus), Michael L. Ryshpan, TouchLogic Corporation (formerly Telelink Call
Management), TELUS and Xentel DM Incorporated (Xentel). |
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6. |
On 14 May 2001, the Commission addressed
interrogatories to the above parties, and to the Canadian Wireless
Telecommunications Association (CWTA), Gateway Telephone, GT Group Telecom
Services (Group Telecom), Halifax Cablevision, Vidéotron Télécom ltée
(Vidéotron) and Futureway Communications Inc. (Futureway). Interrogatory
responses were received on 5 June 2001. On 14 September 2001, the Commission
issued a second round of interrogatories and, after granting an extension,
received responses on 30 November 2001. |
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7. |
On 19 December 2001, the Commission issued a
third round of interrogatories to Allstream and Call-Net. Interrogatory
responses were to be filed by 28 December 2001. |
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8. |
Parties filed final comments on 21 December
2001. |
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9. |
On 21 January 2002, reply comments were received
from the Companies, ARC et al., Allstream, Call-Net, Canadian Survey Research
Council (CSRC), Microcell, Primus, TELUS, and Thunder Bay Telephone. |
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10. |
On 3 May 2002, the Commission issued
interrogatories to CMA and Xentel with interrogatory responses due 13 May
2002. On 7 May 2002, Xentel filed its response but CMA requested an extension
to 1 June 2002. On 31 May 2002, CMA filed interrogatory responses. |
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11. |
The Commission also received comments from other
parties, including more than 2,470 individuals. |
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Background
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12. |
Telemarketing refers to the use of
telecommunications facilities to make unsolicited calls for the purpose of
solicitation where solicitation is defined as the selling or promoting of a
product or service, or the soliciting of money or money's worth, whether
directly or indirectly and whether on behalf of another party. This includes
solicitation of donations by or on behalf of charitable organizations. There
are several types of organizations that engage in these activities. Local
businesses may engage in small-scale telemarketing campaigns to promote their
services in the neighbourhoods in which they operate. Larger businesses, such
as department stores or telecommunications carriers, may engage in similar
endeavours to promote product sales or services but on a larger scale in
terms of numbers of people called and geographical area covered. Agencies may
engage in telemarketing on behalf of enterprises that want to promote their
products or services through telemarketing but do not wish to do it
themselves. Charitable organizations may also use these agencies for
fund-raising campaigns. |
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13. |
The Commission's authority in respect of
unsolicited telecommunications derives from the Telecommunications Act
(the Act), specifically section 41. Section 41 reads, "The Commission may, by
order, prohibit or regulate the use by any person of the telecommunications
facilities of a Canadian carrier for the provision of unsolicited
telecommunications to the extent that the Commission considers it necessary
to prevent undue inconvenience or nuisance, giving due regard to freedom of
expression." Section 7 of the Act is also relevant. That section reads,
"7. It is hereby affirmed that telecommunications performs an essential role
in the maintenance of Canada's identity and sovereignty and that the Canadian
telecommunications policy has as its objectives…(i) to contribute to the
protection of the privacy of persons." |
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14. |
It was pursuant to section 41 of the Act that
the Commission introduced most of the telemarketing rules in effect today.
The Commission, in establishing its rules, considered how best to fulfill the
intent of section 41 and to achieve the objectives in section 7, while
allowing for the legitimate uses of such communication. The Commission also
took into account the right to freedom of expression set out in the
Canadian Charter of Rights and Freedoms (the Charter). |
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15. |
The Commission first approved certain
restrictions on the use of ADADs for telephone solicitation in Use of
Automatic Dialing-Announcing Devices, Telecom Decision CRTC
85-2, 4 February 1985 (Decision
85-2). An ADAD is automatic equipment
capable of storing or producing telephone numbers to be called and can be
used alone or in conjunction with other equipment to convey a pre-recorded or
synthesized voice message to the number called. |
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16. |
The Commission set out the rules and conditions
for unsolicited communications using voice or fax transmission in Use of
telephone company facilities for the provision of unsolicited
telecommunications, Telecom Decision CRTC
94-10, 13 June 1994 (Decision 94-10),
and Telecom Order CRTC 96-1229,
7 November 1996 (Order 96-1229).
In Decision 94-10, the Commission
determined that the restrictions on ADAD use had not been an effective means
of preventing undue inconvenience and nuisance to consumers. The Commission
therefore found that it was in the public interest to prohibit the use of
ADADs to make unsolicited calls for solicitation of money or money's worth.
The Commission did not prohibit unsolicited ADAD calls wherein no attempt was
made to solicit, for example, calls for emergency purposes, calls to collect
overdue accounts, calls for market or survey research and calls to schedule
appointments. |
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17. |
In Decision 94-10,
the Commission also imposed a number of restrictions on unsolicited live
voice and fax calls, including the requirement for telemarketers to maintain
company-specific do not call lists. The Commission established rules to,
among other things, facilitate consumer use of such company-specific do not
call lists. The Commission also established specific enforcement procedures
whereby service to lines used to place unsolicited calls to solicit might be
terminated by the telephone company for a violation of the conditions of
service, as set out in the tariff, upon notice, after two business days. |
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18. |
In Order
96-1229, the Commission added
restrictions to unsolicited fax transmissions for solicitation. These
included restrictions on hours during which such faxes could be sent and
confirmation of the seven day period within which a fax broadcaster must add
a consumer to its do not call list. |
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19. |
In Local competition, Telecom Decision
CRTC 97-8, 1 May 1997 (Decision
97-8), the Commission extended the
telemarketing rules and conditions to the competitive local exchange carriers
(CLECs) operating in the territories of those incumbent local exchange
carriers (ILECs) to whom the rules applied. In Order
2001-193, the Commission
concluded that the rules should apply to all ILECs, including independent
telephone companies, all CLECs, interexchange carriers (IXCs), wireless
service providers (WSPs) and resellers of telecommunications services
provided by the above companies and their customers. |
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Positions of parties
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20. |
The majority of the parties who commented on the
effectiveness of the existing rules agreed that the current restrictions
represented a fair and adequate balance between the interests of customers
and telemarketers. Many parties agreed that the extension of the rules set
out by the Commission in Order
2001-193 was a positive step. Most identified adequate enforcement of the
existing rules as the major issue and that awareness of the rules by both
consumers and telemarketers was an area that required particular attention.
Parties submitted varied suggestions related to stronger enforcement
capability and programs aimed at increased understanding of the rules. Many
of the complaints from consumers indicated significant dissatisfaction with
the telemarketing industry in general and focused on the difficulties
encountered by consumers in registering this dissatisfaction and preventing
continued unwanted contact. |
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21. |
The Companies submitted that, before considering
adopting any new rules or imposing new and costly control mechanisms on the
telemarketing industry, the Commission should take steps to make the current
rules and restrictions more effective. The Companies submitted that the first
step would entail improving the awareness of customers and telemarketers of
the current restrictions and options available to customers for managing
incoming calls, such as the present individual do not call list requirements.
The second step would entail the Commission taking concrete steps to improve
the enforcement of the current restrictions, including designating a single
agency for accepting and investigating telemarketing complaints. The
Companies argued that, only after these steps were implemented, would the
Commission be in a position to reasonably determine whether any of the more
elaborate and costly approaches to regulation, such as a national do not call
list, were necessary. Finally, the Companies submitted that a longer-term
solution to enforcement difficulties should be pursued through seeking
legislative changes that would provide the Commission greater flexibility
with respect to sanctions for non-compliant telemarketers. |
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22. |
TELUS submitted that the current application of
telemarketing rules was adequately addressed in Order
2001-193, which extended the
existing rules to apply uniformly to all telecommunications service providers
(TSPs) across the country. This imposition of a common set of rules for
telemarketing across all TSPs was essential in helping to reduce the high
volume of complaints the Commission and the telephone companies receive each
year. |
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23. |
TELUS submitted that the current telemarketing
rules and the enforcement of those rules could be made more efficient if the
rules were simplified. TELUS noted that the current rules were complex due to
the different permissions and prohibitions that applied whether or not a
telemarketer was using voice, fax or ADADs communications. TELUS suggested
that the effectiveness could be improved if the rules for all forms of
telemarketing were independent of the type of calls or technology used in
contacting the called party. TELUS submitted that it would also be easier for
a TSP to enforce the rules if the permitted hours of calls, the
identification of the calling party, including originating number, company
name and contact information as well as the requirement to maintain a do not
call list were the same for all forms of communications. |
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24. |
TELUS submitted that the current rules for
unsolicited live voice solicitations were adequate. TELUS noted that calling
parties were required to identify themselves and the purpose of the call. A
consumer receiving such a call would have the option to continue with the
call or to end the call. TELUS argued that the current rules were sufficient
to allow customers to manage their privacy by providing the opportunity to
accept the call or not, as well as to request placement on a do not call
list. |
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25. |
The CMA submitted that the current regulatory
framework governing telemarketing, wherein the Commission had standardized
its telemarketing rules and extended them to all TSPs across the country, was
reasonably effective but it also submitted that better enforcement was
required. |
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26. |
The CMA stated that it had received numerous
complaints from consumers who found it extremely difficult to lodge a
complaint with the correct TSP when there has been a contravention of the
existing rules. In order to better identify the TSP, the CMA suggested the
establishment of a central system or body that would be able to direct
consumers to the carrier providing a particular telephone number. The
consumer could then contact the telephone carrier directly. This system would
also allow the telephone companies and the Commission to identify those who
might not be complying with telemarketing rules. The CMA submitted, however,
that any additional regulation would have to strike a balance between the
rights of consumers and the protection of telemarketing jobs and the economic
contribution made by this growing medium. |
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27. |
CAC submitted that it was most concerned with
making telemarketing undertaken by legitimate businesses work better for
consumers. CAC submitted that the problem of voice calls made during
inconvenient times needed examining to determine if changes to the rules were
required. CAC noted that there were currently no restrictions on the hours
for voice calls. CAC submitted that telemarketing calls should only be made
between 9 a.m. and 9:30 p.m. on weekdays and between 10 a.m. and 6 p.m. on
weekends, with no calls on statutory holidays. CAC pointed out that this
limitation would be the same as required by the CMA for all its members. |
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28. |
CAC submitted that an information campaign was
required to ensure that all telemarketing companies, as well as charities
undertaking telemarketing, were familiar with the current rules. CAC also
suggested providing telemarketing companies with a distinct registration
number that could be included in the opening pitch to consumers. |
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29. |
CAC also raised the issue that, as the use of
cell phones and other wireless technologies increased, telemarketing firms
would likely make more calls to these devices. The owners of cell phones pay
airtime fees for both incoming and outgoing calls. The portable nature of
these phones also means that incoming calls might be received in
inappropriate or even dangerous locations, such as in automobiles. CAC cited
reports that wireless text messaging services offered as standard equipment
on most portable phones were also being used for unsolicited marketing
purposes. The system generally used a combination of phone numbers and the
carrier's name, allowing advertisers to target specific people or
identifiable groups. CAC submitted that the extent and costs of these
solicitations needed examination and, if necessary, a policy response
regarding appropriate regulation must be developed in consultation with
consumer groups and industry representatives. |
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30. |
When commenting on the effectiveness of the
current regulatory framework, most of the parties emphasized the issue of
enforcement. All were in general agreement that enforcement of the
telemarketing rules was the key to addressing the concerns of consumers. |
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31. |
The Companies argued that, although the rules
might be adequate, their effectiveness had been impaired by a lack of
awareness and inconsistent enforcement. The Companies stated that while they
were fulfilling their enforcement responsibilities, the same could not be
said for certain other TSPs. They maintained that enforcement could only be
improved if the Commission were to take a greater role in enforcing the
telemarketing restrictions directly on telemarketers. |
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32. |
The Companies stated that attempts by TSPs to
enforce the rules and sanction offenders have not reduced customer
complaints. The Companies argued that the requirement to enforce could place
TSPs in a conflict of interest situation where they not only provided
facilities to telemarketers but also functioned as telemarketers themselves.
It could place them, inappropriately, into a judicial or quasi-judicial role
in the context of attempting to resolve telemarketing disputes. The Companies
submitted that the Commission, or some other government agency, was best
positioned to carry out investigation of complaints and enforcement of rules
that would be national in scope, expeditious, fair and accompanied by
progressive sanctions that would be real deterrents for telemarketers. |
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33. |
The Companies also submitted that a longer-term
solution to enforcement difficulties should be pursued through legislative
changes that would provide the Commission, or some other government agency,
greater flexibility with respect to sanctions, such as fines. The Companies
submitted that significant fines and prosecution would be much more effective
tools against non-compliant telemarketers than disconnection, particularly
because the Companies were required by tariff to reconnect a disconnected
telemarketer on request and some telemarketers considered disconnection as
merely a cost of doing business. |
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34. |
Call-Net noted that the Commission is currently
able to order the disconnection of telemarketers and that, while fines might
provide an additional deterrent, many of the offending telemarketers were
proficient at rapidly winding-up operations and re-establishing themselves
under a different guise, thereby avoiding any payment. Call-Net submitted
that there should be financial penalties in the case of high volume, repeat
offenders. |
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35. |
TELUS submitted that it had the authority to
enforce the rules only with its own customers and had no authority to enforce
the rules on parties that are not its customers. TELUS noted that it received
customer complaints about either a soliciting party who is a TELUS customer
originating calls in TELUS operating territory, or a soliciting party who is
not a TELUS customer but who is originating calls in TELUS operating
territory; or a soliciting party who is originating calls from outside of
TELUS operating territory using another TSP, or a soliciting party where a
reseller provides the telecommunication services being used for the
unsolicited telecommunication. TELUS's authority to enforce the Commission's
privacy policies were limited to those situations where its own customers
were in breach of the unsolicited telecommunications provisions contained in
its General Tariff. TELUS noted that any TSP would be powerless to enforce
the telemarketing rules, when the complaint concerned a telemarketer using
another TSP's service. |
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36. |
Allstream submitted that the role of TSPs in the
enforcement process should be limited because the resources and the powers
required to enforce the rules made it inappropriate for carriers to be
responsible for this function. Allstream submitted that, under the current
regulation, a telemarketer who violated the rules could continue to operate
without consequence. Allstream claimed that even if such a telemarketer's
services were terminated, it could use other lines that had not been
suspended or it could simply change carriers. The carrier who disconnected
the telemarketer would lose a customer to a competitor and there would be no
real impact on the telemarketer. |
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37. |
Allstream noted that the existing rules
generally governed the relationship between telemarketers and customers and
submitted that the costs associated with administering and enforcing the
rules should not be attributable to carriers. Instead, Allstream argued that
an independent central body, such as the Commission, should handle
complaints, undertake investigations and enforce the rules. Allstream also
submitted that disconnection might not be a sufficient deterrent and that
more severe penalties such as fines might be necessary. |
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38. |
Vidéotron submitted that the TSPs should not be
required to take on more enforcement responsibility. Vidéotron submitted that
the Commission should more actively intervene by directly issuing warnings to
offenders and by imposing fines and issuing disconnection or suspension of
service orders for repeat offenders. |
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39. |
The CMA submitted that the Commission must
enforce the rules, handle complaints and conduct investigations that relate
to non-compliance. It submitted that a series of escalating fines were
required, leading to the ultimate penalty of disconnection or suspension of
service, which should be reserved for the most serious cases. The CMA
recognized that this proposal would require legislative change. |
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40. |
ARC et al. submitted that it was clear that the
current regime was not working but better rules alone wouldn't solve the
problem since effective enforcement was required. ARC et al. submitted that
the Commission had unused powers of enforcement that it could and should
begin using. These powers included consent to prosecution under section 73 of
the Act, and section 51 mandatory orders which could be registered with the
Federal Court. ARC et al. also stated that the primary mechanism for
enforcement and deterrence should be monetary fines of a magnitude sufficient
to constitute effective deterrence. In addition, individuals should have a
statutory right of action for damages, with a minimum amount of damages for
each instance of non-compliance. |
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41. |
ARC et al. submitted that the Commission should
seek amendments to the Act, as necessary, to create these enforcement
mechanisms. ARC et al. also argued that disconnection should be available but
not relied upon as the primary enforcement mechanism and that TSPs should not
have the primary role in the handling of complaints and investigations.
Instead complaints should be directed to the Commission who should
investigate and determine the appropriate action to be taken. ARC et al.
submitted that it should be the Commission that issues disconnection orders
after a show cause proceeding, thus removing liability from the local
exchange carrier (LEC), and that such orders should prohibit all LECs from
reconnecting the telemarketer. |
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42. |
Some of the telemarketers also criticized the
Commission's current approach to enforcement and called for more active
enforcement. The CFTC submitted that improvements were needed regarding
enforcement. The CFTC submitted that the penalties for repeat offenders
should be stiffened because, in their view, the vast majority of complaints
resulted from the actions of a few telemarketers who failed to follow
existing rules and who represented a very small segment of the industry. The
CFTC argued that a graduated set of penalties starting with a warning,
followed by escalating financial penalties that raised the cost of
non-compliance high enough to ultimately change the behaviour, was needed.
The CFTC submitted that enforcement should be centralized and an oversight
body, comprised of government, industry and private citizen representation,
could adjudicate complaints brought before it and could have the power to
impose sanctions such as prohibitions and fines. |
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43. |
In commenting on the existing requirement for
telemarketers to maintain a do not call list, the parties generally agreed
that a common or national registry would be more efficient than the current
company-specific do not call lists. There was no consensus on how to set up
such a national list or how to fund the start-up or the maintenance and
administration of the system. |
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44. |
TELUS submitted that the current rules for
maintaining do not call lists should continue to be the responsibility of the
company that had the relationship with the customer. TELUS argued that the
development of a national central registry for do not call numbers, coupled
with rules that require telemarketers to both register and vet their lists
against the registry on a regular basis, would be an unworkable solution.
TELUS submitted that there are many ways in which telemarketing companies
could legitimately acquire personal information that would circumvent this
measure. |
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45. |
The Companies argued that it would be far more
prudent for the Commission to first take action with respect to awareness and
enforcement of the current regime. Only then would the Commission be in a
position to determine whether the regime governing unsolicited telemarketing
calls required augmentation via any of the more costly approaches to
regulation, such as a national do not call list. In this respect, the
Companies urged the Commission to take the more cost-effective step of
addressing the education and enforcement issues before contemplating the
necessity of further measures. |
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46. |
The Companies submitted that a national do not
call list was neither a sufficient nor necessary solution to customer
telemarketing concerns at this time. Absent any action to address a lack of
awareness of the telemarketing rules on the part of consumers and
telemarketers, any new mechanisms to regulate the industry would be no more
effective than the current rules. The Companies argued that a national do not
call list – or any of the conceptual network-based approaches to controlling
telemarketing calls – would fail to address the root causes of customer
concerns and, hence, would be insufficient measures to resolve those customer
concerns. |
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47. |
The Companies further submitted that the cost to
establish and maintain elaborate solutions such as a national do not call
list would be very high. Requiring telemarketers to fund any proposed
solution in its entirety would act as a disincentive to participation and
could increase non-compliant telemarketing activity. The Companies submitted
that the high cost of a national do not call list program, combined with the
lack of equitable funding options, might make a national do not call list
impractical. |
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48. |
The Companies submitted that one of the ongoing
costs associated with a national do not call system would be the maintenance
of an expiry date. The Companies argued that without an expiry date, a
national do not call list would eventually no longer reflect customers'
views. When customers moved or changed numbers for any reason, updating the
do not call list would not be paramount in their minds and it would be
unrealistic to expect such customers to notify the do not call list
administrator. Further, the costs of setting up a process to update a
national do not call list when a telephone number is reassigned would far
outweigh its usefulness. In lieu of a complex mechanized process to handle
number changes, the Companies submitted that, if required, the adoption of a
"sunset" rule with an expiry date might be a simple and cost-effective means
of managing telephone number churn. |
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49. |
The CMA submitted that it currently manages its
own do not contact program on behalf of its members. The CMA stated that the
program was compulsory for CMA members and was also offered to non-member
companies. The CMA submitted that it administered the program at no cost to
the consumer but telemarketing companies had to pay a subscription fee to
participate. This program enabled consumers to reduce the number of marketing
offers they receive by mail and telephone by registering to have their names
removed from internal marketing lists of CMA members. Four times a year the
names of consumers registered under the do not contact program are
distributed to CMA members and others who have subscribed to the program.
Consumers who requested removal of their names and addresses would see a
reduction in mail and telephone solicitations within three months of
registering. The CMA stated that it planned to expand the program to include
fax marketing. They also planned to switch the management of the do not
contact program to an Internet-based system, which would allow consumers to
register directly on-line resulting in a much shorter implementation period. |
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50. |
The CMA supported the establishment of a
national do not call list in principle. The CMA stated however, that it had
some serious questions regarding the application and practicality of such a
service. The CMA argued that several major issues would need to be studied in
advance, including how such a system would be funded, and who would be
responsible for operating the system and its applications and affordability
for small business. |
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51. |
CAC noted that consumers who did not want to
receive telemarketing calls were required to deal with each telemarketer
separately since there was no universal do not call list. CAC submitted that
a method whereby consumers could register with one agency to have their phone
number removed from all telemarketing lists would be a great improvement.
Given the sophisticated computer software available to the telephone
companies and telemarketing companies, CAC was of the view that developing
such a system would not place onerous costs on either of these types of
organizations. CAC submitted that the Commission, the telemarketing industry
and the telephone companies needed to study and explore methods of developing
a universal do not call list. CAC noted that a national list would, however,
have to be developed in such a way as to protect the privacy of those people
on the list. |
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52. |
Parties also submitted their assessment of the
general effectiveness of aspects of the current regulatory framework related
to telemarketing activity and proposed minor changes to the rules based on
that assessment. |
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53. |
The Companies submitted that there was no need
for additional restrictions or elaborate technical measures in an attempt to
enhance the existing restrictions. The Companies maintained that the real
issue was the effective implementation of the existing restrictions and that
effective implementation required aggressive education and direct regulation
of telemarketers by the Commission. |
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54. |
The Companies strongly opposed the mandatory
implementation of technical solutions, such as network-based automatic call
blocking, to concerns that might arise from telemarketing complaints. The
Companies submitted that technical means by which consumers might restrict or
screen telemarketing calls would require expensive upgrades to existing
systems. The Companies also stated that these mechanisms were not technically
reliable and were questionably feasible. Other carriers also submitted that
call blocking through the network would not be practical. The CMA submitted
that a system which allowed consumers to block certain telephone numbers was
impractical and would not address consumers' problems. ARC et al. supported
call blocking but expressed concern about the cost and effectiveness. |
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55. |
The Companies did not support a complete ban on
fax solicitation. The Companies stated that the number of complaints
concerning fax solicitation was low relative to the high volume of faxes sent
by fax broadcasters. The Companies argued that the complaints were caused by
the actions of a fairly small number of non-compliant fax broadcasters. An
outright ban of unsolicited faxes would be a drastic response that the
Companies considered would be out of proportion with the scope of the
problem. The Companies also argued that better enforcement of the current
restrictions would ensure that the non-compliant fax broadcasters bear the
burden of their non-compliance. In contrast, an outright ban on unsolicited
faxes would unfairly penalize the large number of fax broadcasters who have
followed the rules. |
|
56. |
TELUS submitted that the current rules for
unsolicited fax calls used to solicit were not adequate for the purposes of
enforcement. TELUS proposed wording changes to the current rules to assist
complaining subscribers in taking action themselves in contacting the
originating party of the unsolicited faxes and demanding that they stop.
TELUS also suggested the requirement that the fax message display an
alternate manned live voice number, where the originator could be reached.
TELUS argued that this would provide more effective enforcement, by making it
easier for the customers to resolve complaints on their own, while retaining
the freedom of expression provided for in the Charter. |
|
57. |
CAC also reported that it had received
complaints about unsolicited faxes to home-based businesses and small
not-for-profit organizations. CAC stated that these faxes had two costs
associated with them. The first was related to the cost for fax paper but the
second, a potentially more expensive cost, was the lost business resulting
from the phone line being busy receiving the unsolicited fax. CAC argued that
it was not even possible to quickly hang up because most fax machines have
automatic redial for up to five attempts. CAC did recognize that there was a
difference between home faxes, home-based business faxes, not-for-profit
faxes and other businesses that advertise their fax numbers. |
|
58. |
The Companies and TELUS noted that, under the
current restrictions, the conditions for unsolicited live voice and fax calls
did not apply to market and survey research calls. The Companies submitted
that unsolicited calls for the purpose of market research where there was no
attempt to sell should continue to be exempt from the conditions for
unsolicited live voice and fax calls for the purpose of solicitation. |
|
59. |
ARC et al. argued that, for many consumers,
market research calls were as annoying, intrusive and unwanted as
telemarketing and fundraising calls. According to ARC et al., many consumers
refused to respond to telephone surveys for that reason. |
|
60. |
ICA submitted that any new restrictions on
survey calls would impact on its members' ability to obtain accurate and
cost-effective data vis-à-vis their products, services and media consumption.
According to ICA, research calls did not generate a significant amount of
complaints from the public. ICA submitted that the status quo remained
appropriate as the industry did an effective job of regulating itself and
treated the privacy rights of Canadians with the utmost respect. |
|
61. |
CAC submitted that silent or dead air calls were
a major concern to the elderly, single women, and others who might feel
threatened or those unfamiliar with the cause of these calls. Answering the
phone and being met by silence, clicking sounds or the sounds of people
talking in the background could be extremely frightening to these people.
They might even suspect that criminals were targeting them or their houses
for nefarious purposes. CAC submitted that the Commission needed to monitor
the number of hang-ups or silent calls to determine if these were a serious
problem, especially among vulnerable members of society. Should this be the
case, CAC submitted that the Commission, in consultation with consumer groups
and the various industry players, should devise methods of reducing the
number of silent calls. |
|
62. |
CAC also noted that many consumers have
requested and paid a premium for unlisted telephone numbers in the belief
that these numbers would not be made public and that they would not receive
unsolicited telephone calls. CAC indicated that there were many reasons for
choosing an unlisted number including the protection and safety of family
members. CAC argued that receiving a telemarketing call on an unlisted number
was most annoying and questioned the rationale of paying extra for this
service. In the case where the unlisted number was chosen for the protection
of family members, answering a phone and being met by silence could be
terrifying. CAC submitted that the way that unlisted telephone numbers become
part of telemarketing lists needed to be investigated, and based on the
findings, methods were needed to ensure that these numbers were not available
to telemarketers, or other members of the general public. |
|
63. |
With regard to permitting the use of ADADs when
communicating with a client with whom a firm has an on-going business
relationship, CMA submitted that ADADs provided a legitimate and effective
means for businesses to communicate with their existing customers. CMA
described potential ADAD uses as scheduling customer service and installation
calls, order pick-ups, appointment reminders, notices of
warranty/subscription expirations, scheduled maintenance and notification of
special offers/activities. CMA maintained that once a consumer purchased a
product or service, there would be a reasonable expectation by the individual
that a company would want to build an ongoing relationship with that person.
CAFII, InfoLink and Telelink all agreed that ADAD calls should be allowed
when an ongoing business relationship existed between caller and clients. |
|
64. |
The Companies, TELUS and ARC et al. did not
support changes to the current rules respecting the use of ADADs. ARC et al.
also argued that the use of ADADs should not be permitted in any marketing
context, whether or not the recipient was an existing customer. |
|
65. |
In response to requests from the Commission, the
ILECs, who had been made party to this proceeding, provided statistics for
the period 1996-2000, on the type and number of complaints each carrier had
received regarding unsolicited voice and fax communications. |
|
66. |
Aliant Telecom submitted that, between 1996 and
2000, it had received 76 complaints regarding unsolicited voice and fax
communications. Aliant Telecom noted that these complaints included only
those that were addressed to the executives of Aliant Telecom's member
companies and those that were sent to the Commission and then referred to
Aliant Telecom for action. Aliant Telecom noted that, prior to 5 March 2001,
there were no tariff restrictions in Aliant Telecom's territory on the use of
its facilities for voice or fax telemarketing. Aliant Telecom did state,
however, that in addressing any concerns expressed by its subscribers, all
complaints were investigated and, in some cases, letters of education were
issued to the telemarketer involved. |
|
67. |
Bell Canada submitted that, between 1996 and
2000, it had received 6,362 complaints regarding unsolicited voice and fax
communications that were either referred internally to Bell Canada's senior
management or which were forwarded by the Commission to the company for
action. Of these complaints, 461 related to dead air, 2,477 concerned voice
telemarketing and 3,424 raised issues about fax telemarketing. Bell Canada
noted that its 1996 and 1997 data was incomplete, as data for Ontario was
unavailable for 1996 and only available from July onwards in 1997. |
|
68. |
According to Bell Canada, during the period
1996-2000, approximately 5,000 complaints resulted in enforcement action such
as education letters, e-mails or phone calls to fax and live voice
telemarketers. In addition to complaints concerning apparent violations of
the telemarketing restrictions, Bell Canada noted that it had received a
significant number of complaints from subscribers where the telemarketer in
question was operating within the restrictions. In these cases, a company
representative explained to the complainant the scope of allowable
telemarketing, and the applicable terms and conditions that a telemarketer
must respect. |
|
69. |
MTS submitted that, during the 1996-2000 period,
its officers and department heads had received 23 telemarketing complaints.
According to MTS, its records did not distinguish between voice and fax
telemarketing complaints. MTS also stated that its statistics were incomplete
and understated because it was unable to locate some of the records,
particularly those from the earlier years of the requested reporting period. |
|
70. |
According to MTS, a majority of calls received
by its service representatives were not escalated to an officer or department
head. According to MTS, these calls typically did not concern situations
where the rules had not been followed but were usually from customers who
either wish to be removed from the calling list used by the telemarketer or
from customers who are concerned because of their unfamiliarity with such
occurrences as dead air or fax tones that are associated with telemarketing
calls. MTS stated that such calls were routinely handled by service
representatives as part of their normal activities and MTS did not maintain
separate statistics for these calls. |
|
71. |
Northwestel submitted that, between 1996 and
2002, it had received no complaints regarding either fax or voice
telemarketing which were serious enough to be escalated to its senior
management. According to Northwestel, its customer service representatives
had only received a few dozen calls relating to telemarketing. Northwestel
also submitted that its customers had not identified telemarketing as a major
concern. Northwestel stated that it had not identified any long-term,
continuous telemarketing agencies based in its operating territory and,
therefore, it had not maintained a statistical database that specifically
recognized telemarketing complaints. Northwestel emphasized that the few
complaints it received were not generally recurring. According to
Northwestel, most telemarketing activities involving violations of the
restrictions originated outside of Northwestel's serving territory. |
|
72. |
SaskTel reported that, between 1996 and 2000, it
had received a total of 5,201 complaints about telemarketing. SaskTel
submitted that its statistics were not logged on a company-wide basis until
2000 and that its statistics prior to 2000 did not accurately reflect all
telemarketing complaints. According to SaskTel, the majority of concerns it
had received related to dead air, do not call requests and faxes sent to
voice lines. |
|
73. |
TELUS submitted that it had received 2,977
complaints relating to voice and fax telemarketing during the period
1996-2000. TELUS stated that complaints had been received by a number of
departments and not all of its departments maintained records of complaints
received. TELUS submitted that, as a result, the complaint statistics filed
did not reflect the total number of complaints it had received during that
period. TELUS indicated that statistics were available for only seven months
in 1999 along with 2000 for Alberta and for the years 1995-2000 for British
Columbia. TELUS noted that prior to 1999, complaints about unsolicited voice
and fax calls were grouped with other types of general complaint calls. TELUS
stated that, in May 1999, its customer relations staff began categorizing
such complaints as fax/nuisance. |
|
74. |
Allstream submitted that it had received 38,280
voice and fax complaints over the five year period. The number of complaints
received had increased each year. Allstream did not provide any details on
how it had compiled these numbers. |
|
75. |
The CFTC argued that the available data was only
available in highly aggregated form because the details of complaints were
not recorded by either the Commission or the carriers at the time of the
receipt of the complaint. The CFTC argued that, for the Commission to do a
proper job of balancing all the issues, better information was required. In
the CFTC's view, no further changes should be made to the telemarketing
regulatory framework until detailed data was collected and provided to all
interested parties for evaluation and comment. |
|
76. |
All parties took the position that both
telemarketers and consumers would benefit from improved awareness and
understanding of the telemarketing rules. Several parties submitted that the
effectiveness of the current rules would be greatly enhanced through further
customer education. |
|
77. |
TELUS argued that consumers were generally
unaware of the rules governing telemarketing in Canada. In TELUS's view, the
responsibility rested with the telemarketing industry to educate its members
on how to minimize consumer annoyance and disturbance. |
|
78. |
TELUS stressed that consumers must be provided
with information on how to handle unwelcome calls, for instance, telling the
caller's company not to call again, contacting the originating caller's
company to specify restrictions on types of calls to be made, or blocking
calls from certain numbers. TELUS submitted that focus groups could be used
to discover what information consumers require and to identify the best means
of making such information available. TELUS stated that telemarketers should
fund this research. |
|
79. |
The Companies indicated that customers needed to
have a better understanding of the types of telemarketing activities that
were allowed and those that were prohibited. The Companies noted that many
customers were not aware of the existence of do not call lists and that even
when they were, they were not utilizing the options currently available to
them. In addition, customers needed to be aware that a do not call request
should identify all numbers associated with their telephone service if they
wanted to ensure that they would not receive any more calls. |
|
80. |
The Companies acknowledged that some valid
customer complaints involved small telemarketers who were unaware of the
telemarketing restrictions. According to the Companies, many of these small
operations did not identify themselves as telemarketers when requesting
service. The first opportunity for the Companies to provide information and
education occurred when addressing complaints from customers. The Companies
indicated that, when responding to complaints, they routinely ensured
awareness of the restrictions and encouraged adherence. They submitted that a
possible further step to better awareness would be to require a positive
indication, or "sign-off" from the telemarketer, acknowledging that it had
read, understood and pledged to comply with the rules. |
|
81. |
ARC et al. submitted that education and
awareness initiatives were badly needed. According to ARC et al., consumer
awareness of the telemarketing rules and some of the options for managing
privacy could be improved via telephone directories, billing inserts,
information placed on CRTC, industry association and individual company
websites, as well as other relevant information channels. |
|
82. |
SaskTel emphasized that the objective of any
awareness program should be to communicate in clear, plain language with both
consumers and telemarketers. |
| |
Commission analysis and determination
|
| |
Enforcement
|
|
83. |
The Commission notes that restrictions on and
requirements for telemarketers have been well established in a series of
Commission decisions and for the most part are included in the tariffs of
incumbent service providers. The Commission also notes, however, the general
agreement of all parties that better enforcement of the existing rules is the
major factor in increasing their effectiveness. |
|
84. |
Many submissions were critical of the principal
enforcement provision currently available whereby service providers may
suspend or disconnect the service of a person for breaching the rules on
unsolicited telecommunications. The Commission heard arguments that certain
telemarketers viewed disconnection as an acceptable cost of doing business
and not as a deterrent. Even if disconnected from one service provider, these
telemarketers could switch to another service provider. The Commission
recognizes that each service provider's enforcement activities are limited to
its own customer base and therefore each service provider is not able to
track previous non compliance or to refuse service to telemarketers based on
past violations. |
|
85. |
The Commission notes that carriers are expected
to respond to customer complaints related to breaches of their tariffs and
that they may suspend or terminate service for breaches of their tariffs. The
Commission is also aware that the disconnection sanction is rarely employed
against telemarketers even when complaints indicate breaches of the rules.
The Commission recognizes that telemarketers are often very large customers
of the carriers and those TSPs are often telemarketers themselves. |
|
86. |
The Commission notes that many parties to this
proceeding argued that the Commission should play a greater role in
enforcement. Many also argued that there should be a graduated enforcement
approach that could result in more serious sanctions in cases where non
compliance continues. |
|
87. |
The Commission notes that there are a number of
enforcement tools available to it to deal with breaches of the telemarketing
rules. The Commission could issue an order that service to a telemarketer be
suspended or disconnected. The Commission could also issue an order
prohibiting all service providers from reconnecting that telemarketer for a
set period. The Commission considers that such tools, which deprive a
customer of service, would be most appropriate when there is an indication
that the customer does not intend to comply with the rules, but are less
appropriate consequences for, for example, a first breach of the rules.
The Act provides for the possibility of a criminal prosecution pursuant to
section 73. It also provides for a mandatory order requiring compliance
pursuant to section 51, and for contempt of court proceedings in the event of
a subsequent violation. The Commission notes that both prosecutions and
contempt of court proceedings require the Commission to proceed through court
proceedings, which may be lengthy or costly. The Commission considers that
these tools are generally better suited to situations where non compliance is
ongoing rather than for a first breach of the rules. |
|
88. |
The Commission has considered the submissions of
many parties, that, if it could impose appropriate fines on telemarketers who
have breached the telemarketing rules, its ability to enforce the rules would
be improved. The Commission does not currently have the authority to impose
fines pursuant to the statutes that empower it. The Commission notes that
Parliament has given the power to impose administrative monetary penalties
(AMPs), similar to fines, to many other agencies and departments. This AMP
power permits these agencies and departments to provide a flexible, timely
and cost-effective response to violations that do not warrant criminal
prosecutions or other costly and lengthy procedures. The Commission is of the
view that, if it had an AMP power, this would greatly increase the
effectiveness of its telemarketing enforcement powers. Such a fining power
would enable the Commission to directly affect the bottom-line of a
non-compliant telemarketer through the application of penalties that would be
proportional to the frequency and severity of the infractions. The Commission
also considers that such a power would have a significant deterrent effect. |
|
89. |
The Commission considers that the ideal way to
effectively deal with the issues raised in this proceeding would be to
provide the power to the Commission to undertake suitable enforcement. This
power once granted through legislative change would enable the Commission to
develop key enforcement processes and the critical sanctions which are
required to protect the rights of both consumers and telemarketers. |
|
90. |
The Commission considers that, given appropriate
legislation, it would also be advantageous to delegate various powers to an
administrator to handle telemarketing complaints. The Commission notes that
precedents exist in the Act relating to numbering and contribution
administration. The Commission is of the view that, with appropriate changes
to its mandate, it would have increased power to conduct investigations, to
impose AMPs on non-compliant telemarketers, to appoint a third party
administrator, to raise funds to cover the administrative costs and to
develop and implement a national do not call list if deemed appropriate. |
| |
Do not call lists
|
|
91. |
The Commission notes that, under the current
regulation, all telemarketers must maintain a do not call list of consumers
who have requested that they are not called again. The Commission recognizes
that separate do not call lists for each telemarketer are less effective and
more onerous on the consumers who have to contact each telemarketer
separately. The Commission recognizes the efficiency of a national do not
call list where a consumer could register just once and effectively stop all
unwanted telemarketing calls. |
|
92. |
The Commission believes that there is
considerable merit in the establishment of a national do not call list. The
Commission is aware of the reported costs of establishing such a system
recently in the U.S., as well as legislative authority provided by the U.S.
government. The Commission considers that implementing a national do not call
list in Canada without appropriate start-up funding and without effective
fining power for enforcement would be counter productive. The Commission
recognizes that there is a need for significant enforcement power, such as
the power to impose AMPs, which is not available to the Commission under
current legislation. The Commission has also considered the comments that the
establishment and maintenance of a national registry would be expensive and
would likely require a separate administrator. The Commission is of the view
that, at this time, it is not feasible to establish a national registry
without due consideration and resolution of the related framework. |
|
93. |
The Commission does however consider that, as an
interim measure, some reinforcement is required for the rules governing the
maintenance of company-specific do not call lists. In order to ensure that
consumers are as protected as possible, the Commission requires that,
effective 1 October 2004, telemarketers must provide the requesting party
with a unique registration number at the time of the request. This
registration number will confirm receipt of the request and, if further calls
are received, will serve as proof that the request was made. This requirement
also applies to requests that are faxed to a telemarketer. The Commission
further requires telemarketers to process do not call requests at the time of
the call, rather than forcing consumers to place another call. |
|
94. |
The Commission also requires that when an agency
calling on behalf of clients receives a do not call request during a call, it
must ask the requesting party if the name and number should be removed from
only the client's list, only the agency's list or both. The Commission is of
the view that this will assist called parties in ensuring that their names
are removed from the maximum number of lists possible while preserving their
right to receive calls from organizations they may wish to hear from. |
|
95. |
In addition to providing better access to do not
call lists, the Commission considered whether there were any network-based
technical solutions available that might enable automatic selective
call-blocking by consumers who don't want to receive telemarketing calls. The
Commission notes that there is general consensus in the comments received
from parties that these types of solutions are very expensive and of
questionable value in resolving the problem. The Commission is of the view
that network-based solutions involving selective call-blocking would not be
cost-effective, technically feasible or even viable at this time. |
| |
Changes to the current rules
|
|
96. |
Absent the legislative power to impose fines,
the Commission is making certain adjustments to the current regulation by
imposing some additional requirements on telemarketers, by requiring
additional data collection concerning complaints and by creating an awareness
program that will highlight the options available to consumers. |
|
97. |
The Commission received considerable public
comment in this proceeding. The comments received related mainly to the
difficulty of identifying and reaching telemarketers, excessive time spent
contacting telemarketers, calls that were an invasion of privacy and calls
that were costing the called party money. The Commission notes that the
solutions proposed ranged from a complete ban on telemarketing calls to
various measures for more stringent enforcement. The Commission also heard
considerable support for a national do not call list. The Commission notes
that many complainants displayed a lack of awareness of the existing rules,
particularly the processes in place to protect them from nuisance calls. |
|
98. |
The Commission recognizes that there must be a
balance maintained between the right to privacy of consumers who are
subjected to unsolicited calls and the right of the telemarketers to conduct
their business. The Commission notes that parties were generally in agreement
that more rules would not necessarily eliminate all the complaints. The
Commission also notes that the few changes that were proposed were generally
for minor rule modifications. In this decision, the Commission sets out
certain regulatory changes that will provide additional clarity and
consistency and assist consumers in dealing with unwanted unsolicited calls. |
|
99. |
The Commission has already established
restrictions on unsolicited live voice and fax calls for solicitation which
include, but are not confined to, requirements for self-identification,
restrictions on hours for fax calls, compulsory provisions for de-listing
recipients who so request, prohibitions against sequential dialing and
prohibitions against calls to emergency lines or healthcare facility lines. |
|
100. |
The Commission notes chief among the complaints
that it received in the course of this proceeding were the problems
surrounding identification of and access to the particular telemarketer who
had caused the concern. In response to this issue, the Commission considers
that certain changes are required to the rules governing identification of
telemarketers. |
|
101. |
In order to enable called parties to better
identify the telemarketer placing a live voice call, the Commission requires
that the caller identify both the person and the organization calling. If an
agency is calling on behalf of a client, the caller is required to identify
himself/herself, the name of the agency as well as the client for whom the
call is placed. This identification of the caller must be provided before any
other communication and before asking for a specific individual. |
|
102. |
The telemarketer must also provide a telephone
number before any other communication and before asking for an individual.
The Commission requires that the telephone number supplied must allow toll
free access to the telemarketer for questions or comments about the call. The
Commission also stipulates that the number provided must be manned during
business hours with an after-hours interactive voice mail backup system. |
|
103. |
The Commission notes the comments that
unsolicited faxes pose different problems than voice calls, involving added
costs for the called party such as paper and ink. The Commission considers
that it is even more important under those circumstances to be able to
identify and contact the sender if the faxes are unwanted. |
|
104. |
In order to enable consumers to correctly
identify the source of an unsolicited fax, the Commission requires that
caller identification must be provided at the top of the first page of the
fax in font size 12 or equally clear print that is at least as large. The
identification must contain the caller's name, along with the name of any
agency calling on behalf of the client, and must provide the originating date
and time of the fax. The Commission also requires telemarketers to include a
contact telephone and fax number on the front page of all unsolicited faxes.
These numbers must provide toll free access and the telephone number must be
manned during business hours with an after‑hours interactive voice mail
backup and they must also allow for the processing of do not call requests.
The Commission concludes that, with these new rules designed to provide clear
caller identification and easier access to do not call lists, there is no
need to prohibit unsolicited faxes at this time. |
|
105. |
The Commission notes that the current
restrictions apply only to unsolicited calls made for the purpose of
solicitation. The current restrictions do not apply to unsolicited live voice
and fax calls that do not solicit, including calls for emergency purposes,
account collection and market and survey research. In Decision
94-10, the Commission determined that the
conditions imposed on live voice and fax solicitations would not apply to
calls that did not solicit. The Commission concluded that these calls had
less potential to cause undue inconvenience or nuisance. |
|
106. |
The Commission notes that the majority of
parties in this proceeding did not support any changes to the application of
these rules. Further, the Commission considers that those parties, who
advocated that market and survey research calls be covered by the
restrictions, did not provide compelling evidence to demonstrate any undue
inconvenience or nuisance. |
|
107. |
The Commission further notes that those parties
representing the market and survey research industry, such as the CAFII, CSRC
and the ICA, argued that applying the solicitation conditions to market and
survey research calls would impact on the ability of those conducting such
calls to obtain accurate and cost-effective data. The Commission also notes
that several TSPs reported that they had not received a significant number of
complaints related to market and survey research calls. |
|
108. |
The Commission considers that, in the absence of
evidence demonstrating undue inconvenience or nuisance, it is inappropriate
to amend the rules that apply to market and survey research calls at this
time. |
|
109. |
The Commission notes that there are currently no
specific restrictions associated with the use of predictive dialing devices
(PDDs) which are devices that automatically initiate outgoing calls. The PDD
dials the next call in advance so that the operator can then speak to the
next prospect as soon as the current call is terminated. These devices
generate dead air calls when a telemarketing representative is not
immediately available. The Commission notes the comments that dead air or
silence, when answering the telephone, is both disturbing and annoying, even
frightening. The Commission also notes that the PDDs can be specifically
programmed to dial calls based on pre-set rates and that telemarketers can
make adjustments to minimize dead air. |
|
110. |
The Commission considers that establishing a
maximum call abandonment rate is the best option to effectively reduce the
number of hang-ups and dead air calls that consumers experience. The
Commission considers that pre-setting the PDDs dialling rates to ensure a
maximum abandonment rate of 5%, measured over a calendar month, would be
reasonable and would balance the concerns of all parties. The Commission
requires that telemarketers using PDDs maintain records that provide clear
evidence that they have complied with this rule. The Commission also requires
TSPs to specifically monitor complaints regarding dead air and to report
these to the Commission. The Commission will continue to monitor the number
of complaints to determine if further consideration is required. |
|
111. |
With regard to whether the use of ADADs should
be allowed when communicating with a client with whom a firm has an ongoing
business relationship, the Commission considers that when a consumer
purchases a service or product from a company, or donates to a particular
charity, there is no "implied consent" as a result of that purchase to
receive future solicitations. The Commission is of the view that explicit
consent should be obtained before a future solicitation is presumed to be
acceptable. |
|
112. |
The Commission notes that, in Decision
94-10, it determined that it was in the
public interest to prohibit the use of ADADs to make unsolicited calls for
the purpose of solicitation. The Commission also found that ADAD calls for
the purpose of soliciting existing customers would not be permitted. The
Commission established the rules regarding the prohibition of ADAD use for
solicitation in response to a significant number of complaints. The
Commission is of the view that the present rules have proven to be effective
given a substantial decrease in the number of ADAD complaints. The Commission
also found that it was not in the public interest to prohibit unsolicited
ADAD calls where no attempt was made to solicit such as calls for emergency
purposes; to collect overdue accounts; for market or survey research; and to
schedule appointments. The Commission finds that no changes are required to
the current rules regarding the use of ADADs. |
| |
Implementation
|
|
113. |
In conclusion, based on the foregoing, the
Commission directs the ILECs to file, for approval, tariff page
revisions incorporating all the changes to the telemarketing rules set out in
this decision, including those related to the identification requirements,
the dead air restrictions and the do not call procedures within 30 days of
the date of this decision. |
|
114. |
The Commission also directs all IXCs,
WSPs and CLECs, pursuant to section 24 of the Act, as a condition of offering
and providing telecommunications services, to adhere to the new rules set out
in this decision. The Commission notes that these new requirements are in
addition to the existing requirements imposed on these service providers in
Order 2001-193. The Commission
also reminds all LECs that they are required, as a condition of providing
service to resellers wherever they operate, to include a contractual
stipulation which would oblige resellers to adhere to the additional rules
set out in this decision. |
| |
Management of complaint statistics
|
|
115. |
The Commission considers that, along with the
changes to the rules and other measures outlined in this decision, and while
awaiting possible legislative changes, there is a need to continue monitoring
complaints concerning telemarketers who contravene the rules. The Commission
requires comparable statistics to track progress in the reduction of
complaints and to identify other issues that might require further changes to
the current policies. |
|
116. |
Although numerous sets of statistics with
respect to complaints about telemarketing were filed on the record of this
proceeding, the Commission notes a number of problems associated with the
data provided. The complaint statistics did not always provide the level of
detail required. The Commission could not accurately compare the number of
telemarketing complaints with the total number of complaints about
telecommunications in general nor the number of fax and voice telemarketing
complaints as separate subsets of telemarketing complaints overall. As a
result of these combined inconsistencies, the Commission considers that the
statistics available do not reliably illustrate the extent of the nuisance to
consumers that is caused by actual violations of the rules, nor the areas of
telemarketing in which the violations are actually taking place. |
|
117. |
The Commission considers that more accurate and
detailed statistics will help to maintain a telemarketing regime that strikes
the appropriate balance among the interests of consumers, telemarketers and
TSPs. Improved statistics and complaint reporting will assist the Commission
and other stakeholders to better determine more clearly where difficulties
continue to exist and what further changes are required to the regulatory
regime. |
|
118. |
The Commission directs all TSPs to file
semi-annual reports summarizing telemarketing complaint statistics in the
format set out in the appendix to this decision. The first report is to cover
the period 1 January to 30 June 2005 and is to be filed within 60 days of the
end of the period. |
|
119. |
The Commission directs that all
complaints concerning telemarketing activity, that are addressed in written
or verbal form to officers and department heads of the company or referred to
the company by the Commission, must be included in the semi-annual report. |
|
120. |
The Commission further directs that the
reports are to include the following information: |
| |
i) the total number of telecommunications complaints;
|
| |
ii) the total number of telemarketing complaints;
|
| |
iii) the number of complaints where no rule was breached; and
|
| |
iv) the number of out-of-territory complaints when service is provided
to the telemarketer by another TSP.
|
|
121. |
In order to monitor the types of complaints, the
Commission also directs the TSPs to report the following statistics
separately for voice and fax related complaints: |
| |
i) calls placed outside of prescribed hours;
|
| |
ii) calling party not properly identified;
|
| |
iii) unable to place the do not call request at time of call;
|
| |
iv) do not call request not confirmed with a registration number;
|
| |
v) do not call requests not effective within 30/7 days;
|
| |
vi) toll-free number provided by the telemarketer busy or no answer;
|
| |
vii) the number of dead air complaints; and
|
| |
viii) the number of ADAD complaints.
|
|
122. |
In addition to the above statistical report, the
Commission directs each TSP to provide: |
| |
i) the name and any other identifying information, where available, of
any telemarketer allegedly breaking the rules;
|
| |
ii) the rule breached, reported separately for voice and fax;
|
| |
iii) the concern of caller if no rule is breached but caller is still
unhappy; and
|
| |
iv) the names of any parties who have been disconnected for
non-compliance along with the associated reason.
|
|
123. |
The Commission will continue to monitor
telemarketing complaints received at the Commission and will compile its
statistics in a similar format. |
| |
Awareness program
|
|
124. |
The Commission notes that many parties submitted
that awareness of the rules governing telemarketers was generally lacking and
that the effectiveness of the rules could be enhanced through further
customer communication. The Commission is of the view that consumers need to
have a better understanding of the types of telemarketing activity that are
allowed and those that are prohibited. The Commission also recognizes that
consumers often do not know what to do in order to prevent unsolicited calls.
The Commission understands that the rules pertaining to telemarketers are set
out in its decisions and orders which are not generally consulted by the
ordinary consumer. For this reason, the Commission finds that there is a need
to further publicize the telemarketing rules to the consumers and also to
ensure that all telemarketers are fully aware of the rules governing their
operations. The Commission encourages the telemarketing industry to continue
to educate its members on ways to minimize customer annoyance and
disturbance. |
|
125. |
In addition to the changes to the existing rules
that it initiates in this decision, the Commission finds that a substantial
multi-faceted awareness program for both consumers and telemarketers is
required. The Commission considers that this program must be clear and
readily accessible to all. The Commission intends to prominently display on
its website separate fact sheets concerning telemarketing regulation for both
the public and for telemarketers. The Commission will also describe the
recourse that consumers have when they feel unduly bothered by unsolicited
calls. |
|
126. |
The Commission directs all TSPs to
produce a billing insert clearly describing the rules concerning unsolicited
telecommunications and to file it for approval within 30 days of the date of
this decision. The Commission further directs all TSPs to distribute
the approved insert to all subscribers, once annually, for three consecutive
years, immediately following approval. |
|
127. |
The Commission directs ILECs to
prominently explain all the telemarketing rules in a separate full page
section of the introductory pages of the white pages directories, beginning
with the next directory publication. |
|
128. |
The Commission directs all TSP to inform
business customers of the rules and the consequences for breaching rules at
time of installation of service if the TSP has reasonable grounds to believe
that the customer intends to use the service for the provision of unsolicited
telecommunications. |
| |
Secretary General |
| |
This document is available in alternative
format upon request and may also be examined at the following Internet site:
http://www.crtc.gc.ca |
