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Telecom Decision CRTC 2005-15
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Ottawa, 17 March 2005 |
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Part VII application to revise Article 11 of the Terms of Service
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Reference: 8665-A53-200414417 |
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In this Decision, the Commission directs
Canadian carriers to modify their existing tariffs, customer contracts,
and other arrangements to expand the list of acceptable methods of
obtaining express consent for the disclosure of confidential customer
information. |
1. |
The Commission received an application from
Bell Canada on behalf of itself; Aliant Telecom Inc.; Bell Mobility;
NorthernTel, Limited Partnership; Northwestel Inc.; and Société en
commandite Télébec (collectively the Companies); dated 29 November 2004,
and filed pursuant to Part VII of the CRTC Telecommunications Rules
of Procedure. In their application, the Companies requested a
revision to Article 11 of the Terms of Service with respect to the
methods of obtaining express customer consent for the disclosure of
confidential customer information. |
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Process
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2. |
The Commission received comments, dated
between 20 December and 29 December 2004, from the Canadian Cable
Telecommunications Association, Quebecor Média inc., MTS Allstream Inc.,
Rogers Communications Inc., and TELUS Communications Inc.
and TELE-MOBILE COMPANY (collectively, the respondents). |
3. |
The Commission received reply comments from
the Companies, dated 13 January 2005. |
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The application
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4. |
The Companies noted that in Confidentiality
provisions of Canadian carriers, Telecom Decision CRTC 2003-33,
30 May 2003 (Decision 2003-33),
as amended by Telecom Decision CRTC 2003-33-1,
dated 11 July 2003 (Decision 2003-33-1),
the Commission had expanded the forms of express consent required
by Canadian carriers for the disclosure of confidential customer information,
such that express consent might be taken to be given by a customer
where the customer provided: |
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· written consent;
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· oral confirmation verified by an independent third party;
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· electronic confirmation through the use of a toll-free
number; or
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· electronic confirmation via the Internet.
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5. |
The Companies submitted that while these
existing methods provided some notional flexibility with respect to the
collection of express consent, there were a number of shortcomings with
them. The Companies also submitted that, in most cases, these methods
provided little additional benefit beyond the previous written consent
requirement. In the Companies' view, both oral confirmation verified by
an independent third party and electronic confirmation through the use
of a toll-free number were logistically awkward and disruptive to
customers attempting to manage their telecommunications services with
the Companies. According to the Companies, while electronic confirmation
via the Internet did not present the same problems, the Internet was
used to process online information transactions by too small a segment
of customers to constitute a practical method for obtaining express
customer consent. |
6. |
The Companies argued that each of the
express consent methodologies approved to date by the Commission could
be characterized by two essential requirements, which were: |
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· first, that the consent must require some deliberate,
unequivocal action on the part of the customer in order to signify
that the consent was express and not implied; and
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· second, that an acceptable form of consent must produce a
record of the consent transaction that would be retained for as long
as that consent was relied upon.
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7. |
The Companies submitted that any consent
methodology that might be available, currently or in the future, that
would satisfy these two requirements, should satisfy the express consent
requirement found in the Commission's restriction on confidentiality of
customer information. The Companies further submitted that it was a far
more efficient use of time and resources – for customers, the
Commission, and telecommunications service providers (TSPs) – to
establish express consent requirements that were based on clearly
identified principles, rather than maintaining a regime where the
Commission must approve each and every particular express consent method
that TSPs might want to employ. |
8. |
The Companies requested that the Commission
amend the text of the Terms of Service dealing with the confidentiality
of customer information by replacing the paragraph that describes the
four existing methods for obtaining express consent to disclose
confidential customer information with the following: |
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Express consent may be taken to be given by a customer where, in
response to a request for consent, the customer signifies acceptance
by providing an active, positive affirmation, and a record of the
customer's consent is retained by [the Company].
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9. |
As an alternative, the Companies requested
that should the Commission determine that it must approve each potential
express consent methodology rather than the text noted above, then the
Terms of Service should be revised to add the following to the list of
methods for obtaining express consent to disclose confidential customer
information: |
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Oral consent, where an audio recording of the consent is retained
by the Company.
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10. |
The Companies submitted that, in the case
of this alternative, customers would be advised of any such recording
and its purpose, and that any audio recordings would be made in
accordance with both the Personal Information Protection and
Electronic Documents Act (PIPED Act) and the Best Practices for
Recording of Customer Telephone Calls established by the Privacy
Commissioner of Canada. |
11. |
The Companies noted that they intended to
use alternative forms of express consent to more efficiently obtain the
required customer authorization, solely to share customer profile
information with affiliated companies. |
12. |
The Companies submitted that the requested
modification to the existing restrictions would allow for more
responsive and attractive offers and more efficient and effective
service to customers. The Companies further submitted that customers and
the Commission would be assured of the continued protection of customer
privacy, including ongoing compliance with the Commission's restriction
on confidentiality of customer information and the PIPED Act. |
13. |
The Companies submitted that it was their
intention, under each alternative, to retain records of express consent
for as long as they intended to rely on such consent, and to provide
access to such recordings in response to a request by a customer for
access to personal information, consistent with the requirements of the
PIPED Act. |
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Positions of parties
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14. |
The respondents fully supported the
application as filed, including the two alternatives as proposed. The
respondents requested that the Companies' proposed amendments be
extended to apply to all TSPs subject to the Commission's restrictions
on confidentiality of customer information. |
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The Companies' reply comments
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15. |
The Companies noted that the respondents
had provided full and unequivocal support to the application as filed
and had asked that the amendments requested by the Companies be extended
to apply to other carriers subject to the Commission's restrictions on
confidentiality of customer information. |
16. |
The Companies further noted that the
respondents were, or represented, current or potential competitors of
the Companies and that no party had opposed the application, nor made
any argument or adduced any evidence that would support a denial of the
Companies' application. |
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Commission's analysis and determinations
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17. |
The Commission notes that prior to Decision
2003-33, the only acceptable method
of obtaining customer consent to the disclosure of confidential customer
information was written consent. In Decision 2003-33,
the Commission denied the request by some parties to allow the disclosure
of confidential customer information based on implied consent. The
Commission confirmed that where customer consent was required, express
consent remained the appropriate type of consent. The Commission recognized,
however, that it was appropriate to expand the list of acceptable
means of obtaining express customer consent to include those methods
which had been approved previously by the Commission in Optel Communications
Corporation vs. Bell Canada – CRTC clarifies contract requirements
for local link service, Order CRTC 2000-250,
30 March 2000. The Commission considered that these methods
would allow Canadian carriers greater flexibility in obtaining
customers' consent to the disclosure of their confidential information,
while still allowing a sufficient level of privacy protection. |
18. |
In Follow-up to Telecom Decision CRTC
2003-33– Confidentiality provisions
of Canadian carriers, Telecom Decision CRTC 2004-27,
22 April 2004, the Commission directed all Canadian carriers, as a
condition of providing telecommunications services, to include in
their service contracts or other arrangements with resellers, the
requirements that these resellers abide by the confidentiality provisions
approved in Decision 2003-33,
as amended in Decision 2003-33-1. |
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The "blanket" rule
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19. |
In the Commission's view, the Companies'
preferred alternative of replacing the list of acceptable methods of
obtaining express consent with a "blanket" rule does not provide
customers with sufficient privacy protection. |
20. |
The Commission notes that under the Companies'
proposed blanket rule, express consent would be considered to have
been obtained where the customer provides an active positive affirmation
and a record of the customer's consent is retained by the Company.
In Decision 2003-33, the Commission
rejected a proposal that would have allowed express consent to be
obtained by means of verbal consent from the customer followed by
a letter of confirmation from the Canadian carrier to the customer.
The Commission considered that this method would inappropriately put
the onus on the customer to dispute the confirmation letter and would
not, therefore, be an acceptable method of obtaining express customer
consent. |
21. |
The Commission also notes that the key
characteristic of all of the approved methods of obtaining express
customer consent is that the record of that consent is not created by
the party obtaining the consent. In all of these cases, a documentary
record is created in an objective manner, thereby drastically reducing
the possibility of disputes between the customer and the Canadian
carrier over whether consent has been given. The Commission notes,
further, that with all of these methods, the onus of proving that
consent was given lies with the Canadian carrier, who must produce the
documentary record containing the consent of the customer. |
22. |
The Commission considers that the blanket
rule, as proposed by the Companies, would allow for the adoption of
methods of consent that would conflict with the Commission's concerns
expressed in Decision 2003-33.
The Commission considers that the Companies' proposal is worded so
broadly that it would allow for the possibility of oral consent with
a written record created by the company rather than by the customer
or an independent third party. In the case of a dispute between the
customer and the company over whether consent had been given, the
burden would be placed on the customer to dispute the correctness
of the company's record keeping. The Commission is of the view that,
in the absence of an objective method of record gathering, such disputes
would be reduced to a contest of the customer's word versus the company's
word. |
23. |
The Commission considers that the
Companies' proposed blanket rule does not provide customers with
sufficient privacy protection. The Commission also considers that this
rule would open the door to methods of consent that would not result in
an objective record of consent being created by the customer or an
independent third party, but would, however, shift the burden of
disputing the fact of consent to the customer. |
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The audio recording method
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24. |
The Commission notes that the Companies
proposed, as an alternative, that the Commission should add another
option to the list of acceptable methods of obtaining customer consent
to the disclosure of confidential customer information. This alternative
consists of oral consent, where an audio recording of the consent is
retained by the company. |
25. |
The Commission considers that the audio recording
method would result in a record of the consent being created in an
objective manner by the action of the customer, in contrast to the
blanket rule discussed above. The Commission also considers that the
audio recording method would be consistent with the other methods
previously approved by the Commission in Decision 2003-33. |
26. |
The Commission considers, further, that the
reasons provided in the Companies' application and the unanimous support
provided by the respondents demonstrate that the current acceptable
methods of obtaining customer consent do not provide TSPs with
sufficient flexibility to obtain customer consent in a manner that is
practical for the Companies, while still protecting the privacy of
customers. |
27. |
The Commission notes the Companies'
commitment to advise customers of any recording and its purpose, and
their commitment that any audio recordings would be made in accordance
with both the PIPED Act and the Best Practices for Recording
of Customer Telephone Calls established by the Privacy Commissioner
of Canada. Accordingly, the Commission considers that the audio
recording method would provide customers with sufficient privacy
protection. |
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Additional methods
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28. |
The Commission considers, further, that
maintaining a regime where the Commission must approve each and every
particular express consent method that TSPs may want to employ would not
result in the most efficient use of time and resources – for customers,
the Commission, or the TSPs. In the Commission's view, permitting the
TSPs to obtain consent through other methods that ensure that the
customer or an independent third party create an objective documented
record of customer consent would provide greater flexibility to the TSPs,
while still ensuring sufficient privacy protection for customers. |
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Conclusion
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29. |
In light of the above, the Commission directs
Canadian carriers to modify their existing tariffs, customer contracts,
and other arrangements to amend the list of acceptable methods of
obtaining express consent as determined in the last paragraph of Decision
2003-33-1 as follows: |
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Express consent may be taken to be given
by a customer where the customer provides: |
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· written consent;
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· oral confirmation verified by an independent third party;
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· electronic confirmation through the use of a toll-free
number;
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· electronic confirmation via the Internet;
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· oral consent, where an audio recording of the consent is
retained by the carrier; or
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· consent through other methods, as long as an objective
documented record of customer consent is created by the customer or by
an independent third party.
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30. |
The Commission also directs those Canadian
carriers that offer services pursuant to approved tariffs to file for
approval proposed tariff pages reflecting the determinations made in
paragraph 29, no later than 15 April 2005. |
31. |
The Commission directs, further, as a
condition of providing telecommunications services, that Canadian
carriers include, on a going-forward basis, provisions reflecting the
direction given in paragraph 29 in customer service contracts and other
arrangements, including those with resellers, with respect to all
forborne services, except forborne mobile wireless services that are not
switched (affected forborne services). In addition, these provisions
will also apply to all existing customers of affected forborne services,
including resellers, regardless of whether the provisions were included
in the service contracts or other arrangements entered into by
those customers. |
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Secretary General |
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This document is available in alternative
format upon request, and may also be examined in PDF
format or in HTML at the following Internet site: http://www.crtc.gc.ca
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