Recent CRTC Telecom Decision 2008-6 clarifies the CRTC
Unsolicited Telecommunications Rules. Once the CRTC's
the third party investigator under the rules is operational,
all organizations on whose behalf telemarketing is performed,
even those whose only telemarketing activities are exempt from
the National Do-Not-Call List (DNCL) Rules, will need to
register with and pay the National DNCL operator (currently
Bell Canada) and the investigator. Affected organizations
should proceed quickly to comply with these rules, expected to
be fully in force by September 30, 2008.
The rules and reasons for the enforcement and operation of the National DNCL for companies and telemarketers are set out in CRTC Telecom Decisions CRTC 2007-47 and CRTC 2007-48, both issued July 3, 2007, and slightly amended in Telecom Decision CRTC 2008-6. The Unsolicited Telecommunications Rules also varied some of the telemarketing rules established in Decision CRTC 2004-35. The National DNCL implements Bill C-37, An Act to amend the Telecommunications Act, which came into force June 30, 2006.
Consumers will be able to register individual home, wireless and fax numbers for free through a toll free number (to be determined) or online through the Internet. Each registration will remain effective for a three-year period, after which the number will automatically be de registered (it will be the consumer's responsibility to re-register). The National DNCL Rules do not apply to telemarketing made to a business consumer, or for various exempt purposes discussed below.
From the point of view of those involved in telemarketing, the result of the new National DNCL Rules is, first and foremost, that each telemarketer must be a registered subscriber to and abide by the National DNCL if they wish to engage in telemarketing for their own benefit or to hire a telemarketer on their behalf. The registration obligation includes fees to the National DNCL operator and the Complaints Investigator under the rules, and applies whether or not the affected organization does any telemarketing which would be governed by the National DNCL Rules. Subscribers to the National DNCL may not use it for purposes other than those set out in the rules. The list itself may not be sold, rented, leased, published or otherwise disclosed, except in limited circumstances and only then on a completely confidential basis.
Telemarketers will now be required to update their own lists with the National DNCL, and there will be a 31-day grace period from the date of registration by the consumer for affected lists to be updated. As is currently the case, consumers may request to have their numbers added to a telemarketer's own list, which request must be processed by telemarketer at the time of the call (but perhaps not implemented for up to 31 days) and honoured (by maintaining the number on the list) for 3 years and 31 days from the date of the request.
Telemarketers will need to maintain records of compliance with the Unsolicited Telecommunications Rules as they maintain other ordinary course of business records, and provide such records to the CRTC within 30 days of a request to do so.
The existing requirement of telemarketers to provide a toll-free do-not-call inquiry line is somewhat lightened by that line no longer needing to be answered by a live operator during business hours (but merely needing to be able to record all messages) and by unique tracking numbers for the request no longer needing to be provided. However, toll-free numbers for both the telemarketer and the client of the telemarketer must be provided to a call recipient if such a request is made, and messages to the toll-free number must be responded to within 3 business days.
Telemarketing is restricted to the hours of 9:00 a.m. to 9:30 p.m. on weekdays, 10:00 a.m. to 6:00 p.m. on weekends, in the time zone of the recipient, without regard to statutory holidays (ostensibly because the CRTC is of the view that telemarketing does not normally occur on statutory holidays).
Sequential dialling is prohibited for the purposes of telemarketing altogether, and random dialling must exclude numbers on the National DNCL, the client's do not call list and the telemarketer's do not call list, as well as emergency lines and those associated with healthcare facilities. Automatic Dialing-Announcing Devices (ADADs) may not be used for solicitation without "express consent", and may only be used for other non-solicitation purposes in accordance with the ADAD Rules.
Telecommunications exempt from the National DNCL Rules
Pursuant to the Telecommunications Act, the National DNCL Rules will not apply to telecommunications:
- by or on behalf of registered charities;
- by or on behalf of political parties;
- to collect information for a survey;
- to solicit a subscription for a "newspaper of general circulation; and
- to a consumer that has an existing business relationship with the telemarketer (provided that such consumer has not withdrawn its consent to be so contacted).
This final exemption permits a telemarketer to solicit the customers of the telemarketer's clients notwithstanding that the applicable number is on the National DNCL, but both the telemarketer and its client will still be responsible for general compliance with the National DNCL rules and the Unsolicited Telecommunication Rules. This exemption does not extend the business relationship of one company to its affiliates.
It is important to note that the exemptions apply to telecommunications and not to the entities themselves, such that all entities are subject to compliance with other aspects of the Unsolicited Telecommunications Rules (including the prohibition on telemarketing by using Automatic Dialing-Announcing Devices (ADADs) and the obligation to remove complaining consumers from a telemarketer's own do not call list, etc.). This view was confirmed by the CRTC in Telecom Decision CRTC 2008-6.
Consumers who receive unsolicited telemarketing in violation of the rules must complain within 14 days of a call. Complaints may be made to the National DNCL operator (discussed below), but will be investigated by a third party.
The CRTC has authority to impose administrative monetary penalties (AMPs) of up to $15,000 on corporate violators, or up to $1,500 in the case of an individual. Whether it decides to impose an AMP, and the amount of the penalty, will be determined in each case in light of the following factors: (i) the nature of the violations, (ii) the number and frequency of complaints and violations, (iii) the relative disincentive of the measure and (iv) the potential for future violations.
The defences to breach of the National DNCL Rules are quite broad, and include the due diligence defence applicable to the Unsolicited Telecommunications Rules generally, the exemptions above and a prior business or personal relationship.
In cases where a defendant intends to rely on the express consent of a call recipient, the burden and evidence required to establish consent is set out in the rules.
Among other amendments to Telecom Decision CRTC 2004-35 in Telecom Decision CRTC 2007-48, the permissible abandonment rate for telemarketers using a predictive dialing device will be fixed at 5% per calendar month, and the telemarketer must maintain records in relation to this rate. The "permissible abandonment rate" refers to "dead air" calls that are abandoned when a predictive dialing device (i.e. a dialing device which uses a pre-determined list of numbers) reaches a consumer but there is no "live agent" available to handle the call at the telemarketer's end.
Selection of the National DNCL Operator - Bell Canada
A major step toward the implementation of the National DNCL took place on December 21, 2007, when the CRTC announced that Bell Canada had been awarded a five-year contract to operate the list. As operator of the National DNCL, Bell Canada will be responsible for registering numbers, providing telemarketers with up-to-date versions of the list and receiving consumer complaints. Subscription fees received from telemarketers will fund Bell Canada's costs as operator of the National DNCL, and all telemarketers, even those only making exempt communications, must register and pay the fees.
Selection of the Telemarketing Complaints Investigator - Announcement Pending
Although the CRTC is granted broad investigative powers under the Unsolicited Telecommunications Rules, the CRTC announced in Telecom Decision CRTC 2008-6 that it will delegate these powers to an outside service provider (Complaints Investigator) to be chosen pursuant to a request for proposal. Pursuant to its February 15, 2008 news release, the request for proposal was open until March 25, 2008
The Complaints Investigator will be entitled to charge telemarketers in relation to the investigation service, which is expected to be levied at the time of registration with the National DNCL operator.
The National DNCL Rules are expected to come into effect on September 30, 2008, and the rules regarding the Complaints Investigator once it is operational. Given the interrelation between the roles, it is not expected that the Complaints Investigator will be operational before the National DNCL.