Copyright 2009, Blake, Cassels & Graydon LLP
Originally published in Blakes Bulletin on Communications, April 2009
On April 20, 2009, the Canadian Radio-Television and Telecommunications Commission (CRTC), the federal agency charged with regulating telecommunications in Canada, released Telecom Regulatory Decision CRTC 2009-200, "Modifications to some Unsolicited Telecommunications Rules".
In modifying three provisions of the Unsolicited Telecommunications Rules, namely with respect to (i) telemarketing telecommunications made by or on behalf of non-party candidates; (ii) calling hour restrictions applied to unsolicited telecommunications made using an automatic dialing-announcing device (ADAD); and (iii) the duration of existing and future consumer registrations of telecommunications numbers, the CRTC stated that the exemptions for the National Do Not Call List (DNCL) set forth in sub-section 41.7(1) of the Telecommunications Act (the Act) are not exhaustive and that Parliament did not intend to limit the CRTC's authority to create further exemptions where appropriate.
Unsolicited telecommunications are regulated by the CRTC pursuant to sections 41 to 41.7 of the Act. Pursuant to these provisions and in order to prevent undue inconvenience or nuisance to consumers while at the same time allowing for freedom of expression and the legitimate use of telemarketing communications, the CRTC established the National DNCL and the Unsolicited Telecommunications Rules, comprising the National DNCL Rules, the Telemarketing Rules and the Automatic Dialing-Announcing Device (ADAD) Rules, which took effect on September 30, 2008.
The National DNCL is a nationwide registry which allows Canadian consumers to reduce the number of unsolicited telemarketing calls they receive by registering themselves on this list. Subscription to the National DNCL is mandatory for every organization which carries out telemarketing for the purposes of solicitation or for those who hire a third party to make the telemarketing calls on their behalf. Telemarketing was defined in CRTC Decision 2008-6 as "the use of telecommunications facilities to make unsolicited telecommunications 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 person. This includes solicitation of donations by or on behalf of charitable organizations".
Telemarketers are responsible for making sure that the numbers they call are not on the National DNCL. Also, the National DNCL maintains the obligation for each telemarketer to maintain their own do-not-call-list.
Whereas the Unsolicited Telecommunications Rules apply to all telemarketing, certain telecommunications are exempt from the application of the National DNCL. Prior to the Decision, the exemptions set forth in section 41.7 of the Act included telecommunications to a business consumer and telecommunications from:
- registered charities;
- registered political parties or an association of members of same, nomination or leadership contestants or candidates of a registered political party;
- opinion polling or market research firms for the sole purpose of surveying members of the public;
- newspapers, regarding soliciting a subscription for a newspaper of general circulation; and
- a business which has an existing business relationship with a consumer.
(i) Telemarketing Telecommunications on behalf of Non-Party Candidates
The Decision extends the exemption granted to candidates of registered political parties under sub-section 41.7(1) of the Act to non-party candidates. In widening the exemption set forth under the Act, the CRTC determined that it has the necessary jurisdiction to add new, or expand existing, exemptions pursuant to the CRTC's general jurisdiction regarding unsolicited telecommunications set forth in section 41 of the Act. In other words, the CRTC is of the view that the exemptions established by Parliament are the minimum list of statutory exemptions, and that Parliament did not intend to limit the CRTC from creating further exemptions in the public interest.
In this case, Parliament provided a definition of "candidate" for purposes of exempting telemarketing by a candidate of a registered political party. The CRTC concluded that Parliament's definition was too narrow and adopted the view that all candidates in an election should be treated equally, for the purposes of the National DNCL Rules, whether or not they are members of registered political parties.
By treating the statutory exemptions to the National DNCL as a minimum, rather than an exhaustive list of exemptions, the CRTC has opened the door to other applicants potentially seeking to further expand the list of exemptions to the National DNCL on the grounds that their particular form of telemarketing is in the public interest. However, it remains to be seen whether the Decision would be upheld by the Federal Court if appealed on the grounds that the CRTC lacked jurisdiction to determine that the list of exemptions set out in sub-section 41.7(1) of the Act is not exhaustive.
(ii) Calling Hour Restrictions for Unsolicited Communications using an ADAD
The Decision also addresses the overlap between calling hour restrictions under the provincial and federal rules for ADADs, allowing further latitude where provincial legislation is more lenient. In particular, the CRTC repealed the rule stipulating that calling hour restrictions in respect of ADAD telecommunications set forth in provincial legislation applies only if such calling hours are more restrictive than the federal calling hours set by the CRTC. There is little evidence, according to the CRTC, to suggest that allowing the application of provincial calling hour restrictions, which in many cases provide more flexible calling hours than those allowed in the federal ADAD Rules, would result in any undue inconvenience or nuisance for consumers. As such, the CRTC has amended Section 4(c) of the ADAD Rules to defer to the calling hour restrictions provided in provincial legislation, where applicable, that govern a particular telecommunications activity as long as the telecommunication is made for the purpose of that activity.
(iii) Period for Consumer Registrations of Telecommunication Numbers on the National DNCL
Finally, in response to consumer support for a permanent registration period, the CRTC decided to increase the duration of existing and future consumer registrations of telecommunication numbers on the National DNCL to five years, from three, and has requested the CRTC Interconnection Steering Committee to review the issue of permanent registration and evaluate options regarding the removal of disconnected and reassigned numbers from the National DNCL. Consumers maintain the right to deregister their telecommunications numbers from the National DNCL during that period.
It is also important to note that with the recent tabling of Bill C-27, the Electronic Commerce Protection Act (ECPA), the DNCL's short life may come to an abrupt end or be drastically modified. If enacted, the ECPA would, among many other things, amend and repeal certain provisions of the Telecommunications Act which may dismantle the current DNCL. This recent bill will be the subject of an upcoming Blakes Bulletin.
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