The Canadian Radio-television and Telecommunications Commission ("CRTC") launched its National Do Not Call ("DNC") List on September 30, 2008. On April 20, 2009, it concluded a follow-up proceeding to address three policy issues that had arisen during the implementation of the DNC regime. Canadians have welcomed the DNC regime by registering their phone numbers, and report that they receive fewer telemarketing calls as a result. Although there have been some growing pains and the CRTC is now investigating the first round of complaints, the DNC regime has had qualified success.
The DNC Regime
Following amendments to the federal Telecommunications Act that came into force in 2006, the CRTC established the regulatory framework for a National DNC List and set out its Unsolicited Telecommunications Rules, in a decision issued in July, 2007. A request for proposals followed, resulting in the selection of a National DNC operator. Consumers were able to register their phone numbers starting September 30, 2008. Under this regime, unsolicited calls to listed numbers for the purpose of solicitation (which is defined to mean the sale or promotion of a product or service, or the solicitation of money or money's worth) are prohibited. Administrative monetary penalties ("AMPs") can be awarded against telemarketers who make such calls; the CRTC can award AMPs of up to $1,500 per violation for individuals and up to $15,000 per violation for corporations.
In October 2008, the CRTC initiated a follow-up administrative proceeding to address three issues that had arisen during the implementation of the National DNC registry, and its conclusions were released on April 20, 2009, in "Modifications to some Unsolicited Telecommunications Rules", Telecom Regulatory Policy CRTC 2009-200.1
First, the CRTC considered and created an additional exemption for political candidates who are not members of a registered political party. The original exemption, created by Parliament, was limited to candidates representing registered parties. This had the effect of excluding candidates for municipal office, who generally are not members of registered political parties. Concluding that all legitimate candidates for political office should have the same ability to contact potential voters, the CRTC expanded the exemption to apply to telemarketing telecommunications made by or on behalf of municipal and other candidates not representing registered parties.
Second, the original rules included a requirement that consumers re-register their telephone numbers after a three-year period. In the follow-up proceeding, the CRTC considered whether consumer registrations on the DNC List should be made permanent. A number of parties, including telephone companies and groups representing marketers, argued that it was too early to assess whether such a change could be made in a cost-effective manner, and that information should be reviewed to consider processes to generate and collect reports from telecommunications service providers about phone numbers that are transferred, disconnected or reassigned, in order to remove such numbers from the National DNC List. This information will be collected and reviewed by the CRTC. In the meantime, the registration period has been extended to five years. This change applies to the numbers that are already registered and to future registrations.
Third, the CRTC has harmonized its requirements for the use of automatic dialling and announcing devices ("ADADs") with provincial requirements. The CRTC's rules prohibit the use of ADADs for telemarketing purposes, but permit the use of ADADs for other purposes, such as bill collection calls. Previously, the CRTC imposed calling hour restrictions on the permitted use of ADADs, which in some cases were more restrictive than corresponding provincial restrictions. The April 20, 2009 decision provides that where provincial legislation includes calling hour restrictions for calls using ADADs, those restrictions (and not the CRTC restrictions) apply. Consequently, the CRTC's calling hour restrictions for ADAD calls only apply where there is no applicable provincial legislation.
Poll Indicates Most Consumers Receive Fewer Calls
As of April 20, 2009, more than 6.7 million phone numbers had been registered on the National DNC List. A poll conducted in March 2009 by the Marketing Research and Intelligence Association reported that registration has generally reduced the number of telemarketing calls; 80% of Canadians who had registered their numbers reported receiving fewer telemarketing calls. Unfortunately, the poll also reports that 13% of registered respondents have received more telemarketing calls. This increase is attributed to an increase in telemarketing activity in Canada by U.S.-based telemarketers using automated dialling systems contrary to the CRTC's rules.
Investigation Of Complaints
The CRTC has received thousands of complaints and conducted several hundred investigations. In many cases, the complaints are unfounded, on the basis that the calls complained of are bill collection calls, calls for market research surveys or other types of exempt calls. In circumstances where the complaints are valid, the CRTC first attempts to educate telemarketers by issuing warning letters, but then conducts further investigations as required. Generally, telemarketers are working to comply with the new regime, although some difficult issues exist where telemarketers are not legitimate business operations or where they are not based in Canada. Overall, however, telemarketers have complied with the DNC regime, providing millions of Canadians with at least some relief from disruptive and unwanted telemarketing calls.
Further Update: First Reading Of Bill C-27
On April 24th, the federal government introduced the Electronic Commerce Protection Act, Bill C-27. This bill targets online fraud and spam and the theft of personal information. It would also revoke and replace the CRTC's DNC regime with a broader prohibition against sending "unsolicited electronic messages." Such messages include text and voice messages, delivered via e-mail or by phone. Under the proposed legislation, consent would generally be required; the range of exemptions is much narrower than under the current DNC regime. It will be important to follow the progress of Bill C-27, in order to provide appropriate advice to clients that are engaged in telemarketing.
1. The CRTC's press release and decision are available on its website at http://www.crtc.gc.ca/eng/news/releases/2009/r090420.htm and http://www.crtc.gc.ca/eng/archive/2009/2009-200.htm.
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