On December 21, 2007, the Canadian Radiotelevision and Telecommunications Commission (CRTC) awarded a five-year contract to Bell Canada to operate a National Do Not Call List (National DNCL). This contract implements a key aspect of Telecom Decision CRTC 2007-48, summarized below.
In Telecom Decision CRTC 2007-48, the CRTC established a comprehensive framework for unsolicited telemarketing calls and other unsolicited telecommunications received by consumers. The framework includes rules for a National DNCL registry as well as rules regarding telemarketing and automatic dialling-answering devices — the Unsolicited Telecommunications Rules.
The registry will allow consumers to reduce the number of unsolicited telemarketing calls they receive by making a single registration. Under the framework, a subscriber or an individual having authority to act on behalf of a subscriber may register and de-register his or her telephone number with the National DNCL.
A consumer’s registration will expire three years after the effective registration date and the consumer’s telephone number will automatically be de-registered from the list. It will be the consumer’s responsibility to re-register their telephone number after that period. If the consumer’s number changes during the registration time, the consumer will have to register the new number with the National DNCL.
There will be no cost to register on the national DNCL since all the operational costs will be recovered from the subscription fees that telemarketers will be required to pay to the National DNCL operator.
Certain types of unsolicited telecommunications will be exempt from the National DNCL Rules, such as those made:
- by or on behalf of registered charities;
- by or on behalf of political parties (i.e., a registered political party, a candidate of a political party or an association of members of a political party);
- to solicit a subscription for a generalcirculation newspaper;
- to a consumer that has an existing business relationship with the telemarketer; and
- to business consumers.
In the decision, the CRTC also updated the Unsolicited Telecommunications Rules to address (a) the do not call lists of telemarketers and clients of telemarketers; (b) caller identification; (c) call number display; and (d) permitted calling hours.
Telemarketers and clients of telemarketers are required to maintain their own “do not call” lists and to honour a consumer’s request not to be called. Even persons and organizations that are exempt from the National DNCL Rules are subject to these latter requirements.
Telemarketers will be required to provide call number display of the originating telemarketing communication or an alternative telecommunications number where the telemarketer can be reached for all telemarketing communications. Intentional blocking of call display information is a violation of the Unsolicited Telecommunications Rules.
Current restrictions on calling hours limit telemarketing communications to the hours of 9:00 a.m. to 9:30 p.m. on weekdays, and 10:00 a.m. to 6:00 p.m. on weekends.
Automatic Dialling-Answering Devices (ADADs) are also governed by the Unsolicited Telecommunications Rules. ADADs used for the purpose of solicitation, including telemarketing initiated by or on behalf of a charity, are prohibited. Use of ADADs is permitted only when there is no attempt to solicit, such as for public service reasons, for emergency purposes or to collect overdue accounts.
Telemarketers must maintain records to demonstrate proof of subscription and payment of fees to the National DNCL operator.
If a consumer has registered on the National DNCL and still receives calls from organizations that are not exempt, the consumer will be able to file a complaint within 14 days of receiving the offending telemarketing call. The National DNCL operator will identify a toll-free telecommunications number to call to file a complaint. Consumers will also be able to file their complaints online.
If a violation has occurred, the CRTC may impose monetary penalties for each violation of up to $1,500 for individuals, and up to $15,000 for corporations.
Several defences are available to a person accused of violating the Unsolicited Telecommunications Rules. They include valid prior express consent from the consumer, due diligence and common law defences.
The Commission has listed several criteria to provide guidance on the elements that will be considered in assessing the due diligence defence. Generally, an alleged violator should be able to establish that the telecommunication resulted from an error and that it has implemented business practices that are adequate to ensure compliance with the Rules. More specifically, the alleged violator should be able to prove that:
- it has established adequate written policies and procedures;
- it provides adequate ongoing training to employees;
- it uses the National DNCL obtained from the National DNCL operator no more than thirty-one (31) days prior to the date any telemarketing communication is made;
- it uses the telemarketer’s, or, where applicable, the client of the telemarketer’s, do not call list updated no more than thirty-one (31) days prior to the date any telemarketing communication is made;
- it uses and maintains records documenting a process to prevent the initiation of a telemarketing communication to any telecommunications number that has been registered for more than thirty-one (31) days on the National DNCL, or the telemarketer’s do not call list or, where applicable, the client of the telemarketer’s do not call list;
- it monitors and enforces compliance with the Unsolicited Telecommunications Rules and its written policies and procedures; and
- in the case of a person who has retained a telemarketer to engage in telemarketing on its behalf, the person has entered into an agreement between itself and the telemarketer requiring that the latter comply with the Unsolicited Telecommunications Rules.
The CRTC expects the National DNCL to be launched by September 30, 2008.