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Providing Content in Canada's Official Languages
Please note that the Official Languages Act requires that government publications be available in both official languages.
In order to meet some of the requirements under this Act, the Commission's transcripts will therefore be bilingual as to their covers, the listing of CRTC members and staff attending the hearings, and the table of contents.
However, the aforementioned publication is the recorded verbatim transcript and, as such, is transcribed in either of the official languages, depending on the language spoken by the participant at the hearing.
TRANSCRIPT OF PROCEEDINGS BEFORE
THE CANADIAN RADIO‑TELEVISION AND
TELECOMMUNICATIONS COMMISSION
TRANSCRIPTION DES AUDIENCES DEVANT
LE CONSEIL DE LA RADIODIFFUSION
ET DES TÉLÉCOMMUNICATIONS CANADIENNES
SUBJECT:
Proceeding to establish a national do not call list
framework and to review the telemarketing rules /
Instance visant à établir le cadre de la liste nationale
de numéros de téléphone exclus et à examiner
les règles de télémarketing
HELD AT: TENUE À:
Conference Centre Centre de conférences
Outaouais Room Salle Outaouais
140 Promenade du Portage 140, Promenade du Portage
Gatineau, Quebec Gatineau (Québec)
May 2, 2006 Le 2 mai 2006
Transcripts
In order to meet the requirements of the Official Languages
Act, transcripts of proceedings before the Commission will be
bilingual as to their covers, the listing of the CRTC members
and staff attending the public hearings, and the Table of
Contents.
However, the aforementioned publication is the recorded
verbatim transcript and, as such, is taped and transcribed in
either of the official languages, depending on the language
spoken by the participant at the public hearing.
Transcription
Afin de rencontrer les exigences de la Loi sur les langues
officielles, les procès‑verbaux pour le Conseil seront
bilingues en ce qui a trait à la page couverture, la liste des
membres et du personnel du CRTC participant à l'audience
publique ainsi que la table des matières.
Toutefois, la publication susmentionnée est un compte rendu
textuel des délibérations et, en tant que tel, est enregistrée
et transcrite dans l'une ou l'autre des deux langues
officielles, compte tenu de la langue utilisée par le
participant à l'audience publique.
Canadian Radio‑television and
Telecommunications Commission
Conseil de la radiodiffusion et des
télécommunications canadiennes
Transcript / Transcription
Proceeding to establish a national do not call list
framework and to review the telemarketing rules /
Instance visant à établir le cadre de la liste nationale
de numéros de téléphone exclus et à examiner
les règles de télémarketing
BEFORE / DEVANT:
Richard French Chairperson / Président
Elizabeth Duncan Commissioner / Conseillère
Barbara Cram Commissioner / Conseillère
Rita Cugini Commissioner / Conseillère
Stuart Langford Commissioner / Conseiller
ALSO PRESENT / AUSSI PRÉSENTS:
Madeleine Bisson Secretary / Secrétaire
Stephen Millington Legal Counsel /
Conseiller juridique
HELD AT: TENUE À:
Conference Centre Centre de conférences
Outaouais Room Salle Outaouais
140 Promenade du Portage 140, Promenade du Portage
Gatineau, Quebec Gatineau (Québec)
May 2, 2006 Le 2 mai 2006
TABLE DES MATIÈRES / TABLE OF CONTENTS
PAGE / PARA
Presentation by Advocis 10 / 57
Questions by the Commission 20 / 115
Presentation by CADRI 60 / 405
Questions by the Commission 65 / 439
Presentation by the Canadian Bankers Association 96 / 672
Questions by the Commission 97 / 680
Presentation by the Association of 132 / 940
Fundraising Professionals
Questions by the Commission 137 / 970
Présentation par l'Union des consommateurs 160 / 1127
Questions by the Commission 197 / 1307
Presentation by Primerica Financial Services 227 / 1499
Questions by the Commission 233 / 1534
Presentation by the Canadian Marketing Association 276 / 1865
Questions by the Commission 284 / 1914
Gatineau Quebec / Gatineau (Québec)
‑‑‑ Upon commencing on Tuesday, May 2, 2006
at 0920 / L'audience débute le mardi
2 mai 2006 à 0920
LISTNUM 1 \l 11 LE PRÉSIDENT : Mesdames et messieurs, à l'ordre, s'il vous plaît. Order, please.
LISTNUM 1 \l 12 Good morning, ladies and gentlemen. Welcome.
LISTNUM 1 \l 13 My name is Richard French. I am the Vice‑Chairperson of Telecommunications for the Commission.
LISTNUM 1 \l 14 With me today on the panel: on my left, Elizabeth Duncan, Commissioner for the Atlantic Region; Barbara Cram on my immediate right, Commissioner for Manitoba and Saskatchewan; extreme left, Rita Cugini, Commissioner for the Ontario Region; extreme right, Stuart Langford, National Commissioner.
LISTNUM 1 \l 15 We have a number of Commission staff here as well.
LISTNUM 1 \l 16 Seated at the table are Madeleine Bisson, Consultation Secretary; Commission counsel, Stephen Millington; Sean Kelly in the middle; Gerry Lylyk, Director of Consumer Affairs; and their team members across the back, Susan Gardiner, Mary‑Louise Hayward, Leah Ackerman, Kevin Pickel and Kelly Anne Smith.
LISTNUM 1 \l 17 Au cours des prochains jours, nous entendrons les présentations des parties intéressées à comparaître devant nous. De plus, nous étudierons attentivement tous les documents déposés dans le cadre de la présente instance, tant ceux des parties qui comparaissent cette semaine que les autres parties.
LISTNUM 1 \l 18 De nombreux Canadiens considèrent les appels de télémarketing comme une atteinte à la vie privée. De récentes modifications à la Loi sur les télécommunications, la Loi modifiée, visent à mettre en place un cadre permettant d'atténuer les inconvénients associés à certains aspects du télémarketing non sollicité.
LISTNUM 1 \l 19 So in that context and the framework of potential invasion of privacy by telemarketing, the amended Act, when proclaimed ‑‑ and it has not yet been proclaimed ‑‑ will provide the Commission with the authority to establish a national Do Not Call List and to delegate the administration of that national Do Not Call List and related functions to a third party.
LISTNUM 1 \l 110 The amended Act will also empower the Commission to levy administrative monetary penalties, so called AMPs, for violations of its telemarketing rules.
LISTNUM 1 \l 111 The amended Act sets out a list of telemarketing and telemarketing‑like activities which will be exempt from any of the requirements or prohibitions established by the Commission in relation to the national Do Not Call List.
LISTNUM 1 \l 112 Such telemarketing will not necessarily be exempt from other aspects of the framework which the Commission will establish consequent to the powers and responsibilities vested in it by the Act.
LISTNUM 1 \l 113 Just an impression that some of the exempt parties ‑‑ that is, exempted from the national Do Not Call List ‑‑ may also be exempt from any controls on telemarketing. Not true, or at least not necessarily true under the Act.
LISTNUM 1 \l 114 As noted in the Public Notice CRTC 2006‑4, a key step in developing the national Do Not Call List will be the selection of the Do Not Call List operator and the development of the terms according to which it will be operated.
LISTNUM 1 \l 115 As you may be aware, a Consortium formation CISC subcommittee has been established.
LISTNUM 1 \l 116 For those of you who are not familiar with the delightful acronyms that festoon our business of regulation of telecom, CISC is the CRTC Interconnection Steering Committee.
LISTNUM 1 \l 117 In parallel with the operation of this subcommittee, a Do Not Call List operations CISC subcommittee ‑‑ how would you like to be the Chairman of that?
LISTNUM 1 \l 118 A Do Not Call List operations CISC subcommittee will examine a number of issues relating to the functioning of the national Do Not Call List.
LISTNUM 1 \l 119 The address and resolution of these matters should enable the Consortium to finalize the terms and conditions of the contractual arrangement with the Do Not Call List operator.
LISTNUM 1 \l 120 For today, you may assume that all of the Commissioners will have read your written submissions and are therefore familiar with your organization. Unless otherwise indicated, parties will be allotted a maximum of ten minutes to make their presentation.
LISTNUM 1 \l 121 The consultation Secretary will advise you when you have one minute remaining.
LISTNUM 1 \l 122 I would ask parties to concentrate on the essential message which you seek to leave with the Commission and to do so within the time allotted.
LISTNUM 1 \l 123 Generally Commissioners' questions, as well as questions by Commission counsel, if any, will come after each party has completed its presentation.
LISTNUM 1 \l 124 Parties wishing to make a closing statement will be allotted five minutes in the reverse order of their presentation after all the parties have made their presentations.
LISTNUM 1 \l 125 Je voudrais préciser que le but de l'audience est d'établir des principes, des politiques et des pratiques qui serviront l'intérêt public en assurant l'efficacité de la mise en oeuvre de la Loi que le Parlement a adopté.
LISTNUM 1 \l 126 Je demanderais à tous les participants à cette audience de revoir la déclaration préliminaire à la lumière de ce principe.
LISTNUM 1 \l 127 I would like to point out that the purpose of the hearing is to help the CRTC to implement the revised law in an effective and efficient way. What we are really looking for in your interventions today is specific suggestions and advice in that respect.
LISTNUM 1 \l 128 Parliament has passed a law. We don't need to spend time reconsidering that law but rather how it will be applied, what the pros and cons of the various questions or aspects of application raise from the point of view of your organization and your expertise.
LISTNUM 1 \l 129 Si vous avez d'autres questions sur le déroulement de la consultation, je vous demanderais de vous adresser à la Secrétaire de la consultation, madame Madeleine Bisson.
LISTNUM 1 \l 130 If you have any other questions, please ask the Secretary of the proceeding, Madeleine Bisson.
LISTNUM 1 \l 131 I now invite her to review some additional housekeeping matters.
LISTNUM 1 \l 132 LA SECRÉTAIRE : Merci, Monsieur le Président.
LISTNUM 1 \l 133 Avant de procéder, seulement quelques mises au point qui contribueront au bon déroulement de cette consultation publique.
LISTNUM 1 \l 134 When you are in the hearing room, we would ask you to please turn off your cell phones, pagers, Blackberries and other text messaging devices as they are an unwelcome distraction for participants and Commissioners, and they cause interference on the internal communication system used by the translators and court reporter.
LISTNUM 1 \l 135 We are counting on your co‑operation in this regard throughout the consultation.
LISTNUM 1 \l 136 As indicated in the Organization and Conduct letter issued on 7th April 2006, except for today, we propose to sit from 9:00 a.m. to 6:00 p.m. each day. We will take a 90‑minute lunch break, as well as a 15‑minute mid‑morning and mid‑afternoon break.
LISTNUM 1 \l 137 While we do not anticipate sitting into the evenings, it may be necessary if the consultation falls behind schedule.
LISTNUM 1 \l 138 L'offre de comparution pour cette consultation, telle que publiée à l'Annexe A de la lettre d'organisation et de déroulement de l'audience du 7 avril 2006 a été révisée. Vous pouvez vous procurer une copie de l'agenda révisé à la Salle Papineau.
LISTNUM 1 \l 139 The Papineau Room will serve as the public examination room for this consultation. The room is open to all parties and to the public for the duration of the consultation and contains a complete copy of the record.
LISTNUM 1 \l 140 Furthermore, please leave at the reception table 25 copies of the text of your oral presentation for the Commission's use and one copy for each of the 20 other parties presenting at the consultation.
LISTNUM 1 \l 141 Pour faciliter la distribution de vos présentations aux autres parties, vous pouvez déposer les 20 copies demandées sur la table à l'arrière de la salle. Je rappelle aux parties que les présentations verbales sont distribuées par commodité seulement et ne font pas partie du dossier public de cette consultation.
LISTNUM 1 \l 142 Also, parties will be asked to come forward when making their presentation. Spokespersons will be required to present themselves, their team members and to proceed with their presentation within the prescribed timeframe.
LISTNUM 1 \l 143 Finalement, afin d'assurer que la transcription de cette consultation soit la plus exacte possible, veuillez vous assurer que votre micro est ouvert lorsque vous vous adressez au Conseil.
LISTNUM 1 \l 144 A copy of each day's transcript will be available in the Papineau Room at the start of the next consultation day, and the full set of the transcripts will be posted on the Commission's website shortly after conclusion of this consultation.
LISTNUM 1 \l 145 Parties who wish to purchase copies of transcripts or other services from Media Copy should deal with them directly.
LISTNUM 1 \l 146 Maintenant, Monsieur le Président, nous allons poursuivre avec les comparutions.
LISTNUM 1 \l 147 LE PRÉSIDENT : Madame la Secrétaire, j'ai oublié.
LISTNUM 1 \l 148 My conscience and confessor in these matters, Commissioner Cram, reminds me that I had committed to our staff to underline to you that there are some specific areas, both empirical and normative, where we will be asking for some written support, further advice on your part, which we call in our jargon undertakings.
LISTNUM 1 \l 149 The Commission staff and/or the Commission's legal staff will be seeking those undertakings from you.
LISTNUM 1 \l 150 I would only request if you would be so kind as to consider whether you can make a further constructive contribution by responding to those undertakings.
LISTNUM 1 \l 151 Do we have any other details about that at this point? No.
LISTNUM 1 \l 152 I just mention that. You will be contacted if your organization is among those from whom we seek these undertakings. Thanks.
LISTNUM 1 \l 153 Je m'excuse, Madame la Secrétaire.
LISTNUM 1 \l 154 LA SECRÉTAIRE : Merci, Monsieur le Président.
LISTNUM 1 \l 155 I will call on Advocis to make its presentation.
LISTNUM 1 \l 156 Mr. McLeod, could you please introduce yourself and your panel.
PRESENTATION / PRÉSENTATION
LISTNUM 1 \l 157 MR. McLEOD: Good morning, Commissioners, Commission staff and fellow presenters.
LISTNUM 1 \l 158 I am Gary McLeod, Chair of the National Board of Advocis, which is the Financial Advisors Association of Canada.
LISTNUM 1 \l 159 I am joined by Sara Gelgor, our Vice‑President of Regulatory Affairs at Advocis.
LISTNUM 1 \l 160 Thank you for the opportunity to appear before you. Before I proceed to the substance of my presentation, please allow me to provide a brief overview of Advocis.
LISTNUM 1 \l 161 Advocis is the largest voluntary professional membership association of financial advisors, with 12,000 members across Canada. Our members are financial advisors licensed to distribute life and health insurance, mutual funds and other securities.
LISTNUM 1 \l 162 Advocis members provide financial and product advice to millions of Canadians across a variety of distinct areas, including estate and retirement planning, wealth management, risk management and tax planning.
LISTNUM 1 \l 163 Our association traces its origins to the founding of the Life Underwriters Association of Canada and this year marks our 100th anniversary.
LISTNUM 1 \l 164 Personal communication is an integral component of a professional financial advisor's business. Professional financial advisors interact daily with numerous consumers, often for the first time through personal referrals and other means as part of their business development process.
LISTNUM 1 \l 165 Financial advisors compete effectively in the marketplace and have been successful in doing so, provided the established regulatory environment promotes a level playing field for all participants. Financial advisors also serve to represent the views of their clients from a consumer protection standpoint in the important debates of the day.
LISTNUM 1 \l 166 We support the government's efforts to alleviate telemarketing irritations for Canadians, while striving to maintain a competitive environment for business.
LISTNUM 1 \l 167 Advocis educates its members through practice standards and an established Best Practices Manual.
LISTNUM 1 \l 168 Advocis standards are based on prescribed obligations and often exceed even the most stringent regulatory requirements.
LISTNUM 1 \l 169 Today we wish to highlight the following key issues pertaining to the framework of a national Do Not Call List: exempting provincial financial services licensees; defining the existing business relationship exemption; referrals; access to the Do Not Call List; and investigation of complaints and assignment of penalties.
LISTNUM 1 \l 170 I will speak to the first three points and my colleague Sara Gelgor will address the final two.
LISTNUM 1 \l 171 Our comments focus on ensuring financial advisors are able to operate effectively within a national Do Not Call List framework that meets consumers' needs.
LISTNUM 1 \l 172 The financial services industry is one of the most heavily regulated sectors in Canada. Financial advisors who sell insurance must be licensed by the appropriate government body or agency for the province in which they operate, as well as meet the requirements of any other jurisdiction in which they conduct business.
LISTNUM 1 \l 173 The respective securities commission or commissions must similarly license those who also sell securities. Approximately three‑quarters of Advocis members are licensed to distribute both insurance and mutual funds and therefore are already subject to regulatory oversight my multiple regulators, possibly in multiple jurisdictions.
LISTNUM 1 \l 174 In addition to meeting requirements through regulation, proprietary codes of conduct are a cornerstone in protecting consumers within the financial services industry.
LISTNUM 1 \l 175 Advocis and its predecessor organizations have had a professional code of conduct in place for 100 years. Advocis members must abide by our code of professional conduct in all of their business activities as a condition of membership.
LISTNUM 1 \l 176 Failure to comply with any of the code's nine overriding principles can lead to an investigation and possible disciplinary action, including expulsion from membership and reporting to the appropriate regulatory authority.
LISTNUM 1 \l 177 Furthermore, the financial services industry is a leader in administering effective and meaningful complaint resolution structures. Given this backdrop of a stringent regulatory regime, coupled with well‑established self‑disciplinary safeguards, we strongly recommend individuals licensed by an insurance regulatory body or securities commission be exempt from the national Do Not Call List restrictions.
LISTNUM 1 \l 178 The ability to call those with an existing business relationship is key in operating a national Do Not Call List that supports business needs. Financial advisors may find themselves in a unique position, although we suspect this applies to other professions which requires the Commission's attention.
LISTNUM 1 \l 179 When a financial advisor sells his or her block of business to another advisor, it is common practice for the purchasing advisor to often introduce him or herself to the new set of clients by phone. While clients typically stay with the new advisor, some may choose to work with another advisor.
LISTNUM 1 \l 180 Clearly these calls of introduction if placed to a client registered on the national Do Not Call List should not be considered as unsolicited. We recommend the rules support the existing business relationship exemption clearly provide for introductory calls where broker business has changed hands.
LISTNUM 1 \l 181 Another aspect requiring further clarification is the treatment of calls made under the existing business relationships exemption within a group of companies.
LISTNUM 1 \l 182 Specifically, would a company within the group without a direct relationship to a client of another member company be permitted to contact the client if they are registered on the national Do Not Call List?
LISTNUM 1 \l 183 We note that outside of the group of companies such calls would be prohibited. The only reason such a call may be allowed within a group of companies is because one member company has a direct relationship, no matter how minor, with the individual being called.
LISTNUM 1 \l 184 Allowing a member company with a corporate group to contact a registrant of the national Do Not Call List who has a relationship with another organization within the group will give multi‑disciplinary companies an unfair advantage over companies outside of the group.
LISTNUM 1 \l 185 We do not believe that in striving to protect consumers from unsolicited telemarketing calls it was Bill C‑37's intention to tilt the playing field among large and small business.
LISTNUM 1 \l 186 We recommend the existing business relationship exemption be based on separate legal entities with a distinct product line or a function within a group of companies.
LISTNUM 1 \l 187 Personal referrals are the foundation upon which professional financial advisors develop their client base and occur only when an advisor and client have an existing bridge of trust.
LISTNUM 1 \l 188 Ideally, the client will personally introduce the individual to the financial advisor. However, if this is not possible, it is common practice for the financial advisor to carry out the client's suggestion by providing background information about his or her services and placing an introductory call to the specific individual referred.
LISTNUM 1 \l 189 Even where the individual being called is registered on the national Do Not Call List, we suggest referral calls are not unanticipated and should not be considered as violating the Do Not Call requirements.
LISTNUM 1 \l 190 We strongly recommend that at a minimum individuals licensed by an insurance regulatory body or securities commission be permitted to undertake word‑of‑mouth and personal telecommunications within the framework of a national Do Not Call List registry.
LISTNUM 1 \l 191 We also recommend calls to a related person as defined by the Income Tax Act be supported. Limiting calls to the Income Tax definition of a related person, individuals connected by blood, marriage, common law partnership or adoption, will set clear parameters and restrict range of calls placed.
LISTNUM 1 \l 192 I would like now to invite my colleague, Sara Gelgor, to comment on the operations of the national Do Not Call List framework.
LISTNUM 1 \l 193 MS GELGOR: Thank you, Gary.
LISTNUM 1 \l 194 On the issue of access, we believe the national Do Not Call List must be easy to access. Many financial advisors are small business operations without sophisticated computer networks, often due to cost considerations. Financial advisors must be able to obtain and manage the information required easily and at minimal cost.
LISTNUM 1 \l 195 The fee to access the registry must be fair and reflective of a business' size and usage of the Do Not Call List information.
LISTNUM 1 \l 196 Advocis has many years of complaint resolution experience through the Chartered Life Underwriter Institute's well established process. The various exemptions to the national Do Not Call List framework and potential imposition of violation penalties makes it critical that clear guidelines on the investigation of complaints, issuance of violation notices and imposition of penalties be developed to ensure all stakeholders have a clear understanding and accurate expectation of the Do Not Call framework.
LISTNUM 1 \l 197 Establishing a threshold to investigate complaints will help apply investigative resources efficiently and follow a risk‑based approach to regulation, a concept Advocis strongly endorses.
LISTNUM 1 \l 198 Also, defining the timeframe in which consumers must log any complaints of violating calls to the Do Not Call List operator will help identify patterns of non‑compliance and allow timely action to be taken to clamp down on any troubling trends.
LISTNUM 1 \l 199 Advocis supports a 30‑day grace period during which time calls made to a new registrant would not be considered as being in violation. In other words, the clock should not start to tick until 30 days after an individual has joined the Do Not Call registry.
LISTNUM 1 \l 1100 We believe a 30‑day time period will give businesses the flexibility to access and analyze the Do Not Call List on a periodic basis ‑‑
LISTNUM 1 \l 1101 THE SECRETARY: I'm sorry, Ms Gelgor, you have one minute to conclude.
LISTNUM 1 \l 1102 MS GELGOR: All right.
LISTNUM 1 \l 1103 ‑‑ while protecting consumers by ensuring the overall integrity of the list itself.
LISTNUM 1 \l 1104 Prolonging this grace period will simply allow companies engaged in telemarketing campaigns to extend their access to consumers registered on the Do Not Call List unnecessarily.
LISTNUM 1 \l 1105 The application of penalties to violators of the national Do Not Call List must balance the need to effectively deter future non‑compliance against the need to ensure penalties are proportionate to the infraction at hand and applied fairly.
LISTNUM 1 \l 1106 We support a graduated penalty scheme with a range of punishments of both a monetary and non‑monetary nature and an escalating scale based on the severity and repetition of infractions.
LISTNUM 1 \l 1107 The legislation sets monetary penalties at a maximum of $1,500 for an individual and $15,000 for corporations per infraction. We recommend these categories be further defined to ensure penalties are applied fairly and consistently.
LISTNUM 1 \l 1108 For example, financial advisors may incorporate their businesses primarily for succession planning reasons but in reality may operate as a one‑person shop.
LISTNUM 1 \l 1109 We believe it would be unfair to penalize such a person at the corporate level when the individual is essentially self‑employed. Therefore, we would recommend at a minimum a single shareholder corporation be defined as an individual for the purpose of assigning penalties.
LISTNUM 1 \l 1110 We applaud the establishment of a cost‑effective, simple‑to‑use national Do Not Call List registry that meets consumers' desire to reduce unwanted calls from telemarketers while fostering an environment conducive for business.
LISTNUM 1 \l 1111 The final outcome must provide an appropriate balance to ensure the needs and specific circumstances of business, in this case the thousands of professional advisors offering advice to millions of Canadians, are supported.
LISTNUM 1 \l 1112 Thank you for your time and attention today. We would be pleased to answer any questions you may have.
LISTNUM 1 \l 1113 THE CHAIRPERSON: Thank you very much. Welcome to the hearing.
LISTNUM 1 \l 1114 Commissioner Duncan.
LISTNUM 1 \l 1115 COMMISSIONER DUNCAN: Good morning.
LISTNUM 1 \l 1116 First of all, with respect to the overriding Do Not Call List rule, in paragraph 22 of its submission The Companies propose that the key Do Not Call List rule should read as follows:
"No person or organization shall initiate a telemarketing call to a person or organization who is validly listed in the National Do Not Call database unless the person or organization from whom the telemarketing call originates is exempt pursuant to section 41(7)(1) of the amended Telecommunications Act."
LISTNUM 1 \l 1117 We are first interested in your view on the definition they have recommended and if you think there are any changes necessary.
LISTNUM 1 \l 1118 MS GELGOR: As we had indicated in your remarks, we believe that the definition should be limited to the separate legal entities as opposed to the group of companies.
LISTNUM 1 \l 1119 COMMISSIONER DUNCAN: I think probably the definition would cover that when it refers to "person or organization".
LISTNUM 1 \l 1120 MS GELGOR: But the organization is the entire group of companies.
LISTNUM 1 \l 1121 COMMISSIONER DUNCAN: So you would rather see a reference to separate legal companies?
LISTNUM 1 \l 1122 MS GELGOR: That is correct.
LISTNUM 1 \l 1123 COMMISSIONER DUNCAN: Thank you.
LISTNUM 1 \l 1124 With respect to the application of the DNCL rules to faxes, we are wondering if you feel the DNCL rules should apply to unsolicited faxes and if there are any technical, financial or administrative issues with applying those rules to unsolicited faxes.
LISTNUM 1 \l 1125 MS GELGOR: We do believe that they should apply to unsolicited faxes. We do not have any comments with regard to the cost implications.
LISTNUM 1 \l 1126 COMMISSIONER DUNCAN: And no comments on the technical. You are satisfied.
LISTNUM 1 \l 1127 MS GELGOR: Yes.
LISTNUM 1 \l 1128 COMMISSIONER DUNCAN: Thank you.
LISTNUM 1 \l 1129 With regard to access to the list by small telemarketers ‑‑ and you have sort of touched on that ‑‑ we are wondering do smaller sized operators require a different Do Not Call List regime to ensure their viability? And how would you define such a regime?
LISTNUM 1 \l 1130 Should the operators be classified by certain quantifiable data such as gross income and given alternatives to accessing the database based on their classification?
LISTNUM 1 \l 1131 MS GELGOR: We do not have a position as to how the smaller operators might be classified. We have certainly identified that there may be different implications, both from a cost and compliance perspective.
LISTNUM 1 \l 1132 We have looked at either gross income or number of employees and our concern is where do you draw the line?
LISTNUM 1 \l 1133 For example, if you are looking at employees and you set the line at five employees, if somebody has six employees is that really equitable treatment?
LISTNUM 1 \l 1134 We do not have any recommendations as to where you would draw the line, but in talking about the imposition of the penalties and infractions we have suggested that there be a range and that there be discretion.
LISTNUM 1 \l 1135 We recommend a similar approach with respect to how small operators would be treated with respect to accessing the list.
LISTNUM 1 \l 1136 COMMISSIONER DUNCAN: That leads into my next question.
LISTNUM 1 \l 1137 In your submission, and I think again in your remarks this morning, you indicate a financial advisor may decide it is best to operate his or her business as an incorporated entity.
LISTNUM 1 \l 1138 MS GELGOR: Right.
LISTNUM 1 \l 1139 COMMISSIONER DUNCAN: But in reality really operate as a one‑person shop.
LISTNUM 1 \l 1140 I am wondering, first of all, what percentage of your 12,000 members would fall into this category, would you estimate?
LISTNUM 1 \l 1141 MR. McLEOD: I wish I could give you an exact answer. It is a high percentage of our members, given the changes in the industry over the last few years.
LISTNUM 1 \l 1142 It would be greater than 60 percent.
LISTNUM 1 \l 1143 COMMISSIONER DUNCAN: You suggest some consideration be given to defining a single shareholder corporation as an individual rather than a corporation for the purpose of assigning penalties.
LISTNUM 1 \l 1144 I think some of the single shareholder corporations could grow to be quite large in terms of revenue and employees, and I think we sort of touched on that a few moments ago.
LISTNUM 1 \l 1145 Can you suggest what other criteria we might take into consideration to determine whether a single shareholder corporation should be considered as an individual rather than a corporation for the purpose of assigning penalties?
LISTNUM 1 \l 1146 MS GELGOR: Again, you are right in touching on the point that some of these corporations do grow to become very large, even family owned, businesses.
LISTNUM 1 \l 1147 Our members typically are small businesses and they remain as such. When I talked about the example of a single shareholder corporation, that would be one way of looking at it.
LISTNUM 1 \l 1148 Typically the businesses are inter‑generational and the business is passed on to family members. But they do remain fairly small.
LISTNUM 1 \l 1149 COMMISSIONER DUNCAN: You see, my concern is with ‑‑ you could still be small in terms of ownership but have a very successful large business in terms of revenue and even the number of employees.
LISTNUM 1 \l 1150 MS GELGOR: Right.
LISTNUM 1 \l 1151 COMMISSIONER DUNCAN: That is just one of the things we will have to consider. Thank you.
LISTNUM 1 \l 1152 MS GELGOR: Okay.
LISTNUM 1 \l 1153 COMMISSIONER DUNCAN: In paragraph 77 of the CMA submission, the CMA submitted that the Commission should adopt a regulation that would clarify that telemarketers may contact a consumer by telephone even if he or she is on the Do Not Call List if the telemarketer has received consent to do so.
LISTNUM 1 \l 1154 So the consent would override the Do Not Call List.
LISTNUM 1 \l 1155 First of all, do you agree with the CMA's position that telemarketers should be able to contact a consumer by telephone if the marketer has received consent to do so, even if that person is on the Do Not Call List?
LISTNUM 1 \l 1156 MS GELGOR: The consent would have to be very specific rather than a broad consent that one might sign in some kind of an application form.
LISTNUM 1 \l 1157 The concerns that we would have would be that there would be the overriding of the original intention that was expressed by the consumer.
LISTNUM 1 \l 1158 I think there would have to be some kind of parameters within which a consumer might provide specific consent, but it would have to be very, very specific to the contact.
LISTNUM 1 \l 1159 COMMISSIONER DUNCAN: I think we agree on that point, especially if it were to lead to an investigation at some point. It would have to be documented or in some form that would substantiate or justify the contact.
LISTNUM 1 \l 1160 Would you agree?
LISTNUM 1 \l 1161 MS GELGOR: Yes.
LISTNUM 1 \l 1162 COMMISSIONER DUNCAN: Thank you.
LISTNUM 1 \l 1163 I would like to get your comments on the value and need to maintain internal Do Not Call Lists.
LISTNUM 1 \l 1164 What are the issues associated with specific organizations maintaining their own Do Not Call Lists in addition to the national Do Not Call List?
LISTNUM 1 \l 1165 I have four questions, so I will read you all four and then I can review them as we go, so you don't have to feel like you have to remember them all at once.
LISTNUM 1 \l 1166 In your response, could you:
LISTNUM 1 \l 1167 (1) explain the benefits of such an approach, having both lists, or not;
LISTNUM 1 \l 1168 (2) whether there are specific circumstances that necessitate the need to maintain internal Do Not Call Lists;
LISTNUM 1 \l 1169 (3) how internal Do Not Call Lists would integrate with the national list; and
LISTNUM 1 \l 1170 (4) how such an approach would not introduce complexity, duplicate effort or increase regulatory burden that is not cost justified or warranted.
LISTNUM 1 \l 1171 Before we start to deal with each question, I will just preface the comment with a recommendation or a comment from the Registered Education Savings Plan Dealers Association.
LISTNUM 1 \l 1172 They feel that it is reasonable to require telemarketers to maintain internalists to accommodate consumers who may not wish to register on the national list for all purposes but would like to prevent contact from specific companies.
LISTNUM 1 \l 1173 I mention that sort of to set the stage. That is one reason that we have been given for maintaining two lists.
LISTNUM 1 \l 1174 So the first question is if you could explain in your view how maintaining individual internal Do Not Call Lists would be a benefit to the system.
LISTNUM 1 \l 1175 MS GELGOR: Certainly the point that you have just addressed I think would be a primary reason where a consumer does not want to block out all calls but there may be particular companies with which the consumer does not want to have dealings.
LISTNUM 1 \l 1176 So that would probably be the most clear example of where two lists would benefit.
LISTNUM 1 \l 1177 My concern with having the two lists, again focusing on the types of businesses our association represents, is really the burden and the cost that it would impose, where we are talking about a small business having perhaps a single or two people operating the business.
LISTNUM 1 \l 1178 It is very difficult to comply with all of the provincial licensing requirements, the regulatory requirements, the anti money laundering requirements. And then a Do Not Call List requirement that is internal and specific to the company over and above any national list, our worry is that it would impose undue costs and compliance requirements.
LISTNUM 1 \l 1179 Short of areas where there would be a clear benefit to consumers ‑‑ and the one that we have just talked about is one ‑‑ where there may be exemptions in place, you would certainly want to have internal lists there as well.
LISTNUM 1 \l 1180 We would not support a broad recommendation for having two lists across the board for everybody.
LISTNUM 1 \l 1181 COMMISSIONER DUNCAN: The challenge we get into then of course is administering. It is easier if the rules are sort of across the board. But that's all right.
LISTNUM 1 \l 1182 Currently you mention 12,000 members. Those members would currently maintain a Do Not Call List, so they would have the processes in place for that.
LISTNUM 1 \l 1183 Would that be correct?
LISTNUM 1 \l 1184 MS GELGOR: They may or they may not.
LISTNUM 1 \l 1185 COMMISSIONER DUNCAN: All right.
LISTNUM 1 \l 1186 I am just wondering, trying to imagine. How many calls would we be talking about that they would be making in the run of a month? How difficult would it be?
LISTNUM 1 \l 1187 I am thinking if you had the numbers entered in some type of a computer program that sorted them in numerical order, how difficult would it be to maintain an internal list?
LISTNUM 1 \l 1188 MS GELGOR: It would vary depending on the type of business and what stage of maturity it would be at. Somebody in a situation like Gary, our Chair, would not be severely impacted. But a new advisor in the community certainly has to start out his or her business and is looking at opportunities to reach out to potential new clients.
LISTNUM 1 \l 1189 Similarly, Gary pointed to the example where a broker business is sold. Clearly there an advisor would need to be able to make introductory calls.
LISTNUM 1 \l 1190 So keeping the list and trying to grow and market a business while respecting consumers' privacy is certainly going to be a challenge.
LISTNUM 1 \l 1191 COMMISSIONER DUNCAN: Would you agree, though, that with all the software programs that we have available, it probably wouldn't be too difficult to maintain an internal list?
LISTNUM 1 \l 1192 And of course that is the expectation today.
LISTNUM 1 \l 1193 So what would follow from that, then, would be what would be involved. And I am taking into consideration your concerns.
LISTNUM 1 \l 1194 What would you see being the difficulty with integrating that list with a national list?
LISTNUM 1 \l 1195 MS GELGOR: Again, it would depend on the size and the nature of the business. For a very small company, for a financial advisor who is starting out, the requirements may be significant.
LISTNUM 1 \l 1196 COMMISSIONER DUNCAN: And that I suppose will be an aspect of what the CISC Operation Committee is working on, because they will determine the costs and the manner in which smaller operators would be able to check the numbers.
LISTNUM 1 \l 1197 You don't need to check against thousands of numbers if you are only operating in one exchange. So I am sure that they will take all of that into consideration.
LISTNUM 1 \l 1198 That's fine.
LISTNUM 1 \l 1199 Is there anything else you would like to add to that?
LISTNUM 1 \l 1200 MS GELGOR: No.
LISTNUM 1 \l 1201 COMMISSIONER DUNCAN: Thank you.
LISTNUM 1 \l 1202 I think that is a big issue, the requirement to maintain both. So it is good to get as much on the record as we can.
LISTNUM 1 \l 1203 With respect to automatic dialling announcing devices, ADADs, the CMA has recommended the Commission allow for companies to make digitally pre‑recorded voice calls through ADADs for business‑to‑business relationships, telemarketing to consumers with whom there is an existing business relationship, and for telemarketing to consumers who have provided their consent to receive such calls.
LISTNUM 1 \l 1204 Could you comment on the CMA's recommendation.
LISTNUM 1 \l 1205 So that is that people be allowed to use the ADADs for business‑to‑business, telemarketing to consumers with whom they have an existing business relationship and for telemarketing to consumers who have provided consent to receive such a call.
LISTNUM 1 \l 1206 MS GELGOR: We believe that the general Do Not Call framework should apply.
LISTNUM 1 \l 1207 COMMISSIONER DUNCAN: Okay; thank you.
LISTNUM 1 \l 1208 Right now they are not allowed. ADADs are not allowed.
LISTNUM 1 \l 1209 So you don't have any opinion.
LISTNUM 1 \l 1210 MS GELGOR: We do not have an opinion on that.
LISTNUM 1 \l 1211 COMMISSIONER DUNCAN: That's fine; thank you.
LISTNUM 1 \l 1212 In paragraph 12 of Contact New Brunswick's submission, they raise the question, and I quote:
"If all businesses that call their customers are required to comply with the legislation, what will be the impact on those businesses of installing the necessary telephony customer relationship management software and systems required to keep them compliant?"
LISTNUM 1 \l 1213 Based on your experience, what would you estimate it would cost for a new business or a business that has not previously had to adhere to the Do Not Call List to access and adhere to the Do Not Call List system?
LISTNUM 1 \l 1214 That is outside of the fee that you pay for accessing the data.
LISTNUM 1 \l 1215 I am thinking here in terms of any capital cost computers or software, any other items.
LISTNUM 1 \l 1216 MS GELGOR: We do not have that information in front of us, but we could undertake to provide it to you at some point.
LISTNUM 1 \l 1217 COMMISSIONER DUNCAN: That would be great, thank you, if you would.
LISTNUM 1 \l 1218 What are your views on whether third party providers such as call centres, ad agencies and call brokers should be allowed to access the Do Not Call system on behalf of another organization in order to scrub the list?
LISTNUM 1 \l 1219 Should such access be granted and controlled?
LISTNUM 1 \l 1220 And should third party providers be required to identify on whose behalf they are accessing the list?
LISTNUM 1 \l 1221 MS GELGOR: Sorry, could you repeat that question, please.
LISTNUM 1 \l 1222 COMMISSIONER DUNCAN: Sure. This is dealing with third party providers, so somebody subcontracting the job to a call centre or an ad agency or a call broker.
LISTNUM 1 \l 1223 We are wondering if those parties should be allowed to access the list or if access should just be limited to telemarketers or the organizations themselves.
LISTNUM 1 \l 1224 And should such access be granted, how would it be controlled?
LISTNUM 1 \l 1225 And should third party providers be required to identify on whose behalf they are accessing the list?
LISTNUM 1 \l 1226 I guess the first thing is: Do you think that those third party providers should be allowed to access the system?
LISTNUM 1 \l 1227 MS GELGOR: I'm sorry, I don't have a view on that. The Association does not have a view.
LISTNUM 1 \l 1228 COMMISSIONER DUNCAN: That's fine; thank you.
LISTNUM 1 \l 1229 With respect to fees or potential rate structure, I know you have made a couple of comments on the fees being graduated or at least taking into consideration the size of different organizations.
LISTNUM 1 \l 1230 The Companies have suggested the fees for making use of the national Do Not Call List could be applied annually, quarterly, monthly or each time the list is accessed.
LISTNUM 1 \l 1231 The Companies suggest the fees could be charged on a per‑access basis, which they suggest might be the most equitable.
LISTNUM 1 \l 1232 In the U.S. the fees are charged based on the number of area codes for which information is retrieved, with the first five being provided at no charge.
LISTNUM 1 \l 1233 In the U.K. the fee structure is based on the type of licence ‑‑ and I think there are four types of licences ‑‑ and the quantity of area codes an entity wishes to access.
LISTNUM 1 \l 1234 What type of rate structure do you think would best serve Canadian organizations?
LISTNUM 1 \l 1235 Is there a particular structure that would be better suited to smaller organizations?
LISTNUM 1 \l 1236 MS GELGOR: We support an approach that would be based on a per‑use basis. For our members, depending on the size, they would be impacted differently.
LISTNUM 1 \l 1237 COMMISSIONER DUNCAN: So as long as it is technologically cost‑effective to do so, you would certainly agree that would be an equitable way to do it?
LISTNUM 1 \l 1238 MS GELGOR: That's right.
LISTNUM 1 \l 1239 COMMISSIONER DUNCAN: That's great.
LISTNUM 1 \l 1240 That concludes my questions, Mr. Chairman.
LISTNUM 1 \l 1241 THE CHAIRPERSON: Thank you, Madam Commissioner.
LISTNUM 1 \l 1242 Mr. Langford.
LISTNUM 1 \l 1243 COMMISSIONER LANGFORD: Very quickly. Thank you very much.
LISTNUM 1 \l 1244 I have just a couple of very tiny matters arising out of your comments this morning and a couple of your answers to Commissioner Duncan.
LISTNUM 1 \l 1245 Then I might ask you one or two questions about penalties that you spoke about.
LISTNUM 1 \l 1246 I want to talk to you about the sensitivity you have for small business because a lot of your members ‑‑ over 60 percent, I understand from what Mr. McLeod said ‑‑ are small businesses, very small businesses.
LISTNUM 1 \l 1247 Do you have any views on how they feel about the notion of business‑to‑business soliciting, telemarketing? Would they like to be able to put themselves on the list so they are not bothered?
LISTNUM 1 \l 1248 MR. McLEOD: We haven't specifically polled our members in terms of that specific question. Certainly that is one of the things that we are effective at, and if we can be helpful in that way we are glad to do it.
LISTNUM 1 \l 1249 My sense is that they would not be concerned about being on the list for that type of solicitation.
LISTNUM 1 \l 1250 COMMISSIONER LANGFORD: I am going to leave it to legal counsel as to whether he would like some follow‑up on that and your offer to follow up. If they would, they will certainly tell you.
LISTNUM 1 \l 1251 We don't want to put you to having to hire Decima or something, although at least you know with the surveyors they've got a right to get through.
‑‑‑ Laughter / Rires
LISTNUM 1 \l 1252 COMMISSIONER LANGFORD: How big is your own office, the Advocis office?
LISTNUM 1 \l 1253 MR. McLEOD: We have about 60 employees.
LISTNUM 1 \l 1254 COMMISSIONER LANGFORD: Is that big enough in your mind to handle telemarketing calls during business hours to you, or would you prefer they never happened: faxes, telemarketing calls?
LISTNUM 1 \l 1255 Do they tie up a lot of your time?
LISTNUM 1 \l 1256 MR. McLEOD: They can. They certainly can.
LISTNUM 1 \l 1257 The requirement of an organization such as ours, where it is voluntary membership and you run an organization like that on behalf of the members, is to run it as efficiently and cost‑effectively as possible.
LISTNUM 1 \l 1258 So there aren't a lot of extra bodies around. If you are having to perform those types of tasks, it adds to your costs significantly.
LISTNUM 1 \l 1259 COMMISSIONER LANGFORD: Interesting to know.
LISTNUM 1 \l 1260 With the notion on page 5 of your comments this morning, just at the end of your comments, Ms Gelgor, I think: We also recommend, you say, that calls to related persons as defined in the Income Tax Act be allowed.
LISTNUM 1 \l 1261 How necessary is it? Sometimes exemptions can really confuse things.
LISTNUM 1 \l 1262 If my brother‑in‑law wants to call me to sell me insurance, he can get me. He knows where I live. He knows where I play tennis. He knows my wife because he's my brother‑in‑law.
LISTNUM 1 \l 1263 Is it really necessary to have this kind of an exception in there, or can these conversations take place in just the course of normal life?
LISTNUM 1 \l 1264 MS GELGOR: Well, you are absolutely right. We struggled with how we deal with referrals and that, as we indicated in our remarks today, can be a key component in growing a business for financial advisors.
LISTNUM 1 \l 1265 We struggled specifically with the issue of do we want to put a recommendation that would narrow definition as to referral.
LISTNUM 1 \l 1266 We looked to the Income Tax Act as a possible example of where there may be a definition in the Income Tax Act, that being the related parties.
LISTNUM 1 \l 1267 What we didn't want to see is an outright ban or prohibition on making calls to individuals who may be on the Do Not Call List but are in fact made by referrals where there is a relationship already in place with another party.
LISTNUM 1 \l 1268 So we tried to find a balance that would allow financial advisors to carry on their business while still respecting the privacy that consumers are asking for and look to this as a possible example.
LISTNUM 1 \l 1269 That really is the crux of it, is finding the right balance but making sure that referrals are not prohibited.
LISTNUM 1 \l 1270 COMMISSIONER LANGFORD: It's a tough one, though, isn't it, because what is a referral? It really opens it up to abuse.
LISTNUM 1 \l 1271 Somebody happens to mention "hey, call Fred" and Fred has no interest in that at all and doesn't take it well that he is being called when he is on a Do Not Call List and would like to stay there.
LISTNUM 1 \l 1272 It's a tough one to define, it seems to me, precisely how strong the referral would have to be before you would look upon it as some kind of an overriding factor.
LISTNUM 1 \l 1273 I just wonder whether it wouldn't be simpler administratively that if there is a referral to be done, the existing client does it or somehow makes the introduction or suggests that one of your members sends out a package or something like that so that you err on the side of caution but still be able to reach out.
LISTNUM 1 \l 1274 Can you not see the scope for abuse in this type of ‑‑ although I can see why you want it. You have been very clear. But can you see the scope for abuse in this type of an exception?
LISTNUM 1 \l 1275 MR. McLEOD: For sure. You can see where that possibility exists. We have several concerns around the fact of, what we talk about being level playing field. And I think it enters into this discussion.
LISTNUM 1 \l 1276 That is that if you limit in one area, you have an exemption within a group of companies, an example where there is that related situation.
LISTNUM 1 \l 1277 Our members are small business people in Canada and we don't want them to be disadvantaged in terms of this. It's not so much the issue ‑‑ I could easily agree with you in the sense of your referral comment, but having it apply equitably across all parties is the important point in my line.
LISTNUM 1 \l 1278 COMMISSIONER LANGFORD: If that is your real fear, surely our best move here is to not have this group of company connection, to not have the notion of organization so wide, so that Rogers Cablevision, for example, can phone me if I want them to because I'm a subscriber but their publication arm can't phone me and try to flog Macleans to me because it's a totally different company within their organization.
LISTNUM 1 \l 1279 Surely that would be the better way to go than to try to sort of offset it with some special case for referrals.
LISTNUM 1 \l 1280 MR. McLEOD: Yes, you may be correct in that.
LISTNUM 1 \l 1281 COMMISSIONER LANGFORD: Well, thank you for that.
LISTNUM 1 \l 1282 The other problem, very quickly ‑‑ and I don't want to drag this out.
LISTNUM 1 \l 1283 This notion that you had that when a business is sold and there has to be an introduction of a new owner, that is not a solicitation. That wouldn't be a violation, would it?
LISTNUM 1 \l 1284 If you are phoning up to say that you have sold your insurance company to me and you are saying Stuart will phone you and he will introduce himself, you are not selling anything.
LISTNUM 1 \l 1285 MR. McLEOD: Our concern would be ‑‑ because that is a common occurrence in our industry, that when someone comes to retire they may sell their broker business to someone else. That person then, because they have made an investment, needs to introduce themselves to that particular clientele.
LISTNUM 1 \l 1286 The concern would be that if someone were on the Do Not Call List, would they be prohibited from doing that?
LISTNUM 1 \l 1287 COMMISSIONER LANGFORD: I think the Chair would like to follow up on that.
LISTNUM 1 \l 1288 THE CHAIRPERSON: Just on this subject, if you don't mind, Stuart. Thank you for your indulgence.
LISTNUM 1 \l 1289 Clearly Stuart, it seems to me, is onto something. What he is basically saying is the clientele consists of people who already have a business relationship with the seller of the broker business. The purchaser of the broker business is calling to say I now own this business. I am going to service your account.
LISTNUM 1 \l 1290 I think Stuart's argument is that that does not fall in the definition of solicitation for money's worth, I think.
LISTNUM 1 \l 1291 So the question for you and we to reflect on is whether or not in fact this is the problem that you have, I think, appropriately raised to our attention, and ask ourselves whether this would in fact be a violation because: (a) the clientele consists of a group who have already signalled some sort of willingness to transact with the seller; and (b) the contact is made only to change the identity of the servicing and not necessarily to sell another $50,000 worth of insurance.
LISTNUM 1 \l 1292 MR. McLEOD: And that is our concern.
LISTNUM 1 \l 1293 COMMISSIONER LANGFORD: Yes, as long as you are not selling anything new, you are just introducing. I mean, I guess I can phone anybody and introduce myself, you know, as long as I don't offer to cut their grass or, you know, sell them a water softener, and I'm finished.
LISTNUM 1 \l 1294 It would have to be a kind of lonely hearts club to get into that way of life, but I suppose it would fall into an exception.
LISTNUM 1 \l 1295 Very quickly on penalties. It seems to me that it's tough for you folks to have it both ways. If you want to be incorporated and have all of those advantages of income splitting and taking dividends instead of income and hiding stuff away or maybe putting the wife on the payroll as a separate little company or whatever.
LISTNUM 1 \l 1296 Then, you know, for your tax planning and your protection for your liability so that if you get sued, you know you've got ‑‑ the wife is running the insurance company, she has got the house in her husband's name and, you know, all of those little benefits that small companies do quite legitimately and quite rightly to protect themselves against the horrors of law suits and the income tax collectors, then you're a corporation.
LISTNUM 1 \l 1297 And I guess you leave us into a bit of a mug's game. You are saying at the very least: leave it for single corporations but, you know, it's a mug's game, isn't it?
LISTNUM 1 \l 1298 I mean, we can't really say: well, okay, one shareholder, then somebody will say: what about two, my wife and I own it and someone will say three, we've got the brother‑in‑law on board and it does seem a little picky.
LISTNUM 1 \l 1299 Isn't the answer for us to develop sentencing guidelines, if you want to call it that, guidelines on how we are going to ‑‑ we are going to enforce this thing and to adopt sort of a case by case on the facts basis?
LISTNUM 1 \l 1300 I mean, this isn't one size fits all sentencing here, if I can use it, and maybe even the courts of the land look at the circumstances. Not everybody gets ten years for every offence that has a maximum penalty of ten years. You know, if a man steals a little loaf of bread because he is hungry, he is not up there with a bank robbery. He just doesn't get the same sentence.
LISTNUM 1 \l 1301 Don't we leave that sort of thing to the organization that's making the judgment calls and rely on guidelines rather than try to parse it as to membership and size and corporate structure?
LISTNUM 1 \l 1302 MS GELGOR: We certainly do highlight in our remarks this morning that there should be discretion and there should be a range looking at things like severity and number of occurrences and perhaps so we would throw into the mix, is looking at the nature of the operation.
LISTNUM 1 \l 1303 So where you have not necessarily the one person or one shareholder corporation, but if you have a very small family on business, perhaps that business should not be treated the same way as you would have a national organization with thousands or hundreds of thousands of employees.
LISTNUM 1 \l 1304 COMMISSIONER LANGFORD: So we leave that up to the discretion of the people examining the case, but have that as perhaps part of the guidelines in looking at how you treat a case.
LISTNUM 1 \l 1305 MS GELGOR: Yes.
LISTNUM 1 \l 1306 COMMISSIONER LANGFORD: Or an alleged violation.
LISTNUM 1 \l 1307 Those are my questions. Thank you very much, Mr. Chair.
LISTNUM 1 \l 1308 THE CHAIRMAN: Thank you, Commissioner Langford.
LISTNUM 1 \l 1309 Commissioner Cram.
LISTNUM 1 \l 1310 COMMISSIONER CRAM: Thank you and thank you for coming today. Ms Gelgor, I was looking at page 6 on your presentation today.
LISTNUM 1 \l 1311 In the second paragraph you refer to a range of punishments of both a monetary and non monetary nature.
LISTNUM 1 \l 1312 What punishment is of a non monetary nature?
LISTNUM 1 \l 1313 MS GELGOR: Well, to the extent that there might be any, we would suggest that it, you know, you would look at all of the variables that we have just talked about.
LISTNUM 1 \l 1314 COMMISSIONER CRAM: Do you know what else we would have into our tool kit, what would be a non monetary?
LISTNUM 1 \l 1315 MS GELGOR: I don't have any examples now.
LISTNUM 1 \l 1316 COMMISSIONER CRAM: Okay. The fact that we could publish names of violators, do you think that would have a salutary effect or would be really not effective?
LISTNUM 1 \l 1317 MS GELGOR: I think it would be an approach that is worth looking at, certainly.
LISTNUM 1 \l 1318 COMMISSIONER CRAM: Is your group self‑regulating or are you regulated by either the Securities Commission or the Provincial Insurance Regulator?
LISTNUM 1 \l 1319 MS GELGOR: We are an ‑‑ in our Association, we are incorporated by an active parliament, but we are not a self‑regulatory organization.
LISTNUM 1 \l 1320 COMMISSIONER CRAM: Okay. And you talked about your codes, Professional Code of Conduct and Best Practices Manual.
LISTNUM 1 \l 1321 What do you presently suggest or do you, in relation to when you obtain people's names, addresses and phone numbers?
LISTNUM 1 \l 1322 What do you do and I'm actually going to refer to it for you, what do you suggest to your members, how they would comply with PIPIDA and specifically Schedule 14.2, Principle 2, that when you obtain this information, you have to provide the identifying purposes of it and the purposes for which the personal information is collected shall be identified by the organization at or before the time the information is collected?
LISTNUM 1 \l 1323 What that says to me is once you have somebody who has bought an insurance contract, you would be saying to them: I've got your address and your phone number and I will be phoning you to sell you more insurance and you would have to be telling that in order to comply with PIPIDA.
LISTNUM 1 \l 1324 Am I correct?
LISTNUM 1 \l 1325 What do you tell ‑‑ what do you tell people when you get their name and number, that what use you're putting that information to?
LISTNUM 1 \l 1326 Mr. McLEOD: As you have suggested, it would be for the purposes of talking to them about their particular financial planning advice, et cetera.
And so that you must be clear about that and in terms of the introduction of those services and then, that's how we prescribe that in terms of practices, et cetera, within the norms of the industry.
LISTNUM 1 \l 1327 COMMISSIONER CRAM: So, it wouldn't be a stretch for us to say in any existing business relationship exemption, that you would be required to inform people that you are keeping their number and their name for the purposes of telemarketing at the time?
LISTNUM 1 \l 1328 Mr. McLEOD: It would not ‑‑ it would not be a stretch.
LISTNUM 1 \l 1329 COMMISSIONER CRAM: Thank you for that.
LISTNUM 1 \l 1330 I need to understand calls to related person.
LISTNUM 1 \l 1331 My brother lives in Red Deer, let's say he has a broker and he, my brother, says: sure, phone my sister in Regina and even though I am on a Do Not Call List, I get a cold call from a broker in Red Deer and you are suggesting that that would be ‑‑ that would be acceptable?
LISTNUM 1 \l 1332 Mr. McLEOD: Within the context of what Sarah has suggested, in terms of a definition, the answer to that would be: yes.
LISTNUM 1 \l 1333 Your comment about ‑‑ in our world, that's not a cold call, that's a referral.
LISTNUM 1 \l 1334 COMMISSIONER CRAM: Yes.
LISTNUM 1 \l 1335 Mr. McLEOD: And a cold call would be a all to someone that, you know, let's pick this name out of the phone book and I have no idea who they are or what they do, but I'm going to phone and introduce myself to them. That's cold.
LISTNUM 1 \l 1336 In the sense that you have been referred through a family member, et cetera, that's a direct referral.
LISTNUM 1 \l 1337 COMMISSIONER CRAM: Okay. Thank you. That's ‑‑ oh! wait. No. Thank you. Thank you very much, Mr. Chair.
LISTNUM 1 \l 1338 THE CHAIRMAN: Commissioner Duncan.
LISTNUM 1 \l 1339 COMMISSIONER DUNCAN: I just have one last question as a result of something that Steward asked.
LISTNUM 1 \l 1340 You mentioned that you have a staff of 60 members at your Association, 60 employees at your ‑‑
LISTNUM 1 \l 1341 MS GELGOR: Yes.
LISTNUM 1 \l 1342 COMMISSIONER DUNCAN: And so, they are all located in Toronto; are they?
LISTNUM 1 \l 1343 Mr. McLEOD: Correct.
LISTNUM 1 \l 1344 MS GELGOR: Yes.
LISTNUM 1 \l 1345 COMMISSIONER DUNCAN: I am just wondering just in exploring the idea of Internal Do Not Call List and the process for matching them with the national list, if you might consider, because you have obviously many members across the country, if you might consider having provincial or even regional lists that could be managed from your office in Toronto.
LISTNUM 1 \l 1346 I'm assuming ‑‑ and correct me if I'm wrong ‑‑ that the 60 employees that you have do not do telemarketing, that they support the members. Is that the idea or do you do telemarketing from Toronto?
LISTNUM 1 \l 1347 Mr. McLEOD: In terms of our membership renewals, et cetera, within the Association, but not, no.
LISTNUM 1 \l 1348 COMMISSIONER DUNCAN: Not the customers for finance purposes.
LISTNUM 1 \l 1349 Mr. McLEOD: Correct. That's correct.
LISTNUM 1 \l 1350 COMMISSIONER DUNCAN: So, what would you, or would you consider ‑‑ I mean I'm just asking the question now so you maybe have another chance to think about it ‑‑ but it just seems to me that you have a large staff ‑‑ well, large, you have a number anyway and whether it would be possible to support those Do Not Call Lists from a central point so that each of your individual members don't have to incur the expense or take the time managing it.
LISTNUM 1 \l 1351 It may not involve too many employees to do such a thing, given the ‑‑
LISTNUM 1 \l 1352 Mr. McLEOD: The concerns that I would see in that are several.
LISTNUM 1 \l 1353 Number 1, I can assure you that 60 employees to service 12,000 members is not a big staff and so we don't have a lot of additional capability within that.
LISTNUM 1 \l 1354 As I mentioned to one of your colleagues a little earlier on, it is the responsibility of, say, (inaudible) too because it's a long term membership type organization to take the utmost care in terms of keeping the costs in line in that regard.
LISTNUM 1 \l 1355 So, it would involve us increasing our costs and thereby our fees to the members to do that and that may be an appropriate result.
LISTNUM 1 \l 1356 However, I think that the other issue is that although we have 12,000 members in that sense in terms of the financial services industry, having us do it when there are ‑‑ when there are more than 12,000 people who are out there because it's a voluntary organization, doesn't really solve the problem of catching everybody in that net.
LISTNUM 1 \l 1357 COMMISSIONER DUNCAN: I'm just ‑‑ I guess first of all, on your point about costs and you've probably touched on it anyway because, you know, your members may consider that it's cost effective way to do it.
LISTNUM 1 \l 1358 Mr. McLEOD: They may, I agree.
LISTNUM 1 \l 1359 COMMISSIONER DUNCAN: You know. And administratively, they might be happy to have the burden taken off their hands, so ‑‑ Anyway, it's just food for thought.
LISTNUM 1 \l 1360 MS GELGOR: I would just add, it could turn out to be a bit of an administrative headache for us.
LISTNUM 1 \l 1361 While we do have 12,000 members, there are new members coming into the industry or coming into the Association certainly and our members do retire from time to time as well.
LISTNUM 1 \l 1362 So, managing which lists we have in place and whether or not it's still in effect and making sure on the part of the Association that it's up to date would certainly be adding layers of compliance for the Association that are not in place today.
LISTNUM 1 \l 1363 COMMISSIONER DUNCAN: Right. I just thought it might be a way to facilitate your members, but anyway it's something to think about.
LISTNUM 1 \l 1364 Thank you very much both of you, thanks.
LISTNUM 1 \l 1365 THE CHAIRMAN: Mr. Langford.
LISTNUM 1 \l 1366 COMMISSIONER LANGFORD: Sorry for dragging this out, but something finally occurred to me just hearing this last exchange.
LISTNUM 1 \l 1367 Do you sell your membership list?
LISTNUM 1 \l 1368 MS GELGOR: No.
LISTNUM 1 \l 1369 Mr. McLEOD: No.
LISTNUM 1 \l 1370 COMMISSIONER LANGFORD: Never. Do you get consent from your members to try and negotiate deals with hotel chains, CAA, that kind of thing and then, in that way make them subject to kind of business offerings of some sort?
LISTNUM 1 \l 1371 Mr. McLEOD: We do have supplementary services for our members on the basis of if they are a member of the Association, that they might qualify for a discount in such a situation.
LISTNUM 1 \l 1372 COMMISSIONER LANGFORD: How do they become informed of these deals? Through you or through ‑‑
LISTNUM 1 \l 1373 Mr. McLEOD: Simply part of their annual membership package as a member here of the following benefits.
LISTNUM 1 \l 1374 COMMISSIONER LANGFORD: Right. And then, it's up to them to exercise their rights?
LISTNUM 1 \l 1375 Mr. McLEOD: Correct.
LISTNUM 1 \l 1376 COMMISSIONER LANGFORD: Thank you very much. That's my question.
LISTNUM 1 \l 1377 THE CHAIRMAN: Thank you very much for your presence here. I am not sure if we want to pursue further, counsel.
LISTNUM 1 \l 1378 MR. MILLINGTON: Merci, monsieur le président.
LISTNUM 1 \l 1379 My first question is I want a clarification from Commissioner Langford.
LISTNUM 1 \l 1380 Were you leaving it up to me to determine whether we want to follow up on that question with respect to their membership and the business to business telemarketing?
LISTNUM 1 \l 1381 COMMISSIONER LANGFORD: Yes, please. I think you folks, having prepared the briefings and anticipating what may be necessary and what holds need to be filled, I would rather leave it to you now you see the way this thing works out.
LISTNUM 1 \l 1382 But I would rather leave it to you as to whether you want to follow up on an offer which would require an undertaking of some sort.
LISTNUM 1 \l 1383 MR. MILLINGTON: Yes. I think it would be ‑‑ yes.
LISTNUM 1 \l 1384 I think there would be an ‑‑ given the demographics of your organization, Mr. McLeod, given the fact that they're on the small end of corporations, it would be interesting to hear from your membership with respect to whatever inconvenience they may determine telemarketing from other business would constitute.
LISTNUM 1 \l 1385 So, if you could undertake to pull your members and find out what their views would be on that. In fact, you can include in that your own views as an organization, with respect to being telemarketed from by other organizations.
LISTNUM 1 \l 1386 The second question I have is also for you, Mr. McLeod. You mentioned in your remarks this morning that Advocis has many years of experience in the complaint resolution process through the Chartered Life Underwriters processes and I am wondering if there is anything in those processes that you believe would be of assistance to the Commission in elaborating its own guidelines with respect to complaint resolution?
LISTNUM 1 \l 1387 Mr. McLEOD: As we mentioned, because we are not an S.R.O., our role in terms of complaint and the resolution of any complaint against the member is a sanction in terms of membership and/or reporting to a regulatory body, which we might do in the appropriate, in the appropriate circumstance.
LISTNUM 1 \l 1388 And both of those are significant issues for any licensed member of our organization and that works very well and effectively and has for many years in that regard since in all provinces members of our Association must be licensed to be able to transact business.
LISTNUM 1 \l 1389 So, our mechanism is effective and I would suggest to you is a model that is worth looking at in that sense.
LISTNUM 1 \l 1390 MR. MILLINGTON: So, this is a publicly available set of guidelines that we could consult then?
LISTNUM 1 \l 1391 Mr. McLEOD: Yes.
LISTNUM 1 \l 1392 MR. MILLINGTON: Okay. And, for example, you mentioned also that the size of an organization should be considered by us in terms of one of the criterian to look at with respect to our own complaint resolution process.
LISTNUM 1 \l 1393 Is that a criterian that you use in your own complaint resolution process, how big the operator is?
LISTNUM 1 \l 1394 Mr. McLEOD: Our members are all individual members, so we don't look at that in terms of our organization.
LISTNUM 1 \l 1395 MR. MILLINGTON: Would you undertake to send me those ‑‑ that process that you use, so that we could take a look at it?
LISTNUM 1 \l 1396 Mr. McLEOD: We'll send you information on that, for sure.
LISTNUM 1 \l 1397 MR. MILLINGTON: Yes.
LISTNUM 1 \l 1398 THE CHAIRMAN: There was one other undertaking. You've got it Shawn? Mr. Kelly?
LISTNUM 1 \l 1399 MR. KELLY: Yes, Mr. President.
LISTNUM 1 \l 1400 THE CHAIRMAN: Thank you. Thank you very much.
LISTNUM 1 \l 1401 Madame la Secrétaire?
LISTNUM 1 \l 1402 THE SECRETARY: Mr. Chairman, CADRI and AFP informed me this morning that they have mutually agreed to change the time of their presentation.
LISTNUM 1 \l 1403 Par conséquent, j'appellerais maintenant monsieur Louis Guay de CADRI et son équipe.
Bonjour.
LISTNUM 1 \l 1404 Monsieur Guay, je vous demanderais maintenant de nous présenter votre groupe, après quoi vous aurez dix minutes pour votre présentation. Merci.
PRESENTATION / PRÉSENTATION
LISTNUM 1 \l 1405 MR. GUAY: Mr. Chairman, Commissioners and Commission staff, good morning. My name is Louis Guay. I am both a member of the CADRI Operations Committee and manager Legal and Regulatory Affairs for TD Meloche Monnex.
LISTNUM 1 \l 1406 With me today are my colleagues, Lucie Sanscartier, at the far left. Also from TD Meloche Monnex, Denis Guertin here at my left, from Belair Direct who is the CADRI's Incoming President and to my right, Laura Gunn, advisor for CADRI.
LISTNUM 1 \l 1407 CADRI is a Canadian Association of direct response insurers. We appreciate the opportunity to present our views today on the establishment of the Do Not Call List.
LISTNUM 1 \l 1408 We should state at the outset that we understand the need in principle for a national Do Not Call List. It is clear that the public broadly supports this idea. Our concerns are focused on how such a system will be implemented and what operational impact this will have on our industry.
LISTNUM 1 \l 1409 CADRI represents a particular kind of insurance company. Our members are mostly active on auto, on the auto insurance market and home insurance market.
LISTNUM 1 \l 1410 We have a particular way of distributing to consumers, we sell direct, meaning that we sell without intermediaries or middle men. Consumers contact us through call centres and web sites, often in response to a direct mail campaign.
LISTNUM 1 \l 1411 Sometimes we contact consumers through telemarketing and other methods to offer competitive quotes on insurance products.
LISTNUM 1 \l 1412 I emphasize our business model because the insurance market place is complex today with many products and ways of selling them.
LISTNUM 1 \l 1413 CADRI represents a simple low cost f distribution. Our members are respected financial institutions subject to regulatory oversight on all of our activities by Federal and Provincial government agencies.
LISTNUM 1 \l 1414 We offer consumers value, convenience, accessibility and speed and we do that by relying on technology and efficient business processes, including telemarketing.
LISTNUM 1 \l 1415 We account our members account for approximately 20 per cent of the auto insurance market and 10 per cent of the home‑owners insurance sold in Canada today.
LISTNUM 1 \l 1416 We are also as individual companies member of the Canadian Marketing Association. We abide by the CMA's rule on telemarketing which are mandatory for our members.
LISTNUM 1 \l 1417 In our written submission CADRI comments here on a number of issues under consideration in this proceeding, but today we would like to focus on one issue that is critical to our ability to continue delivering superior value to insurance consumers. That is follow‑up phone calls to consumers who have requested insurance quotations.
LISTNUM 1 \l 1418 It is common practice for home and auto insurers to collect expiry dates, meaning the dates when a potential customer current insurance policy will expire.
LISTNUM 1 \l 1419 As you may know already, auto insurance and home insurance policies are one‑year contracts.
LISTNUM 1 \l 1420 This practice allows us to time our follow‑up contact precisely so that our approach will come when it is the most useful to consumers, just when they are thinking about renewing their policies and hopefully they are shopping around and doing some price and value comparisons.
LISTNUM 1 \l 1421 This is a service to consumers that also enhances competition in the marketplace because it gives consumers more information before they make their decision about the insurance protection that best suits their needs.
LISTNUM 1 \l 1422 When our follow‑up calls are made, we remind customers that they have expressed interest in receiving a quotation. They always have the option of discontinuing the conversation if they wish and we will respect that.
LISTNUM 1 \l 1423 Most importantly this type of follow‑up call is one that the consumer has already consented to in providing the expiry date. Therefore, our view is that this is not an unsolicited call.
LISTNUM 1 \l 1424 The Commission has defined telemarketing as the use of telecommunication facilities to make unsolicited calls for the purpose of solicitation and goes on to give further nuance to the concept of solicitation.
LISTNUM 1 \l 1425 Solicited calls are not telemarketing as defined above, in our opinion. They should be allowed, regardless of whether a person has registered for the Do Not Call List.
LISTNUM 1 \l 1426 some might say that this situation is already covered under the exemption for existing business relationships. That is defined to include those who have requested information from a company within the last six months.
LISTNUM 1 \l 1427 However, the collection of expiry dates takes place all year long. A follow‑up call might not take place within the six‑month window. It might take longer because it is linked to a specific event: the consumer's expiry date expiry of his policy.
LISTNUM 1 \l 1428 You might ask: Why should we call someone if they have registered for the Do Not Call List? Isn't that self‑defeating from a sales perspective?
LISTNUM 1 \l 1429 Well, there is a difference in our opinion between wanting protection from dinner time phone calls from the whole universe of people selling things or asking for donations over the phone and a specific product that you are interested in.
LISTNUM 1 \l 1430 It isn't difficult to imagine someone registering for the Do Not Call List and not remembering that they have also asked specifically for an insurance quote.
LISTNUM 1 \l 1431 So generally a Do Not Call registration should not cancel out a specific request for information.
LISTNUM 1 \l 1432 From an operational standpoint, we should not have to incur the cost and time involved in vetting our expiry date calling lists against a Do Not Call List. As we have stated, our expiry date lists are comprised of people who have already given consent to be called. So they are not unsolicited calls.
LISTNUM 1 \l 1433 It should also be noted that the legislation providing for the Do Not Call Lists complement existing federal and provincial privacy legislations, as well as insurance legislations.
LISTNUM 1 \l 1434 Our phone calls geared to expiry dates comply with all applicable privacy and insurance legislations. These are the issues that we hope you will consider in developing the interpretative rules for the Do Not Call List regime.
LISTNUM 1 \l 1435 The system ultimately adopted should allow calls to provide specifically requested information to continue regardless of the date of the request. Therefore, we recommend that the Commission adopt interpretative guidelines to provide greater clarity on that issue.
LISTNUM 1 \l 1436 Thank you for allowing us to share CADRI's comments about the implementation of the Do Not Call List. We would be happy to take your questions.
LISTNUM 1 \l 1437 THE CHAIRPERSON: Thank you.
LISTNUM 1 \l 1438 Commissioner Langford.
LISTNUM 1 \l 1439 COMMISSIONER LANGFORD: Thank you very much.
LISTNUM 1 \l 1440 Your source of interest is clear, but I actually do have a couple of questions about it.
LISTNUM 1 \l 1441 I have read your written submission, I heard you this morning and there is a couple of things about the mechanics of what you are doing that I just don't get.
LISTNUM 1 \l 1442 You refer on page 3 to potential clients, potential customers.
LISTNUM 1 \l 1443 Are you saying that you are somehow collecting the expiry dates of insurers who are not now customers of yours?
LISTNUM 1 \l 1444 MR. GUAY: That is correct, sir.
LISTNUM 1 \l 1445 COMMISSIONER LANGFORD: How do you get those?
LISTNUM 1 \l 1446 MR. GUAY: We get that through a variety of means. We get it through the internet. Typically what we do is we send our clients information about insurance products ‑‑ potential clients, that is.
LISTNUM 1 \l 1447 We often get ‑‑ in the case of our company, TD Meloche Monnex, we are a major group insurer. So we get information about potential clients from the groups with whom we have affinity agreements.
LISTNUM 1 \l 1448 We send information to these potential clients and we invite them ‑‑ one of the things that we do in this publicity is we invite those potential clients to let us know if they are interested in getting a quote, a quotation.
LISTNUM 1 \l 1449 One way we do that, one of the things we are offering is to these potential clients to give us their expiry dates. So they can go on the internet, log on one of our internet sites and just fill in the information that we need.
LISTNUM 1 \l 1450 They can send us, they can write down ‑‑ we typically include sometimes a coupon and they can fill it out and send it back.
LISTNUM 1 \l 1451 COMMISSIONER LANGFORD: Can I break this down? I don't want to interrupt but it is getting too much for me.
LISTNUM 1 \l 1452 MR. GUAY: I'm sorry about that.
LISTNUM 1 \l 1453 COMMISSIONER LANGFORD: Some of these expiry dates and the names that go with them, you just find yourself. You have tools of getting on the internet, of digging into this kind of information and finding out, for example, that my insurance expires August 31st or something, and then you would contact me.
LISTNUM 1 \l 1454 Is that how it works?
LISTNUM 1 \l 1455 MR. GUERTIN: No. If I may try to answer your question, I think what we do is we have several ways to propose to you, if you are a member of an association that we have an agreement with. It could be through a welcome package.
LISTNUM 1 \l 1456 I will give you an example.
LISTNUM 1 \l 1457 I am for Belair Direct and we have groups with policemen. So when they have new policemen, they have packages and in those packages they say there is benefit for you. If you want to have a quote from Belair Insurance, you send them this coupon with the expiry date and information. And then we follow up.
LISTNUM 1 \l 1458 COMMISSIONER LANGFORD: And you would categorize that as you do on page 4 as not unsolicited because you have a request.
LISTNUM 1 \l 1459 MR. GUERTIN: Yes.
LISTNUM 1 \l 1460 COMMISSIONER LANGFORD: You have a request saying please call me.
LISTNUM 1 \l 1461 MR. GUERTIN: Yes.
LISTNUM 1 \l 1462 COMMISSIONER LANGFORD: Okay. I'm with you. Give me another example.
LISTNUM 1 \l 1463 MR. GUERTIN: This is an explicit consent from the consumer for us to follow up.
LISTNUM 1 \l 1464 COMMISSIONER LANGFORD: Right.
LISTNUM 1 \l 1465 MR. GUERTIN: Our concern, of course, is often the expiry date is beyond the six‑month window. And this is where we want to be reassured that if you as a consumer ask us to follow up on an expiry date and your expiry date is in ten months from now, that we would not be prevented from doing so.
LISTNUM 1 \l 1466 COMMISSIONER LANGFORD: Well, we are a little late in the day for changing the legislation right now.
LISTNUM 1 \l 1467 MR. GUERTIN: Yes.
LISTNUM 1 \l 1468 COMMISSIONER LANGFORD: So isn't your approach to find a way to work with that, to make one call within the six months and invite consent to make a second or to follow up with a package and ask them to mail something back if they want a quotation?
LISTNUM 1 \l 1469 We are not Parliament here. We are the Commission. If the six months is laid down, isn't really the answer for you to work around that problem to adjust your ways of doing business?
LISTNUM 1 \l 1470 THE CHAIRPERSON: Could I make a suggestion to see whether we are on the same wavelength?
LISTNUM 1 \l 1471 COMMISSIONER LANGFORD: Absolutely. Go ahead.
LISTNUM 1 \l 1472 THE CHAIRPERSON: If the six‑month requirement appears to me to apply to a case where the contact has not been explicitly about get in touch with me about something; it has rather been I happen to know when the new lawn mower model comes out, let me know or whatever.
LISTNUM 1 \l 1473 But in this case it seems to me the issue would be how we would define a defence for the greater than six‑month contact in the light of an explicit request for information?
LISTNUM 1 \l 1474 Would that possibly be a defence?
LISTNUM 1 \l 1475 I put that up for what it may be worth.
LISTNUM 1 \l 1476 COMMISSIONER LANGFORD: Well, I was hoping to save them from needing a defence. But you are right, that's the way to look at it.
LISTNUM 1 \l 1477 If we want to go to the point where someone says sorry, nice try but you are in violation, I suppose you could ‑‑ I suggest actually you read the Bell Telephone brief. Boy, they've got a list of defences in there that's longer than the New Testament.
LISTNUM 1 \l 1478 I take Chairman French's point of view, and I think if you want to follow that up, it's your treat.
LISTNUM 1 \l 1479 But to me, I don't understand precisely the techniques that you are using. It seems sometimes you fish and find these expiry dates. At other times you actually get a written consent, but in that sense you are only worried about the time.
LISTNUM 1 \l 1480 Really, that's my question. I simply don't understand how you do business that you would be worried when it comes to violating the Do Not Call List, or what it appears to say.
LISTNUM 1 \l 1481 Are you basically trying to say that if I find ‑‑ I understand your card example that you send out to the Police Association; no problem.
LISTNUM 1 \l 1482 But are you saying to us that if you can find an expiry date by some other means, on the internet or somewhere, that would be in your mind not a telemarketing call?
LISTNUM 1 \l 1483 MR. GUERTIN: With all due respect, I don't think we are saying we are fishing for expiry dates without having the consumer giving it to us in a clear and valid consent.
LISTNUM 1 \l 1484 I don't think this is what we are trying to say here.
LISTNUM 1 \l 1485 We are saying once the client has requested from us very explicitly, here's my expiry date and I would like you to contact me maybe a month before because this is the time I am ready to listen, not six months before. That is what we are trying to suggest, not that we are fishing for expiry dates without the client knowing. That's not at all what we do in our business model.
LISTNUM 1 \l 1486 COMMISSIONER LANGFORD: I misunderstood you, then.
LISTNUM 1 \l 1487 MR. GUERTIN: Okay.
LISTNUM 1 \l 1488 COMMISSIONER LANGFORD: My suggestion ‑‑ and I am certainly not going to give anybody any free business advice. That's exactly what it would be worth.
LISTNUM 1 \l 1489 But it would seem to me that rather than to try and strain the terms of the legislation we have and to find ways to find subtle exceptions, it would seem to me the easier route for people who have worries is to reconstruct, restructure your business paradigm so that you come within the six months and you cover it.
LISTNUM 1 \l 1490 You have come up with clever ways of getting hold of members and association members and whatnot through packages. It seems to me now it is just a matter of timing.
LISTNUM 1 \l 1491 But that is a gratuitous piece of advice and is worth precisely what you paid for it.
LISTNUM 1 \l 1492 Those are my questions, Mr. Chair.
LISTNUM 1 \l 1493 THE CHAIRPERSON: Commissioner Duncan.
LISTNUM 1 \l 1494 COMMISSIONER DUNCAN: Good morning.
LISTNUM 1 \l 1495 MR. GUAY: Good morning.
LISTNUM 1 \l 1496 COMMISSIONER DUNCAN: I am just going to go over some of the same questions that I asked the earlier presenters so that we can get some of your answers to those questions on the record.
LISTNUM 1 \l 1497 With respect to the overriding Do Not Call List rule, in paragraph 22 of its submission The Companies proposed that the key Do Not Call List rule should read as follows:
"No person or organization shall initiate a telemarketing call to a person or organization who is validly listed in the National Do Not Call database unless the person or organization from whom the telemarketing call originates is exempt pursuant to section 41.7(1) of the amended Telecommunications Act."
LISTNUM 1 \l 1498 Do you have any comments on that proposed wording? Are you satisfied with it or want to make any suggestions?
LISTNUM 1 \l 1499 MS SANSCARTIER: I don't think we have any problem with the definition as it stands. I think our issue is with the term "telemarketing". The types of calls that we have described we submit don't belong within the ambit of telemarketing, because they are not unsolicited calls.
LISTNUM 1 \l 1500 COMMISSIONER DUNCAN: We have noted your comments on that. That's fine.
LISTNUM 1 \l 1501 MS SANSCARTIER: But with the definition, we have no problem with that.
LISTNUM 1 \l 1502 COMMISSIONER DUNCAN: All right, that's great.
LISTNUM 1 \l 1503 With respect to the application of the Do Not Call List rules to faxes, do you believe the Do Not Call List rules should apply to unsolicited faxes?
LISTNUM 1 \l 1504 Are you aware of any technical, financial or administrative issues with applying those rules to unsolicited faxes?
LISTNUM 1 \l 1505 MR. GUAY: If you allow me, our members do not use that type of solicitation. So we have no comments on this one.
LISTNUM 1 \l 1506 COMMISSIONER DUNCAN: In case that practice were to ever change, what would you say to it in that case? Or you would reserve comment until then, I guess?
LISTNUM 1 \l 1507 MR. GUAY: Yes, reserves our comments; thank you.
LISTNUM 1 \l 1508 COMMISSIONER DUNCAN: I am reluctant to go by "never". Thank you.
LISTNUM 1 \l 1509 With regard to access to the list by small telemarketers ‑‑ and I wouldn't consider your company small.
LISTNUM 1 \l 1510 These people are all employees of either of your companies.
LISTNUM 1 \l 1511 With regard to access to the list by small telemarketers, do you think that the smaller operators warrant a different regime to ensure their viability; and if so, how would you define that regime, perhaps in terms of technology or fees?
LISTNUM 1 \l 1512 Should the operators be classified by certain quantifiable data such as gross income and given different alternative ways for accessing the database, for example?
LISTNUM 1 \l 1513 MR. GUAY: Like you said yourself, we represent fairly large companies, national companies, and we do understand that perhaps some smaller operators will need some flexibility.
LISTNUM 1 \l 1514 COMMISSIONER DUNCAN: So you wouldn't be opposed to a multi‑tier fee system ‑‑
LISTNUM 1 \l 1515 MR. GUAY: No.
LISTNUM 1 \l 1516 COMMISSIONER DUNCAN: ‑‑ that takes into consideration that.
LISTNUM 1 \l 1517 That's great.
LISTNUM 1 \l 1518 I just want to talk about the CMA's comment at paragraph 77 of their submission: that the Commission should adopt a regulation that would clarify that telemarketers may contact a consumer by telephone even if he or she is on the Do Not Call List if the marketer has received the consumer's consent to do so, which is along the lines of what you are talking about.
LISTNUM 1 \l 1519 We just want to know what you consider would be appropriate documentation of that consent that would satisfy or stand up if there was to be an investigation.
LISTNUM 1 \l 1520 MR. GUAY: First of all, to answer your question more specifically, yes, we support that comment, that statement. It is logic from our perspective.
LISTNUM 1 \l 1521 From a privacy perspective and what type of consent we should be expecting, as you may know, there is a patchwork of privacy legislation in Canada. Quebec has its own, Alberta, B.C. and there is PEPITA.
LISTNUM 1 \l 1522 The privacy requirements are slightly different with respect to consent. So to give you an honest answer, PEPITA allows for an implicit consent, an implied consent.
LISTNUM 1 \l 1523 I think every type of consent that is legal from a privacy perspective in the relevant province or region should be considered.
LISTNUM 1 \l 1524 I know that even in our industry, the different players have adopted different strategies to get their clients' consent.
LISTNUM 1 \l 1525 For example, in our case, we have what we call an underwriting consent. So when a client calls in, we have a verbal script that our representative reads to the client to get their consent. Not all companies do that.
LISTNUM 1 \l 1526 We have follow‑up documentation that informs customers about what we do with their information and the purposes for which we collect and use the information.
LISTNUM 1 \l 1527 I think in all honesty it is difficult to answer your question, because it may vary. But I think any legal way of collecting or getting a consent should be considered.
LISTNUM 1 \l 1528 COMMISSIONER DUNCAN: Your comments are very helpful in developing what the guidelines should be, the compliance continuum. I think that is very helpful.
LISTNUM 1 \l 1529 MR. GUAY: Thank you.
LISTNUM 1 \l 1530 COMMISSIONER DUNCAN: With respect to internal Do Not Call Lists, in your submission you indicate that it shouldn't be necessary for organizations to maintain internal lists and thinking that it might cause ‑‑ this is CADRI's, actually both of you, I gather, in your suggestions indicated that you didn't feel it was necessary to maintain internal lists.
LISTNUM 1 \l 1531 But in CADRI's case specifically, you indicated it may cause confusion and add costs.
LISTNUM 1 \l 1532 I am just wondering if you have considered a consumer who does not want to register on the national list but does not want to receive calls from a specific company, a requirement to maintain internal lists in conjunction with the national list would give those consumers added flexibility and would mean that they could still be contacted by the telemarketers.
LISTNUM 1 \l 1533 MR. GUAY: It's a very good point, Ms Duncan.
LISTNUM 1 \l 1534 It's funny because since we have done our presentation, we have had further discussions and have reconsidered that point.
LISTNUM 1 \l 1535 I think our position at this point would be that there is a need, there is a logic for keeping our own lists.
LISTNUM 1 \l 1536 So I will let my colleague complete the answer on that.
LISTNUM 1 \l 1537 MR. GUERTIN: Maybe the original submission we made was more based on our concern on how to manage all those lists, because for those who have experience in managing client lists and databases, the more match you try to do, the more complex it becomes. You could have your own internal Do Not Call, "do not mail", "do not e‑mail".
LISTNUM 1 \l 1538 COMMISSIONER DUNCAN: Yes.
LISTNUM 1 \l 1539 MR. GUERTIN: I think our concern was more the intent is right from a concern point of view, and we all agree. This is why we have kind of revisited our comments that we made in the original presentation.
LISTNUM 1 \l 1540 We agree that I could maybe as a consumer, maybe I don't want my name to be on the Do Not Call List on a national basis, but I don't want your company to call me. So for that purpose we agree.
LISTNUM 1 \l 1541 We were more concerned about the operational challenge that it will bring.
LISTNUM 1 \l 1542 So we do support the intent of having a company list, if you want. We are just going to have to find a way to make it operationally viable.
LISTNUM 1 \l 1543 COMMISSIONER DUNCAN: That's encouraging that you do think that obviously it could be managed.
LISTNUM 1 \l 1544 MR. GUERTIN: Yes. We understand the need. And even for our own business it is not a good thing to contact someone who doesn't want you to.
LISTNUM 1 \l 1545 COMMISSIONER DUNCAN: That's true. It's like shooting yourself in the foot.
LISTNUM 1 \l 1546 MR. GUERTIN: Yes, exactly.
LISTNUM 1 \l 1547 COMMISSIONER DUNCAN: With respect to the CMA's recommendation that the Commission allow companies to make digitally pre‑recorded voice calls through Automatic Dialling and Answering Devices, ADADs, for business‑to‑business telemarketing, for telemarketing to consumers with whom an existing business relationship exists, and for customers who have provided consent ‑‑
LISTNUM 1 \l 1548 First of all, maybe I should ask if ADADs would be useful in your business. If they were allowed, would you contemplate using them?
LISTNUM 1 \l 1549 MR. GUERTIN: A quick survey was made of our members, and we do not use this and our members do not intend to use this. So whether it is forbidden or not, that wouldn't seem to have an impact on what we intend to do.
LISTNUM 1 \l 1550 COMMISSIONER DUNCAN: Those are helpful comments. Thank you.
LISTNUM 1 \l 1551 I would also like to ask the question that I asked about Contact New Brunswick's concern with respect to cost. Theirs is particular in regards to smaller companies setting up the necessary equipment and hardware and software to be compliant with the new Do Not Call List system.
LISTNUM 1 \l 1552 I am wondering if you have any view or estimate on what the cost might be.
LISTNUM 1 \l 1553 I know that you are looking at a larger company and the economics are completely different, but do you have an opinion on that?
LISTNUM 1 \l 1554 MR. GUERTIN: I am not sure that I have an opinion as much as an impression.
LISTNUM 1 \l 1555 COMMISSIONER DUNCAN: That's helpful.
LISTNUM 1 \l 1556 MR. GUERTIN: It seems to me, from our own experience, that whether you are trying to match a million names or 10,000 names, the infrastructure and the process is probably close to the same in terms of the impact on costs.
LISTNUM 1 \l 1557 It is a complex thing to match databases. I really want to stress this. Whether what you are doing is trying to match a small list or a big list, there is a process to implement within your own organization. For that process to reach, let's say, 95 percent accuracy, this is where the investment is, in my mind, more than the cost of the computer of doing that.
LISTNUM 1 \l 1558 COMMISSIONER DUNCAN: Considering the evolution of telemarketing in the U.S., and what will happen here in Canada, do you think that at some point it would be reasonable to expect that there would be off‑the‑shelf software available?
LISTNUM 1 \l 1559 Is that possible?
LISTNUM 1 \l 1560 MR. GUERTIN: I must admit that I have never thought about this.
LISTNUM 1 \l 1561 COMMISSIONER DUNCAN: You would have another line of business and you could sell what you ‑‑
LISTNUM 1 \l 1562 MR. GUERTIN: Yes.
LISTNUM 1 \l 1563 Yes, that could be.
LISTNUM 1 \l 1564 COMMISSIONER DUNCAN: It could be possible.
LISTNUM 1 \l 1565 MR. GUERTIN: Because if whatever the rules will be create the need, I am sure there will be people thinking about it.
LISTNUM 1 \l 1566 COMMISSIONER DUNCAN: Thank you.
LISTNUM 1 \l 1567 This might be something that would be more relevant to larger companies. It would definitely be, because they might want to engage a third party provider, for example, another call centre, ad agency or call broker, to access the list on their behalf.
LISTNUM 1 \l 1568 We are wondering, first of all, if that should be allowed. Do you think that we should allow third parties to access the list?
LISTNUM 1 \l 1569 And how should such access be granted and controlled?
LISTNUM 1 \l 1570 Also, of course, there is an element of who should pay in there; and if they should be required to identify on whose behalf they are accessing the list.
LISTNUM 1 \l 1571 MS SANSCARTIER: I'm sorry, I might have missed some of the elements of your question.
LISTNUM 1 \l 1572 With respect to third party users, our members don't have any problem in principle with allowing them access.
LISTNUM 1 \l 1573 I think, from our perspective, a lot of the questions you raise will be worked out in private contracts between the outsourced party and the institution.
LISTNUM 1 \l 1574 So compliance and all of that for us is something that, if the member company has an expectation, it is that their provider will comply with every rule there is because they are representing them.
LISTNUM 1 \l 1575 COMMISSIONER DUNCAN: So you think that it could be managed through an outsourcing arrangement or a contract.
LISTNUM 1 \l 1576 MS SANSCARTIER: Yes.
LISTNUM 1 \l 1577 COMMISSIONER DUNCAN: Thank you.
LISTNUM 1 \l 1578 The last question that I have is on the rate structure ‑‑ the potential rate structure for the system.
LISTNUM 1 \l 1579 The companies have suggested that the fees for making use of the national Do Not Call List could be applied annually, quarterly, monthly, or at the time the system is accessed. That really has a cash flow implication, but, at any rate, there are many options for doing that.
LISTNUM 1 \l 1580 The companies suggest that fees could be charged on a per access basis, which I think they indicate is probably the most equitable.
LISTNUM 1 \l 1581 In the U.S., the fees are charged based on the area codes for which information is retrieved, with the first five being provided at no charge.
LISTNUM 1 \l 1582 In the U.K., the fee structure is based on the type of licence ‑‑ and I think there are three or four types of licences ‑‑ and the quantity of area codes that an entity wishes to access.
LISTNUM 1 \l 1583 What type of rate structure do you think would best serve Canadian organizations, and is there a particular structure that would be better suited to small organizations?
LISTNUM 1 \l 1584 MR. GUERTIN: I don't think we have spent much time reflecting on what should be the preferred rate structure. I think our comment would be more like: Let's make sure it is a level playing field for the small as well as the big players.
LISTNUM 1 \l 1585 I don't think the big players should pay more because they are big. As well, I don't think the small players should have a disadvantage in accessing this, because it is now mandatory.
LISTNUM 1 \l 1586 I think that a per access basis seems to be an interesting scenario. I am not personally familiar enough with the U.K. system to further comment.
LISTNUM 1 \l 1587 COMMISSIONER DUNCAN: Do you think, from a technical point of view ‑‑ because, obviously, you are familiar with the software implications in developing a system like that ‑‑ do you anticipate that that would be insurmountable?
LISTNUM 1 \l 1588 It sounds like a reasonable application to charge on a per access basis.
LISTNUM 1 \l 1589 MR. GUERTIN: Yes, I think so.
LISTNUM 1 \l 1590 We have other instances in our industry where we have to access third party databases, and we have a different structure of fees, depending on what database, and on a per access basis doesn't seem ‑‑
LISTNUM 1 \l 1591 COMMISSIONER DUNCAN: All right. Thank you very much.
LISTNUM 1 \l 1592 Those are my questions, Mr. Chairman.
LISTNUM 1 \l 1593 THE CHAIRPERSON: Commissioner Cram.
LISTNUM 1 \l 1594 COMMISSIONER CRAM: Thank you.
LISTNUM 1 \l 1595 I wanted to go back to your six‑month concern.
LISTNUM 1 \l 1596 Is it your position that, even if you get the explicit consent of the individual, if that consent says "within the next 12 months", we would see that as a violation?
LISTNUM 1 \l 1597 MR. GUERTIN: Yes, that is the concern that we wanted to raise this morning, that if we have consent from a potential client, because there is no product relationship at the moment, and if we were to follow up beyond the six‑month period, it would be considered a violation.
LISTNUM 1 \l 1598 COMMISSIONER CRAM: All right. Here is the fact scenario.
LISTNUM 1 \l 1599 I am on the Do Not Call List, but I want Belair Direct to give me a quote, and I see your coupon, and I have to send you something back ‑‑ in paper always?
LISTNUM 1 \l 1600 Is that ‑‑
LISTNUM 1 \l 1601 MR. GUERTIN: On paper, or it could be, also, on the phone.
LISTNUM 1 \l 1602 In our case, we have digital recordings of all the calls, so in terms of traces, we have different ‑‑
LISTNUM 1 \l 1603 COMMISSIONER CRAM: One or the other.
LISTNUM 1 \l 1604 MR. GUERTIN: Yes.
LISTNUM 1 \l 1605 COMMISSIONER CRAM: Or the Internet.
LISTNUM 1 \l 1606 MR. GUERTIN: Or the website.
LISTNUM 1 \l 1607 COMMISSIONER CRAM: Yes.
LISTNUM 1 \l 1608 And I say, "I want you to call me anytime during the next 12 months," and I give you my explicit consent to phone me within the next 12 months ‑‑
LISTNUM 1 \l 1609 MR. GUERTIN: Yes.
LISTNUM 1 \l 1610 COMMISSIONER CRAM: You are saying, even in that circumstance, you think that if you phone in the seventh month, that would be a violation of the Do Not Call List?
LISTNUM 1 \l 1611 MR. GUERTIN: We wanted to be reassured that it would not be.
‑‑‑ Laughter / Rires
LISTNUM 1 \l 1612 COMMISSIONER CRAM: The next thing I want to know is, what do you say to people when you get their name and address of what use you are going to put to that information?
LISTNUM 1 \l 1613 Under PIPEDA, what do you tell them what you are going to use it for?
LISTNUM 1 \l 1614 MR. GUAY: Do you mean in the context of getting the expiry date, or generally speaking?
LISTNUM 1 \l 1615 COMMISSIONER CRAM: Getting their information, the phone number and their name.
LISTNUM 1 \l 1616 MR. GUAY: In relation to ‑‑
LISTNUM 1 \l 1617 COMMISSIONER CRAM: PIPEDA says that you have to tell them the purpose of the use of that information. What do you tell them?
LISTNUM 1 \l 1618 MR. GUAY: Generally speaking, like I said to Commissioner Duncan, our members have different approaches to getting consent and telling ‑‑ you know, they have different strategies in terms of privacy, depending, also, on where they operate.
LISTNUM 1 \l 1619 But, in general, most of our members, I think, have implemented an underwriting consent. So when somebody is calling, we tell them that we will be collecting their information and using it for the specific purpose of offering insurance.
LISTNUM 1 \l 1620 In our case, if I can speak for TD Meloche Monnex, we have a brochure that we send to all of our customers to explain what we will do with the information and how they can find out more information about our privacy policy.
LISTNUM 1 \l 1621 Every time we are in contact with our customers, especially at ‑‑ one of the strong moments, if you want, in the insurance relationship, is when there is a claim. So, obviously, when someone is reporting a claim, it is another time when we try to get specific consent.
LISTNUM 1 \l 1622 It depends on the moment of the relationship, but what we basically do is, every time we have a chance, we tell our customers what we will do with the information, and the purposes are usually all the same from one company to another. It is assessing their profile. It is collecting the information and using the information that we have collected from them.
LISTNUM 1 \l 1623 Sometimes, also, we ask them to give us the consent to verify or collect information from third parties to complete the profile.
LISTNUM 1 \l 1624 It is basically around those purposes.
LISTNUM 1 \l 1625 COMMISSIONER CRAM: So given the different jurisdictions and requirements, it would probably be better to have a federal requirement that would apply across the country.
LISTNUM 1 \l 1626 Would it be a big stretch for you to inform these people that their name and telephone number will be used for telemarketing purposes even if they are on the Do Not Call List?
LISTNUM 1 \l 1627 That wouldn't be a problem, would it?
LISTNUM 1 \l 1628 MR. GUAY: No, I don't think so. I can't think of anything ‑‑
LISTNUM 1 \l 1629 COMMISSIONER CRAM: Thank you.
LISTNUM 1 \l 1630 Thank you, Mr. Chair.
LISTNUM 1 \l 1631 THE CHAIRPERSON: Thank you, Commissioner Cram.
LISTNUM 1 \l 1632 Counsel.
LISTNUM 1 \l 1633 MR. MILLINGTON: I would like to return to the question of consent.
LISTNUM 1 \l 1634 As I understand the processes that your members use, there are a number of different ways by which they get consent.
LISTNUM 1 \l 1635 Would it be particularly onerous for your members to always maintain some form of written evidence of the consent obtained and the nature and scope of that consent?
LISTNUM 1 \l 1636 MR. GUAY: In the context of the expiry date, not really, because we actually get the information. It is the customer that is sending the information, so written ‑‑
LISTNUM 1 \l 1637 I want to clarify the term "written", because in our world we use technology a lot, and we use the Internet. So written ‑‑ I don't know what written means any more.
LISTNUM 1 \l 1638 I think any document that you can print, that is virtual but you can print, could qualify, but it is not because you haven't printed it that it's not written yet anyway.
LISTNUM 1 \l 1639 As for the general consent that we get, I have to say that in our industry, generally speaking ‑‑ and not only the companies doing business directly with the public, but also the companies who are distributing their products to brokers ‑‑ most of the companies rely on implied consent, and there is not always ‑‑ you cannot find a piece of paper on which the customer has signed a consent form or anything like that. The business is done over the phone, mostly.
LISTNUM 1 \l 1640 MR. MILLINGTON: I am just going to the comment that you made in your submission this morning, where you identified it as a critical issue, the ability to make these follow‑up phone calls.
LISTNUM 1 \l 1641 MR. GUAY: Yes.
LISTNUM 1 \l 1642 MR. MILLINGTON: If it is that critical to your business, then surely you could take a step across your membership, such that the record‑keeping of that consent was sufficient for at least a couple of purposes.
LISTNUM 1 \l 1643 I am not giving you advice here, I am just raising it as a theory.
LISTNUM 1 \l 1644 For example, there is under the Act, as it is currently drafted, common law defences, and if there is consent and you can evidence the consent, that might be something that your legal advisors could advise you on, as to whether that might constitute a sufficient defence in that context.
LISTNUM 1 \l 1645 There is also another possibility that you might seek some advice on ‑‑ and I am wondering whether you have ‑‑ which is, under 41.7(2)(a) ‑‑ it is the (b) subsection that refers to the six‑month period that you are concerned about.
LISTNUM 1 \l 1646 The preceding subsection, sub (a), talks about an 18‑month window, which would address your 12‑month period.
LISTNUM 1 \l 1647 Have you ever considered structuring your provision of the quotes as a type of service, which, possibly, would make that subsection available to you?
LISTNUM 1 \l 1648 Have you looked into that at all?
LISTNUM 1 \l 1649 MR. GUAY: Not yet. We haven't looked into that.
LISTNUM 1 \l 1650 MR. GUERTIN: I think the hesitation that we had in trying to answer your question was more to do with when you used the words "written consent", as opposed to "legally valid consent".
LISTNUM 1 \l 1651 Right now, as I said, there could be a consent given to us on our website. Could we say that is written?
LISTNUM 1 \l 1652 We identified the person who was coming to our website, and they provided us with their expiry date.
LISTNUM 1 \l 1653 It could be done over the phone. As I said, in our case we use digital recordings, and most provinces have adopted legislation that allows that as being legally valid.
LISTNUM 1 \l 1654 So legal evidence of that, I think ‑‑ we could survey our members, but my feeling is that they would agree with that.
LISTNUM 1 \l 1655 The format, I think, is where we ‑‑ we would probably suggest that it has to be a legally valid format, but written, in today's world, is not the only legally valid format.
LISTNUM 1 \l 1656 MR. MILLINGTON: The question would be, then, is it so onerous for organizations that make up your membership to comply with the legal evidentiary requirements of obtaining some form, whether it is electronic or written or otherwise, but something that would be legally satisfactory to constitute evidence of a consent, and therefore have that available to you under the Act.
LISTNUM 1 \l 1657 MR. GUERTIN: Yes.
LISTNUM 1 \l 1658 MR. MILLINGTON: As I say, the alternative is to take a look at 47.2(a) to see what you could do with that in order never to run amuck of the subsection in the first place.
LISTNUM 1 \l 1659 MR. GUERTIN: It seems to us, I think, reasonable, feasible and legally sound.
LISTNUM 1 \l 1660 Of course, in our association, we like to come back to our members and ask if they have any issue that we don't see ourselves. But spontaneously, answering your question, I think this is feasible and right as well.
LISTNUM 1 \l 1661 LE PRÉSIDENT : Madame la Secrétaire, avez‑vous quelque chose à ajouter avant que je remercie le panel?
LISTNUM 1 \l 1662 LA SECRÉTAIRE : Non.
LISTNUM 1 \l 1663 LE PRÉSIDENT : Merci beaucoup de votre présence. Ça été très utile.
LISTNUM 1 \l 1664 Ladies and gentlemen, we will take a break for 15 minutes. We will be back at 11:35 a.m.
‑‑‑ Upon recessing at 1110 / Suspension à 1110
‑‑‑ Upon resuming at 1135 / Reprise à 1135
LISTNUM 1 \l 1665 LE PRÉSIDENT: À l'ordre, s'il vous plaît.
LISTNUM 1 \l 1666 Ladies and gentlemen, if we could please take up ‑‑ take your seats.
LISTNUM 1 \l 1667 Madame la Secrétaire?
LISTNUM 1 \l 1668 LA SECRÉTAIRE: Oui, monsieur le président. Nous allons continuer avec Canadian Bankers Association, with Ms Linda Routledge.
LISTNUM 1 \l 1669 So, could you introduce your colleagues, please.
LISTNUM 1 \l 1670 THE CHAIRMAN: Just before we begin, we do want you to introduce your colleagues for sure.
You have a time constraint and I've offered you to waive your right of initial presentation in favour of our asking questions but, of course, it's your choice and your option.
LISTNUM 1 \l 1671 You've told me that essentially the comments you had prepared are consistent with and representative of the written submission that you made and so, it's completely up to you after you introduce your colleague, whether you want to make a small or larger initial presentation, but obviously if you have to leave us by 12:15, it is conceivable that the longer we do the initial presentation, the less subsequent discussion and question there will be.
PRESENTATION / PRÉSENTATION
LISTNUM 1 \l 1672 MS ROUTLEDGE: Okay. I am Linda Routledge, director of Consumer Affairs with the Canadian Bankers Association and with me today is Nathalie Zlatinsky who is running a call centre with the Toronto Dominion Bank, TD Bank Financial Group.
LISTNUM 1 \l 1673 MS ZLATINSKY: Thank you.
LISTNUM 1 \l 1674 THE CHAIRMAN: Welcome.
LISTNUM 1 \l 1675 MS ROUTLEDGE: I would like to not do my entire presentation, but just touch on one thing because a number of the other presenters have been talking about this and it's the whole idea of consent and outside of being a problem in terms of being outside of the Do Not Call List.
LISTNUM 1 \l 1676 And what we would like to suggest is that the concept of unsolicited calls be clarified. If an individual without an existing relationship and whose number is listed on the DNCL has given their consent for an organization to call, that consent should override the DNCL prohibition on calling.
LISTNUM 1 \l 1677 If I go to a home show and I fill out a form and say: please call me about a garage door, clearly that person should be able to call me, that business should be able to call me even if my name is on the Do Not Call List.
LISTNUM 1 \l 1678 So, I think if we could clarify what an unsolicited call is or is not, that that may help the situation and with that, I'll move to questions.
LISTNUM 1 \l 1679 THE CHAIRMAN: Thank you very much. Commissioner Duncan.
LISTNUM 1 \l 1680 COMMISSIONER DUNCAN: Good morning. I'll take you through many of the same questions as I've asked the others, but I do have some unique to the Bankers presentation.
LISTNUM 1 \l 1681 First of all, with respect to the overriding DNCL rule and the definition that the companies have proposed, we are interested in whether you have any comments on the wording or whether you would support it or would like to see any changes and I'll just read it for you:
"No person or organization shall initiate a telemarketing call to a person or organization whom is validly listed in the National Do Not Call database, unless the person or organization from whom the telemarketing call originates is exempt, pursuant to Section 4171 of the Amended Telecommunications Act."
LISTNUM 1 \l 1682 MS ROUTLEDGE: I would reiterate my comments just earlier. I think if the person has given consent in one way or another, whether it's ‑‑ if they have given consent, then it should override the DNCL prohibition.
LISTNUM 1 \l 1683 COMMISSIONER DUNCAN: With respect to the application of the Do Not Call List rules to faxes, do you think that they should apply to unsolicited faxes? I don't know if the bank uses those or not, and if there are any technical financial or administrative issues with applying those rules to unsolicited faxes?
LISTNUM 1 \l 1684 MS. ZLATINSKY: To the best of our knowledge, the banking industry does not use faxes to solicit customers for products that they offer.
LISTNUM 1 \l 1685 COMMISSIONER DUNCAN: Oh! Thank you. So, you don't have an opinion?
LISTNUM 1 \l 1686 MS. ZLATINSKY: No.
LISTNUM 1 \l 1687 COMMISSIONER DUNCAN: Thank you.
LISTNUM 1 \l 1688 In your submission ‑‑ just one second now ‑‑ in your submission, you recommend the calls between the telemarketer and any business be exempt from the application of the National Do Not Call List and the application of the National Do Not Call List be limited to calls to a residential line?
LISTNUM 1 \l 1689 MS. ZLATINSKY: That's correct.
LISTNUM 1 \l 1690 COMMISSIONER DUNCAN: Do you believe the current telemarketing rules are appropriate for business to business calls? Not the DNCL rules, but the other rules.
LISTNUM 1 \l 1691 MS ROUTLEDGE: I'm sorry, are there specific rules that you are referring to?
LISTNUM 1 \l 1692 COMMISSIONER DUNCAN: Well, the rules that are in place right now, for example, that they maintain internal Do Not Call Lists.
LISTNUM 1 \l 1693 MS ROUTLEDGE: Yes, I think that is appropriate.
LISTNUM 1 \l 1694 COMMISSIONER DUNCAN: If you do agree that the current telemarketing rules are appropriate, then why would you feel the requirement that these calls, business‑to‑business calls, should be excluded from the Do Not Call List rules?
LISTNUM 1 \l 1695 Currently they do maintain internal Do Not Call List rules, for example, and you support the current rules.
LISTNUM 1 \l 1696 Why do you think that applying the Do Not Call List rules to business‑to‑business calls is a problem?
LISTNUM 1 \l 1697 MS ROUTLEDGE: From a practical perspective, I think it is difficult. There are small businesses that yes, may want to utilize the existing rules.
LISTNUM 1 \l 1698 But from a practical standpoint, a lot of business is done from businesses calling other businesses, and that's just the way the business is done. It is an accepted way of doing business and most regular businesses would accept that.
LISTNUM 1 \l 1699 COMMISSIONER DUNCAN: Actually you touched on my next question.
LISTNUM 1 \l 1700 You have indicated that small home‑based businesses, for example, should be able to register on the list if they choose.
LISTNUM 1 \l 1701 MS ROUTLEDGE: It is not a position that we have solidified with our members, so I find it difficult to give too much detail on that one.
LISTNUM 1 \l 1702 COMMISSIONER DUNCAN: I guess the problem that would follow out of all of this is how the automated system would differentiate between a residential registration, a home business registration, a business of whatever size you think would be appropriate, and not allow that one to register.
LISTNUM 1 \l 1703 MS ROUTLEDGE: I guess part of the difficulties with businesses is where you have a business that has an internal telephone network and how do you get into the practicalities of such and such a number, extension so‑and‑so.
LISTNUM 1 \l 1704 Those are the practicalities that we just thought would be very, very difficult to implement in this type of a Do Not Call List.
LISTNUM 1 \l 1705 COMMISSIONER DUNCAN: There seems to be less of an issue there today because many people have direct lines. But I guess we would have to discuss with the companies just to see what the technical implications there might be.
LISTNUM 1 \l 1706 I think there is an increasing number of larger companies where you dial directly through to the person's number.
LISTNUM 1 \l 1707 But that's fine; thank you.
LISTNUM 1 \l 1708 With regard to the registration period, The Companies propose that the numbers should remain on the Do Not Call List for a period of three years.
LISTNUM 1 \l 1709 In your submission you also recommend an automatic expiry of the registration on the Do Not Call List after three years.
LISTNUM 1 \l 1710 It will cost, obviously, for the Do Not Call operator to re‑register consumers every three to five years, both in terms of staffing and other dollar costs, and will likely annoy and confuse consumers.
LISTNUM 1 \l 1711 In the U.K. consumer numbers remain on the list indefinitely.
LISTNUM 1 \l 1712 Assuming that disconnected numbers and re‑assigned numbers would be removed by the carriers from the Do Not Call List, why shouldn't telephone numbers remain on the Do Not Call List indefinitely or until otherwise removed?
LISTNUM 1 \l 1713 MS ROUTLEDGE: The removal by the carriers would certainly address a lot of the problems that we foresaw.
LISTNUM 1 \l 1714 I guess we look at the way the Canadian Marketing Association list is run now, and it seems to be very satisfactory. As far as I know, they are not getting a lot of complaints when the numbers expire after three years.
LISTNUM 1 \l 1715 It gives the person an opportunity to reconsider whether things have changed at that stage of the game.
LISTNUM 1 \l 1716 COMMISSIONER DUNCAN: And of course that weighs against the overall cost of operating a system, you know the Do Not Call List system, which is going to have to be borne by the participants.
LISTNUM 1 \l 1717 You obviously think that it is important that people have a chance to re‑evaluate their decision.
LISTNUM 1 \l 1718 MS ROUTLEDGE: We do.
LISTNUM 1 \l 1719 COMMISSIONER DUNCAN: And you are not concerned that it would annoy or confuse consumers?
LISTNUM 1 \l 1720 MS ROUTLEDGE: I think it is a matter of the up‑front disclosure, knowing that it lasts for three years. If you disclose it to them at the beginning, then there is a better understanding and acceptance of it.
LISTNUM 1 \l 1721 COMMISSIONER DUNCAN: Thank you.
LISTNUM 1 \l 1722 In paragraph 77, the CMA submitted that the Commission should adopt a regulation that would clarify that telemarketers may contact a consumer by telephone even if he or she is on the Do Not Call List if the telemarketer has received the consumer's consent to do so, which I believe is your position as well.
LISTNUM 1 \l 1723 MS ROUTLEDGE: We definitely agree with that.
LISTNUM 1 \l 1724 COMMISSIONER DUNCAN: I am wondering what you would consider would constitute consumer consent and how that should be documented in order to provide sufficient documentation as a defence in the case of an investigation.
LISTNUM 1 \l 1725 MS ROUTLEDGE: With the banks right now, the banks get consent from consumers as required under PIPEDA and it is usually done with full disclosure on an application form or, in the case of telephone sales, in a script or whatever up‑front.
LISTNUM 1 \l 1726 There is disclosure that the information will be used for providing information on our other products and services that might be of interest to them.
LISTNUM 1 \l 1727 So it covers a wide range. It discloses the different types of products or businesses that are associated with the bank and indicates that, by signing, they would be giving consent to such marketing.
LISTNUM 1 \l 1728 COMMISSIONER DUNCAN: Thank you.
LISTNUM 1 \l 1729 I'm just trying to be mindful of your schedule.
LISTNUM 1 \l 1730 In your submission at paragraph 25 you indicate that the banks will continue to maintain their own Do Not Call Lists for their existing clients as required by regulation. And you indicate that the national Do Not Call Lists should effectively deal with the preference of all non‑customers with respect to that list.
LISTNUM 1 \l 1731 I take it from that that you don't think that internal Do Not Call Lists are necessary for other companies, just the bank will continue to maintain theirs because they are required to do so by regulation.
LISTNUM 1 \l 1732 MS ROUTLEDGE: Yes. They maintain ‑‑ well, regulation and just good customer service. There is no point in the bank phoning someone that doesn't want to hear from them about other products and services. So it makes good sense from that perspective.
LISTNUM 1 \l 1733 COMMISSIONER DUNCAN: You probably heard my comments earlier. The Registered Education Savings Plan Dealers Association made the point that it is reasonable to maintain internal lists because it gives consumers an opportunity to not register on a particular list but not exclude themselves from the whole national, the potential of getting calls across the board.
LISTNUM 1 \l 1734 I just wondered, with that in light, considering that, or if you took that into consideration in making your suggestion that it is not necessary for them to ‑‑
LISTNUM 1 \l 1735 MS ROUTLEDGE: I guess our comment was made in light of the fact that as far as I know ‑‑ and there could be some exceptions to this. But as far as I know, the bank's telemarketing is done to existing customers by and large. So they would have the exemption under the existing customer and non‑customers aren't generally telemarketed.
LISTNUM 1 \l 1736 COMMISSIONER DUNCAN: So then you wouldn't be opposed then giving more thought to ‑‑
LISTNUM 1 \l 1737 MS ROUTLEDGE: We would certainly be supportive of more thought being given to the other part of it.
LISTNUM 1 \l 1738 COMMISSIONER DUNCAN: All right.
LISTNUM 1 \l 1739 MS ROUTLEDGE: At the moment, we can't weigh in on it.
LISTNUM 1 \l 1740 COMMISSIONER DUNCAN: Thank you.
LISTNUM 1 \l 1741 In regard to calling hours, the FCC rules state that telemarketing calling hours are 8:00 a.m. to 9:00 p.m. Parties have recommended other options. The CMA, The Companies and PIAC have recommended the following hours for live voice and fax calls: weekdays, 9:00 a.m. to 9:30 p.m.; weekends, 10:00 a.m. to 6:00 p.m.; and prohibited on statutory holidays.
LISTNUM 1 \l 1742 The Union des consommateurs has recommended the following hours: weekdays, 10:00 a.m. to 6:00 p.m.; weekends, 11:00 a.m. to 3:00 p.m.; and prohibited on statutory holidays.
LISTNUM 1 \l 1743 In Order 96‑12‑29, the Commission established hours for the transmission of unsolicited faxes for the purpose of solicitation and restricted them to the hours between 9:00 a.m. and 9:30 p.m., Monday to Friday; and between 10:00 a.m. and 6:00 p.m. on Saturday and Sunday.
LISTNUM 1 \l 1744 Should there be a time restriction rule for voice telemarketing; and if so, what do you consider to be the appropriate time restrictions?
LISTNUM 1 \l 1745 And also, do you agree with the suggestion in the interests of symmetry that the hours of voice and fax telemarketing should be the same?
LISTNUM 1 \l 1746 Can you think of any reason that would justify having different hours for voice and fax telemarketing?
LISTNUM 1 \l 1747 MS ROUTLEDGE: I think I can give a short answer to that.
LISTNUM 1 \l 1748 The banks are all members of the Canadian Marketing Association, so I think we could support the Canadian Marketing Association's proposed hours.
LISTNUM 1 \l 1749 As we don't do faxes, I would rather not weigh in on that one.
LISTNUM 1 \l 1750 COMMISSIONER DUNCAN: Thank you.
LISTNUM 1 \l 1751 What are you views on whether third party providers such as call centres, ad agencies and call brokers should be allowed to access the system on behalf of another party in order to scrub the list?
LISTNUM 1 \l 1752 Should such access be granted and controlled?
LISTNUM 1 \l 1753 Should third party providers be required to identify on whose behalf they are accessing the list?
LISTNUM 1 \l 1754 MS ZLATINSZKY: We have no concerns with third parties accessing the list. Within our own organization we take ownership for creating a list that we give to third parties. So we already scrub against the internal Do Not Call List. We take full accountability in‑house to make sure that they have the final list on all contactable customers.
LISTNUM 1 \l 1755 COMMISSIONER DUNCAN: So you wouldn't contemplate have the third party scrub your lists. You are large enough that you will be doing it yourselves.
LISTNUM 1 \l 1756 MS ZLATINSZKY: No.
LISTNUM 1 \l 1757 COMMISSIONER DUNCAN: Thank you.
LISTNUM 1 \l 1758 I would like to ask you the question about the rate structure.
LISTNUM 1 \l 1759 The Companies have suggested that fees for using the list could be applied annually, quarterly, monthly or each time the list is used.
LISTNUM 1 \l 1760 The Companies suggest the fees could be charged on a per‑access basis. As I have indicated earlier, they suggest that might be the most equitable.
LISTNUM 1 \l 1761 In the U.S. the fees are charged based on the number of area codes for which information is retrieved, with the first five being provided at no charge.
LISTNUM 1 \l 1762 In the U.K. the fee structure is based on the type of licence and the quantity of area codes an entity wishes to access.
LISTNUM 1 \l 1763 What type of rate structure do you think would best serve Canadian organizations?
LISTNUM 1 \l 1764 Is there a particular structure that would be better suited to smaller organizations?
LISTNUM 1 \l 1765 MS ROUTLEDGE: We haven't considered in detail the subject of rate structure or anything like that. As far as we are concerned, whatever rate structure is put in place should be equitable, cost‑effective, and so on like that.
LISTNUM 1 \l 1766 COMMISSIONER DUNCAN: Thank you very much.
LISTNUM 1 \l 1767 Mr. Chairman, that concludes my questions.
LISTNUM 1 \l 1768 THE CHAIRPERSON: Thank you, Commissioner Duncan.
LISTNUM 1 \l 1769 Commissioner Langford.
LISTNUM 1 \l 1770 COMMISSIONER LANGFORD: Thank you, Mr. Chairman. I will try to be brief.
LISTNUM 1 \l 1771 I think we are doing all right by you. We will get you out the door on time.
LISTNUM 1 \l 1772 MS ROUTLEDGE: Thank you very much.
LISTNUM 1 \l 1773 COMMISSIONER LANGFORD: I want to talk a little bit about enforcement and your position on enforcement.
LISTNUM 1 \l 1774 I have to tell you, perhaps I misunderstand it but it does leave me a little bit confused. I want to see if I can encapsulate my understanding. And if I am wrong, I hope you will correct me immediately.
LISTNUM 1 \l 1775 It seems that what you are saying in your initial document filed with us, from paragraph 43 through to about 48, is that rather than get involved in some sort of consortium that might be working to kind of be an initial step in the resolution process, you would prefer to stick with the sort of resolution process you already have in place and that other ‑‑ my assumption is that other people could do exactly the same thing.
LISTNUM 1 \l 1776 Is that right?
LISTNUM 1 \l 1777 MS ROUTLEDGE: Yes. What we are trying to say is that when a customer of an organization has a problem with that organization, say it's a bank, they should first approach the bank and try and resolve the problem there.
LISTNUM 1 \l 1778 Then if that doesn't work, then fine, there are other methods out there.
LISTNUM 1 \l 1779 COMMISSIONER LANGFORD: I have looked at your careful description of your own problem solving situation. It seems to be about a four‑step process where you go through the internal process in the bank itself on two different steps. If that doesn't work, you can then go on to the ombudsman, the formalized ombudsman system, as you refer to it, for what you call impartial and independent resolution.
LISTNUM 1 \l 1780 So there seems to be kind of four steps all the way.
LISTNUM 1 \l 1781 As good as that may be ‑‑ and I make no critical comment on it. I have never been involved in it. I have no first‑hand knowledge.
LISTNUM 1 \l 1782 So even based on the assumption that the system works and works well, if you have your own system and X, Y and Z have their own systems and the insurance people have their own system and the people who are selling subscriptions to magazines have their own system, aren't we in danger of having a different set of laws, as it were, for each different telemarketing industry, each different telemarketing segment?
LISTNUM 1 \l 1783 And is that ever a good idea in law when in the end you may end up going to the final arbiter, which is either the operator or us, or some other delegate?
LISTNUM 1 \l 1784 Doesn't that strike you that we would end up with two, three, four, or even 50 different systems of enforcement and that that is very unlikely to be equitable and fair across the board?
LISTNUM 1 \l 1785 MS ROUTLEDGE: I think it's fair if each organization deals with its own complaints. The whole idea of this Do Not Call List and the enforcement mechanisms associated with it is meant to not punish little one‑off mistakes. I think I read that somewhere.
LISTNUM 1 \l 1786 What is the material? If it's three or four or a dozen or two dozen complaints, then there is some kind of mechanism for taking some action on it.
LISTNUM 1 \l 1787 Similarly, if a consumer has a small complaint and immediately the bank says gee, I'm sorry, would take you off the list and that person never has another problem with the organization, then why should it have to go through the whole regulatory process?
LISTNUM 1 \l 1788 I can certainly see if there is repeated instances of problems with an organization then you would need to go through and you would want the standardized process that covers everybody.
LISTNUM 1 \l 1789 I am just saying that I think individuals should have, or organizations should have the opportunity to deal with the individual ones and deal with them properly and take them right off the table first.
LISTNUM 1 \l 1790 COMMISSIONER LANGFORD: Of course, there is nothing to stop both of them running parallel.
LISTNUM 1 \l 1791 Can you see the danger that I am flagging for you: that here you have the banks, who have set up an elaborate four‑step two‑tier system of problem solving. Fine. And let's assume, as I say, that it works perfectly. But on the other level and for other groups, that may not exist.
LISTNUM 1 \l 1792 So wouldn't it be better in a sense to be involved in some sort of consortium, a self‑policing kind of level on the first level, the first stage, to bring your expertise to that? Others would bring theirs. But at least to ensure that every telemarketing complaint had the advantage of being handled in the same way.
LISTNUM 1 \l 1793 It might very well be just simply settled at the consortium level and not go any farther; as you say, a one‑off small problem.
LISTNUM 1 \l 1794 On the other hand, if it did move up through the different processes, everybody would at least have the satisfaction of knowing that they were going to get the same justice. It would be justice for all and it wouldn't be one level for people with complaints at the banks and another for people with complaints with magazine subscriptions.
LISTNUM 1 \l 1795 MS ROUTLEDGE: I think it would be level if each consumer had the opportunity to make an attempt to resolve it with the organization. So whether it is Lou's Paving or it is one of the larger banks, if they make that effort and it is successful, then it is looked after.
LISTNUM 1 \l 1796 If it is not successful, then it goes to the process.
LISTNUM 1 \l 1797 I am just saying that there should be an opportunity for an organization to deal with the person one‑on‑one for one occasion, to give them the opportunity, one opportunity, to look after it.
LISTNUM 1 \l 1798 COMMISSIONER LANGFORD: If we were to reject that position ‑‑ of course, there is nothing to stop you keeping your own ombudsman and your own complaint mechanisms.
LISTNUM 1 \l 1799 But if we were to reject that, speaking hypothetically, and say no, we want one system for all, would you then be more inclined to want to be part of that system rather than to say no, we don't want to be part of it, we will just wait; We will stand on the sidelines.
LISTNUM 1 \l 1800 Let other people be in the consortium if they want; we are not going to be there.
LISTNUM 1 \l 1801 MS ROUTLEDGE: I think there is certainly a role for all the stakeholder input, and we would want to have stakeholder input.
LISTNUM 1 \l 1802 COMMISSIONER LANGFORD: Could you speak just a little louder. I'm sorry.
LISTNUM 1 \l 1803 I'm getting old and crotchety.
LISTNUM 1 \l 1804 MS ROUTLEDGE: I'm sorry.
LISTNUM 1 \l 1805 THE CHAIRPERSON: Especially crotchety.
‑‑‑ Laughter / Rires
LISTNUM 1 \l 1806 MS ROUTLEDGE: We would certainly want to be part of the stakeholder consultations on how things are done, yes.
LISTNUM 1 \l 1807 As you would have seen from my speaking notes, we are not sure that the consortium process would be the most cost efficient way of going about overseeing the list operator, but certainly stakeholder feedback is important and, through an advisory committee or whatever, it would be important, and we are certainly at the table on both of the committees, and so on, looking at it.
LISTNUM 1 \l 1808 COMMISSIONER LANGFORD: So if we go down that road, you want to be part of it. You still want to maintain your place and your advisory role.
LISTNUM 1 \l 1809 MS ROUTLEDGE: Yes.
LISTNUM 1 \l 1810 COMMISSIONER LANGFORD: Those are my questions, Mr. Chair.
LISTNUM 1 \l 1811 THE CHAIRPERSON: Thank you, Commissioner Langford.
LISTNUM 1 \l 1812 Commissioner Cram.
COMMISSIONER CRAM: Thank you for coming.
LISTNUM 1 \l 1813 I was looking at your speaking notes and I noticed that the banks do have Do Not Call Lists right now. Are they working relatively well? Are there any problems that you are aware of?
LISTNUM 1 \l 1814 MS ROUTLEDGE: I am certainly not aware of any problems. We believe that they work well. But we work with humans, so there are often mistakes.
LISTNUM 1 \l 1815 COMMISSIONER CRAM: Is it a 30‑day registration?
LISTNUM 1 \l 1816 Once you say that you want your name off, within 30 days it clicks in?
LISTNUM 1 \l 1817 Is that the deal?
LISTNUM 1 \l 1818 MS ROUTLEDGE: It meets the requirements of the existing rules.
LISTNUM 1 \l 1819 COMMISSIONER CRAM: The CMA?
LISTNUM 1 \l 1820 MS ROUTLEDGE: Yes, and the existing CRTC rules.
LISTNUM 1 \l 1821 I would say that the name would go on the list immediately. As I said in my speaking notes, it could be that a marketing list may have gone on down the line to one of the call centres, or something, so there may be a bit of a time delay. There could be a marketing campaign already in progress that that person's name wouldn't be removed from immediately. That is why we were suggesting that 90 days would be better, because of the processes allowed in large organizations.
LISTNUM 1 \l 1822 COMMISSIONER CRAM: But this is all electronic, isn't it?
LISTNUM 1 \l 1823 We are not going back to the Pony Express.
LISTNUM 1 \l 1824 MS ZLATINSZKY: It is electronic to a certain extent. Within our organization, once the list is created, we do not refresh it until the campaign ends, which is typically about 45 to 60 days.
LISTNUM 1 \l 1825 COMMISSIONER CRAM: But there is nothing wrong with ‑‑ it would be a fairly simple operation to look at the list after 30 days, wouldn't it?
LISTNUM 1 \l 1826 MS ZLATINSZKY: It could easily be done, yes.
LISTNUM 1 \l 1827 COMMISSIONER CRAM: On your individual Do Not Call List, when I phone in and say, "Take me off your list," how do I know that I am off the list?
LISTNUM 1 \l 1828 The next time you phone me, am I left with saying, "Why are you phoning me? I asked to be put off the list last time," or do you send them a notice?
LISTNUM 1 \l 1829 What do you do?
LISTNUM 1 \l 1830 MS ZLATINSZKY: I can speak on behalf of our organization. We do not send notification to the customer that verifies that they have been removed from the list.
LISTNUM 1 \l 1831 We do have the mainframe, which is applicable across all of our retail branches and the call centres, where that is updated immediately at the time of the call.
LISTNUM 1 \l 1832 As Linda said, there is human error. It might have been missed in one case, but we will catch it if we happen to call the customer again.
LISTNUM 1 \l 1833 COMMISSIONER CRAM: So I am put in the position of not being able to prove that I asked to be put on your Do Not Call List.
LISTNUM 1 \l 1834 Is that right?
LISTNUM 1 \l 1835 MS ZLATINSZKY: Potentially, yes.
LISTNUM 1 \l 1836 COMMISSIONER CRAM: How could that be solved?
LISTNUM 1 \l 1837 MS ZLATINSZKY: It could easily be solved with some sort of electronic communication to the customer that says, "You have been removed," or a letter. But with that comes additional costs to the corporations.
LISTNUM 1 \l 1838 COMMISSIONER CRAM: What about giving a registration number in the phone call?
LISTNUM 1 \l 1839 Would that be less expensive?
LISTNUM 1 \l 1840 MS ZLATINSZKY: You could, as long as it was an automated registration system, which means building that platform, and it would have to be consistent across all of the organizations, not just our own company.
LISTNUM 1 \l 1841 That would be a unique registration number that would be consistent across TD and CIBC and ‑‑
LISTNUM 1 \l 1842 COMMISSIONER CRAM: Yes.
LISTNUM 1 \l 1843 MS ZLATINSZKY: It would need to be a consistent platform.
LISTNUM 1 \l 1844 MS ROUTLEDGE: But that would be a significant systems cost. We are talking millions of dollars to put that kind of system in.
LISTNUM 1 \l 1845 COMMISSIONER CRAM: Those systems don't exist today?
LISTNUM 1 \l 1846 MS ZLATINSZKY: No, they do not.
LISTNUM 1 \l 1847 COMMISSIONER CRAM: So it would be cheaper to send out a letter.
LISTNUM 1 \l 1848 MS ZLATINSZKY: Potentially, absolutely.
LISTNUM 1 \l 1849 COMMISSIONER CRAM: Thank you. Those are my questions.
LISTNUM 1 \l 1850 THE CHAIRPERSON: Commissioner Cugini.
COMMISSIONER CUGINI: Good morning. I have one question, depending on your answer.
LISTNUM 1 \l 1851 I want to have some clarification around your definition of "corporate group" in your written submission, where you say that the organization includes a corporate group and that affiliates of an entity which has an existing relationship with a customer will fall under the exemption, provided that the necessary privacy consents for marketing across the corporate group have been obtained.
LISTNUM 1 \l 1852 How do you get consent across your corporate group?
LISTNUM 1 \l 1853 MS ROUTLEDGE: In the initial application form, when the person signs up for the first product or service, there will be a disclosure that says, "The bank has affiliates in the following businesses," and it would list the different kinds of businesses that that particular bank has affiliates for.
LISTNUM 1 \l 1854 Then it would ask for consent to market products and services of the bank and its affiliates, "as described above".
LISTNUM 1 \l 1855 COMMISSIONER CUGINI: Would the customer have a choice in saying yes for Entities or Affiliates Nos. 1, 4 and 6?
LISTNUM 1 \l 1856 MS ROUTLEDGE: It would depend on the bank. Some of the banks can do it affiliate‑by‑affiliate. Others, if they say that they don't want to be marketed by an affiliate, would have to delete all of them.
LISTNUM 1 \l 1857 COMMISSIONER CUGINI: I don't know if you were here in the room this morning and heard Advocis' position on this very same subject, where they say that the exemption would be based on separate legal entities, with a distinct product or function within a group of companies.
LISTNUM 1 \l 1858 Obviously you don't agree with that position put forward.
LISTNUM 1 \l 1859 MS ROUTLEDGE: No, we don't.
LISTNUM 1 \l 1860 As long as the customer understands what is being asked and has given consent, the customer should be able to do that. And this gives the customer control over how their information is going to be used.
LISTNUM 1 \l 1861 COMMISSIONER CUGINI: The reverse of that, of course, is, once they have given consent to the bank, it is automatic consent for all of the other products and services.
LISTNUM 1 \l 1862 You see it as consent; that the customer has consented to being contacted by all of ‑‑
LISTNUM 1 \l 1863 MS ROUTLEDGE: If that is what happens, yes.
LISTNUM 1 \l 1864 What I was saying, though, was that some banks can eliminate some.
LISTNUM 1 \l 1865 So, in those cases, no, it's not, they can select.
LISTNUM 1 \l 1866 And at any time thereafter, the person can go back and withdraw consent.
LISTNUM 1 \l 1867 If six months down the line they say, "I am sick of getting all of this stuff," all they have to do is call. There should be a 1‑800 number, or whatever, in their materials. They can call that up and be removed from the list.
LISTNUM 1 \l 1868 COMMISSIONER CUGINI: How long does it take to be removed?
LISTNUM 1 \l 1869 MS ROUTLEDGE: I believe that most of them will mark it immediately as "do not solicit", and "do not solicit" would mean not only telemarketing, but any other kind of solicitation, as well.
LISTNUM 1 \l 1870 COMMISSIONER CUGINI: Thank you very much.
LISTNUM 1 \l 1871 THE CHAIRPERSON: Ms Routledge, how are we doing?
LISTNUM 1 \l 1872 Do we have another five minutes?
LISTNUM 1 \l 1873 MS ROUTLEDGE: You are doing absolutely great. Go ahead. Five minutes.
LISTNUM 1 \l 1874 THE CHAIRPERSON: I have a few specific questions.
LISTNUM 1 \l 1875 Number one, what you are really asking us to do with respect to complaints is not to receive complaints from the banks, but inform the complainant that they must go to the bank and attempt to resolve their problem in a first‑stage process with you.
LISTNUM 1 \l 1876 MS ROUTLEDGE: At the first stage, yes.
LISTNUM 1 \l 1877 THE CHAIRPERSON: So you would create a situation, then ‑‑ presumably a precedent ‑‑ in which any telemarketing violation would have to be sent back to the telemarketer for a preliminary process before the government agency, whatever it turns out to be, would be seized of the complaint.
LISTNUM 1 \l 1878 MS ROUTLEDGE: If the CRTC received a complaint, I would certainly imagine that they would record it or, in some way, deal with it.
LISTNUM 1 \l 1879 THE CHAIRPERSON: We would record it all right, but the question is whether we would proceed or not.
LISTNUM 1 \l 1880 MS ROUTLEDGE: We would like to see the organization be given an opportunity to deal with that complaint.
LISTNUM 1 \l 1881 THE CHAIRPERSON: With the greatest of respect, you want a little more than that. You want us to tell the complainant to go to you first, whereas the complainant has chosen to come to another instance.
LISTNUM 1 \l 1882 I want to be clear that that is what you are asking for.
LISTNUM 1 \l 1883 If there is something else, tell me.
LISTNUM 1 \l 1884 MS ROUTLEDGE: No, that is what we are asking for.
LISTNUM 1 \l 1885 THE CHAIRPERSON: On the business‑to‑business, in which you are in favour, as a matter of principle, why would we want to prevent a business entity from registering its phone numbers on a Do Not Call List?
LISTNUM 1 \l 1886 MS ROUTLEDGE: We believe, from a policy perspective, that this is meant to be a consumer protection measure, not a business protection measure.
LISTNUM 1 \l 1887 Generally speaking, businesses are more sophisticated and don't need consumer protection measures.
LISTNUM 1 \l 1888 THE CHAIRPERSON: So you are suggesting that the Commission would exempt business‑to‑business telemarketing and would tell Parliament, "You didn't really understand what you were trying to do. It's true that you didn't exempt it, but we have been told that you meant to, so we are exempting it."
LISTNUM 1 \l 1889 I am sorry to phrase it that way, that is an unfair way to phrase it, but, fundamentally, that is what you are asking us to do.
LISTNUM 1 \l 1890 MS ROUTLEDGE: I think the CRTC has the ability to expand the exemptions.
LISTNUM 1 \l 1891 THE CHAIRPERSON: We do, indeed. We have the legal ability to do it, that's correct.
LISTNUM 1 \l 1892 MS ROUTLEDGE: And we are asking you to consider doing it. We think it would be a good idea to do it.
LISTNUM 1 \l 1893 THE CHAIRPERSON: So that the consumer's choice to solve problems in his own way is being compromised.
LISTNUM 1 \l 1894 In the first place, he can't solve it with us until he solves it with you. In the second place, if a businessman says he doesn't want to be called, unfortunately, we know better and we are going to tell him that he can be called?
LISTNUM 1 \l 1895 I am trying to understand where this is coming from. It doesn't seem to be placing a high premium on the consumer's choice.
LISTNUM 1 \l 1896 MS ROUTLEDGE: I guess that it could be interpreted that way.
LISTNUM 1 \l 1897 THE CHAIRPERSON: How would we, as a practical matter, prevent the registration of business numbers?
LISTNUM 1 \l 1898 MS ROUTLEDGE: From a practical perspective, I guess, it would be difficult to prevent it. But I guess it is what is done with it after, when one is investigating a complaint.
LISTNUM 1 \l 1899 THE CHAIRPERSON: In other words, we would accept the number, the business would complain, we would investigate, find out it was a business, and then tell him that he didn't have grounds for a complaint, because we would have passed an exemption.
LISTNUM 1 \l 1900 That is, essentially, what you are proposing?
LISTNUM 1 \l 1901 MS ROUTLEDGE: I guess what I would say is, if the rules were passed that it didn't include businesses, it should be clear to businesses upfront that they weren't covered and shouldn't be registering their number.
LISTNUM 1 \l 1902 THE CHAIRPERSON: I am asking you, as a practical matter, how we would distinguish between a business number and a non‑business number when it came in the front door.
LISTNUM 1 \l 1903 MS ROUTLEDGE: As far as I know, there is no way you can do that.
LISTNUM 1 \l 1904 THE CHAIRPERSON: Yes, I think you are right.
LISTNUM 1 \l 1905 On the question of registration, of who and what is being registered, do I understand it correctly that you would prefer that the registration system would be for a person and for a number?
LISTNUM 1 \l 1906 MS ROUTLEDGE: Since we have made our March submission, we have been party to a number of the discussions, and I think we have come to the view that the number only would have probably less privacy risk and would probably be more efficient and effective to administer, so we would support the number only.
LISTNUM 1 \l 1907 THE CHAIRPERSON: The method of authentication to ensure the identity of the person who is requesting that they be listed on a national DNCL, you say that there should be one, but we really need your help to describe what it should be.
LISTNUM 1 \l 1908 MS ROUTLEDGE: I'm sorry?
LISTNUM 1 \l 1909 THE CHAIRPERSON: You said in paragraph 6:
"The notice mentions the various methods of operating a national DNC list, including using a live operator, a fully automated system and the Internet to submit complaints or registrations. We believe that it is important that any system have a method of authentication to ensure the identity of the person who is requesting to be listed on the national DNCL, and that that person has the authority to register the given telephone number."
LISTNUM 1 \l 1910 I understand what you are saying, but what would you suggest?
LISTNUM 1 \l 1911 As a practical matter, what are you proposing to us?
LISTNUM 1 \l 1912 MS ROUTLEDGE: I guess, initially, we were concerned that there would be people who would mischievously register someone else's telephone number.
LISTNUM 1 \l 1913 I understand, though, from discussions with the operator of the U.S. Do Not Call registry, that that has not been a problem down there.
LISTNUM 1 \l 1914 THE CHAIRPERSON: So you are less concerned about authentication.
LISTNUM 1 \l 1915 MS ROUTLEDGE: We are less concerned about it at this stage of the game, yes.
LISTNUM 1 \l 1916 THE CHAIRPERSON: You have to go. Is there anything that you would like to add or say?
LISTNUM 1 \l 1917 You didn't have an opening statement; maybe you have a closing statement. And if you wish to put something on the record, we would be delighted to hear it.
LISTNUM 1 \l 1918 Also, possibly there will be some Commission questions, but before we do that perhaps you would like to make a few remarks.
LISTNUM 1 \l 1919 MS ROUTLEDGE: No, I think that the definition of "unsolicited calls" was the main point that I wanted to make in addition to what is there.
LISTNUM 1 \l 1920 THE CHAIRPERSON: And the definition of "unsolicited calls" would not include a call where you were able to demonstrate, as a matter of explicit decision, that a consumer had in fact waived his right or expressed his preference to be called.
LISTNUM 1 \l 1921 Is that fair?
LISTNUM 1 \l 1922 MS ROUTLEDGE: Expressed a preference to be called, yes, through giving his consent.
LISTNUM 1 \l 1923 THE CHAIRPERSON: Counsel.
LISTNUM 1 \l 1924 Me. MILLINGTON: Oui, monsieur le Président, j'aurai une question.
LISTNUM 1 \l 1925 I am going to refer to your document that you brought with you today, and I want you to help me with the logic that underpins the statement toward the end of page 2, which says: "We believe that the oversight and enforcement costs," and that is of this whole regime, "should be the responsibility of the federal government."
LISTNUM 1 \l 1926 I am wondering why your organization believes that the proper party to pay for the costs of this program should be the taxpayers of Canada, as opposed to the industry players who earn money in the conducting of telemarketing and the provision of the underlying services that allow for telemarketing.
LISTNUM 1 \l 1927 Why is it better for the taxpayer to bear the burden of this enforcement scheme rather than the industry players?
LISTNUM 1 \l 1928 MS ROUTLEDGE: I think our rationale for it is that it is consumer protection legislation, that it is consumer protection that the government has decided to offer, and that, in many cases ‑‑ most other cases where the government is putting in consumer protection, the oversight functions are undertaken by the government.
LISTNUM 1 \l 1929 We fully support the fact that the operation of the list should be paid for by the telemarketers.
LISTNUM 1 \l 1930 MR. MILLINGTON: Which represents only a part of it, but I am still at a loss as to why any of the burden for the regime, which is, as you say, consumer protection ‑‑ and it is protection from people in the industry, presumably ‑‑ why that should be borne by taxpayers, as opposed to the people who are in the industry, who earn revenues and profit from the conducting of that business.
LISTNUM 1 \l 1931 MS ROUTLEDGE: As I said, it is a general consumer protection benefit and the general public ‑‑ all taxpayers ‑‑ can benefit from it.
LISTNUM 1 \l 1932 THE CHAIRPERSON: Ms Routledge, I hope we have released you at an appropriate time. We thank you very much.
LISTNUM 1 \l 1933 MS ROUTLEDGE: I thank you very much for your understanding.
LISTNUM 1 \l 1934 THE SECRETARY: Mr. Chairman, I am sorry to interrupt. I have something for CBA. I have undertakings for a few participants, and CBA is one of them.
LISTNUM 1 \l 1935 THE CHAIRPERSON: That's fine.
LISTNUM 1 \l 1936 These are the undertakings that we referred to earlier. You can pick them up on your way out. I know you are in a rush.
LISTNUM 1 \l 1937 Thank you very much.
LISTNUM 1 \l 1938 MS ROUTLEDGE: Thank you.
LISTNUM 1 \l 1939 THE SECRETARY: Our next participant is Mr. Boyd McBride, for the Association of Fundraising Professionals.
PRESENTATION / PRÉSENTATION
LISTNUM 1 \l 1940 MR. McBRIDE: Mr. Chairman, Commissioners and Commission Staff, good afternoon and thank you for allowing me to have this opportunity to testify here today.
LISTNUM 1 \l 1941 I serve as the National Director of SOS Children's Villages, but I am testifying today as Chair of the Government Relations Committee of the Association of Fundraising Professionals.
LISTNUM 1 \l 1942 As many of you know, the Association of Fundraising Professionals submitted written testimony to the CRTC in March, and my intention is that my remarks today would summarize the formal comments that we have already provided.
LISTNUM 1 \l 1943 If I could indulge you for a moment, I would like to start with a brief story, just to underline some of the situations that we in the charitable sector face.
LISTNUM 1 \l 1944 Just yesterday I received a letter from a woman who wrote to me saying that she was 90 years old and that her doctor had told her to get her affairs in order. She said, "I have written you into my will," that is, my organization, "but please send me confirmation of your address."
LISTNUM 1 \l 1945 I picked up the phone and called her, and her response was, "Thank you, Mr. McBride. I have been waiting for your call."
LISTNUM 1 \l 1946 This is a woman who could have phoned me, who, instead, wrote me a letter and asked me to send her written confirmation of my charity's address, but she said, "I have been waiting for your call."
LISTNUM 1 \l 1947 That is the power of the telephone in the charitable sector. It connects people in a way that almost nothing else we do can.
LISTNUM 1 \l 1948 Back now to my formal comments.
LISTNUM 1 \l 1949 AFP represents about 27,000 professionals in 180 chapters around the world, 2,700 of those in Canada, in almost every major city. Our members work for charities, NGOs, charitable foundations, organizations that we all know and respect ‑‑ the health charities, the universities, the social welfare organizations, international aid agencies and the like.
LISTNUM 1 \l 1950 We are looking after the needs of and stewarding relations with people who care enough about our communities to want to give over and above what they do through the tax system.
LISTNUM 1 \l 1951 Therefore, the Association of Fundraising Professionals is vitally interested in any decision that seeks to impose new regulations or new constraints on charitable organizations and our activities with donors and perspective donors over the phone.
LISTNUM 1 \l 1952 And so, we were very pleased, really very pleased with the government's decision to exempt registered charities from the new Do Not Call Legislation and we are committed to assuring that any new ‑‑ helping insurer as much as we can at any new decisions in this regard maintain the balance that we feel the Legislators came to.
LISTNUM 1 \l 1953 We are also conscious, frankly, that this is a major exemption. Charitable sector is a very large sector and very busy, but a decision made in the interest of the public good.
LISTNUM 1 \l 1954 Three key points I wanted to touch on and I have already mentioned the first that we are pleased that the CRTC has upheld this exemption as originally implemented by Parliament.
LISTNUM 1 \l 1955 The second, and I'll come back to this, is that we would urge the CRTC to provide some form of guidance or education to the public about the exemption or exemptions as you work them through, so that Canadians will understand that charities are not subject to the restrictions on calling.
LISTNUM 1 \l 1956 And finally, I guess, and this may be of more concern to you than anything else, that we urge that the CRTC implement telemarketing rules that are consistent with the National Do Not Call List exemption for registered charities.
LISTNUM 1 \l 1957 Now, if I can talk for just a few minutes about justification for the exemption of registered charities and this may be ‑‑
LISTNUM 1 \l 1958 THE CHAIRMAN: Well, Mr. McBride, you're exempt.
LISTNUM 1 \l 1959 MR. McBRIDE: So?
LISTNUM 1 \l 1960 THE CHAIRMAN: So, you really don't need to justify it again. Parliament made its decision.
LISTNUM 1 \l 1961 MR. McBRIDE: All right.
LISTNUM 1 \l 1962 THE CHAIRMAN: The Commission, notwithstanding your fears, has no intention of subverting the will of Parliament as you so delicately put it in your presentation.
LISTNUM 1 \l 1963 So, please don't feel you have to explain to us why you need to be exempt.
LISTNUM 1 \l 1964 MR. McBRIDE: Thank you very much, Mr. Chairman.
LISTNUM 1 \l 1965 Well, then, I'll move to this, our comments on the educational component for the public. We are conscious that it is a major exemption taking that the charitable sector or the registered charities at least out of the Do Not Call List Legislation and we feel that it would be very helpful for our sector and in that sense I guess for the community at large, if people had a clear understanding of that and weren't surprised somehow when a call comes from the charity that they have been supporting over the phone for some time.
LISTNUM 1 \l 1966 I am not sure what role the CRTC can play in publicizing that kind of exemption helping Canadians become aware of it, but we would certainly urge you to do what you can.
LISTNUM 1 \l 1967 The third point then that I wanted to touch on was around this concern that as you work on regulations and bring greater definition to what the telemarketing rules should now be, that you keep in mind our exemption and do what you can to ensure that if the telemarketing rules, as they are amended, they don't in fact impose additional obligations on the charitable sector, that we don't have to deal with today.
LISTNUM 1 \l 1968 And if regulations are being contemplated that might have some impact on our sector, we would like to feel that you would contact us and give us an opportunity to work with you, to help you understand what kind of impacts those might be and help mitigate them if they might be damaging for the charitable sector.
LISTNUM 1 \l 1969 Thank you for your time. That's really the essence of the presentation we wanted to make today. I am, of course, happy to answer questions in the time we have before your lunch break.
LISTNUM 1 \l 1970 THE CHAIRMAN: Well, thank you Mr. McBride.
LISTNUM 1 \l 1971 Let me first say to you that today is the day and this is the moment for the other rules and in particular, you have been exempted by the Do Not Call List, from the Do Not Call List, but not from the remainder of the regulation of telemarketing that the Commission has or will put into place.
LISTNUM 1 \l 1972 And it would have been helpful if you had looked at the existing status quo and been able to make the comments that you would like us to ask you to later make because they are on the agenda today.
LISTNUM 1 \l 1973 But let me try to work with you to see if I can induce you to make some of the comments that would be relevant to us.
LISTNUM 1 \l 1974 Do you think that your members should be required or rather, could you explain to me to what extent your members will regard it as a burden to fulfil their legal responsibilities, provided their own Do Not Call List specific to their own organization?
LISTNUM 1 \l 1975 MR. McBRIDE: Our members would not see that as a burden. We see that as a responsibility.
LISTNUM 1 \l 1976 THE CHAIRMAN: And you currently operate these Do Not Call Lists?
LISTNUM 1 \l 1977 MR. McBRIDE: I can't speak for every charity represented by the membership of A.F.P., but it is widely understood that there is no value in our pursuing telephone relations donors who have told us they don't like to be contacted by phone.
LISTNUM 1 \l 1978 THE CHAIRMAN: Would you regard it as part of the responsibilities of your organization to ensure that all of your members knew and possibly had access to expertise that would help them to establish such lists?
LISTNUM 1 \l 1979 MR. McBRIDE: Absolutely.
LISTNUM 1 \l 1980 THE CHAIRMAN: Yes. Would you regard it as appropriate that the Commission should regulate the hours of calling for telemarketing?
LISTNUM 1 \l 1981 MR. McBRIDE: I believe that we would be quite comfortable with that, yes.
LISTNUM 1 \l 1982 THE CHAIRMAN: And would you have any suggestions about what those hours of calling might legitimately be?
LISTNUM 1 \l 1983 MR. McBRIDE: I think that what has been proposed by the Canadian Marketing Association would probably be acceptable to our membership.
LISTNUM 1 \l 1984 THE CHAIRMAN: Do any of your members use fax for telemarketing purposes or solicitation purposes?
LISTNUM 1 \l 1985 MR. McBRIDE: I don't believe we do. Now, most of our donor base is largely individuals. The kind of contact we have with corporations is, I would expect in almost every case, more sophisticated than a broadcast fax.
LISTNUM 1 \l 1986 THE CHAIRMAN: What proportion the telemarketing done by your members would be done on an out source basis to a professional telemarketing operation and what proportion would be done in house?
LISTNUM 1 \l 1987 MR. McBRIDE: I would have to come back to you with that information and I would be happy to try to get it.
LISTNUM 1 \l 1988 THE CHAIRMAN: Yes. I am not holding you to one ‑‑ let me ask it a little different because it's unfair to spring a precise question like that, but is it a common practice for charities to employ professional telemarketing out bound call centres for purpose of solicitation?
LISTNUM 1 \l 1989 MR. McBRIDE: As with many kinds of charitable fund raising these days, there are specialties emerging and special skills and techniques and management needed to be effective.
LISTNUM 1 \l 1990 So, I would say there is probably an increasing trend to using third parties who have demonstrated the sensitivity that's important to us in representing the charity to a donor or perspective donor.
LISTNUM 1 \l 1991 THE CHAIRMAN: And I suppose those organizations will be liable to use predictive dialling?
LISTNUM 1 \l 1992 MR. McBRIDE: Some may, but honestly, in all my contact with colleagues in the profession, there is a pretty widespread understanding that predictive dialling does not ‑‑ does not achieve the kind of results we want with donors and prospective donors.
LISTNUM 1 \l 1993 THE CHAIRMAN: Interesting. If the Commission were to outline rules with regard to predictive dialling and one of the points with regard to dead air and so‑called dead call phenomenon, you would regard that as entirely consistent with the public interest and it would be appropriate for all of your members to ensure that they could comply?
LISTNUM 1 \l 1994 MR. McBRIDE: I may be getting a little beyond my depth in responding to that, but I have a feeling that within our Association, people understand, as I've said, that this whole business of predictive dialling and the dead air and all of that is ‑‑ just doesn't work in trying to build relationships and that's really what securing gifts is all about.
LISTNUM 1 \l 1995 THE CHAIRMAN: Are you aware of the existing requirements for in the state telemarketing rules of 2004‑35 with respect to the identification of telemarketer, the existence of requirement of a number that the customer can phone to register on a Do Not Call List or to register a complaint ‑‑ not on a Do not, yes, on an organization specific Do Not Call List, are you familiar with that collection of regulations?
LISTNUM 1 \l 1996 MR. McBRIDE: A little, yes, I am.
LISTNUM 1 \l 1997 THE CHAIRMAN: And would you regard it as essentially valid and appropriate that we should apply it to exempt telemarketers?
LISTNUM 1 \l 1998 MR. McBRIDE: To exempt, to organizations ‑‑
LISTNUM 1 \l 1999 THE CHAIRMAN: Yourselves, to your members?
LISTNUM 1 \l 11000 MR. McBRIDE: No, I wouldn't. I don't feel that it would be appropriate. Again, the kind of relationship we are trying to develop with a donor or prospective donor isn't advantaged by our having to preface our comments by the ‑‑ or whoever is calling, comments by identification that they are actually working for a private company, not for the charity, that if there is any problems, they can call 1‑800‑TROUBLE.
LISTNUM 1 \l 11001 These kinds of things just ‑‑ I just don't think that there is any charity that would see that ‑‑ see them as anything but an impediment to achieving what we are trying to achieve.
LISTNUM 1 \l 11002 THE CHAIRMAN: Are you telling me that you would prefer to call a party to imagine that they are dealing with a volunteer rather than a remunerated person?
LISTNUM 1 \l 11003 MR. McBRIDE: No, I am not saying that. Certainly if someone was to ask anyone calling on behalf of a charity: are you a volunteer? Do you work for the charity? Do you work for a third party? I think we have to be honest and respond to the question.
LISTNUM 1 \l 11004 THE CHAIRMAN: What would you say if you were in the position of myself and a panel and a bank said: why is it that we have to follow this set of rules about identification, identification of a phone number, on the hypothesis that we continue to require that, and all of the other requirements of 2004‑35 and you have decided that not only are the charities exempt, but they are also somehow do not require that these forms of regulations, and what would be the ‑‑ what would be my answer to Mrs. Routledge if she asked me that question?
LISTNUM 1 \l 11005 MR. McBRIDE: I think it would go back to the fundamental distinction that we draw between private sector and charitable organizations serving the public good.
LISTNUM 1 \l 11006 We are not making these calls to sell a product or make a profit. We are making the calls to advance the public good and I think that is a fundamental distinction and I think Parliament has understood from that, that there are ‑‑ can in fact be different regulatory regimes because of that.
LISTNUM 1 \l 11007 THE CHAIRMAN: Yes. Parliament didn't go out of its way to exempt you from anything, but the Do Not Call List, of course, but that's a, it's at least ‑‑
LISTNUM 1 \l 11008 MR. McBRIDE: No, but my written comments do note though that even under the Privacy Legislation, the charitable sector has been given special consideration.
LISTNUM 1 \l 11009 I think there is an understanding that we are different from the private sector.
LISTNUM 1 \l 11010 THE CHAIRMAN: Yes. You do understand that polling data suggests that the called party doesn't make a huge distinction between yourself and commercial telemarketers?
LISTNUM 1 \l 11011 MR. McBRIDE: I am not aware of that polling data, but I am certainly not challenging it.
LISTNUM 1 \l 11012 THE CHAIRMAN: Okay. Mr. McBride, just let me see if any of my colleagues have any questions. Commissioner Cram and then Commissioner Langford.
LISTNUM 1 \l 11013 COMMISSIONER CRAM: Thank you for coming. Mr. McBride, you did talk about having recognized the exceptional gift given charities by Parliament and so, my question is: what are you going to give back?
LISTNUM 1 \l 11014 And number 1, you say you want us to tell the world that you are exempt; why can't you and what are you doing about it?
LISTNUM 1 \l 11015 And number 2, you say you don't want any more rules, but surely we have ‑‑ you have been required by Parliament to set up a Do Not Call List and surely we can tell you how to administer it and you have got to believe that if you don't adhere to your Do Not Call List, that that would be a violation; would you not agree?
LISTNUM 1 \l 11016 MR. McBRIDE: I do understand it, yes.
LISTNUM 1 \l 11017 COMMISSIONER CRAM: Yes?
LISTNUM 1 \l 11018 MR. McBRIDE: And I think our sector understands that we do have responsibilities that come with the status that we have been given.
LISTNUM 1 \l 11019 COMMISSIONER CRAM: With the great gift you have been given by Parliament, yes.
LISTNUM 1 \l 11020 MR. McBRIDE: Yes.
LISTNUM 1 \l 11021 COMMISSIONER CRAM: So, what are you planning on doing about educating the public? What are your plans and what have your groups done?
LISTNUM 1 \l 11022 MR. McBRIDE: We will ‑‑ the Association of Fund raising Professionals has in every chapter a Government Relations Committee and an Education Program.
LISTNUM 1 \l 11023 Part of our purpose as an association is to educate our members and through our members to educate the staff and volunteers and ultimately, I suppose, the donors in the organizations for whom our members work.
LISTNUM 1 \l 11024 So, we understand that we have a responsibility to do education and we will be pursuing this as it becomes clear what the regulations are and what the expectations are of the sector.
LISTNUM 1 \l 11025 COMMISSIONER CRAM: But you've already got the exemption and ‑‑
LISTNUM 1 \l 11026 MR. McBRIDE: Yes. And our sector, I think certainly our membership is very much aware of that.
LISTNUM 1 \l 11027 COMMISSIONER CRAM: And is it telling people that they are phoning that?
LISTNUM 1 \l 11028 MR. McBRIDE: I'm sorry?
LISTNUM 1 \l 11029 COMMISSIONER CRAM: That Parliament has given them an exemption?
LISTNUM 1 \l 11030 MR. McBRIDE: Yes. We have been telling them that.
LISTNUM 1 \l 11031 COMMISSIONER CRAM: So, then we get to rules on the Do Not Call List and I don't mind S.O.S. phoning me, but I do mind if ABC phones me and I get on ‑‑ and I say to ABC: I want to be on your Do Not Call List and two days later ABC, or 31 days later ABC phones me again, how can I prove that I called ABC and requested to be on their Do Not Call List?
LISTNUM 1 \l 11032 MR. McBRIDE: Well, most of the charities in Canada are relatively small organizations and may not have a sophisticated enough platform as the earlier speaker was describing it, to be able to provide like a registration number or something.
LISTNUM 1 \l 11033 We can and do ‑‑ I know many of our charities do respond when someone writes to us or without specific request about the number of contacts that they would like in a year or whether or not they like telephone conduct, we do tend to respond with a letter saying: thank you for telling us about this and we'll do our best to honour your wishes, but I am not sure that it's a universally done thing.
LISTNUM 1 \l 11034 COMMISSIONER CRAM: So, it wouldn't be a problem though probably to do one or the other, to give a unique registration number of to end a letter out confirming?
LISTNUM 1 \l 11035 MR. McBRIDE: No. I think the letter would probably be our preference, as much as it costs money. If people are ‑‑ if it's your wish that people be sort of given the comfort of a confirmation.
LISTNUM 1 \l 11036 COMMISSIONER CRAM: Yes.
LISTNUM 1 \l 11037 MR. McBRIDE: Then we would do that and try to find a way to make people feel good about the fact that they are still with us, even with the constraints they have offered.
LISTNUM 1 \l 11038 COMMISSIONER CRAM: You're a fund raiser, I am a lawyer and I need, in order for your Do Not Call List that Parliament requires you to do to be effective, there has to be some way that I can prove that ABC broke their Do Not Call List.
LISTNUM 1 \l 11039 MR. McBRIDE: I understand your concern and I think we can find a way to live with it, absolutely.
LISTNUM 1 \l 11040 COMMISSIONER CRAM: Yes. And in terms of telemarketing rules, you don't have any problem with the present telemarketing rules applying to you; do you? Like they're fine, you have to identify yourself.
LISTNUM 1 \l 11041 MR. McBRIDE: Yes, we are working within the rules. I don't think there is a problem.
LISTNUM 1 \l 11042 COMMISSIONER CRAM: Okay. So, what of the old ‑‑ the new rules that have been stayed, which one of them are the problems?
LISTNUM 1 \l 11043 MR. McBRIDE: I can't bring a specific rule to your attention right now. We are happy to review those and provide a written comment to you if the timing is appropriate.
LISTNUM 1 \l 11044 COMMISSIONER CRAM: Well, you don't have a problem with them, providing identification before any other communication.
LISTNUM 1 \l 11045 THE CHAIRMAN: The calling party.
LISTNUM 1 \l 11046 COMMISSIONER CRAM: Yes.
LISTNUM 1 \l 11047 MR. McBRIDE: The calling party, I am Boyd McBride from S.O.S. Canada.
LISTNUM 1 \l 11048 COMMISSIONER CRAM: Yes. You don't have a problem with that?
LISTNUM 1 \l 11049 MR. McBRIDE: No.
LISTNUM 1 \l 11050 COMMISSIONER CRAM: You have a problem with if there is a telemarketer and they have to say: "I'm ABC telemarketing phoning on behalf of S.O.S." Is that what you have a problem with?
LISTNUM 1 \l 11051 MR. McBRIDE: I think most of our membership feel that that would be problematic, yes.
LISTNUM 1 \l 11052 COMMISSIONER CRAM: Okay. You don't have a problem having a phone number available upon request?
LISTNUM 1 \l 11053 MR. McBRIDE: Not at all.
LISTNUM 1 \l 11054 COMMISSIONER CRAM: Okay. And you don't have a problem it being toll free?
LISTNUM 1 \l 11055 MR. McBRIDE: Yes. I work for a national charity, we have had a toll free number for years, but I know there are many local charities that might have difficulty with the costs associated with a toll free number for the odd call that comes from outside their service area.
LISTNUM 1 \l 11056 COMMISSIONER CRAM: Okay.
LISTNUM 1 \l 11057 MR. McBRIDE: There are just some practical considerations for very small groups, I guess.
LISTNUM 1 \l 11058 COMMISSIONER CRAM: Uh‑huh! You would probably have a problem with that number being staffed during business hours within after hours interactive voice mail back‑up?
LISTNUM 1 \l 11059 MR. McBRIDE: Again, anticipating the smaller charities, there might be some difficulties just again with costs versus, you know, potential benefits for them.
LISTNUM 1 \l 11060 COMMISSIONER CRAM: You do not have a problem with somebody saying: when you phone me with me saying: please put me on your Do Not Call List? You do not have a problem with implementing it immediately?
LISTNUM 1 \l 11061 MR. McBRIDE: No. No problem. Again, the practicalities of a mailing or something already being in process, perhaps delaying for a few weeks or some period of time making that a reality, but within hours in most organizations those kinds of requests are processed into the data base and the change is made in the donors records.
LISTNUM 1 \l 11062 COMMISSIONER CRAM: Okay. And I noted with interest that you were talking about e‑mails in your ‑‑ and saying that we should get with it and worry about e‑mails and that others are doing it right now.
LISTNUM 1 \l 11063 Do you have any concerns about IP faxing?
LISTNUM 1 \l 11064 MR. McBRIDE: IP faxing; is this back to ‑‑
LISTNUM 1 \l 11065 COMMISSIONER CRAM: Faxing directly from IP.
LISTNUM 1 \l 11066 THE CHAIRMAN: I wonder Commissioner Cram, you can explain the technical ‑‑ what you mean by IP faxing? I am just not sure that Mr. McBride fully understands.
LISTNUM 1 \l 11067 MR. McBRIDE: I'm sorry, I am not familiar with this.
LISTNUM 1 \l 11068 COMMISSIONER CRAM: You can fax directly from an internet address.
LISTNUM 1 \l 11069 MR. McBRIDE: Huh!
LISTNUM 1 \l 11070 COMMISSIONER CRAM: Are you aware of any problems in that area at all?
LISTNUM 1 \l 11071 MR. McBRIDE: I'm sorry, personally I am not.
LISTNUM 1 \l 11072 COMMISSIONER CRAM: Okay. And what about ‑‑ what would be your position and you were very good on voice casting and the others and especially on the transporter issues ‑‑ what would be your position on telemarketing to wireless?
LISTNUM 1 \l 11073 MR. McBRIDE: Again, this is an area a little beyond ‑‑
LISTNUM 1 \l 11074 COMMISSIONER CRAM: No position?
LISTNUM 1 \l 11075 MR. McBRIDE: ‑‑ a little beyond me and I am wondering if perhaps you're referring to some other submissions?
LISTNUM 1 \l 11076 COMMISSIONER CRAM: I don't think so, but anyway, I am finished with my questions. Thank you very much.
LISTNUM 1 \l 11077 MR. McBRIDE: Thank you.
LISTNUM 1 \l 11078 THE CHAIRMAN: Thank you, Commissioner Cram. Included in the submission is your position submitted in 2004 on another proceeding, which relates to some of those issues.
LISTNUM 1 \l 11079 Commissioner Duncan.
LISTNUM 1 \l 11080 COMMISSIONER DUNCAN: I have a couple of questions. First of all, just for clarification, the Association of Fund Raising Professionals is not for profit. Is that correct?
LISTNUM 1 \l 11081 MR. McBRIDE: That's correct, it is.
LISTNUM 1 \l 11082 COMMISSIONER DUNCAN: But the members that you represent that do the marketing for charities, they would be for profit corporations, I assume?
LISTNUM 1 \l 11083 MR. McBRIDE: No. Most of our membership are individuals like myself who work on salary for charitable organizations. There are some who are consultants in private firms, offering advice or training or something else to the charitable sector.
LISTNUM 1 \l 11084 But the vast majority of our members are people who work for a living for charities.
LISTNUM 1 \l 11085 COMMISSIONER DUNCAN: I am wondering because I know in your submission and again in your comments today, that you're concerned that the public understand that the exemption was granted by Parliament and it's a follow‑up to Commissioner Cram's questions.
It's not just clear to me what plans you have to promote that yourself and if you're undertaking to do that?
LISTNUM 1 \l 11086 MR. McBRIDE: My suspicion is that many of our members would see ‑‑ would feel a responsibility to provide that information to donors and would probably be framing it in a way that says: although we have been granted this exemption, we understand there may be sensitivities and if you really don't want to be contacted by telephone or if you want to be contacted in only particular ways, please let us know because we would like to continue to have a good relationship with you and do things in a way that you can live with, in fact that you like.
LISTNUM 1 \l 11087 COMMISSIONER DUNCAN: But that might happen in a number of ways. I mean, you could consider a National Education Program to get the message out because what I hear you saying is that maybe you would answer that in response to a question. I mean, you are not going to call somebody and go into that field?
LISTNUM 1 \l 11088 MR. McBRIDE: No.
LISTNUM 1 \l 11089 COMMISSIONER DUNCAN: It would be more in a response?
LISTNUM 1 \l 11090 MR. McBRIDE: Well, it might be by way of a newsletter, a story in one of... in a charity newsletter, a posting on a charities web site, that kind of thing. Not that donors are generally ‑‑ usually interested in that, they are generally focused on what are we doing in the community that is benefiting the community.
LISTNUM 1 \l 11091 But this is ‑‑ this is information that people need to have.
LISTNUM 1 \l 11092 COMMISSIONER DUNCAN: How extensive and in what format would you like to see the Commission, if the Commission were to undertake it, how extensive and in what format would you like the Commission to approach this education process with respect to charities specifically?
LISTNUM 1 \l 11093 MR. McBRIDE: I can't offer you a dollar figure and I don't know enough about how the CRTC communicates with the broader public. There may be ways that you could help get the message out, working in cooperation with us.
LISTNUM 1 \l 11094 COMMISSIONER DUNCAN: I think it certainly could go on our web site. I just don't know if that's as visible as what you're after?
LISTNUM 1 \l 11095 MR. McBRIDE: Well, even something like that, which would allow us to send people the link so that they could see the story told by someone other than the charity itself could be very helpful.
LISTNUM 1 \l 11096 So, again, this is the sort of thing where I think if we have a chance to sit down with your colleagues, we could probably work together on something and achieve more together than we would, working independently.
LISTNUM 1 \l 11097 COMMISSIONER DUNCAN: You are probably aware that a number of the submissions have recommended that we have an extensive Edu. consumer awareness program and I am just wondering, because those people making those representations for the most part are going to be responsible for paying for the fees incurred in operating the Do Not Call List.
LISTNUM 1 \l 11098 How do you think that we would assess the charities then or could we or how would you accept your role in that and is it fair to expect the piggyback on the others?
LISTNUM 1 \l 11099 MR. McBRIDE: I certainly would be on very shaky ground if I was to offer for the sectors ‑‑
LISTNUM 1 \l 11100 COMMISSIONER DUNCAN: Get your cheque.
LISTNUM 1 \l 11101 MR. McBRIDE: ‑‑ to help pick up that kind of a bill.
LISTNUM 1 \l 11102 THE CHAIRMAN: Not the least with your donors.
LISTNUM 1 \l 11103 MR. McBRIDE: Yes and it's true, Mr. Commissioner, I don't think our donors would see that as their funds well spent ultimately, every dollar we spend is a dollar we have raised from the public or from government agencies, governments that support the work we do.
LISTNUM 1 \l 11104 So, we have to be very cautious about committing to spend large sums of money on a public education program that really doesn't speak to the mandate of our organization.
LISTNUM 1 \l 11105 COMMISSIONER DUNCAN: Thank you very much.
LISTNUM 1 \l 11106 THE CHAIRMAN: Counsel? No? Commissioner Langford.
LISTNUM 1 \l 11107 COMMISSIONER LANGFORD: That's all right. I just ‑‑ you have been very patient, but there is something I am having trouble with and it's I am just trying to get a kind of handle in perspective that charitable, non‑profit world here in Canada and I am looking at the bottom of your remarks today and they echo pretty well what was in your background paper and your say there are 161,000 non‑profit organizations of those 80,000 are registered charities and you represent 2,500 or 2,700 of them.
LISTNUM 1 \l 11108 So, are the rest of them just out there on their own or are there other charitable organizations, are there other associations like yours?
LISTNUM 1 \l 11109 MR. McBRIDE: Well, the nature of the charitable sector is that it's made up of tens of thousands of generally very small, mostly unstaffed organizations, the ones that you might rime off if I asked you to name six or eight charities are exceptions to the general rule, the very large charities that we know by name have significant staff and significant budgets, but the vast majority of the 160,000 or the 80,000 registered are very, generally very small.
LISTNUM 1 \l 11110 COMMISSIONER LANGFORD: And of the 161,000, do they cover everything from sort of the girls ringuette league of whatever in place
LISTNUM 1 \l 11111 MR. McBRIDE: Yes, that larger number, the 160,000 is everybody.
LISTNUM 1 \l 11112 COMMISSIONER LANGFORD: This is everybody, the kids out selling chocolate bars on a corner and doing car washes.
LISTNUM 1 \l 11113 MR. McBRIDE: Every association and club and community group that you can think of would be amongst the 160,000, the 80,000 charitable registration is an additional hoop to go through and generally only done by organizations that have in mind a more significant ‑‑
LISTNUM 1 \l 11114 COMMISSIONER LANGFORD: So, essentially, what you are telling us is that at best half of this group, half of this community is covered by the exemption, 80,000 are registered, so they are covered and the other 81,000 are not registered.
LISTNUM 1 \l 11115 MR. McBRIDE: I guess that's correct.
LISTNUM 1 \l 11116 COMMISSIONER LANGFORD: Maybe it would be laughable to think they all should be. How many ‑‑ do you have any sense of how many of the unregistered group, the 81,000 use the telephone to solicit funds, as opposed to those who do car washes and sell chocolate bars?
LISTNUM 1 \l 11117 MR. McBRIDE: Gosh! A very very small number and if it was ‑‑ you know, if it was ‑‑ I don't know, the nursery school in your neighbourhood, if they were using the telephone, it would be a very, very much an amateur activity. They wouldn't be hiring anybody to work with them or do it on their behalf.
LISTNUM 1 \l 11118 COMMISSIONER LANGFORD: So, the scope for confusion should be fairly small then?
LISTNUM 1 \l 11119 MR. McBRIDE: I think.
LISTNUM 1 \l 11120 COMMISSIONER LANGFORD: Thank you. That's my questions, Mr. Chairman.
LISTNUM 1 \l 11121 THE CHAIRMAN: Counsel? No. Mr. McBride, thank you very much. It is not always easy to pinch it and it's not always easy to satisfy a group of people who have been supported by professionals and preparing for the questions, so we appreciate your being here and we appreciate your contribution.
LISTNUM 1 \l 11122 MR. McBRIDE: Thank you, Mr. Commissioner.
LISTNUM 1 \l 11123 THE CHAIRMAN: I think ‑‑ madame la Secrétaire, avez‑vous quelque chose à ajouter?
LISTNUM 1 \l 11124 We will take a break for lunch now and will be back at two o'clock says my colleague, Mr. Commissioner Langford. So, two o'clock, please and we will start promptly at two.
‑‑‑ Upon recessing at 1254 / Suspension à 1254
‑‑‑ Upon resuming at 1358 / Reprise à 1358
LISTNUM 1 \l 11125 THE CHAIRMAN: Order, please.
Madame la Secrétaire.
LISTNUM 1 \l 11126 LA SECRÉTAIRE: Oui, monsieur le président. Nous allons commencer avec l'Union des consommateurs, avec madame Geneviève Duchesne.
PRÉSENTATION / PRESENTATION
LISTNUM 1 \l 11127 MME DUCHESNE: Oui. Alors, bonjour tout le monde. Avant de débuter pour les commentaires, je voudrais juste vous signaler que l'Union des consommateurs apprécie grandement d'avoir l'opportunité de commenter le cadre qui sera applicable à la Liste nationale ainsi que les autres règles de télémarketing qui seront mises en place puisque, évidemment, les principaux intéressés sont les consommateurs.
LISTNUM 1 \l 11128 LE PRÉSIDENT: Madame Duchesne, excusez, mais ce n'est pas de votre faute‑là. Il va falloir qu'on ouvre le micro parce que c'est tout simplement insuffisant pour que ‑‑ non, mais ce n'est pas de votre faute, c'est...
LISTNUM 1 \l 11129 MME DUCHESNE: O.K., mais je peux changer.
LISTNUM 1 \l 11130 LE PRÉSIDENT: Non, mais ce n'est pas... c'est tout simplement qu'il va falloir monter le volume puisqu'avec des témoins féminins on a un peu moins de projection et puis elles ont le droit de s'exprimer comme elles voudraient, mais quand même il faudrait aussi qu'on la comprenne.
LISTNUM 1 \l 11131 Est‑ce que vous voulez recommencer, madame Duchesne, tout simplement parce que je pense que ça n'a pas été suffisamment clair?
LISTNUM 1 \l 11132 MME DUCHESNE: Oui. Bien, je vais enchaîner en fait avec le reste de la présentation.
LISTNUM 1 \l 11133 Alors, mes commentaires porteront, dans un premier temps, sur les règles relatives à la Liste nationale de numéros de téléphone exclus et, dans un deuxième temps, sur les autres règles... bien, ce que le CRTC a qualifié dans son Avis Public *d'autres règles relatives au télémarketing+.
LISTNUM 1 \l 11134 Alors, bien, je vais procéder logiquement; je vais débuter avec l'inscription à la Liste nationale. À cet égard, l'Union des consommateurs considère que les consommateurs devraient pouvoir inscrire plusieurs numéros de téléphone et qu'il soit possible, également, d'inscrire des numéros de téléphone cellulaire. Il devrait également être permis d'inscrire des numéros de télécopieur.
LISTNUM 1 \l 11135 Par contre, en ce qui a trait aux numéros de télécopieurs, compte tenu des coûts qui sont associés aux documents envoyés par le biais de télécopieurs, on considère que, dans la mesure où c'est possible, que les exemptions qui sont prévues au Projet de Loi C‑37 ne devraient pas être applicables aux fax, aux télécopieurs; c'est‑à‑dire que, finalement, aucun document non sollicité ne devrait être envoyé via ce procédé‑là.
LISTNUM 1 \l 11136 Alors, l'inscription devrait être faite, évidemment, sans frais et devrait pouvoir se faire par le biais à la fois du téléphone et de l'internet et il en est de même pour le retrait du numéro de téléphone inscrit, c'est‑à‑dire qu'il devrait pouvoir être retiré en tout temps par le biais des deux véhicules précédemment mentionnés; c'est‑à‑dire l'internet et le téléphone et, évidemment, sans frais pour le consommateur
LISTNUM 1 \l 11137 Un autre point sur lequel on insiste, c'est que durant les heures normales de bureau, la personne qui désire procéder à l'inscription de son numéro de téléphone à la liste devrait pouvoir avoir accès à une vraie personne, c'est‑à‑dire à un préposé parce que, à notre avis, un système informatisé... automatisé c'est‑à‑dire pourrait faire en sorte qu'elle ne répond pas à certaines situations particulières et je pense à une situation assez simple, il y a encore des personnes qui... et j'en connais, qui ont des téléphones à cadran et qui ne pourraient pas, justement, faire une sélection par le biais de... en appuyant sur un bouton 1, 2 ou ainsi de suite.
LISTNUM 1 \l 11138 Plus les problèmes classiques que d'autres groupes ont mentionnés et les problèmes relatifs aux handicaps ou les personnes âgées qui seraient peut‑être moins disposées à ce genre de technologie. Alors, la technologie ne doit pas être un obstacle ici à l'inscription.
LISTNUM 1 \l 11139 En ce qui concerne les renseignements personnels que devrait donner le consommateur pour les fins de l'inscription, à notre avis, évidemment seuls les renseignements qui sont nécessaires à la vérification que les numéros inscrits sont bien celui de la personne qui a procédé à l'inscription devraient être demandés.
LISTNUM 1 \l 11140 En ce qui concerne l'entrée en vigueur et la durée de l'inscription, nous, les consommateurs, on considère que compte tenu de la technologie actuelle, il est très aisé pour les télé‑vendeurs que de mettre à jour sur une base quotidienne les numéros qui ont été... c'est‑à‑dire leur liste de numéros de téléphone, c'est‑à‑dire de s'assurer quotidiennement que la liste dont ils disposent ne contient pas de numéro de téléphone qui se retrouvent sur la liste de numéros exclus.
LISTNUM 1 \l 11141 Donc, à notre avis, une fois que le numéro est inscrit à la liste de numéros de... à la Liste nationale, la personne qui l'a inscrit ne devrait plus recevoir d'appels de télé‑vendeurs suite à un délai de 24 heures.
LISTNUM 1 \l 11142 Et on insiste pour que la période de grâce soit très restreinte parce que, en fait, si elle est longue... en tout cas, durant cette période‑là, les consommateurs sont susceptibles de recevoir beaucoup d'appels de télé‑vendeurs puisque c'est la période au cours de laquelle ils vont être disponibles et à la suite de cette période‑là, bien il ne sera plus possible pour les télé‑vendeurs de loger des appels à ces individus‑là.
LISTNUM 1 \l 11143 L'Union des consommateurs estime qu'une fois inscrit à la liste, un numéro devrait rester jusqu'à ce que la personne titulaire du compte le retire de ladite liste et jusqu'à ce que ce même numéro soit réaffecté ou simplement désactivé.
LISTNUM 1 \l 11144 En ce qui a trait aux exemptions prévues au Projet de Loi C‑37, l'exemption relative à la Liste nationale, on entretenait quelques inquiétudes relativement ‑‑ et c'est revenu beaucoup aujourd'hui ‑‑ relativement à l'exemption qui concerne les relations d'affaires.
LISTNUM 1 \l 11145 Alors, notre organisation invite le CRTC à préciser la relation... la définition de relation d'affaires de façon à s'assurer que seul le commerce avec qui le destinataire de l'appel a directement une relation d'affaires, bénéficie de l'exemption, c'est‑à‑dire qu'il ne faudrait pas que l'exemption permette de recevoir... permette à des filiales ou à des entités affiliées à l'entreprise qui bénéficie de l'exemption, d'appeler les consommateurs.
LISTNUM 1 \l 11146 En ce qui a trait à l'accès aux numéros inscrits à la Liste d'exclusions nationales, bien pour nous il est fondamental que les informations se trouvant à la Liste nationale soit diffusées de façon très très limitées. Et ce que l'on suggère pour ce faire, c'est qu'un service informatisé permettant de soustraire de la Liste d'appels soumise par le télé‑vendeur, les numéros inscrits à la Liste nationale soit par le biais d'une mise à jour continue ou par le biais tout simplement d'une commande activée par le télé‑vendeur, soit préféré à un système qui permet de télécharger des numéros inscrits à la Liste.
LISTNUM 1 \l 11147 Pour nous c'est important parce que... bien, il ne faut pas oublier qu'un des principes à la base de la mise en place de la Liste, c'est qu'on veut protéger la vie privée des consommateurs et, en plus, ce système‑là ferait en sorte qu'on s'assurait que les informations se trouvant à la liste sont obtenues uniquement via l'exploitant de la Liste.
LISTNUM 1 \l 11148 Ça diminue les risques et a certains télé‑vendeurs qui se regroupent ensemble pour avoir accès à l'information et à ainsi payer peut‑être moins pour obtenir cette information‑là, c'est‑à‑dire de ne pas payer les frais qui seraient normalement applicables.
LISTNUM 1 \l 11149 Toujours en ce qui concerne l'accès et limiter la diffusion des informations contenues à la Liste, nous on considère que seul, en fait, les personnes qui sont dans l'obligation de respecter les règles relatives à la Liste devraient avoir accès à ces informations‑là.
LISTNUM 1 \l 11150 On sait, par exemple, qu'aux États‑Unis les organismes de charité ont un accès à la Liste et ce, gratuitement. Nous, c'est une mesure à laquelle on s'oppose.
LISTNUM 1 \l 11151 En ce qui concerne la question du voice casting, à notre avis les règles relatives, c'est une question soumise, les règles relatives à la Liste nationale devraient s'appliquer également au voice casting.
LISTNUM 1 \l 11152 J'arrive aux règles relatives... c'est‑à‑dire aux autres règles relatives spécifiquement au télémarketing, l'Union des consommateurs est d'avis que les entités logeant des appels non sollicités ainsi que celles pour le compte desquelles ces appels sont logés, devraient continuer de tenir leur propre liste parce qu'il y a toutes sortes de raisons légitimes qui peuvent faire en sorte qu'une personne ne s'inscrive pas à la Liste nationale, mais l'une d'entre elles, puis on l'a mentionné plusieurs fois aujourd'hui aussi, c'est qu'un individu peut vouloir sélectionner lui‑même les personnes de la part desquelles il ne voudra plus recevoir d'appels.
LISTNUM 1 \l 11153 Bon. Sous réserve de ce qui est prévu dans le Projet de Loi C‑37 relativement aux appels effectués dans l'unique but de recueillir de l'information pour les fins d'un sondage public, nous on considère que les règles applicables aux entités qui effectuent des appels non sollicités à un numéro qui n'est pas sur la Liste nationale ainsi que sur la liste qu'elle est tenue de maintenir, devrait être celle qu'a énoncée le CRTC dans sa décision de Telecom CRTC‑2004‑35.
LISTNUM 1 \l 11154 Bon, vous l'avez dit également, précédemment, bon, à ces règles‑là, nous, l'Union des consommateurs, on voudrait ajouter d'autres règles et on voudrait que des restrictions soient imposées quant aux heures auxquelles les appels téléphoniques non sollicités pourront être logés. Donc, vous avez mentionné quelle était la proposition tout à l'heure de l'Union à cet égard‑là.
LISTNUM 1 \l 11155 Et pour terminer, l'Union est inquiète de la possibilité que certaines entités tentent justement de contourner les règles qui vont être établies relativement aux cadres applicables à la Liste nationale ainsi que celles... ainsi que les autres règles de télémarketing qui sont applicables, en aménageant des clauses à ces effets‑là dans des contrats d'adhésion.
LISTNUM 1 \l 11156 Alors, à notre avis, il devrait être clairement prévu que les règles relatives à la Liste nationale ainsi que les autres règles de télémarketing devraient toujours avoir préséance sur toute clause contenue à un contrat d'adhésion qui diminue les droits qui sont conférés aux consommateurs en vertu de ces règles.
LISTNUM 1 \l 11157 Voilà, j'ai terminé. Merci.
LISTNUM 1 \l 11158 LE PRÉSIDENT: Félicitations d'avoir couvert tout un terrain et ça, très rapidement. Il y a deux ou trois points que je n'ai pas tout à fait compris, mais je vais vous poser des questions au fur et à mesure puis on va essayer de s'entendre ou de se comprendre au moins.
LISTNUM 1 \l 11159 Si j'ai bien compris, vous considérez que la protection d'une Liste... d'une L.N.N.T.E. devrait s'appliquer non seulement aux numéros de téléphone résidentiels conventionnels, mais également aux numéros cellulaires, également aux numéros de télécopieurs?
LISTNUM 1 \l 11160 MME DUCHESNE: C'est ça.
LISTNUM 1 \l 11161 LE PRÉSIDENT: Et pour ce qui est des télécopieurs, d'après vous, votre interprétation de la Loi, c'est qu'on peut même aller aussi loin à ce qu'aucun usage ne soit fait du télécopieur dans le domaine du télémarketing, de télé‑commercialisation?
LISTNUM 1 \l 11162 MME DUCHESNE: Je ne suis pas convaincue honnêtement à 100 pour cent que la Loi le permette. C'est une question qu'on soulève, mais nous, notre position est à l'effet que... puis on... en tout cas, sous réserve de déterminer quelle est la portée de la Loi à cet égard‑là...
LISTNUM 1 \l 11163 LE PRÉSIDENT: Excusez‑moi.
LISTNUM 1 \l 11164 MME DUCHESNE: Oui.
LISTNUM 1 \l 11165 LE PRÉSIDENT: Si le Conseil avait le pouvoir vous seriez en faveur à ce qu'on l'utilise?
LISTNUM 1 \l 11166 MME DUCHESNE: Exactement. Dans la mesure où c'est possible, nous, c'est une demande qui est faite; c'est‑à‑dire qu'on considère que les exemptions, bien qu'il y en a certaines qui soient justifiables, ne s'appliquent pas aux documents envoyés par télécopieur; c'est‑à‑dire les documents non sollicités pour fins de sollicitation.
LISTNUM 1 \l 11167 LE PRÉSIDENT: D'accord. Le consommateur devrait être capable de s'enregistrer et ça, sans frais et par téléphone et par internet?
LISTNUM 1 \l 11168 MME DUCHESNE: Oui.
LISTNUM 1 \l 11169 LE PRÉSIDENT: Mais si j'ai bien compris, puisqu'il y a encore un certain nombre de téléphones à cadran, puisqu'il y a un certain nombre d'usagers qui peuvent être handicapés quant à leur usage du téléphone, vous considérez que ce serait essentiel qu'un préposé, un vrai être humain, soit au bout du fil pour ces personnes‑là en ce qui a trait à l'enregistrement au L.N.T.E.?
LISTNUM 1 \l 11170 MME DUCHESNE: Exactement.
LISTNUM 1 \l 11171 LE PRÉSIDENT: Maintenant, les renseignements personnels, je ne suis pas sûr que j'ai complètement compris, mais je pense que c'est la suivante : c'est que pour ce qui est des renseignements personnels contenus donc dans une banque de données afin de L.N.T.E., il faudrait que ce soit le minimum nécessaire pour l'administration efficace de la Liste?
LISTNUM 1 \l 11172 MME DUCHESNE: Oui. En fait, notre position a évolué sur cette question‑là au cours d'autres discussions, là, en tout cas sur le fonctionnement de la Liste qu'on a eue dernièrement, en fait notre position sur ça, c'est que le moins de renseignement possible devrait être demandé, même qu'à la limite seul le numéro de téléphone devrait être demandé.
LISTNUM 1 \l 11173 Une façon de vérifier au niveau... c'est‑à‑dire que c'est une pratique qui pourrait être intéressante au niveau du téléphone, c'est‑à‑dire que, bon, je vais enregistrer un numéro de cellulaire donné par le biais d'une cellulaire, donc, j'utilise le cellulaire auquel est associé le numéro pour m'enregistrer, j'utilise le téléphone à mon domicile pour enregistrer le numéro qui est associé à ce téléphone‑là.
LISTNUM 1 \l 11174 Par contre, au niveau de l'internet, si on ne fait que mettre les... que mettre notre numéro de téléphone et, en tout cas, ce qui a été proposé, c'est notamment un système de vérification par le biais de courriel, c'est‑à‑dire qu'on nous envoie un courriel à l'effet que, effectivement, on inscrit notre numéro et qu'on *cliquerait+ sur un numéro pour faire la vérification, à notre avis ça ne permet pas de vérifier beaucoup de choses parce que c'est très facile de se créer une adresse de courriel et puis je peux très facilement enregistrer votre numéro de téléphone.
LISTNUM 1 \l 11175 Alors, on avait un questionnement par rapport à ça parce qu'on veut que ça demeure très simple et on veut que l'exploitant de la Liste ait très peu de numéros de téléphone, mais on veut quand même s'assurer que le consommateur qui inscrit un numéro donné, bien, c'est bien son numéro qui a été inscrit et le même chose surtout pour le retrait du numéro de téléphone; c'est‑à‑dire qu'on veut s'assurer que c'est bien le consommateur qui a retiré son numéro.
LISTNUM 1 \l 11176 Donc, ce qu'on proposait à cet égard‑là pour garder très simple la procédure d'inscription, c'est que sur la facture associée au numéro de téléphone qui est inscrit, qu'il soit inscrit que le numéro a été inscrit à la Liste nationale, c'est‑à‑dire sur le compte‑là, sur le compte, associé à un numéro donné, que ce numéro‑là a été...
LISTNUM 1 \l 11177 LE PRÉSIDENT: Le compte de la compagnie de téléphone?
LISTNUM 1 \l 11178 MME DUCHESNE: Exact.
LISTNUM 1 \l 11179 LE PRÉSIDENT: La facture?
LISTNUM 1 \l 11180 MME DUCHESNE: Sur la facture.
LISTNUM 1 \l 11181 LE PRÉSIDENT: Oui.
LISTNUM 1 \l 11182 MME DUCHESNE: Donc, que le numéro a été inscrit à la Liste nationale et la date à laquelle l'inscription a été faite. Comme ça, ça permet immédiatement de vérifier si la personne qui avait le numéro avant moi l'a inscrit, si le numéro est inscrit à mon insu ou si on l'a retiré à mon insu également. C'était une proposition.
LISTNUM 1 \l 11183 LE PRÉSIDENT: C'est une idée intéressante. Est‑ce que l'Union des consommateurs serait en faveur d'une majoration du tarif des compagnies de téléphone pour couvrir les coûts de l'ajustement? Ce n'est pas une blague hein! Je sais que c'est facile pour moi de dire ça, mais c'est la première chose que les compagnies de téléphone vont dire.
LISTNUM 1 \l 11184 Ils vont dire que l'ajustement dans leur système de facturation va coûter excessivement cher et si on veut faire un ajout, parfait, mais ils vont venir nous voir pour... est‑ce que les consommateurs devraient payer pour ça?
LISTNUM 1 \l 11185 MME DUCHESNE: Oui, bien c'est ça, on est conscient des coûts qui peuvent être associés à ça. Dans quelle mesure c'est si cher que de faire ça, ça, je ne le sais pas. À ce moment‑là, la discussion reste ouverte à savoir quel est l'équilibre, là, le plus profitable pour le consommateur en terme de protection de sa vie privée; c'est‑à‑dire qu'on veut essayer qu'il donne le moins possible de renseignements personnels, mais en contre‑partie de ça, on veut quand même s'assurer que c'est bien les bons joueurs qui inscrivent leur numéro et qui les retirent.
LISTNUM 1 \l 11186 LE PRÉSIDENT: En tout cas, on peut dire que vous avez soulevé une idée intéressante et puis on en prend bonne note et puis on regardera ça parce que ma collègue, la Commissaire Cram est très préoccupée par ce qu'on appelle en anglais "the method of authentication" ce qui est tout à fait ce dont on parle actuellement.
LISTNUM 1 \l 11187 Je ne voudrais pas partir des renseignements personnels tout à fait aussi vite parce que je voudrais vous demander, j'essayais de voir depuis le début quel est le "privacy value", quel est le danger, puis je ne veux pas m'en faire l'avocat d'une grande diffusion de ces informations‑là, mais quel serait le danger qu'un *hacker+ ou une troisième partie ait accès à une liste de numéros de téléphone, date d'inscription, nom de la personne inscrite.
LISTNUM 1 \l 11188 Il y a peut‑être deux ou trois... il y a juste cinq ou six champs dans chaque facture américaine, chaque item de... je peux à peine le dire en anglais donc j'ai bien de la misère à le dire en français, mais il y a juste cinq items pour chaque enregistrement dans la base de données américaine. Donc, présumons que c'est des éléments relativement évidents.
LISTNUM 1 \l 11189 Quelle est la privacy value et quel est le danger associé à la diffusion plus généralisée de ces informations‑là?
LISTNUM 1 \l 11190 MME DUCHESNE: Nous, notre principale préoccupation est relative aux adresses de courriel en fait, c'est‑à‑dire que si, justement, on a une procédure qui implique que l'on s'inscrive via internet et qu'on utilise la procédure de confirmation qui, à prime abord, sous réserve de me faire convaincre du contraire, je trouve un peu douteuse et non efficace.
LISTNUM 1 \l 11191 C'est‑à‑dire que... bien, c'est ça, donc l'exploiteur de la Liste va avoir une série d'adresses de courriels et, à ce moment‑là, ça devient très intéressant que de tenter que ces personnes‑là qui ne sont plus disponibles pour recevoir des appels non sollicités de sollicitation par le biais du téléphone, bien une autre voie pour essayer que d'atteindre ces clients potentiels‑là serait justement par le biais de leur adresse de courriel via des spasmes, par exemple.
LISTNUM 1 \l 11192 LE PRÉSIDENT: D'accord. Si on utilise l'adresse de courriel comme mesure de vérification, par le fait même on l'associe au numéro de téléphone, c'est dans une banque de données, c'est un élément de violation potentielle de la vie privée de l'individu?
LISTNUM 1 \l 11193 MME DUCHESNE: Oui, c'est ça.
LISTNUM 1 \l 11194 LE PRÉSIDENT: Merci. Vous gagnez le prix d'être les plus exigeants sur la période de grâce.
LISTNUM 1 \l 11195 MME DUCHESNE: Je sais.
LISTNUM 1 \l 11196 LE PRÉSIDENT: On en a jusqu'à 90 jours. Là, vous faites 24 heures. Vous vous rendez compte que ça veut dire que pour chaque entreprise de télé‑commercialisation, chaque activités de télé‑commercialisation qui avait lieu le jour 135 de l'année, chacun aurait accès nécessairement ou serait obligé d'accéder à la banque de données et demain, la même chose pour toute la gang.
LISTNUM 1 \l 11197 MME DUCHESNE: Oui, mais c'est‑à‑dire que lorsqu'on a fait cette proposition‑là, on avait en tête un système qui n'est pas celui que... en tout cas qui a partiellement celui proposé aux États‑Unis; c'est‑à‑dire que... bien, comme je l'ai dit dans mon exposé, nous ce qu'on propose, c'est un système dans lequel le télé‑vendeur soumet via, par exemple, sur le site web, soumet sa liste de numéros de téléphone et active une commande qui soustrait les numéros... donc qui soustrait ou, en tout cas, dans lequel on indique quel numéro il ne doit pas appeler. Donc, on n'a pas accès à l'intégralité de l'information de la liste et, en fait, ce serait très facile pour quelqu'un qui a un accès continu à internet et ce qui est de plus en plus le cas, qu'il y ait une mise à jour... qu'il y ait une mise à jour en temps réel des informations. C'est‑à‑dire que dès qu'il y a une inscription d'un numéro à la Liste nationale, bien immédiatement ce numéro‑là est identifié dans la liste du télé‑vendeur comme étant un numéro auquel il ne peut plus appeler.
LISTNUM 1 \l 11198 C'est sûr que le délai de grâce va être extrêmement tributaire du système qui va être... qui va être arrêté, mais à notre avis, des délais de 90 jours ou de 30 jours sont beaucoup trop longs puis ne correspondent pas à la technologie actuelle en tout cas ou aux avantages que permettent d'avoir la technologie actuelle.
LISTNUM 1 \l 11199 LE PRÉSIDENT: Bien, c'est une belle question et je ne suis pas sûr que je comprends l'avantage de votre méthode par rapport aux méthodes américaines, à la méthode américaine, mais une chose est certaine, c'est qu'on touche des systèmes assez fragiles qui manipulent des quantités de base de données énormes et j'enregistre et je retiens l'avis de l'Union des consommateurs que la période de grâce doit être minimisée et que, à votre avis, ça pourrait être un jour, deux jours. Je reste sceptique sur le plan technologique mais, ça, on verra.
LISTNUM 1 \l 11200 MME DUCHESNE: Oui, bien c'est ça. En fait, ce qu'on veut c'est que la période de grâce soit la plus petite possible.
LISTNUM 1 \l 11201 LE PRÉSIDENT: Oui.
LISTNUM 1 \l 11202 MME DUCHESNE: Parce que, comme je disais tout à l'heure, pendant la période de grâce, les consommateurs risquent d'être particulièrement sollicités parce que c'est la seule période...
LISTNUM 1 \l 11203 LE PRÉSIDENT: Bien, c'est pour ça... c'est ça que je veux discuter avec vous puis je ne la comprends pas. Expliquez‑moi ça en A, B, C, parce que j'ai bien vu ça et dans votre soumission et dans vos commentaires, mais je ne vois pas... je ne vos pas comment ça marche.
LISTNUM 1 \l 11204 Comment comme entreprise de télé‑commercialisation ai‑je accès, moi, à la liste de personnes qui se sont enregistrées depuis le dernier échéancier de période de grâce pour moi? Comment est‑ce que j'ai accès particulièrement à ce groupe‑là de tous les millions de Canadiens?
LISTNUM 1 \l 11205 MME DUCHESNE: Bien, c'est certainement possible que de faire... je ne sais pas dans quelle mesure il y a des télé‑vendeurs qui vont s'attarder à le faire, là, que de déterminer quels sont les nouveaux noms.
LISTNUM 1 \l 11206 LE PRÉSIDENT: Mais supposons qu'ils font ça, là, je ne vois pas comment ils vont réussir à le faire?
LISTNUM 1 \l 11207 MME DUCHESNE: Comment ils vont réussir à le faire?
LISTNUM 1 \l 11208 LE PRÉSIDENT: Oui, c'est ça, mécaniquement, madame Duchesne, je vois...
LISTNUM 1 \l 11209 MME DUCHESNE: C'est‑à‑dire que ça va dépendre... ça va dépendre du système qui va être utilisé; c'est‑à‑dire que si le système est de n'octroyer que les nouveaux noms qui sont apparus depuis la dernière fois où la personne est allée chercher sa liste...
LISTNUM 1 \l 11210 LE PRÉSIDENT: Oui.
LISTNUM 1 \l 11211 MME DUCHESNE: ... ça vient immédiatement repérer... on peut repérer immédiatement que ces personnes‑là viennent de s'ajouter.
LISTNUM 1 \l 11212 LE PRÉSIDENT: O.K. Mais...
LISTNUM 1 \l 11213 MME DUCHESNE: Donc, on les appelle maintenant parce que c'est le moment où jamais de le faire.
LISTNUM 1 \l 11214 LE PRÉSIDENT: Je comprends, mais on ne serait pas aussi innocent si je peux vous assurer que de leur donner l'occasion de faire un down‑loading sans demander à ce qu'ils observent les conséquences. On n'est quand même pas pour leur dire : on va vous donner les numéros qui se sont enregistrés, mais bien sûr, vous avez 25 jours pour les appeler et ce n'est pas comme ça que ça va marcher.
LISTNUM 1 \l 11215 MME DUCHESNE: Bien, j'espère que non.
LISTNUM 1 \l 11216 LE PRÉSIDENT: Pardon?
LISTNUM 1 \l 11217 MME DUCHESNE: C'est ce qu'on souhaite, mais dans l'éventualité ou...
LISTNUM 1 \l 11218 LE PRÉSIDENT: Oui, je sais, et c'est ce qu'on souhaite nous aussi, là. Tout ce que j'essaie de vous dire, c'est que je comprends l'ingénuité de la question, mais il n'y a pas grand danger qu'on va être aussi innocents ‑‑ excusez‑moi le mot ‑‑ aussi naïfs que de permettre ce genre d'abus d'avoir lieu. Ça, c'est sûr.
LISTNUM 1 \l 11219 Pour ce qui est de la durée, votre avis c'est que la durée de l'enregistrement d'un individu, c'est que ça dure jusqu'à ce que soit l'individu termine son abonnement et la compagnie de téléphone va donc faire la notification au L.N.T.E. ou bien c'est quand le consommateur décide volontairement de se *désenregistrer+, mais de toute façon pour vous, ce n'est pas un laps de temps en particulier qui devrait servir comme fin de l'enregistrement?
LISTNUM 1 \l 11220 MME DUCHESNE: Non, il n'y aura pas de date d'expiration.
LISTNUM 1 \l 11221 LE PRÉSIDENT: Si j'ai un numéro de téléphone pour cinq ans on peut présumer que dans la quatrième année, je suis aussi intéressé que dans la première année à ne pas me faire appeler par les entreprises de télé‑commercialisation?
LISTNUM 1 \l 11222 MME DUCHESNE: Oui, c'est ça, compte tenu que vous aviez tout ce temps‑là l'opportunité de le retirer gratuitement.
LISTNUM 1 \l 11223 LE PRÉSIDENT: D'accord. Vous voulez qu'on précise la définition de l'exemption en ce qui a trait la relation d'affaires. Vous voulez que l'exemption pour les relations d'affaires ne s'appliquent pas à la compagnie avec laquelle le consommateur fait affaires et non pas avec d'autres compagnies affiliées?
LISTNUM 1 \l 11224 MME DUCHESNE: Exact.
LISTNUM 1 \l 11225 LE PRÉSIDENT: La famille TD ce n'est que la banque ou ce n'est que la compagnie d'assurance ou ce n'est que la compagnie de gestion de portefeuille puis ce n'est pas bon pour toute la famille TD?
LISTNUM 1 \l 11226 MME DUCHESNE: Exactement.
LISTNUM 1 \l 11227 LE PRÉSIDENT: Et vous avez également, même vous êtes allée aussi loin ou je ne sais pas si vous êtes encore d'accord que de dire que si j'achète un four de Sears, il ne faudrait pas qu'il me fasse de la télé‑commercialisation pour les équipements de sports?
LISTNUM 1 \l 11228 MME DUCHESNE: Exactement, donc l'exemption...
LISTNUM 1 \l 11229 LE PRÉSIDENT: Comment est‑ce qu'on va administrer ça?
LISTNUM 1 \l 11230 MME DUCHESNE: C'est une bonne question.
LISTNUM 1 \l 11231 LE PRÉSIDENT: C'est malheureusement la question avec laquelle on est poigné.
LISTNUM 1 \l 11232 MME DUCHESNE: Oui, oui, mais c'est ça. L'idée, c'est on se disait, bon, quelle est l'attente raisonnable du consommateur qui s'inscrit, c'est‑à‑dire qui s'inscrit à la liste et, bon, là, il y a une relation d'affaires qui permet à une entreprise donnée que de pouvoir quand même communiquer avec la personne en question, mais la relation d'affaires a port sur un service donné ou un bien donné.
LISTNUM 1 \l 11233 Donc, on se demandait dans quelle mesure, compte tenu que c'est une relation d'affaires qui porte sur un service ou un bien donné par rapport à cette entreprise‑là, dans quelle mesure l'exemption permettrait à cette entreprise‑là de faire du télémarketing sur un objet qui a absolument rien à faire avec l'objet sur lequel portait ou le service portait la relation d'affaires qui est à l'origine de l'exemption.
LISTNUM 1 \l 11234 Donc, est‑ce que parce qu'il y a une entreprise... moi, j'ai une relation d'affaires parce que j'ai acheté une télé dans une compagnie donnée, est‑ce que cette entité‑là peut ensuite faire du télémarketing auprès de moi pour me vendre un meuble de bureau. C'est... en tout cas, idéalement, c'est ce qu'on... c'est ce qu'on voudrait.
LISTNUM 1 \l 11235 LE PRÉSIDENT: Mais vous n'avez pas d'éclair de génie quant à comment on va le faire?
LISTNUM 1 \l 11236 MME DUCHESNE: Non, mais on va y réfléchir.
LISTNUM 1 \l 11237 LE PRÉSIDENT: Merci. Bon, on est d'accord que la Liste nationale, il faut contrôler l'accès, il ne faut pas qu'il y ait de la revente, il ne faut pas qu'il y ait de l'accès illégitime ou d'abus pour... il ne faut pas, il y a évitement de frais, et caetera, on est tous d'accord là‑dessus.
LISTNUM 1 \l 11238 Vous avez dit quelque chose au sujet des organismes de charité.
LISTNUM 1 \l 11239 MME DUCHESNE: Oui.
LISTNUM 1 \l 11240 LE PRÉSIDENT: Et je ne suis pas sûr que j'ai saisi. Je vais vous donner l'occasion de vous répéter là‑dessus.
LISTNUM 1 \l 11241 MME DUCHESNE: Oui, oui, sans problème. Alors, en fait, c'est très simple. Ce qu'on dit, c'est qu'il y a certaines entités qui sont tenues de respecter la règle. Alors, ce qu'on demande, c'est que ce soit seulement eux qui aient accès aux informations relatives à la Liste. C'est tout.
LISTNUM 1 \l 11242 LE PRÉSIDENT: D'accord. Pour ce qui est du voice casting, d'après vous, ça devrait être inclus dans la réglementation que nous créerons, qui est créée et que nous créerons quant à d'autres façons de faire la télé‑commercialisation?
LISTNUM 1 \l 11243 MME DUCHESNE: Ce qu'on dit, c'est que dans la mesure... c'est‑à‑dire que les règles... c'est ça, les règles relatives à la Liste nationale, moi, si j'ai inscrit mon numéro à la Liste nationale, il ne devrait pas être permis que je reçoive les appels de voice casting.
LISTNUM 1 \l 11244 LE PRÉSIDENT: D'accord.
LISTNUM 1 \l 11245 MME DUCHESNE: Ça se limite à ça.
LISTNUM 1 \l 11246 LE PRÉSIDENT: D'accord. Le voice casting, c'est une menace potentielle à ma vie privée aux yeux de l'Union des consommateurs qui est aussi sérieuse que n'importe quelle autre menace qu'une menace d'un appel téléphonique live, en real time?
LISTNUM 1 \l 11247 MME DUCHESNE: Bien, un des problèmes associé aux appels de voice casting, bien c'est en fait le fait que... bien, premièrement, si le voice casting n'est pas assujetti à la Liste, y a‑t‑il un risque que, justement on procède beaucoup par voice casting, d'une part.
LISTNUM 1 \l 11248 D'autre part, bon, je sais que vous aviez un questionnement à l'effet que les activités en direct du consommateur ne sont pas compromises. Alors, est‑ce qu'il y a lieu de faire une distinction sur cette base‑là?
LISTNUM 1 \l 11249 Par contre, il y a d'autres problèmes qui sont associés au voice casting qui consistent à la perte de temps à gérer ce genre de message‑là, le fait que justement le répondeur puisse être complètement plein de ce genre de message‑là et qui fasse que je pourrais potentiellement perdre d'autres problèmes... perdre d'autres messages?
LISTNUM 1 \l 11250 Donc, un peu de la même façon que les télécopieurs ne sont pas... ne posent pas problème en terme de dérangement de l'activité directe du consommateur, mais ils posent d'autres problèmes, à notre avis, qui justifient que, effectivement, la Liste nationale leur soit applicable.
LISTNUM 1 \l 11251 LE PRÉSIDENT: D'accord. D'une part, on ne veut pas prétendre que le voice casting est moins nuisible bien que différent ou légèrement différent, mais on ne veut pas prétendre que le voice casting est moins nuisant potentiellement qu'un appel en temps réel et, d'autre part, on craint que si on ne réglemente que les appels en temps réels, on va finir par faire une espèce de crowding puis les gens vont tous faire du voice casting?
LISTNUM 1 \l 11252 MME DUCHESNE: Exact.
LISTNUM 1 \l 11253 LE PRÉSIDENT: Merci. On continue à appliquer d'après l'Union des consommateurs 2004‑35 en général?
LISTNUM 1 \l 11254 MME DUCHESNE: Pardon?
LISTNUM 1 \l 11255 LE PRÉSIDENT: Vous êtes d'accord avec les règles existantes de 2004‑35?
LISTNUM 1 \l 11256 MME DUCHESNE: Oui.
LISTNUM 1 \l 11257 LE PRÉSIDENT: Et vous voulez ajouter d'autres règles puis je vous avoue que je ne suis pas sûr tout à fait. Je vais vous inviter à répéter.
LISTNUM 1 \l 11258 MME DUCHESNE: Oui, mais en fait, l'autre règle qui était proposée, c'est qu'à la lecture de cette décision‑là, j'ai constaté que, contrairement à ce qui se passait pour les télécopieurs, il n'y a pas de restriction d'heures au niveau des appels téléphoniques non sollicités.
LISTNUM 1 \l 11259 Alors, nous, c'est l'ajout qu'on demandait, c'est qu'il y ait des restrictions d'heures pour les appels téléphoniques.
LISTNUM 1 \l 11260 LE PRÉSIDENT: Alors, je pense que... oui, je pense que votre lecture est incorrecte, mais en tout cas, je retiens qu'il faut réglementer les heures non seulement pour les télécopieurs mais, également, pour les appels en temps réels.
LISTNUM 1 \l 11261 MME DUCHESNE: Oui, mais en tout cas, d'après ma lecture, les restrictions d'heures ne s'appliquent qu'aux télécopieurs et non aux appels téléphoniques.
LISTNUM 1 \l 11262 LE PRÉSIDENT: Vous avez peut‑être raison. En tout cas, on a bien compris votre point de vue.
LISTNUM 1 \l 11263 MME DUCHESNE: Voilà.
LISTNUM 1 \l 11264 LE PRÉSIDENT: Elle a raison? Bon, parfait. Madame Duchesne, ça a été formidable, j'apprécie énormément votre présence. Je vais juste voir s'il y a d'autres questions.
LISTNUM 1 \l 11265 Vous remerciez l'Union des consommateurs pour leur contribution, c'était des plus sérieux puis c'est apprécié.
LISTNUM 1 \l 11266 MME DUCHESNE: Merci à vous.
LISTNUM 1 \l 11267 THE SECRETARY: We will now proceed with Canadian Jewish Congress with Mr. Eric Vernon. Mr. Vernon, please introduce your colleague.
PRESENTATION BY CANADIAN JEWISH CONGRESS
LISTNUM 1 \l 11268 MR. VERNON: Mr. Chair, Commissioners, Commission staff, I am Eric Vernon, I am the National Director of Government Relations for Canadian Jewish Congress.
LISTNUM 1 \l 11269 With me today is Mr. Marc Goldberg, volunteer, Telecommunications Consultant.
LISTNUM 1 \l 11270 We thank you very much for the opportunity to appear before you today and without further ado, I am pleased to turn the mike over to Mark to make our opening statement.
LISTNUM 1 \l 11271 MR. GOLDBERG: Thank you Eric. While we are here representing Canadian Jewish Congress which, by the way, does not fund raising of its own, and the Jewish Federations of Communities across Canada, a glance of the participant list suggests that we will be the voice of the volunteer Canadian charitable and not for profit sector at large.
LISTNUM 1 \l 11272 We hope to do justice to this important element of Canadian society as we articulate our concerns and perspectives with regard to the proposed Do Not Call List.
LISTNUM 1 \l 11273 With some trepidation I have put my telecommunications expertise at the disposal of Canadian Jewish Congress, the National Organizational voice of the Jewish Community of Canada representing some 360,000 persons.
LISTNUM 1 \l 11274 Let me note in passing that CJC often reaches beyond the Jewish Community and it has notably been at the forefront of the Green Ribbon Campaign to raise awareness of the humanitarian crisis in Darfour as was reported in the front page of this morning Globe & Mail.
LISTNUM 1 \l 11275 CJC often works cooperatively as in this case with Community Jewish Federations, the nationally linked fund raising and planning organizations in Jewish Communities across Canada. Funds are raised to support critical efforts in education and maintenance of identity, community building, assisting the vulnerable and less fortunate, promotion of arts and culture, community security, and youth oriented continuity.
LISTNUM 1 \l 11276 CJC understands the rationale behind the establishment of a National Do Not Call List. Further, we greatly acknowledge the specific exemption provided to registered charities pursuant to the Amended Telecom Act. The Legislators that amended the original bill to include this charitable exemption clearly understood three essential elements.
LISTNUM 1 \l 11277 First, charities and other not for profit organizations are involved in a wide variety of social service, humanitarian, religious and educational purposes which collectively enhance the quality of life in Canada and, in some cases, are indispensable to the well‑being of their constituents, especially in view of ongoing cutbacks to social services.
LISTNUM 1 \l 11278 Secondly, charities rely on telephone fund raising. Annual telethons, occasion of appeals and regular membership call‑outs, as the life blood of their operations and the key to sustainable giving.
LISTNUM 1 \l 11279 Telephone fund raising is the method of choice by charitable organizations of all sizes.
LISTNUM 1 \l 11280 As you've heard this morning, access to donors via telephone is critical to putting a human face on the appeal for contributions and to providing important educational information about the organizations activities and contribution to important causes.
LISTNUM 1 \l 11281 And third, the Canadian public is able to make the distinction between solicitation by unwanted commercial enterprises and requests for donations to permit bonified charities to function and fulfil their critical mandates.
LISTNUM 1 \l 11282 The Jewish Federations, for example, hold annual telethons to solicit funds for their social service, educational, religious and social justice activities while informing the community about those important efforts. The covers are volunteers who see this as an important contribution of their time and energy to the community.
LISTNUM 1 \l 11283 Community charities raise funds for and promote the importance of their focused causes via telephone. Similarly, individual schools, churches and synagogues also use such opportunities to develop membership and voluntarism and to promote special events.
LISTNUM 1 \l 11284 While building the trust necessary for charitable donation both in the first instance and on a sustainable basis, charities also rely on telephone conversations to facilitate other positive outcomes, including volunteer recruitment, receiving community input and feedback and rekindling the interest of past donors, setting up meetings for further discussions and invitations to events.
LISTNUM 1 \l 11285 It is therefore our sincere hope and expectation that in implementing the List and, thereby, eliminating undesired calls, the CRTC neither entails the legitimate outrage for resources that have charities to do their good works, nor creates dissent centres for charitable giving.
LISTNUM 1 \l 11286 In other words, what the Parliament of Canada gave us, especially in the discretion in applying the rules and penalties, we respectfully ask that the CRTC will not take away.
LISTNUM 1 \l 11287 Charitable not for profit and voluntary sector organizations focus on areas such as social welfare and civic improvement. These agencies and bodies make an enormous contribution to the betterment of Canadian society and should not have administrative impediments placed in the way of their telephonic communication for both fund raising and educational advertising purposes, especially since such burdens could sign the death now of many valuable charitable organizations.
LISTNUM 1 \l 11288 The operations of the CRTC telemarketing regime should permit and even be seen to encourage and promote a healthy viable and active charitable sector which recognizes the contribution that charities make to society as well as the centrality of telephonic fund raising to these institutions.
LISTNUM 1 \l 11289 While perhaps obvious because we are making the case for wide discretion in applying the regulations to charities, it bears noting that a diminution of charitable giving translates into less charitable activity in the public interest.
LISTNUM 1 \l 11290 This would never be a positive development for the public good, but it is particularly problematic at a time when the public regards the charitable sector as a critical partner of governments in all levels of the provision of essential social services.
LISTNUM 1 \l 11291 It is not clear how the slack would be picked up if charities are unable to maintain, let alone enhance their contribution to the betterment of Canadian society.
LISTNUM 1 \l 11292 It is also important to recognize in our constituency that charitable institutions are in a very few cases large sophisticated organizations with professional staffs and, yet, in most other cases the groups are small and completely volunteer based.
LISTNUM 1 \l 11293 In many cases, charitable institutions are registered for tax purposes while others associated with them, such as schools, clubs and auxiliary associations are not registered charities within the meaning of the Income Tax Act.
LISTNUM 1 \l 11294 While the church or synagogue may be a registered charity, a youth group supported by the institution, which seeks to call community members about a fund raising event, may well not be registered. Some groups may have structured a charitable foundation that in turn provides funding for other parts of the organization, but others may not.
LISTNUM 1 \l 11295 It is the respectful submission of CJC that in its enforcements of the Do Not Call List the CRTC should adopt a broad reading of the terminology "made by or on behalf of a registered charity", such that organizations associated with the charity would also qualify.
LISTNUM 1 \l 11296 At the very minimum, we urge that organizations associated with registered charities be granted the same exemption to the Do Not Call List as the registered entity.
LISTNUM 1 \l 11297 It is also our submission that most volunteer and small scale charitable organizations with minimal financial or infrastructure resources will be unable to access a National Do Not Call List.
LISTNUM 1 \l 11298 As a result, there is a risk that their fund raising telephone calls may need to be out‑sourced to professional telemarketing firms because of the required overhead imposed by the Do Not Call List.
This would be unfortunate.
LISTNUM 1 \l 11299 Because of the nature of many charitable operations, we also support the exemption permitting covers not to display the originating or contact telephone number where not feasible. Many amateurs in small scale charitable fund raisers rely on the donation of telephone access by large offices or companies which may, for privacy reasons, not wish to have their number identified.
LISTNUM 1 \l 11300 In some cases the donor companies may have systems programmed to display their business numbers and would not want to incur a cost to implement a short‑term change. In other cases volunteers call from their homes.
LISTNUM 1 \l 11301 These generous gestures must also not be impeded by regulations that do not exempt companies donating phone access because they may not have charitable status under CRA rules.
LISTNUM 1 \l 11302 At the very least, sponsoring offices must enjoy the same immunity under the Do Not Call regulations as the charitable organizations themselves.
LISTNUM 1 \l 11303 We have no trouble with rules such as a requirement to identify on behalf of which organization the calls are being made.
LISTNUM 1 \l 11304 In summary, the regime that is established pursuant to the public notice must ensure the ability of volunteer‑based charitable institutions to continue their essential work. It is our concern that an improper set of rules could have a profoundly adverse effect on charitable fund raising in Canada. An expansive application of the charitable exemption must be put in place to permit such bodies to access their constituents and to preclude their need to outsource their telecommunications to professional telemarketing organizations, a step well beyond the financial means of many worthwhile organizations.
LISTNUM 1 \l 11305 We believe it is important to distinguish between calls made by unpaid volunteers and professional or third party telemarketers making calls on behalf of businesses or charities.
LISTNUM 1 \l 11306 All of the above is respectfully submitted in hopes of safeguarding the important fund‑raising efforts of Canada's charities and associated groups.
LISTNUM 1 \l 11307 THE CHAIRPERSON: Thank you very much.
LISTNUM 1 \l 11308 Mr. Vernon, we have to begin by congratulating you in succeeding in bringing Mr. Goldberg and all his expertise before us on an unremunerated basis. It's not the normal context when we see him.
LISTNUM 1 \l 11309 I think the core of your concern, your primordial concern, is worth discussing just to see what the pros and cons or what the issues are.
LISTNUM 1 \l 11310 First, you say that the Canadian public is able to make the distinction between solicitation by unwanted commercial enterprises and requests for donations to prevent charities to function and fulfil critical mandates.
LISTNUM 1 \l 11311 I think that is probably right.
LISTNUM 1 \l 11312 But if it is true, why would you have this concern? The enforcement of this Act is going to be a complaint‑based phenomenon.
LISTNUM 1 \l 11313 If the public knows the difference, and more to the point if members of the synagogue know they are being called by someone from within the synagogue, how much of a potential problem is there?
LISTNUM 1 \l 11314 Or, to put it conversely, if five members of the synagogue are angry enough to complain that they have been called by the youth group or by some other group in the synagogue, how will we refuse not to pay attention to those complaints?
LISTNUM 1 \l 11315 Either there are complaints or there are not complaints.
LISTNUM 1 \l 11316 MR. GOLDBERG: I think the concern is trying to ensure that there is reasonableness on all sides.
LISTNUM 1 \l 11317 If we go back to first principles, what is the purpose of the Do Not Call List, it is trying to safeguard consumers from receiving unwanted calls.
LISTNUM 1 \l 11318 If we go over the edge and go overboard in creating a rigid regime ‑‑ take a look at zero tolerance for bullying in schools that allows no discretion to a school principal in dealing with a problem.
LISTNUM 1 \l 11319 In general, you would take a look and you would say we know when a problem exists versus another type of problem, but if the rules are too rigid no discretion would be permitted.
LISTNUM 1 \l 11320 We want to ensure that the Commission leaves itself with sufficient discretion that if it happens that the synagogue youth group makes a call to somebody who had a really bad day at the office, had a stone chip his windshield on the drive home, gets home and the dog has just made a mess of the rug, and then he gets a phone call from the synagogue youth group trying to sell him some tickets to their basketball game, that he doesn't go over the edge because he had registered for a Do Not Call List the day before.
LISTNUM 1 \l 11321 We would like you to be able to have all the parties cool down.
LISTNUM 1 \l 11322 Obviously it is not in any charity's interest to be making calls to people who don't want to receive those calls, but we want to ensure that you have sufficient discretion in the application of those rules.
LISTNUM 1 \l 11323 THE CHAIRPERSON: Well, we agree, don't we, that we can't change the law?
LISTNUM 1 \l 11324 For your information, there was a debate. Parliamentarians did consider non‑profits versus charitable, and they said the only way we can police this is if it is charitable registration. So that is the law we have.
LISTNUM 1 \l 11325 It is most unlikely that the Commission will say "and by the way, we are going to ignore complaints about non‑profit solicitation". I don't think that is feasible.
LISTNUM 1 \l 11326 On the other hand, it is equally unlikely that a single complaint is going to generate a major investigation under any circumstances, whether it is about a charity or about any other. A single isolated complaint is not liable to trigger investigative action and the invocation of the full weight of the Act.
LISTNUM 1 \l 11327 That is a matter of policy which my four colleagues may disagree with, and they are free to do so.
LISTNUM 1 \l 11328 I am predicting that we may find ourselves in a situation where ‑‑ and I know for a fact that in the United States a single complaint does not trigger an investigation.
LISTNUM 1 \l 11329 COMMISSIONER LANGFORD: And he predicted a sunny day today too. So be careful. His track record is not perfect.
LISTNUM 1 \l 11330 THE CHAIRPERSON: No. The Commissioners on my right ‑‑ my track record is very poor in this regard. I am hoping the Commissioners on my left may support me when it comes down to it.
LISTNUM 1 \l 11331 In any event, the real purpose, after all, is to create a sense of mutual understanding, which Mr. Goldberg has evoked. And that sense of mutual understanding would have to, I think, involve in some sort of ‑‑ and there was a very fancy word used by someone who testified before the Parliamentary Committee: a pyramid of...
LISTNUM 1 \l 11332 They are all looking blank.
LISTNUM 1 \l 11333 Some kind of an enforcement regime which began with things like mediation. Why don't you call the Bankers Association and try to sort if out with the Royal Bank?
LISTNUM 1 \l 11334 But if there is a pattern ‑‑ and this, after all, is the issue that we really have to come to grips with.
LISTNUM 1 \l 11335 If there is a pattern of complaints about a telemarketing activity that occurs within a condensed period of time, it is rather unlikely that we will be able to completely ignore it, no matter how worthy we think the cause for which these calls were made really was.
LISTNUM 1 \l 11336 MR. GOLDBERG: I agree with you. But I think that in many cases can be even outside of telemarketing regulations.
LISTNUM 1 \l 11337 I note that from the discussions in Parliamentary committee, there were questions asked about whether these regulations would apply to small groups such as school bands, whether it applies to a local car repair garage. And the response from Mr. Bhinder was he believes this would not be deemed a telemarketing call.
LISTNUM 1 \l 11338 In other cases there were statements made that these would be left to the CRTC's discretion in defining what makes it a telemarketing call.
LISTNUM 1 \l 11339 So it is based on that dialogue that took place in Parliamentary committee that we are asking you to extend broad discretion, especially where the calls are being made by a volunteer organization.
LISTNUM 1 \l 11340 I think that that may be one of the types of lines in the sand that I know my lawyer friends are always looking for. How do you differentiate between various types of calls?
LISTNUM 1 \l 11341 I think an unpaid volunteer making a call is a very different type of solicitation than a professional organization, even in fact when they are made for charities, for registered charities.
LISTNUM 1 \l 11342 A registered charity that outsources its telemarketing to a paid professional organization, you can expect a different standard, let's say, from those types of calls than you do from the school band.
LISTNUM 1 \l 11343 THE CHAIRPERSON: The first thing to be said was that the testimony by Mr. Bhinder and his colleagues was notable mostly for saying that the CRTC would solve all of his problems. So I hesitate to you to invoke his more positive statements as of any long‑term probative value in this debate.
LISTNUM 1 \l 11344 Beyond that, I think it is very clear that the school band is something different from telemarketing and I think it is very clear that it would be treated differently in terms of complaints.
LISTNUM 1 \l 11345 And I agree with you that unpaid voluntary telemarketing activity is different from commercial telemarketing.
LISTNUM 1 \l 11346 I regret to say that the law doesn't really permit us to treat it in some formal sense as different. That is to say I doubt, if I tried to suggest various ways of containing or expressing that concern in some sort of formal regulation or guideline, I'm not sure how far I would get with my legal colleagues.
LISTNUM 1 \l 11347 I think really the question at hand is we agree on the fundamental purpose of the law. We agree that it is not intended to constrain the PeeWee Mothers of Corner Brook from doing a solicitation of money so that the kids can go and play in a tournament in St. John's. That is not the intention of the Act.
LISTNUM 1 \l 11348 We agree, on the other hand, that it clearly is intended ultimately to prevent annoyance on the part of people receiving unwanted calls, whatever the source of those calls.
LISTNUM 1 \l 11349 So somewhere between those two extremes we have to find a way, a form of expression or a definition of a defence that might help reduce your concerns.
LISTNUM 1 \l 11350 But to the extent that the body of solicitees is constrained by the membership of the synagogue, to the extent that the activity involved is not for private gain but for charitable or non‑profit purposes, welfare purposes, if you will, clearly that puts it in a different category and makes it less likely to invoke the weight of the law than more commercially oriented activities.
LISTNUM 1 \l 11351 If the CJC has specific suggestions that we could then test against the Act and the forms of regulation that we are looking at, then we would be very happy to have them.
LISTNUM 1 \l 11352 But we don't have a philosophical disagreement here. We are strictly talking about how in practice we could bring the distinctions you make into the body of some sort of semi‑formal guidelines or regulations.
LISTNUM 1 \l 11353 MR. GOLDBERG: I think one of the specifics has to do with our comments on the calling line identification, and it is where we are probably at odds with the submission of the telephone companies that suggest that there is no technical reason in this day and age to not have calling line display shown.
LISTNUM 1 \l 11354 As a technologist, I agree from a technical perspective there are means to always show a correct calling line ID. From a practical perspective, though, it won't make sense for charities when we have a campaign that makes use of a law office on a Sunday because the law office happens to have 500 extensions with 200 central office accesses.
LISTNUM 1 \l 11355 It simply isn't reasonable to ask that law office to reprogram their switch to either start to producing calling line ID when they have normally got that function shut off ‑‑ because some of the Toronto law firms operate that way ‑‑ or to have them reprogram it, instead of showing the name of the law firm and their phone number, to have the name of the charity and their contact phone number.
LISTNUM 1 \l 11356 So we think there has to be greater breadth in discretion of application there.
LISTNUM 1 \l 11357 That is a specific where we disagree. Just because it is possible from a technology perspective doesn't make it practical for a charity to invoke that.
LISTNUM 1 \l 11358 THE CHAIRPERSON: Noted.
LISTNUM 1 \l 11359 I am going to ask my colleagues, Commissioner Langford and then Commissioner Cram.
LISTNUM 1 \l 11360 COMMISSIONER LANGFORD: I want to see how many easy solutions there may be because I'm big on easy, if I can find something easy.
LISTNUM 1 \l 11361 In your own ‑‑ I can't ask you to speak for the entire charitable world, but for your own Congress, would you have any problem instructing people doing fund raising for some arm of your organization to say "we are calling on behalf of the Congress"?
LISTNUM 1 \l 11362 MR. GOLDBERG: Actually, I made that comment as an insert to the prepared text: that I don't see that being any problem whatsoever. Naturally the type of organizations that are calling, it's always going to be: "Hi, my name is Mark and I'm calling on behalf of the Beth Israel Synagogue" or on behalf of the United Jewish Appeal, or whatever.
LISTNUM 1 \l 11363 I don't see that as being any ‑‑
LISTNUM 1 \l 11364 COMMISSIONER LANGFORD: And today's subject is little league baseball or today's subject is our summer camp, or something like that.
LISTNUM 1 \l 11365 MR. GOLDBERG: A hundred percent.
LISTNUM 1 \l 11366 COMMISSIONER LANGFORD: So would that cover most of your concerns if you could slip in under that defence, if I can call it that?
LISTNUM 1 \l 11367 MR. GOLDBERG: If that provides an adequate defence, then absolutely.
LISTNUM 1 \l 11368 I am having trouble imagining a telephone call that wouldn't naturally start that way, with or without the rules saying that.
LISTNUM 1 \l 11369 COMMISSIONER LANGFORD: And it may be that you would have to ‑‑ and I am just thinking aloud here, so it's worth exactly what you are paying for it.
LISTNUM 1 \l 11370 It may be that you would have to have a form letter so that when some little fund raising was going to start for a very small minor group, the After School Program, whatever it might be, still you would give them that and somewhere in their file they would have that. That would be signed.
LISTNUM 1 \l 11371 Let's move from that. You have obviously thought about this in a bigger perspective, but I don't expect you are experts on the entire 161,000 non‑profit organizations in Canada.
LISTNUM 1 \l 11372 Where could other people shelter? If you were simply, as the Chairman said, calling on behalf of the Little League of Corner Brook, Newfoundland, where could they shelter?
LISTNUM 1 \l 11373 Is there a way to shelter or do you anticipate that there will be quite a few people out there that are simply stand‑alone, once every five year charities, or once every year to get some money for uniforms, or whatever it is?
LISTNUM 1 \l 11374 MR. GOLDBERG: Unfortunately, I think there are all sorts of special causes that come up.
LISTNUM 1 \l 11375 Eric and I were discussing this morning cases such as the Green Ribbon Campaign that was conceived of during the last couple of days of Passover and implemented in time for last week's Yom Hashoah commemoration.
LISTNUM 1 \l 11376 And that involved a small group of people very quickly making a number of calls, completely unsolicited, both to individuals and in fact to businesses ‑‑ to reflect on some of the conversations from this morning about businesses perhaps being on a Do Not Call List ‑‑ trying to get contributions of the green ribbons themselves, for example, contacting the Members of Parliament so that they would all be wearing them.
LISTNUM 1 \l 11377 These are emergency type campaigns that may come up.
LISTNUM 1 \l 11378 So it applies not just to our constituency but, as you said, perhaps a hockey team that gets invited to a special tournament and has to go out and make a bunch of calls, not just to their parents but perhaps just pulling out the White Pages and calling everybody whose phone number starts with the same three digits.
LISTNUM 1 \l 11379 So that's why I think the distinction ‑‑ it is very hard to conceive of another type of distinction other than saying are these people who are making the calls being paid?
LISTNUM 1 \l 11380 I am fully cognizant of the fact that Parliament chose not to provide a blanket not‑for‑profit exemption, for very understandable reasons, because some of those not‑for‑profits, just like some of the folks who are registered charities, can have problems.
LISTNUM 1 \l 11381 There are charities out there with such high overheads because they engage professional, very sophisticated telemarketing organizations.
LISTNUM 1 \l 11382 But those organizations, by virtue of the fact that they have gone out to a professional telemarketing company, that telemarketing company has infrastructure. They have computer systems. They have predictive diallers or they have all sorts of stuff on hand that allows them to hit on the database versus the rest of the groups out there, whether they are an income tax registered charity or a little league baseball team or a club running a car wash. It's a bunch of folks who get together and under a very strict reading of the definition of telemarketing, yes, they are making an unsolicited telephone call to get some money or get goods.
LISTNUM 1 \l 11383 But I think it is pretty easy to distinguish between them and the other guys.
LISTNUM 1 \l 11384 COMMISSIONER LANGFORD: Your Darfur Program, which is kind of interesting because you whipped this up very, very recently, could that shelter under your Congress? Could they be calling on behalf or is it too big a stretch?
LISTNUM 1 \l 11385 Is it just people who happened to be members of your Congress but also are interested in this thing that is happening so far away and has no immediate nexus at all, I would assume, with your organization?
LISTNUM 1 \l 11386 MR. GOLDBERG: I would need help in understanding what you mean by could they shelter.
LISTNUM 1 \l 11387 COMMISSIONER LANGFORD: Could they be calling on behalf of the Canadian Jewish Congress, or is that just too big a stretch?
LISTNUM 1 \l 11388 MR. GOLDBERG: It depends. In many cases the calls that were made were from either volunteers within the Canadian Jewish Congress or some of the professional staff who work for Canadian Jewish Congress.
LISTNUM 1 \l 11389 In some cases they would naturally introduce themselves, saying: "Hi, I am so‑and‑so, calling on behalf of Canadian Jewish Congress."
LISTNUM 1 \l 11390 In other cases they may say: "Hi, my name is so‑and‑so and I want to talk to you about the crisis in Darfur."
LISTNUM 1 \l 11391 In many cases that would depend on who they are calling. Are they known because they work with Canadian Jewish Congress?
LISTNUM 1 \l 11392 For example, if I was calling one of you, I may call you because of the relationship I have with you from the telecommunications industry.
LISTNUM 1 \l 11393 COMMISSIONER LANGFORD: Does the Congress itself ‑‑ it is a registered charity, obviously. Will it be able to comply with the Do Not Call List situation as it appears to be developing?
LISTNUM 1 \l 11394 MR. GOLDBERG: In general, our community federations range in size. On the one hand, you have the Toronto Jewish Federation, which represents a Jewish community in excess of 200,000 people. On the other hand, you have a community federation in Sydney, Nova Scotia, representing a handful of families.
LISTNUM 1 \l 11395 So there are very different levels of sophistication, quite similar to small businesses that operate on handwritten lists, with no computers to maintain.
LISTNUM 1 \l 11396 COMMISSIONER LANGFORD: So what happens when we have this national list? Who is going to be able to afford to access it and to keep their own lists up to date, or to start a list, if they don't have a list?
LISTNUM 1 \l 11397 MR. GOLDBERG: That is one of our concerns and one of the reasons we are here.
LISTNUM 1 \l 11398 COMMISSIONER LANGFORD: You don't have any suggestions for us, specific suggestions as to how to facilitate that for the folks in Sydney?
LISTNUM 1 \l 11399 I guess that Toronto is all right.
LISTNUM 1 \l 11400 Toronto is always all right. I take that as a given, but what about the folks in Sydney?
LISTNUM 1 \l 11401 MR. GOLDBERG: That's why we are looking for the specific exemption for volunteer‑based organizations.
LISTNUM 1 \l 11402 COMMISSIONER LANGFORD: You are going to base it that way.
LISTNUM 1 \l 11403 MR. GOLDBERG: Yes.
LISTNUM 1 \l 11404 COMMISSIONER LANGFORD: It won't be on size or whatever, it will be solely on volunteerism.
LISTNUM 1 \l 11405 MR. GOLDBERG: Yes.
LISTNUM 1 \l 11406 COMMISSIONER LANGFORD: Those are my questions.
LISTNUM 1 \l 11407 Thank you, Mr. Chair.
LISTNUM 1 \l 11408 THE CHAIRPERSON: Commissioner Cram.
COMMISSIONER CRAM: It really seems like I am splitting a hair in terms of volunteer ‑‑
LISTNUM 1 \l 11409 When you were talking, Mr. Goldberg, about people phoning for the Green Ribbon Campaign, some were staff and some were volunteers. What would we do in a situation like that?
LISTNUM 1 \l 11410 I think it would be fairly difficult to find out which person made the call, especially if you are calling a lot of people. How would we handle a situation like that?
LISTNUM 1 \l 11411 MR. GOLDBERG: In that particular instance ‑‑ and I will let Eric describe the size of the Canadian Jewish Congress, a paid organization ‑‑ it would be on an extremely small exception basis that paid staff would ever be involved in direct calling. They would have a short list of quite substantial donors that they have a personal relationship with.
LISTNUM 1 \l 11412 COMMISSIONER CRAM: The question isn't, "How often will it happen," the question is, "How effective is your proposed carve‑out going to be?"
LISTNUM 1 \l 11413 What would we do in a situation like that?
LISTNUM 1 \l 11414 Say that we carved out volunteers. If it is volunteers and one paid person, or if it is half‑and‑half, how do we deal with it?
LISTNUM 1 \l 11415 MR. GOLDBERG: First off, I think, if it is a charitable organization making the call, then it is captured under that carve‑out.
LISTNUM 1 \l 11416 COMMISSIONER CRAM: Yes. That's fair.
LISTNUM 1 \l 11417 MR. GOLDBERG: And, I think, if the call is made by a volunteer ‑‑
LISTNUM 1 \l 11418 You could even refer to: Did the person get a T4 at the end of the year for the work they did.
LISTNUM 1 \l 11419 COMMISSIONER CRAM: You are saying, if the actual call ‑‑
LISTNUM 1 \l 11420 How many people did you phone in your Darfur campaign?
LISTNUM 1 \l 11421 MR. GOLDBERG: For that particular thing, it was perhaps a couple of dozen folks involved in getting the actual production of the ribbons.
LISTNUM 1 \l 11422 COMMISSIONER CRAM: What if 10,000 people were called, and there was half‑and‑half professional and volunteer, in a not‑for‑profit sector?
LISTNUM 1 \l 11423 How would we draw the line on that?
LISTNUM 1 \l 11424 Because the volunteer or the professional person couldn't remember who they would call.
LISTNUM 1 \l 11425 MR. GOLDBERG: That is a particular hypothetical that simply wouldn't apply to our constituency. It just wouldn't happen.
LISTNUM 1 \l 11426 Again, thinking about the school basketball team, there is a paid coach of the basketball team who, yes, might chip in and take half a page of phone numbers, but I think we can have some discretion there and realize that there are 20 basketball players, so the coach isn't making that many calls.
LISTNUM 1 \l 11427 I think that reasonable people could make a differentiation there.
LISTNUM 1 \l 11428 COMMISSIONER CRAM: The problem I am having is that, under your thesis, it would mean that a synagogue or a church youth group would be, essentially, granted an exemption, while the Scouts wouldn't be.
LISTNUM 1 \l 11429 At the end of the day, I cannot see that as fair and reasonable, because, ostensibly, they have pretty well the same function. Scouts are volunteers, and nobody would say that Lord Baden wasn't a wonderful guy.
LISTNUM 1 \l 11430 Isn't the real issue that it is a matter of the quantum of the fine or the penalty?
LISTNUM 1 \l 11431 I think everybody could agree that if it is a volunteer, are we going to come down with the max, unless it is a pretty egregious situation?
LISTNUM 1 \l 11432 Isn't that really the issue here?
LISTNUM 1 \l 11433 MR. GOLDBERG: I think that raises quite a number of points.
LISTNUM 1 \l 11434 First off, I am not aware of whether the Scouts have a charity that they may be associated with as part of some of their fundraising ‑‑
LISTNUM 1 \l 11435 COMMISSIONER CRAM: Name another youth group. I don't care.
LISTNUM 1 \l 11436 MR. GOLDBERG: But I think that is part of the question. "Is there an associated charity" is one of the legs that we would stand on.
LISTNUM 1 \l 11437 Another would be "Is it a volunteer‑based campaign", and that helps define a charitable type of activity different from a professional campaign, whether it is on behalf of a charity or not, because all of those are different structures.
LISTNUM 1 \l 11438 Yes, I agree that the whole issue is the quantum of the penalty. If it is a simple slap on the wrist or an admonishment or a notation in your school record, that is very different from the types of zero tolerance policies that some school boards have implemented for bullying, which provide a principal with absolutely no discretion. If a kid throws a snowball, the kid is suspended from school.
LISTNUM 1 \l 11439 We would like to think that all of us can have some discretion in both the definition of what is crossing the line, in terms of bad behaviour, and then, the party that is crossing the line, how many times have they done it, before any financial penalties come into play.
LISTNUM 1 \l 11440 I think you also need to recognize that even being called in front of a CRTC tribunal requires expenditures and considerable overhead. So, to the extent that we can even minimize the involvement of a small group, because some kids go a little bit overboard in making their calls, that would also be helpful.
LISTNUM 1 \l 11441 MR. VERNON: I guess the other way of looking at it would be to sort of flip it around and suggest the possibility that if there are these sanctions available to the CRTC, even if they are calibrated, that, in itself, may be a disincentive to the kind of associated group that we are talking about from doing their work in the first place.
LISTNUM 1 \l 11442 I think what we are trying to do here is to suggest that there ought not to be these kinds of administrative impediments placed in the way of organizations that have an association with a charitable organization from making the kinds of calls they need to make in the first place to raise their funds.
LISTNUM 1 \l 11443 COMMISSIONER CRAM: Mr. Goldberg, you added some words at page 3 of your verbal presentation. It is the last line in the third paragraph, before "The General Case". You said:
"In other words, what the Parliament of Canada giveth, especially regarding rules and penalties, we respectfully ask the CRTC to `will not taketh away'." (As read)
LISTNUM 1 \l 11444 Are you saying that, even though you are a charity, you wouldn't be subject to the other telemarketing rules? You shouldn't be?
LISTNUM 1 \l 11445 MR. GOLDBERG: I am suggesting that you use the discretion that is available to you in applying rules and penalties to charitable organizations, yes.
LISTNUM 1 \l 11446 COMMISSIONER CRAM: What about hours of calling?
LISTNUM 1 \l 11447 Are you suggesting that you wouldn't be subject to a penalty if you phoned me at midnight?
LISTNUM 1 \l 11448 MR. GOLDBERG: First off, I think we need to be very careful with a number of rules, given the evolution of telecommunications, and recognize that it is not always easy to apply hard rules and times to telephone numbers any longer. A 416 phone number may actually be in use in Vancouver or in Hong Kong. So if five o'clock in the afternoon is considered a reasonable time to call, that could very well attract a complaint to the CRTC, because it was five o'clock in the morning in Hong Kong and woke someone up.
LISTNUM 1 \l 11449 Would I want you to immediately charge that caller with a penalty for making one call? I think you would need to be very careful.
LISTNUM 1 \l 11450 That is speaking as a technologist, as opposed to a representative for the Canadian Jewish Congress.
LISTNUM 1 \l 11451 I think that if we look at reasonableness, it is unreasonable to expect a charitable group to be making calls that would be obviously annoying, regardless of how arbitrary or not you set timetables.
LISTNUM 1 \l 11452 COMMISSIONER CRAM: But that's not my question. My question is, are you saying that you would not be subject to the other rules ‑‑ the other telemarketing rules?
LISTNUM 1 \l 11453 MR. VERNON: If I may, I think what we are suggesting here is ‑‑ we obviously acknowledge the fact that the legislation has granted the charitable exemption, and that is not going to change. I think what we are trying to say here is, when you are establishing the administrative regime to administer the list, that that not place so many impediments in the way of charities from doing their work.
LISTNUM 1 \l 11454 I guess what that would mean is, we would ask, if you are going to be looking at time parameters in which these calls can be made, that you do so with an eye to having a reasonable timeframe. Once that regime is set, then that's what it will be.
LISTNUM 1 \l 11455 COMMISSIONER CRAM: And you would be subject to those rules.
LISTNUM 1 \l 11456 MR. VERNON: Presumably, yes.
LISTNUM 1 \l 11457 COMMISSIONER CRAM: You refer to another problem on page 4, at the second‑last paragraph, about being unable to access a national DNCL.
LISTNUM 1 \l 11458 It would seem to me that AFC and PIAC, amongst others, have suggested that charities would get free access.
LISTNUM 1 \l 11459 Wouldn't that solve your problem?
LISTNUM 1 \l 11460 MR. GOLDBERG: Not all charitable organizations that come under the umbrella of the Canadian Jewish Congress even have computers.
LISTNUM 1 \l 11461 You are talking about seniors' homes. You are talking about old‑age clubs. To expect computer literacy from such an organization, and for them to scrub a list, is unreasonable.
LISTNUM 1 \l 11462 COMMISSIONER CRAM: Thank you.
LISTNUM 1 \l 11463 THE CHAIRPERSON: Mr. Goldberg, I do take your point, but what I am trying to get a grip on is what likelihood there is that organizations of the kind you have spoken of appear on the radar of the national administration of a Do Not Call List?
LISTNUM 1 \l 11464 There is a seniors' home. Who do they call? They call children. They call Friends of the Social Welfare Committee of the synagogue. Whatever.
LISTNUM 1 \l 11465 Are we going to see this? Is it ever going to appear on our radar?
LISTNUM 1 \l 11466 I am just assuming that an enormous amount of very sensible, wholly altruistic, worthwhile activity is going to continue to go on, and you hope, and I hope, that this legislation doesn't touch it in any way, only you seem to be a little more pessimistic and concerned about it than I am, and I am just trying to understand why.
LISTNUM 1 \l 11467 I don't say that it is foolish, I am just trying to get a grip on it.
LISTNUM 1 \l 11468 For example, it is my firm belief that if you don't phone anyone but the members of your synagogues, you will never hear about any of the activity that ever happens.
LISTNUM 1 \l 11469 We might get a complaint, we look at it once, we send a nice letter to the person. It's not a pattern. We forget about it.
LISTNUM 1 \l 11470 MR. GOLDBERG: Gosh, I wish it were so, and I am sure that the volunteer presidents of many of these organizations wish they never took complaints from even their members. But, unfortunately, certainly within the Jewish community, and as I have learned from some of the volunteer work that I have done with the Canadian National Institute for the Blind, there seems to always be some small group within every group that is disenfranchised, whether they disagree with which rabbi got hired, or they didn't like the way the cantor sang on the last sabbath, or there was something that annoyed them. All it may take is a news story on 680 News, reminding folks about this Do Not Call List, and they go, "Yeah, that's the way I can go after this rival."
LISTNUM 1 \l 11471 I agree, I would sure like to think that this wouldn't show up on the radar screen, but keeping in mind, as you said, that this is a complaint‑based process, I want to try to pre‑empt on behalf of the umbrella organizations their need to suddenly start to engage the professional telecommunications industry lawyers to try to respond to an official letter from the CRTC that says, "Please appear before us," or, "You have ten days to respond to this complaint."
LISTNUM 1 \l 11472 To the extent that we can head off the small stuff and only focus on the real problems out there, I think that would be helpful.
LISTNUM 1 \l 11473 MR. VERNON: I think all we are saying is, as you are going about your work in setting up this regime, don't foreclose the discretion that we hope will be available once the system is up and running, so that we can deal with the precise kinds of situations that you have raised in a way that is reasonable and measured.
LISTNUM 1 \l 11474 THE CHAIRPERSON: Commissioner Duncan.
LISTNUM 1 \l 11475 COMMISSIONER DUNCAN: I think this question is along the lines of my colleagues.
LISTNUM 1 \l 11476 Because the system, as the Chairman indicated, is going to be complaint‑driven, as you have acknowledged, it is hard, really, to conceive that there will be a lot of complaints.
LISTNUM 1 \l 11477 So perhaps because we have a three‑year review period ‑‑
LISTNUM 1 \l 11478 Let me give you two options, actually.
LISTNUM 1 \l 11479 Because we are looking for specific guidelines for evaluating complaints and assessing violations, maybe you would like to submit more specific wording, given what you have heard here today and the kinds of questions, that would narrow it down, so that when the operator goes to assess a complaint, he can refer to them.
LISTNUM 1 \l 11480 That is, again, assuming that we get the number of complaints that would be necessary to justify a further investigation.
LISTNUM 1 \l 11481 The other comment is, because it is subject to a three‑year review, what we have decided we certainly will have a chance to evaluate, and if you are right, or it is not as bad a problem as we are thinking, then we could address it at that time. It is not permanent.
LISTNUM 1 \l 11482 At any rate, I just wanted to mention those things to you.
LISTNUM 1 \l 11483 MR. GOLDBERG: I appreciate that.
LISTNUM 1 \l 11484 MR. VERNON: I don't think there is that much daylight between our interpretations of how it is going to work out. We are, I think, similarly optimistic that a reasonable regime will work reasonably, and it is comforting to know that the three‑year review is there, to make sure that it is functioning properly and reasonably, and that you can tweak it, as necessary, three years hence.
LISTNUM 1 \l 11485 But, again, just to reiterate, what we are hoping for is that there will be enough latitude built into the system that it can handle whatever kind of complaints come up in a reasonable fashion.
LISTNUM 1 \l 11486 THE CHAIRPERSON: Counsel.
LISTNUM 1 \l 11487 MR. MILLINGTON: I don't have any questions for these witnesses. Thank you.
LISTNUM 1 \l 11488 THE CHAIRPERSON: Thank you very much.
LISTNUM 1 \l 11489 MR. VERNON: Thank you.
LISTNUM 1 \l 11490 THE CHAIRPERSON: I have been informed that we are going to take a 15‑minute break, so we will be back at 25 minutes to four, please. Thank you very much.
‑‑‑ Upon recessing at 1520 / Suspension à 1520
‑‑‑ Upon resuming at 1535 / Reprise à 1535
LISTNUM 1 \l 11491 THE CHAIRPERSON: Order, please.
LISTNUM 1 \l 11492 Madam Secretary.
LISTNUM 1 \l 11493 THE SECRETARY: Yes, Mr. Chairman. I would invite Primerica Financial Services to make their presentation.
LISTNUM 1 \l 11494 THE CHAIRPERSON: Let me first say that I am extremely disappointed that the gentleman who is with our two witnesses is not coming to the floor, because he shares with Commissioner Langford and I taste in the colour of suits, which we think is particularly appropriate.
LISTNUM 1 \l 11495 I have been extremely depressed by the number of dark suits that are here. We are trying to put a little joy in the thing, and now he doesn't come up.
LISTNUM 1 \l 11496 Anyway, I am sure that he is behind this very important presentation.
‑‑‑ Laughter / Rires
LISTNUM 1 \l 11497 MS BILHAN: I hope you have noticed that I share the same colour coordination, as well.
LISTNUM 1 \l 11498 THE CHAIRPERSON: Yes, we appreciate it very much.
PRESENTATION / PRÉSENTATION
LISTNUM 1 \l 11499 MS BILHAN: I got the e‑mail, so I was coordinated this morning.
LISTNUM 1 \l 11500 I don't know if Ms Bisson mentioned it, but we have offered to waive our verbal presentation ‑‑ parts of it anyway. We can give you an abbreviated version, in the interests of time.
LISTNUM 1 \l 11501 We would like it to be noted that our speaking points be noted as our official record.
LISTNUM 1 \l 11502 THE CHAIRPERSON: The speaking notes cannot be made part of the official record, but since they are, on your account, entirely consistent with your submission, then the note points are in the submission in any event.
LISTNUM 1 \l 11503 Am I correct?
LISTNUM 1 \l 11504 MR. MILLINGTON: I think if they have been filed with us as part of this proceeding, they can form part of the record.
LISTNUM 1 \l 11505 THE CHAIRPERSON: Great. That's fine.
LISTNUM 1 \l 11506 MS BILHAN: In that case, I would like to take a minute to introduce myself. I am Hande Bilhan with Primerica Financial Services of Canada, and my colleague, Suzanne Loomis, is joining us from Atlanta. She has extensive experience in working with the FCC on DNCL issues in the United States, and we are happy to have her here on our behalf.
LISTNUM 1 \l 11507 Suzanne would like to say a few things about personal calls, based on personal relationships.
LISTNUM 1 \l 11508 MS LOOMIS: Thank you, Mr. Chairman and Commissioners.
LISTNUM 1 \l 11509 The U.S. national Do Not Call List is getting ready to celebrate its third birthday later this year, and since I know that you are also anticipating a three‑year review of your ultimate regulatory scheme, I thought it might be of interest to look at a couple of aspects of the U.S. "no call" experience.
LISTNUM 1 \l 11510 I know that you are very well versed in our law, and you know that it has been a tremendous success. We have over 100 million numbers listed. In the 2005 report of the Commission to Congress, it was reported that 92 percent of those registered had less calls, and 25 percent said that they had none at all.
LISTNUM 1 \l 11511 So I think we can certainly say that that reflects a resounding success.
LISTNUM 1 \l 11512 I would like to focus on one aspect of the "no call" experience of particular importance and impact to our company, one that we were involved in, both as an observer and as a participant, both in defining the issue and, ultimately, in what the U.S. decided to do as a solution, and that is, in fact, the personal relationship exception that has been talked around, and yet maybe I would like to talk expressly to for a minute.
LISTNUM 1 \l 11513 I know that Commissioner Langford mentioned this morning that, of course, he knew that he could call his brother‑in‑law, or his brother‑in‑law might call him because he knew his sister. I think this is the kind of thing that we are talking about, someone that you intuitively expect could call you because you have a personal relationship. You have been talking with them by phone. They drive your kid to car pool. You drive their kid to car pool. When they go out of town, they call you to come over and look after their cat and pick up their newspaper. Your typical way of exchanging any communication has been by phone, and you know this individual.
LISTNUM 1 \l 11514 I think it is a very intuitive understanding that we all have, and certainly we are not asking you to extend that intuitive understanding beyond the kinds of things we are talking about. We are simply asking if you could please memorialize it.
LISTNUM 1 \l 11515 I think that this is what the U.S. did when they looked at this situation. They said: We recognize that there is this intuitive understanding that we can place calls to people we know, and that this is not a violation of their privacy. We have been in a constant interchange of telephone conversation with this person over a period of time on other issues, and it would make sense for me to now pick up the telephone and call them, rather than walk out of my house, walk next door, walk up to their house and knock on the door.
LISTNUM 1 \l 11516 What we are asking is if you could look at what the U.S. did, which was to talk in terms of a family, friend and acquaintance exception.
LISTNUM 1 \l 11517 I am sure that one of the things you are thinking is: Why do we need it if it is intuitive? It doesn't make any sense to us.
LISTNUM 1 \l 11518 I think for companies such as ours, it is very important because we do not have the latitude to use common sense. When we tell our agents what they must do, we must tell them what the law says.
LISTNUM 1 \l 11519 When the U.S. finished their rule‑making process, we were involved in devising policies and procedures that went out to our field representatives, where they were told, with specificity, what they could and could not do. If we did not have that family, friends and acquaintance exception, we would be forced to say, "You can call no one," and then entertain the thought, "I can't call my mother." I can't, because we do not have the latitude, working for a large company, where we have a lot of regulatory oversight in order to do that. We are forced to obey the letter of the law.
LISTNUM 1 \l 11520 So, for us, we would ask that you put in writing what we intuitively expect.
LISTNUM 1 \l 11521 When we look at how did that fare in the United States three years later ‑‑ what happened ‑‑ we can look at the overall report to Congress and realize that there seem to be no problems.
LISTNUM 1 \l 11522 Also, from our own experience, there were zero complaints from the federal regulator, and we do use the family, friends and acquaintance exception.
LISTNUM 1 \l 11523 The federal government in the United States deliberately did not define that exception: who is family; who is a friend; who is an acquaintance. In fact, they left it, largely, to the determination of the person called. They said that if it is in doubt, then the person who is called could say, "This person is not my friend." Or, "They used to be, until they called me." And, "This person is not my acquaintance."
LISTNUM 1 \l 11524 It is almost shifting the burden of proof, saying: This is the exception. For people who truly need it spelled out, it is here, but it is not affording any latitude beyond what you intuitively expect. If the individual says, "This is not what I expect," then they can file the complaint and say, "I did not feel that I was covered," and the United States regulators say, "We are going to give that great, if not compelling weight."
LISTNUM 1 \l 11525 With that said, I think we would welcome any questions that you have, and I certainly appreciate your consideration of something that is important to big businesses that have to put this stuff in writing.
LISTNUM 1 \l 11526 THE CHAIRPERSON: Thank you very much.
LISTNUM 1 \l 11527 Commissioner Langford.
LISTNUM 1 \l 11528 COMMISSIONER LANGFORD: It is clear. I don't really have any questions.
LISTNUM 1 \l 11529 As a comment, it just seems bizarre that that is what the world has come to, that you have to have permission to call your mother. But you are the experts.
‑‑‑ Laughter / Rires
LISTNUM 1 \l 11530 COMMISSIONER LANGFORD: Atlanta is burning. I guess it is burning again.
LISTNUM 1 \l 11531 I just don't have a question. But I hear you. Thank you very much. We will take it under consideration. We will certainly discuss it.
LISTNUM 1 \l 11532 I have no questions, Mr. Chair.
LISTNUM 1 \l 11533 THE CHAIRPERSON: Commissioner Cram.
LISTNUM 1 \l 11534 COMMISSIONER CRAM: In the guidelines that you give your people in the U.S., if I met somebody from Primerica today at a cocktail party or something, and the next day this person from Primerica wanted to phone me to solicit, would you advise them that I would be an acquaintance?
LISTNUM 1 \l 11535 MS LOOMIS: That is an interesting question, and one we have had to wrestle with, because we have had to put it in writing.
LISTNUM 1 \l 11536 What we say is that the family, friends and acquaintance exemption is one that is determined by the person called; that you must use your best judgment; that if you fail to use that judgment correctly, that person has the right to report you; that its true intent is to protect calls that the other person knows or expects they are going to get.
LISTNUM 1 \l 11537 We have had to put that in writing, yes.
LISTNUM 1 \l 11538 COMMISSIONER CRAM: Thank you.
LISTNUM 1 \l 11539 THE CHAIRPERSON: Commissioner Duncan.
LISTNUM 1 \l 11540 COMMISSIONER DUNCAN: Just to clarify that point, I would actually have to file a complaint?
LISTNUM 1 \l 11541 If I were Commissioner Cram and I got the call, and I didn't feel that I fell into the category of acquaintance or friend, I would have to actually file a complaint?
LISTNUM 1 \l 11542 MS LOOMIS: You would have as much right to file a complaint as any other individual.
LISTNUM 1 \l 11543 Obviously, we would hope that you would call us first, but that is not required at all. If you chose to file a complaint and said, "I met this person at a cocktail party. I told him to call, but I didn't mean it," then you would have just as much right to call and report that conduct as someone that, I assume, you had never met before.
LISTNUM 1 \l 11544 COMMISSIONER DUNCAN: Probably, in reality, what happens is that Commissioner Cram would let the caller know that she wasn't happy or interested, and that would be the end of it.
LISTNUM 1 \l 11545 MS LOOMIS: That is probably what would happen. Yes, that is probably what would happen, precisely that.
LISTNUM 1 \l 11546 We think that by putting a personal relationship exception in there, it is protecting what is intuitively obvious. But if I do call you, and you are my neighbour, you are probably going to let me know that you are not happy.
LISTNUM 1 \l 11547 COMMISSIONER DUNCAN: Yes.
LISTNUM 1 \l 11548 MS LOOMIS: You are unhappy with me as your neighbour, not as a representative of the company.
LISTNUM 1 \l 11549 It seems to have worked out well, but we always know that Damocles' sword is hanging over our head, and that it is not our determination, it is yours.
LISTNUM 1 \l 11550 COMMISSIONER DUNCAN: In your experience, you haven't received any complaints related to this?
LISTNUM 1 \l 11551 MS LOOMIS: We have received no complaints from the FCC. We have received a few calls from given states, but we typically have dealt with those. They don't involve this particular issue at all.
LISTNUM 1 \l 11552 COMMISSIONER DUNCAN: And your agents make no comment? You don't find that?
LISTNUM 1 \l 11553 Obviously, they wouldn't do it if it got to be a problem for them. They would let you know.
LISTNUM 1 \l 11554 MS LOOMIS: They would.
LISTNUM 1 \l 11555 I think that our agents would obviously have preferred a much broader exemption, and yet, really, the way we do our business, and the way we would prefer them to do our business, is exactly that. So that is the nature of what we got, and although I know it seems bizarre to have to put it in writing, I think that for companies such as ours, it allows us the ability to say things that are common sense.
LISTNUM 1 \l 11556 COMMISSIONER DUNCAN: It is a benefit, obviously, to us, in setting up these new rules, to have that experience and to hear of it. It is really very helpful.
LISTNUM 1 \l 11557 I will turn to some of the other questions, if I can, now.
LISTNUM 1 \l 11558 First of all, I am wondering if you are familiar with the definition that the companies proposed for the key DNCL rule.
LISTNUM 1 \l 11559 MS BILHAN: Yes, we are familiar with a number of the rules. I am not sure which one ‑‑
LISTNUM 1 \l 11560 COMMISSIONER DUNCAN: The one that defines what is the key rule.
LISTNUM 1 \l 11561 I will read it for you, if you like.
LISTNUM 1 \l 11562 We are interested to know whether you feel it needs any adjustment, or if you are satisfied with it the way that it is.
LISTNUM 1 \l 11563 It says:
"No person or organization shall initiate a telemarketing call to a person or organization who is validly listed in the national Do Not Call database, unless the person or organization from whom the telemarketing call originates is exempt, pursuant to section 41.7(1) of the amended Telecommunications Act." (As read)
LISTNUM 1 \l 11564 MS BILHAN: We are satisfied with that, with the proviso that it is understood that this does not apply to personal relationships ‑‑ calls based on personal relationships.
LISTNUM 1 \l 11565 COMMISSIONER DUNCAN: We certainly understand your point on the personal relationships. You have certainly made that well here today. Thank you.
LISTNUM 1 \l 11566 What about faxes? Do you have an opinion on whether the Do Not Call List rules should apply to unsolicited faxes?
LISTNUM 1 \l 11567 MS BILHAN: We do not have an opinion, simply because our agents do not work that way, and we don't encourage it.
LISTNUM 1 \l 11568 COMMISSIONER DUNCAN: With respect to cleansing the list, I gather that the U.S. experience is 31 days, but we have had quite a variety, including the 24 hours that we recently heard this afternoon.
LISTNUM 1 \l 11569 PIAC has proposed 7 days. Advocis, the companies, 30 days. DMA, which I understand is an American group, 30 days. CMA and RCI, 60 days. And then we have three groups proposing 90 days.
LISTNUM 1 \l 11570 I am wondering what your position is. How many days?
LISTNUM 1 \l 11571 MS BILHAN: Our position is that we would strongly recommend 30 days, as well. Anything under that would add significant cost to the companies, especially the larger companies, who would have accumulated costs in complying with that; and smaller companies would have difficulty keeping up, say, every 24 hours with a brand new list.
LISTNUM 1 \l 11572 COMMISSIONER DUNCAN: Obviously, with the benefit of the U.S. experience, 31 days does not present a problem.
LISTNUM 1 \l 11573 Thirty or 31 days does not present a problem?
LISTNUM 1 \l 11574 MS LOOMIS: No, it has not been a problem.
LISTNUM 1 \l 11575 COMMISSIONER DUNCAN: Any thought in the States of reducing that?
LISTNUM 1 \l 11576 MS LOOMIS: I don't know if there are thoughts of reducing that or not. I know that, probably, if they did reduce it, the burden would be borne inequitably by smaller companies than ours. They would feel the majority of that burden.
LISTNUM 1 \l 11577 COMMISSIONER DUNCAN: Consumer consent. We talked about consumer consent with the earlier parties, and I am wondering how you feel or what your approach is to having consumer consent documented, so that you could use it as a defence in the case of an investigation.
LISTNUM 1 \l 11578 What type of documentation do you require?
LISTNUM 1 \l 11579 MS LOOMIS: I can tell you that, in the States right now, express written consent is required, and that is problematic for the situation we just described at a cocktail party.
LISTNUM 1 \l 11580 My recommendation ‑‑ and I am counsel in charge of enforcing it ‑‑ is that, if you met someone at a cocktail party, they are not that much of an acquaintance to you. To me, acquaintance means significantly more than that.
LISTNUM 1 \l 11581 I think you need some sort of consent from them to call, and yet I can understand that, if you meet someone socially, you could say, "Excuse me" ‑‑ and we have developed these pads that they are supposed to whip out ‑‑
‑‑‑ Laughter / Rires
LISTNUM 1 \l 11582 COMMISSIONER DUNCAN: At the cocktail party.
LISTNUM 1 \l 11583 MS LOOMIS: It's awful. And you can't even write it down, they have to write it down.
LISTNUM 1 \l 11584 So you say, "Could you please write it down?" You can imagine how terribly awkward that whole thing is.
LISTNUM 1 \l 11585 I would think that if you could avoid that in some fashion ‑‑ I don't have a solution for you, but that is really pretty awkward.
LISTNUM 1 \l 11586 COMMISSIONER DUNCAN: Is that a company requirement or a U.S. law requirement?
LISTNUM 1 \l 11587 MS LOOMIS: The express written consent is a U.S. law requirement. We take it further and say that you have to get it down and keep it.
LISTNUM 1 \l 11588 It has caused a lot of ‑‑ I can't even talk to someone at a ballgame and say, "Can I call you," without seeing if they can write it down on the back of a peanut bag or whatever.
LISTNUM 1 \l 11589 It is, sometimes, I think, not actually capturing the conduct that you want to capture.
LISTNUM 1 \l 11590 And then: Who has to write it down?
LISTNUM 1 \l 11591 In the U.S., the individual has to write it down. I can't write it down for you. So you have to sit there juggling your bags, or whatever, while you write that information down.
LISTNUM 1 \l 11592 MS BILHAN: If I may, we would suggest that the burden of proof would be on the caller. If the called party suggests that there has been no consent to be contacted, I think it is pretty clear that there has been a violation or a breach of the rule.
LISTNUM 1 \l 11593 If there is an accumulated number of breaches of that nature, it would obviously be in the CRTC's mandate to take action against the party who is calling and taking advantage of this exception.
LISTNUM 1 \l 11594 So we would suggest that consent should override the DNCL, and then the burden of proof should be on the caller.
LISTNUM 1 \l 11595 And how they prove that there has been consent should be up to every individual company, because there are different business models, different sizes, et cetera, so one rule may not apply as well to everyone involved. Whereas, it would be very clear if a person complains and says, "I certainly did not consent for this person to call me." Then, I suppose, you have breached a law.
LISTNUM 1 \l 11596 COMMISSIONER DUNCAN: What you are saying, just to make sure I understand, is that the consumer is saying, "I didn't give them permission," and that is sufficient. But what would really amount to an issue is if we had a number of people doing that. An isolated case is not ‑‑
LISTNUM 1 \l 11597 MS BILHAN: Right. I think there has been discussion about threshold issues.
LISTNUM 1 \l 11598 COMMISSIONER DUNCAN: Yes.
LISTNUM 1 \l 11599 MS BILHAN: So if there is a pattern of abuse by an individual or by a certain company, certainly the Commission could take action and call it a violation of the rule.
LISTNUM 1 \l 11600 But I think that implementing a rigid system, where you would need a certain document, would be difficult to enforce, and probably not as easy to comply with.
LISTNUM 1 \l 11601 Again, the burden of proof should be on the caller.
LISTNUM 1 \l 11602 Obviously, there is the due diligence defence, et cetera. I am not suggesting that as soon as someone says, "I did not provide my consent" ‑‑ if the caller can prove that they have some sort of consent that they obtained, I guess that would be their defence, but it is up to the caller.
LISTNUM 1 \l 11603 COMMISSIONER DUNCAN: We heard this morning from CADRI and TD Meloche that they receive written requests from people to be contacted. In that way, they actually have a written consent.
LISTNUM 1 \l 11604 So some companies, in their way of doing business, may be more easily able to comply with it than others. That is, I gather, what I am hearing you say.
LISTNUM 1 \l 11605 Or, at least, in some ways. Maybe not at the cocktail party.
LISTNUM 1 \l 11606 MS LOOMIS: Exactly.
LISTNUM 1 \l 11607 COMMISSIONER DUNCAN: But there would be other cards that you would have people complete and send into your agents to indicate that they want to be called?
LISTNUM 1 \l 11608 MS BILHAN: Not really. The life insurance industry is mainly driven by personal contacts and networking, and mostly agents work within their own communities through their personal relationships.
LISTNUM 1 \l 11609 So it is not as conducive to doing it by a written consent situation.
LISTNUM 1 \l 11610 COMMISSIONER DUNCAN: Thank you.
LISTNUM 1 \l 11611 I don't believe you addressed the question about whether the rules from stayed Decision 2004‑035 ‑‑ whether any or all of them should be implemented.
LISTNUM 1 \l 11612 Could we go through them, or do you have an opinion on them all?
LISTNUM 1 \l 11613 MS BILHAN: No, I don't have an opinion on all of them. We generally do not allow our agents to do cold calling in Canada. Therefore, we are not as intimately familiar with the telemarketing rules. Obviously, we comply with them, but the specific ones that we would comment on would be a unique confirmation number ‑‑
LISTNUM 1 \l 11614 My understanding is that this is a fairly complex and expensive technology, and we would have a concern with that.
LISTNUM 1 \l 11615 A toll‑free telephone number is not a problem for our company whatsoever, but there are a lot of individual life insurance agents who are sort of small businesses, and it would be a concern for our industry.
LISTNUM 1 \l 11616 A live operator during working hours, again, that would not be a concern for us as a big company, but it would be a concern for a small broker working in a smaller community.
LISTNUM 1 \l 11617 COMMISSIONER DUNCAN: The toll‑free number requirement for small operators may not be such a concern because ‑‑ I don't know, maybe the small operator doesn't operate outside his calling area, or his free zone.
LISTNUM 1 \l 11618 MS BILHAN: That may be the case. I am just not sufficiently familiar with that.
LISTNUM 1 \l 11619 That would be my comment, off the top of my head.
LISTNUM 1 \l 11620 COMMISSIONER DUNCAN: I appreciate that. Thank you.
LISTNUM 1 \l 11621 What about call display? When your agents call, what kind of display ‑‑
LISTNUM 1 \l 11622 Actually, I am asking, I guess, for the U.S. experience. What are you required to ‑‑
LISTNUM 1 \l 11623 MS LOOMIS: Our agents are not allowed to do anything that would at all impede the display of the number they are calling from.
LISTNUM 1 \l 11624 We do insist on compliance with that.
LISTNUM 1 \l 11625 We have, in certain states, made certain arrangements, where the state wants three or four agents all calling out of the same office. When they are calling from cellphones, they want them to display one number, so that that number is associated with our company and not the individual cellphone.
LISTNUM 1 \l 11626 We have honoured those requests, but, in general, we will not allow anyone to do anything to impede caller ID.
LISTNUM 1 \l 11627 COMMISSIONER DUNCAN: The caller ID in the U.S., does it also include the name?
LISTNUM 1 \l 11628 Would Primerica show up, as well?
LISTNUM 1 \l 11629 MS LOOMIS: I would think that it might, depending on your equipment, but I simply don't know the answer to that.
LISTNUM 1 \l 11630 We certainly wouldn't impede that showing up from our end. We wouldn't allow anyone to do so, but I don't know about the technological aspects.
LISTNUM 1 \l 11631 MS BILHAN: It may be, though ‑‑ and I am not sure, technologically, how this would work, but it may be a problem for an individual agent to show their number as Primerica ‑‑ have it show up as Primerica.
LISTNUM 1 \l 11632 Again, you know, we are not technical experts whatsoever.
LISTNUM 1 \l 11633 COMMISSIONER DUNCAN: But does it show up with their name?
LISTNUM 1 \l 11634 Probably not, if it is a common number.
LISTNUM 1 \l 11635 MS BILHAN: Their name and phone number would show up, depending on whether your caller ID ‑‑
LISTNUM 1 \l 11636 We would certainly not, as a company, endorse any situation where an agent would be hiding their name or number. We would not tolerate that.
LISTNUM 1 \l 11637 COMMISSIONER DUNCAN: You are just not aware of the technical circumstances.
LISTNUM 1 \l 11638 MS BILHAN: Yes, that's correct.
LISTNUM 1 \l 11639 COMMISSIONER DUNCAN: That's fine, we can follow up on that.
LISTNUM 1 \l 11640 I don't know if you were silent on the need for internal Do Not Call Lists, or did you indicate ‑‑
LISTNUM 1 \l 11641 MS BILHAN: In our original submission, I think in our March submission, I suggested that there would not be a need for an internal Do Not Call List for companies who don't have a specific exemption, but we do currently keep an internal Do Not Call List. We have 200,000 life insurance policyholders in Canada, and about, I believe, half a million mutual fund accounts, and we only have 200 people on the list.
LISTNUM 1 \l 11642 So, by and large, it is not an issue for us. We can keep one, but, as a principle, I just thought that duplicating lists may not be as good an idea.
LISTNUM 1 \l 11643 COMMISSIONER DUNCAN: Hearing some of the evidence, this morning I referred to the Registered Education Savings Plan Dealers and their point that some consumers may not want to be on Company A's list, but they still don't want to be removed from the whole list. That is good for the consumer, and it also makes business opportunities for other companies.
LISTNUM 1 \l 11644 MS BILHAN: That's right.
LISTNUM 1 \l 11645 COMMISSIONER DUNCAN: That would seem reasonable to you?
LISTNUM 1 \l 11646 MS BILHAN: It seems reasonable, and I am aware that a number of our ‑‑ we are a member of the CLHA, and I am aware that a number of the member companies share that view. So we would not object to that.
LISTNUM 1 \l 11647 COMMISSIONER DUNCAN: Thank you.
LISTNUM 1 \l 11648 With respect to calling hours ‑‑ and I have the FCC rules. They say that they are 8:00 to 9:00, and I assume that is seven days a week.
LISTNUM 1 \l 11649 We have had a number of different recommendations.
LISTNUM 1 \l 11650 The first thing I would like to ask you about is whether you feel that time calling restrictions should apply to voice calls.
LISTNUM 1 \l 11651 Currently, in Canada, they only apply to fax calls.
LISTNUM 1 \l 11652 MS BILHAN: We do not have an opinion on voice calls. Our calls are live calls.
LISTNUM 1 \l 11653 Is that what you mean?
LISTNUM 1 \l 11654 COMMISSIONER DUNCAN: Yes, that's what I mean, live calls.
LISTNUM 1 \l 11655 There are restrictions now on unsolicited faxes, and those are 9:00 a.m. to 9:30 p.m., Monday to Friday, and 10:00 a.m. to 6:00 p.m., Saturdays and Sundays.
LISTNUM 1 \l 11656 The first thing is, that is just for faxes. There are no restrictions on voice calls.
LISTNUM 1 \l 11657 Should there be?
LISTNUM 1 \l 11658 MS BILHAN: I would think that it would be reasonable to assume that there should be some limitations in terms of call times, and we would not object to those.
LISTNUM 1 \l 11659 I believe that the CMA put forward fairly reasonable timelines. They seemed reasonable to us, anyhow, and we would be happy to comply with those.
LISTNUM 1 \l 11660 COMMISSIONER DUNCAN: Do you use faxes much at all?
LISTNUM 1 \l 11661 Probably not.
LISTNUM 1 \l 11662 MS BILHAN: No, we don't.
LISTNUM 1 \l 11663 COMMISSIONER DUNCAN: Is there some suggestion that, in the interests of symmetry ‑‑ because it is difficult to follow the rules when they are differing from fax to voice. I don't suppose you see any issue with making them the same.
LISTNUM 1 \l 11664 MS BILHAN: No, I am sure it would be great to have harmonized rules. I am just not sure what the hours are, but, if they are reasonable hours, we would be happy to comply.
LISTNUM 1 \l 11665 COMMISSIONER DUNCAN: Monday to Friday, 9:00 a.m. to 9:30 p.m., and then Saturdays and Sundays, 10:00 a.m. to 6:00 p.m. I am not quite sure what the CMA reference is, but ‑‑
LISTNUM 1 \l 11666 MS BILHAN: Yes, that seems fairly reasonable to us. We would be happy to comply with that.
LISTNUM 1 \l 11667 COMMISSIONER DUNCAN: With respect to predictive dialling devices, the FCC allows a 3 percent call abandon rate, or insists on it, and the CMA and the companies state that a 5 percent benchmark is appropriate.
LISTNUM 1 \l 11668 In Decision 2004‑035, that was what was recommended, as well. That is the stayed decision.
LISTNUM 1 \l 11669 What is your experience in the States, or do you use predictive dialling?
LISTNUM 1 \l 11670 MS BILHAN: We don't.
LISTNUM 1 \l 11671 MS LOOMIS: We don't allow it.
LISTNUM 1 \l 11672 COMMISSIONER DUNCAN: Do you use ADADs, Automatic Dialling and Announcing Devices?
LISTNUM 1 \l 11673 MS BILHAN: No.
LISTNUM 1 \l 11674 COMMISSIONER DUNCAN: Are they allowed in the States? Do you know?
LISTNUM 1 \l 11675 MS LOOMIS: I don't know if they are allowed in the States. We don't allow them as a company policy, so I simply don't know, I'm sorry.
LISTNUM 1 \l 11676 COMMISSIONER DUNCAN: So it is not something that you just didn't consider, you don't allow it.
LISTNUM 1 \l 11677 MS LOOMIS: We don't allow it.
LISTNUM 1 \l 11678 COMMISSIONER DUNCAN: Thank you.
LISTNUM 1 \l 11679 Do you have a feel for how much it would cost for a new business or a company that is, for the first time, going to have to comply with Do Not Call List rules?
LISTNUM 1 \l 11680 Do you know how much it would cost them in terms of hardware and software to set up to do that?
LISTNUM 1 \l 11681 MS LOOMIS: I really don't. We were doing it on a very broad scale, and it was expensive.
LISTNUM 1 \l 11682 COMMISSIONER DUNCAN: It was expensive?
LISTNUM 1 \l 11683 MS LOOMIS: Yes.
LISTNUM 1 \l 11684 COMMISSIONER DUNCAN: Do you have an experience with third party providers, or do you do all of your things yourself ‑‑ scrubbing the list and ‑‑
LISTNUM 1 \l 11685 MS LOOMIS: We scrub our list. We have also purchased, to provide for our agents, a service, and we purchased a certain number of PINs, if you will, that allow this service, which is endorsed by the NASD and other organizations, and they provide 24/7 real‑time scrubbing on a per call basis.
LISTNUM 1 \l 11686 It is more expensive. We provide our own 24/7 access via an internal computer network, but we have availed ourselves of that, and we certainly can see the benefit of that; and that company does not make calls, they screen calls. That's all they do.
LISTNUM 1 \l 11687 So they do buy the list. We buy it also, but they will actually screen calls for you. So they are in possession of those lists.
LISTNUM 1 \l 11688 COMMISSIONER DUNCAN: And they buy the list directly from the Do Not Call List operator?
LISTNUM 1 \l 11689 MS LOOMIS: It is our understanding that, yes, they do.
LISTNUM 1 \l 11690 We buy it also. We cannot avail ourselves of the service unless we have independently purchased the list, but they rely on a direct electronic transmission to update their own list.
LISTNUM 1 \l 11691 COMMISSIONER DUNCAN: Thank you.
LISTNUM 1 \l 11692 With respect to the fee structure ‑‑ and I don't know how much opportunity you have had to give to the consideration of what the fee structure would be, but I understand that in the U.S. the fees are charged based on the number of area codes for which information is retrieved, and the first five are provided at no charge.
LISTNUM 1 \l 11693 The companies suggested that the fees might be based on a per access basis.
LISTNUM 1 \l 11694 In the U.K., they have a fee structure that is based on a number of tiers, based on the type of licence you have.
LISTNUM 1 \l 11695 I am just wondering if you have a view on the rate structure, what it should be like, and if you have a view on how smaller organizations could be given special consideration in that structure.
LISTNUM 1 \l 11696 MS BILHAN: We have looked at the U.S. model, and we feel that there is a pricing and registration ‑‑ and by registration I mean company registration to the DNCL ‑‑ in place, which seems to be working fairly well for most parties.
LISTNUM 1 \l 11697 As you mentioned, there are allowances made for smaller parties to access the list for free.
LISTNUM 1 \l 11698 We feel, from a global compliance perspective, that it would be a very beneficial thing for the CRTC to consider. Obviously, the more people who can access the list, the more compliance you will have with the list. So we would support that.
LISTNUM 1 \l 11699 However, I don't think that five area codes for free would work in Canada, simply because there is only a limited number of phone codes here to begin with. So I think you would drastically reduce the number of people who are actually paid users of the DNCL, which would increase the costs for the larger users significantly.
LISTNUM 1 \l 11700 I would think that it might be some sort of tiered approach, where you would allow smaller users or occasional users to access on a per call basis, and allow larger users to purchase the list as sort of a different licensing, I guess, at a different cost, at a higher cost, understanding that those companies may have compliance requirements that will necessitate that they purchase the list and provide it to their sales force, such as in our case.
LISTNUM 1 \l 11701 We would feel compelled to buy the list and scrub it for our sales force. Although they are independent contractors, they certainly are exclusive contractors of Primerica, so we would have some sort of corporate responsibility to ensure that they are using the correct list.
LISTNUM 1 \l 11702 So, in our case, we should not have to pay 7,000 times whatever the cost is of accessing the list, we should be able to corporately purchase the list and have our sales force avail themselves of the list.
LISTNUM 1 \l 11703 COMMISSIONER DUNCAN: Thank you very much.
LISTNUM 1 \l 11704 Going back to your agents, do they maintain their own individual internal call lists now?
LISTNUM 1 \l 11705 MS BILHAN: We maintain one at head office, and we do have a 1‑800 number; not specifically for the Do Not Call List, but we do have a 1‑800 number where they can call and list themselves. Or, if they have told one of our agents that they don't want to be contacted by them, then the agent reports it to us, and, again, centrally, we place them on the list.
LISTNUM 1 \l 11706 MS LOOMIS: If we take a broad view of the internal lists, so that if all five of you were agents and someone said, "Please don't call me again," we would consider it to be applicable to all of our agents.
LISTNUM 1 \l 11707 MS BILHAN: All of Primerica.
LISTNUM 1 \l 11708 In other words, we don't want one agent calling the person, and they say "Don't call me again," and then, you know, Agent X calls them the next day, et cetera.
LISTNUM 1 \l 11709 To prevent that, we keep the list centrally. It just makes more sense for our business model.
LISTNUM 1 \l 11710 COMMISSIONER DUNCAN: With respect to business‑to‑business calls, does the U.S. allow business‑to‑business calls to register on the Do Not Call List?
LISTNUM 1 \l 11711 If I am a business, am I allowed to register on the Do Not Call List?
LISTNUM 1 \l 11712 MS LOOMIS: It is my understanding that you do not, but I don't want to state that.
LISTNUM 1 \l 11713 Our company takes the position that if someone has registered a business number, it can't be called. However, it seems, once again, that business‑to‑business calls are more in the nature of what you would anticipate. There is not as great an expectation of privacy as you have in your home. You have a commercial enterprise going, where anyone can call you off the street at any point. Indeed, you welcome those calls.
LISTNUM 1 \l 11714 So a business‑to‑business kind of call does not fall into the same kind of protected category as something that would call into your home.
LISTNUM 1 \l 11715 COMMISSIONER DUNCAN: Would you answer differently with respect to home‑based businesses?
LISTNUM 1 \l 11716 MS LOOMIS: I think that home‑based businesses are difficult. They are an anomaly.
LISTNUM 1 \l 11717 On the one hand, I don't know which would prevail.
LISTNUM 1 \l 11718 You have your home‑based business listed, and you certainly are welcoming calls of a commercial nature into your business every day, if they are purchasing your product or service, and yet you would say, "I want to put my number on the list."
LISTNUM 1 \l 11719 We honour those requests, but, philosophically, I don't know, that is a difficult kind of issue.
LISTNUM 1 \l 11720 COMMISSIONER DUNCAN: Technically, is there a way to distinguish those calls?
LISTNUM 1 \l 11721 MS LOOMIS: I don't think there is any way to distinguish the calls.
LISTNUM 1 \l 11722 COMMISSIONER DUNCAN: Thank you. Those are my questions.
LISTNUM 1 \l 11723 THE CHAIRPERSON: Commissioner Cugini.
LISTNUM 1 \l 11724 COMMISSIONER CUGINI: Good afternoon.
LISTNUM 1 \l 11725 I have one question. The Direct Marketing Association in the U.S., in their written submission, strongly urged, I would say, us to provide as much symmetry as possible, wherever possible, between the Do Not Call List rules in the States and those that we will be developing here in Canada.
LISTNUM 1 \l 11726 First of all, do you agree with that position? Do you think that it is important that we provide as much symmetry as possible?
LISTNUM 1 \l 11727 MS LOOMIS: I think that symmetry certainly would help companies such as ours, although I do understand that there will be differences in sensitivities that you have that we might not have.
LISTNUM 1 \l 11728 But, from a selfish point of view, yes, I know how to do it, so, for me, it would be much greater. On the other hand, there are certain things that the U.S. model is more constrictive on that we would hope we would get greater latitude on in Canada.
LISTNUM 1 \l 11729 COMMISSIONER CUGINI: You mentioned, obviously, the personal relationship exemption, which, I am assuming, given your presentation this afternoon, is probably your highest priority.
LISTNUM 1 \l 11730 MS LOOMIS: Yes.
LISTNUM 1 \l 11731 COMMISSIONER CUGINI: Are there other areas of the rules that you think would be helpful, if there was some symmetry?
LISTNUM 1 \l 11732 MS LOOMIS: I think that symmetry and expectation in terms of time of call would make a lot of sense.
LISTNUM 1 \l 11733 We have agents who are sitting on borders, and for them to know that if they could call at a certain time here, they could call at a certain time there.
LISTNUM 1 \l 11734 Because you are protecting Canadian residents. You may have people calling in the States that are actually calling across those borders, just as you have Canadian people who may be calling across borders into the U.S., and I think that the more that that is consistent, it will eliminate unnecessary compliance.
LISTNUM 1 \l 11735 So I think that would be one area, certainly, where we would see that consistency would be helpful and important.
LISTNUM 1 \l 11736 COMMISSIONER CUGINI: Thank you. That's all.
LISTNUM 1 \l 11737 THE CHAIRPERSON: I would like to go back to the personal exemption, just to make sure that I understand it completely.
LISTNUM 1 \l 11738 You have an exclusive distribution network consisting of people who work 100 percent selling your products and servicing the clients thereof, and you don't distribute your products by any other network than those 7,000 folks, but they are not your employees.
LISTNUM 1 \l 11739 MS LOOMIS: That's right.
LISTNUM 1 \l 11740 THE CHAIRPERSON: In order to provide them with guidance, because there are 7,000 of them, you have to write things down in a way that, to quote Ms Loomis, has no latitude for common sense. I have a lot of sympathy with that, because we do a lot of that kind of thing.
‑‑‑ Laughter / Rires
LISTNUM 1 \l 11741 THE CHAIRPERSON: Even Stuart does that on occasion, against his better judgment.
LISTNUM 1 \l 11742 I mean, Commissioner Langford, excuse me. Commissioner Langford does that occasionally.
LISTNUM 1 \l 11743 What I have been wrestling with is that the necessity for the exemption is to legitimize your advice to your agents that they can call friends, relatives and acquaintances, always with the caveat that the ultimate arbiter of the legitimacy of that relationship is the called party.
LISTNUM 1 \l 11744 MS LOOMIS: Yes. And I think that it extends beyond our company, although, certainly, I am asking on behalf of our company.
LISTNUM 1 \l 11745 THE CHAIRPERSON: I understand. You are not the only person who raised it, it is just that you are a party with a little more practical experience than some of the people we have raised it with, and I am trying to understand it.
LISTNUM 1 \l 11746 Let's take a hypothetical case, so that I can understand this.
LISTNUM 1 \l 11747 The exemption is not there. An agent calls an acquaintance. The acquaintance takes umbrage and says, "I am really not your acquaintance for the purposes of purchasing Primerica products. My name is on the Do Not Call List. I am going to complain."
LISTNUM 1 \l 11748 The problem then is that your agent has no defence.
LISTNUM 1 \l 11749 Is that correct, or am I missing a point?
LISTNUM 1 \l 11750 MS LOOMIS: That agent would have no defence, in any event, because the person that was called said, "I am not family, a friend or an acquaintance."
LISTNUM 1 \l 11751 THE CHAIRPERSON: That is what I am getting to.
LISTNUM 1 \l 11752 MS LOOMIS: The issue that we have is, when we go out and train, which we do ‑‑ we provide a lot of training for our agents ‑‑ we go out, and I am faced, and would be faced, with the uncomfortable position of saying, "You can't call your mother or your brother," and he says, "But that's who my business is with." "I'm sorry, it doesn't matter, you can't call them. That's what the law says."
LISTNUM 1 \l 11753 Although, certainly, it has been said before that the law is an ass, I don't think we want it to be in this context beyond what Dickens said. It is a very difficult thing to say with a straight face: "You cannot make these calls. They are prohibited by law."
LISTNUM 1 \l 11754 THE CHAIRPERSON: I think it was Shakespeare.
LISTNUM 1 \l 11755 MS LOOMIS: Shakespeare, you are right.
LISTNUM 1 \l 11756 MR. MILLINGTON: No, it was Dickens.
LISTNUM 1 \l 11757 THE CHAIRPERSON: He is my ultimate authority, Ms Loomis. We all have to bow before his knowledge to be safe.
LISTNUM 1 \l 11758 MS LOOMIS: Shakespeare said, "Let's shoot all the lawyers."
‑‑‑ Laughter / Rires
LISTNUM 1 \l 11759 THE CHAIRPERSON: Without this additional exemption, we do not equip you to advise your agents that such a call would be legal. You might be able to advise them that the likelihood of a complaint is no greater with or without the explicit licence from us to give the advice, however.
LISTNUM 1 \l 11760 MS LOOMIS: We could, and that would be a struggle. But I think that, obviously, what we would like is simply to memorialize what I think we understand to be the parameters of the common sense.
LISTNUM 1 \l 11761 We would instruct our agents that the call is prohibited.
LISTNUM 1 \l 11762 MS BILHAN: Mr. Chair, it is kind of like having a three‑lane highway, or a six‑lane highway, where normally you would be driving 100 kilometres an hour in Ontario. That is generally the law. And then, all of a sudden, you hit a patch of highway and the law says, "Sixty kilometres." Chances are, people are not going to comply. It is just common sense that that highway was built for a speed of 100 kilometres.
LISTNUM 1 \l 11763 We should not be making laws or rules, or trying to enforce them, when they go against people's intuition and their common sense.
LISTNUM 1 \l 11764 For a company such as ours ‑‑ as you mentioned, we have 7,000 contractors. We have to have some sort of compliance structure. We have to have a compliance structure that, at all times, is in sync with the law. Whether it makes sense in our case or not will not be a discussion that we will be having with our agents. We cannot say, "Use your imagination." Obviously, if it is your mom, you should be able to call.
LISTNUM 1 \l 11765 We are, basically, going to be asking our sales staff to be breaking the law, for all intents and purposes, because, whether we like it or not, they are going to say, "That's ridiculous. Of course I am going to call my brother‑in‑law. It is not up to my company to decide, it is not up to the regulator to decide."
LISTNUM 1 \l 11766 We understand that those are not the types of calls that cause concern.
LISTNUM 1 \l 11767 Earlier you mentioned the peewee hockey league. They call once a year in their community because they are raising funds to send the kids off to some tournament. I understand that the CRTC would, obviously, not be charging those moms with breaching C‑37, but, still, the fact remains that we have created a situation where those mothers are breaching the law.
LISTNUM 1 \l 11768 So for the integrity of the rules to be respected, we are suggesting that they be clarified, and explicitly say that these are not the types of calls we are trying to protect the public from.
LISTNUM 1 \l 11769 Again, we are not suggesting that you take away the public's right to object to those calls. Certainly, people should be able to complain and say, "You know what? You are certainly not related to me. It was completely uncalled for for you to be calling me on a Sunday night to sell me life insurance." That complaint would be legitimate. We would respect that.
LISTNUM 1 \l 11770 THE CHAIRPERSON: I think we have as much on the record as we are going to get.
LISTNUM 1 \l 11771 Commission Cram.
LISTNUM 1 \l 11772 COMMISSIONER CRAM: On the personal relationship one, there is no defence if you are family.
LISTNUM 1 \l 11773 If my ‑‑ and he isn't ‑‑ loser brother ‑‑
LISTNUM 1 \l 11774 THE CHAIRPERSON: I hope he is not looking after your dog, Barb.
LISTNUM 1 \l 11775 COMMISSIONER CRAM: No, he is not looking after my dog.
‑‑‑ Laughter / Rires
LISTNUM 1 \l 11776 COMMISSIONER CRAM: If my loser brother, who had 900 different jobs, and I bought life insurance from him from ten different places as he moved along, and had an unsatisfactory time with them all, phoned me up, there is no way that I could ‑‑ I may have disowned the guy, but there would still be no defence; right?
LISTNUM 1 \l 11777 MS LOOMIS: That is an interesting question.
LISTNUM 1 \l 11778 When the FCC noted it in a rule and said that it would be up to the person called to determine whether defence applies, you wonder if you would say, "I don't think he is my brother."
LISTNUM 1 \l 11779 I'm not sure. It hasn't come up yet, but it is kind of interesting to say, "My mother? What mother?"
‑‑‑ Laughter / Rires
LISTNUM 1 \l 11780 MS LOOMIS: That hasn't arisen yet, and yet you would assume, to take the common sense protection one common step forward, that your mother is your mother and your brother is your brother.
LISTNUM 1 \l 11781 COMMISSIONER CRAM: Yes.
LISTNUM 1 \l 11782 MS LOOMIS: But it is not clear.
LISTNUM 1 \l 11783 COMMISSIONER CRAM: The same with if my cousin, removed four times, phones me. The same issue?
LISTNUM 1 \l 11784 MS LOOMIS: I think it is the same issue. I think that to preserve the integrity of this defence, which is to protect common sense behaviour, so that it is not a technical violation ‑‑
LISTNUM 1 \l 11785 If your cousin says, "I am on the "no call list"," then they have the right to complain.
LISTNUM 1 \l 11786 COMMISSIONER CRAM: But at least there, as a consumer, you would have the ability to say, "Look, I am his 42nd cousin. This is a little ridiculous."
LISTNUM 1 \l 11787 MS LOOMIS: Yes, I think so.
LISTNUM 1 \l 11788 COMMISSIONER CRAM: We would end up having these people making their family trees and ‑‑
‑‑‑ Laughter / Rires
LISTNUM 1 \l 11789 MS BILHAN: No, I don't think we would be expecting that ‑‑
LISTNUM 1 \l 11790 MS LOOMIS: Especially down south. You know, we have that issue with all of the extended family trees.
‑‑‑ Laughter / Rires
LISTNUM 1 \l 11791 COMMISSIONER CRAM: Yes.
LISTNUM 1 \l 11792 MS BILHAN: I think that the FCC makes it very clear that the burden of proof is on the caller to defend themselves and explain why they have made the call, and it is up to the called party to determine whether they have been comfortable with the call.
LISTNUM 1 \l 11793 If they say, "No, I wasn't personally that well acquainted with this person to be calling me on a Sunday evening," they certainly have the right to complain. It doesn't take their right to complain away.
LISTNUM 1 \l 11794 COMMISSIONER CRAM: Thank you.
LISTNUM 1 \l 11795 Thank you, Mr. Chair.
LISTNUM 1 \l 11796 THE CHAIRPERSON: Counsel.
LISTNUM 1 \l 11797 Me MILLINGTON: Merci, monsieur le présidente.
LISTNUM 1 \l 11798 I also would like to spend a little bit of time on this personal relationship exemption.
LISTNUM 1 \l 11799 This has been in place since the very beginning?
LISTNUM 1 \l 11800 MS LOOMIS: Yes, it has been.
LISTNUM 1 \l 11801 MR. MILLINGTON: You mentioned in your brief that you gave us today that it has garnered few complaints.
LISTNUM 1 \l 11802 Is that for everybody or just in relation to your company?
LISTNUM 1 \l 11803 MS LOOMIS: For everyone it has garnered very few complaints. In the 1995 Report to Congress, it was stated that less than 1 percent of those on the list complained.
LISTNUM 1 \l 11804 In regard to our company, we have had zero complaints.
LISTNUM 1 \l 11805 MR. MILLINGTON: Are the complaints tracked with respect to this particular exemption?
LISTNUM 1 \l 11806 MS LOOMIS: No.
LISTNUM 1 \l 11807 MR. MILLINGTON: So we couldn't get to the granularity of people actually invoking this exemption wrongly, as an example.
LISTNUM 1 \l 11808 MS LOOMIS: No, we couldn't. And I did go out to try and do some research before I came to simply see if we would find articles that said "found palatable" or "found outrageous", or whatever. And I could not find anything on my Google search.
LISTNUM 1 \l 11809 MS BILHAN: If I may, we would suggest strongly that there be certain things that be traced, such as what types of complaints the operator is receiving, for the purposes of the three‑year legislative review where certain findings can be put in place.
LISTNUM 1 \l 11810 If I also may add, in the United States we have 100,000 independent life insurance agents working for us. So out of the 100,000 people who made calls, we have received zero complaints from the FCC.
LISTNUM 1 \l 11811 So that is a fairly significant number.
LISTNUM 1 \l 11812 I understand that in the scheme of the overall market it doesn't provide a great statistic, but 100,000 is not an insignificant number either.
LISTNUM 1 \l 11813 MR. MILLINGTON: Under the U.S. system, when a person complains are they required to give their name as the complainant?
LISTNUM 1 \l 11814 For example, would one of your agents through the complaint process know that it was actually their mother that complained, or would they know it was the soccer mom from down the street?
LISTNUM 1 \l 11815 If the anonymity is not available to the friend's family and acquaintances group, then I wonder if that vitiates that whole process? If you know you are going to get called out at the next soccer practice, maybe you don't declare the party.
LISTNUM 1 \l 11816 MS LOOMIS: I wish I could comment, but we've never had a complaint. So I don't know.
LISTNUM 1 \l 11817 MR. MILLINGTON: You don't know, in terms of the U.S. system, whether the identity of the complainant is revealed?
LISTNUM 1 \l 11818 MS LOOMIS: I do not. We have never had a complaint. We have had a few state complaints where the state law is at variance with the federal law. Typically when we work them through, we come to a resolution.
LISTNUM 1 \l 11819 In those complaints I know the identity of the complainant.
LISTNUM 1 \l 11820 MR. MILLINGTON: So it is reasonable to assume that had there been one of this type, you would have also gotten the identity?
LISTNUM 1 \l 11821 MS LOOMIS: I don't know.
LISTNUM 1 \l 11822 MR. MILLINGTON: Could you find out?
LISTNUM 1 \l 11823 MS LOOMIS: I don't know at first, but when we get a complaint immediately I call the regulator.
LISTNUM 1 \l 11824 MR. MILLINGTON: Right.
LISTNUM 1 \l 11825 MS LOOMIS: The regulator will tell me the incidents so that I can investigate it, because we have our own discipline process that we invoke even if they have technically gotten off.
LISTNUM 1 \l 11826 So I do know the identity of the person calling so we can check and confirm the details of it.
LISTNUM 1 \l 11827 MR. MILLINGTON: Could you undertake to let me know whether in this particular instance the identity would be revealed?
LISTNUM 1 \l 11828 MS LOOMIS: Yes.
LISTNUM 1 \l 11829 MR. MILLINGTON: I was interested in the ballgame scenario and writing on the back of the peanut bag. Here we would probably be out at the Scotia Bank Place writing on the back of a popcorn box, but the same fact scenario pretty much, particularly at this time of the year.
LISTNUM 1 \l 11830 I am wondering of the effect, the downstream effect, of the awkwardness of this express written consent requirement. Has that, in your view, driven non‑compliant behaviour as a possible result?
LISTNUM 1 \l 11831 MS LOOMIS: It has generated a lot of complaining, I'll tell you that.
LISTNUM 1 \l 11832 MR. MILLINGTON: By your agents.
LISTNUM 1 \l 11833 MS LOOMIS: Yes. I don't think it has probably generated non‑compliant behaviour because if they were going to just go ahead and do it anyway, they wouldn't be complaining about it and draw attention to the issue.
LISTNUM 1 \l 11834 And it remains a problematic issue, which I think indicates that they know that they must do it.
LISTNUM 1 \l 11835 MR. MILLINGTON: Again, I think you said that the express written consent requirement comes out of the U.S. rules of evidence essentially.
LISTNUM 1 \l 11836 MS LOOMIS: Yes.
LISTNUM 1 \l 11837 MR. MILLINGTON: As opposed to your own internal requirements.
LISTNUM 1 \l 11838 MS LOOMIS: That comes directly out of the law. Express written consent has to be in writing and then ‑‑ whether it has to be, I think it is assigned writing. Then we require that they also put down their telephone number and the date and the time.
LISTNUM 1 \l 11839 I don't think that those are requirements of the federal law. I think the federal law is you could have a pad of paper that says check yes, please call me about the new Ford car and sign it.
LISTNUM 1 \l 11840 MR. MILLINGTON: Right.
LISTNUM 1 \l 11841 MS LOOMIS: I think that would probably be sufficient.
LISTNUM 1 \l 11842 MR. MILLINGTON: A little box to check and say call me in 12 months and sign your name. That would be fine.
LISTNUM 1 \l 11843 MS LOOMIS: I think you could do that and be compliant. That is not how we do it.
LISTNUM 1 \l 11844 MR. MILLINGTON: What about a box or a window that opens up on a computer screen that would have the same kind of information displayed and you put an X in the square that says "yes, please call me" and you give some form of electronic signature of just the fact of sending back a return e‑mail from your own e‑mail address.
LISTNUM 1 \l 11845 Would that satisfy?
LISTNUM 1 \l 11846 MS LOOMIS: I don't know whether that would satisfy the federal law. We probably would not deem it satisfying.
LISTNUM 1 \l 11847 MR. MILLINGTON: You would not.
LISTNUM 1 \l 11848 MS LOOMIS: Because of potential for abuse.
LISTNUM 1 \l 11849 MR. MILLINGTON: Right.
LISTNUM 1 \l 11850 Thanks very much.
LISTNUM 1 \l 11851 LE PRÉSIDENT : Madame la Secrétaire.
LISTNUM 1 \l 11852 LA SECRÉTAIRE : Oui, monsieur le Président. J'ai une undertaking to provide to Primerica.
LISTNUM 1 \l 11853 THE CHAIRPERSON: Thank you very much. Much appreciated. Very helpful.
LISTNUM 1 \l 11854 MS BILHAN: If I may ask ‑‑
LISTNUM 1 \l 11855 THE CHAIRPERSON: Please sit down to get close to the microphone.
LISTNUM 1 \l 11856 MS BILHAN: Sorry.
LISTNUM 1 \l 11857 In response to Commissioner Duncan earlier with regard to costs, we are actually actively working with the two CISC groups as well. So we are raising a number of other issues and concerns through those structures.
LISTNUM 1 \l 11858 COMMISSIONER DUNCAN: As you know, it will all work its way through the process. So we appreciate that. Thank you.
LISTNUM 1 \l 11859 MS BILHAN: Thank you for your time.
LISTNUM 1 \l 11860 THE CHAIRPERSON: Thank you.
LISTNUM 1 \l 11861 THE SECRETARY: The next participant is Canadian Marketing Association, Mr. Wally Hill.
LISTNUM 1 \l 11862 THE CHAIRPERSON: While we are at it, Madam Secretary, I don't suppose we are going to get to Contact New Brunswick today.
LISTNUM 1 \l 11863 I am just thinking, as a matter of courtesy to those people, if they want to stay ‑‑ and we hope they will ‑‑ it would probably be likely that we will see them at 9 o'clock tomorrow.
LISTNUM 1 \l 11864 THE SECRETARY: All right.
PRESENTATION / PRÉSENTATION
LISTNUM 1 \l 11865 MR. HILL: Good afternoon, Commissioners. Thank you.
LISTNUM 1 \l 11866 I would like to introduce those with me here this afternoon.
LISTNUM 1 \l 11867 Lorraine McLachlan, to my left, is our Vice‑President responsible for the administration of our Canadian Marketing Association do not contact program.
LISTNUM 1 \l 11868 To my right is Elizabeth Harvey from the Canadian Marketing Association as well.
LISTNUM 1 \l 11869 The sale and service of goods and services by telephone is a big business. It is not just a few thousand companies. Almost every business in Canada uses the telephone for marketing. It generates over $16 billion in sales and employment for over a quarter million Canadians.
LISTNUM 1 \l 11870 The Canadian Marketing Association is consistent proponent of responsible marketing, self‑regulation and reasonable government regulation. As such, we have consistently supported the establishment of a national Do Not Call service in principle. It is simply not good business to annoy customers who may be better reached through other channels.
LISTNUM 1 \l 11871 However, beyond our support in principle, we believe that certain regulations are necessary to clarify the Commission's intent so as to not inadvertently harm an over $16 billion industry and the hundreds of thousands of jobs it generates.
LISTNUM 1 \l 11872 We have submitted an extensive and detailed written submission but today we would like to focus on three issues.
LISTNUM 1 \l 11873 First, it is critical to clearly define the scope and application of the national DNCL. All discussion of the legislation that created the DNCL was framed by the general assumption that it will protect Canadian consumers from the annoyance of unwanted telemarketing calls.
LISTNUM 1 \l 11874 That being the case CMA believes that business‑to‑business, or B‑to‑B, communications should not be affected by the new DNCL, as is the case in the U.S.
LISTNUM 1 \l 11875 Comments from the Senate Committee which considered Bill C‑37 indicated that it was not the intent of Parliamentarians to intervene in day‑to‑day communication between businesses. And certainly a key existing statute, PIPEDA, does not cover business in relation to employee names, titles, address, phone numbers for purposes of contact.
LISTNUM 1 \l 11876 The CMA believes that including B‑to‑B communication in the DNCL would result in undue interference in the day‑to‑day commerce.
LISTNUM 1 \l 11877 B‑to‑B calls are a part of the fabric of daily business affairs and including these calls in the DNCL could have significant economic consequences for the business sector.
LISTNUM 1 \l 11878 B‑to‑B telemarketing sales campaigns are often based on rather small and targeted contact lists as opposed to larger consumer campaigns.
LISTNUM 1 \l 11879 For example, we don't think it is desirable or economically feasible for the DNCL regulations to require that a sales person check his or her small personal call list against the national list.
LISTNUM 1 \l 11880 Finally, unlike calls to consumers, there has been limited, if any, demand for the DNCL to limit telemarketing to business. The CMA believes that a requirement for business telemarketers to maintain internal Do Not Call Lists is more than adequate to cover any concerns about this category.
LISTNUM 1 \l 11881 A second important issue the CMA would like to see the Commission address in setting regulations relate to the issue of enforcement of the DNCL and other telemarketing rules.
LISTNUM 1 \l 11882 Paragraph 19 of the Public Notice states that the Commission intends not only its authority to administer the DNCL database to a third party, but also its authority to investigate allegations of contraventions of the DNCL and other telemarketing regulations.
LISTNUM 1 \l 11883 The CMA does not believe that the CRTC should delegate the powers to handle telemarketing, complaints to issue notices of violation or to propose administrative monetary penalties to the list operator or any separate administrator.
LISTNUM 1 \l 11884 CMA believes that complaints handling related to enforcement of laws and regulations are best conducted by the responsible government department or agency.
LISTNUM 1 \l 11885 The confidence of consumers and business in the fairness and impartiality of such quasi judicial investigative processes and findings can best be maintained where these are handled by a public body.
LISTNUM 1 \l 11886 We are also concerned that it will not be possible to find a list operator without a conflict of interest. Potential list operators may include database companies, telcos or others who would be forced to investigate, and possibly penalize, their own customers or members.
LISTNUM 1 \l 11887 The third issue we would like to address today is that of costs relating to the DNCL.
LISTNUM 1 \l 11888 The CMA's support of a national Do Not Call List has always been based on the contention that any system must be accessible and affordable for telemarketers. We remain supportive of a DNCL model whereby consumers can register free of charge and telemarketers pay a reasonable, non‑prohibitive access fee to offset database operations costs.
LISTNUM 1 \l 11889 To ensure that the DNCL can be offered free to consumers while maintaining affordable access fees for marketers, we believe that the government must assume responsibility for the execution and costs beyond database operation. Such additional costs include list operator oversight, the consortium that has been talked about earlier today, complaint investigation and enforcement.
LISTNUM 1 \l 11890 The CMA submits that to burden telemarketers with costs beyond fees to cover database operations could have a negative impact on the decisions of many Canadian businesses and not‑for‑profits to make use of telecommunications to market their products and services.
LISTNUM 1 \l 11891 DNCL fees are not only going to be borne by large businesses and telemarketing agents but also by small businesses, individual proprietors and not‑for‑profits who rely on the telephone to market their goods and services or raise money.
LISTNUM 1 \l 11892 Such a model would pose a significant threat to the over $16 billion telemarketing industry.
LISTNUM 1 \l 11893 Affordable and accessible access fees will encourage compliance with the DNCL, in turn reducing follow‑up complaint and investigation costs. We do not believe that Parliament intended that telemarketers would pay for enforcement of the DNCL and other telemarketing regulations in addition to the database operation.
LISTNUM 1 \l 11894 In introducing C‑37 on December 13, 2004, the Minister of Industry stated that funding for the operation of the list would be obtained on a cost recovery basis from telemarketers.
LISTNUM 1 \l 11895 We would also note that during the Parliamentary hearings, CRTC Vice‑Chair Richard French advised MPs that C‑37 did not specify that telemarketers should pay for the implementation costs.
LISTNUM 1 \l 11896 We would strongly support the Commission in approaching Industry Canada to clarify how the government will fund the CRTC in its new role to cover the new DNCL and related telemarketing regulatory responsibilities.
LISTNUM 1 \l 11897 Finally, with regard to other existing or potential telemarketing regulations, CMA believes that it makes sense that these be consolidated with the DNCL rules if the costs of the oversight and enforcement components are not to be covered by the DNCL subscription fees.
LISTNUM 1 \l 11898 Our views on the related telemarketing rules have been set out in more detail in our written submission, but they include:
LISTNUM 1 \l 11899 ‑ a recommendation that internal Do Not Call Lists should be required for all sellers who market by telephone, including those covered by the DNCL;
LISTNUM 1 \l 11900 ‑ a recommendation that universal telemarketing call hours be established for all types of telemarketing;
LISTNUM 1 \l 11901 ‑ a recommendation that a call abandonment ceiling be established for automatic diallers, as was suggested in CRTC Decision 2004‑35, although we remain of the view that the other elements of Decision 2004‑35 are unnecessary costs now in light of the new national DNCL.
LISTNUM 1 \l 11902 In conclusion, I will summarize the three points the CMA has addressed here today.
LISTNUM 1 \l 11903 First, we would like to avoid unintended economic costs and interference in day‑to‑day commerce by clearly limiting the application of the DNCL to the central issue of protecting consumers.
LISTNUM 1 \l 11904 Second, maintain consumer and business confidence in the fairness and impartiality of the quasi judicial investigation and findings processes by having the CRTC itself retain the enforcement function surrounding the DNCL and other telemarketing rules.
LISTNUM 1 \l 11905 Third, the CMA's support of a national do not contact list has always been predicated on the assumption that the service would be established in a way that balances consumer interests with affordable access for telemarketers.
LISTNUM 1 \l 11906 While CMA supports charging telemarketers reasonable access fees to offset database operational costs, it is important that the CRTC secure government funding for expenses beyond the database operations.
LISTNUM 1 \l 11907 We would like to thank all Commissioners for the opportunity to appear before you today.
LISTNUM 1 \l 11908 THE CHAIRPERSON: Thank you very much, Mr. Hill.
LISTNUM 1 \l 11909 Just to be clear, on your left is Ms Harvey? Thank you.
LISTNUM 1 \l 11910 MR. HILL: On my right ‑‑
LISTNUM 1 \l 11911 THE CHAIRPERSON: I'm sorry, on my left and your right is Ms Harvey.
LISTNUM 1 \l 11912 And of course we have Ms McLachlan.
LISTNUM 1 \l 11913 Commissioner Cugini.
LISTNUM 1 \l 11914 COMMISSIONER CUGINI: Good afternoon.
LISTNUM 1 \l 11915 I just have a couple of general questions about your organization to begin with, just for my own edification.
LISTNUM 1 \l 11916 You say you represent over 800 corporate members. Does that include both telemarketers and companies who would engage those telemarketers?
LISTNUM 1 \l 11917 MR. HILL: Yes, it does. It includes both the marketers and what we would call the service providers or telemarketers in this case.
LISTNUM 1 \l 11918 COMMISSIONER CUGINI: Does it include also third party sellers?
LISTNUM 1 \l 11919 MR. HILL: I'm not sure.
LISTNUM 1 \l 11920 COMMISSIONER CUGINI: So it is the companies, telemarketers and perhaps even the telemarketers would then engage third parties to actually conduct those further calls?
LISTNUM 1 \l 11921 MR. HILL: Well, I was actually referring to the third parties as the telemarketers.
LISTNUM 1 \l 11922 COMMISSIONER CUGINI: Okay.
LISTNUM 1 \l 11923 MR. HILL: Call centre operations. The fact of the matter is that the companies that you refer to in the first level are the marketers and they use a host of service providers, database providers, call centre operators and so on.
LISTNUM 1 \l 11924 COMMISSIONER CUGINI: Do you have an estimate as to how many would be telemarketers and how many would be the call centres of your membership?
LISTNUM 1 \l 11925 MR. HILL: That would be hard. No, I don't have one here today.
LISTNUM 1 \l 11926 I could provide you with some numbers.
LISTNUM 1 \l 11927 COMMISSIONER CUGINI: Sure. That would be great, if possible.
LISTNUM 1 \l 11928 MR. HILL: Yes.
LISTNUM 1 \l 11929 COMMISSIONER CUGINI: You do operate, as you said, your do not contact service. So maybe Ms Harvey would like to answer these questions.
LISTNUM 1 \l 11930 How do consumers indicate their desire now to be placed on this do not contact service?
LISTNUM 1 \l 11931 MS McLACHLAN: I will speak to that. Lorraine McLachlan.
LISTNUM 1 \l 11932 COMMISSIONER CUGINI: All right.
LISTNUM 1 \l 11933 MS McLACHLAN: Consumers are able to let us know that they would like to be on that service, either by internet through our website, by mail or by fax.
LISTNUM 1 \l 11934 COMMISSIONER CUGINI: How do you acknowledge receipt of this request, or do you acknowledge receipt?
LISTNUM 1 \l 11935 MS McLACHLAN: We do not acknowledge receipt.
LISTNUM 1 \l 11936 COMMISSIONER CUGINI: Is the request then for all of your member companies, or can they specify which companies they don't want to be contacted by?
LISTNUM 1 \l 11937 MS McLACHLAN: They cannot specify. Our Code of Ethics and Standards of Practice say that for prospecting calls or marketing campaigns, CMA members must use the do not contact suppression service.
LISTNUM 1 \l 11938 COMMISSIONER CUGINI: So by the same token, if a consumer wants to then be delisted, can they also do that from your do not contact service?
LISTNUM 1 \l 11939 MS McLACHLAN: Certainly.
LISTNUM 1 \l 11940 COMMISSIONER CUGINI: And the same process would apply.
LISTNUM 1 \l 11941 MS McLACHLAN: Exactly.
LISTNUM 1 \l 11942 COMMISSIONER CUGINI: Do you have live answering staff?
LISTNUM 1 \l 11943 MS McLACHLAN: We do have a receptionist, yes.
LISTNUM 1 \l 11944 COMMISSIONER CUGINI: Who would take those calls from consumers?
LISTNUM 1 \l 11945 MS McLACHLAN: If somebody calls into the office, yes, we do handle that.
LISTNUM 1 \l 11946 COMMISSIONER CUGINI: Do you have a complaint process?
LISTNUM 1 \l 11947 MS McLACHLAN: Yes, we do.
LISTNUM 1 \l 11948 COMMISSIONER CUGINI: Formalized?
LISTNUM 1 \l 11949 That is, if a consumer wanted to know what the process would be that they would have to follow in order to file a complaint with the CMA, is that something that is readily available to them?
LISTNUM 1 \l 11950 MR. HILL: Yes, that is covered in our Code of Ethics.
LISTNUM 1 \l 11951 They would raise the issue with the association. Our process would be that we would, in turn, raise it with the member to have them investigate what had happened, and either correct the problem or explain the problem.
LISTNUM 1 \l 11952 If that was not done to our satisfaction in terms of there being further problems, the ultimate sanction in the case of our organization, is to expel an offending member from the organization.
LISTNUM 1 \l 11953 We have never arrived at that situation. Members are always pleased to correct the situation and address any oversights.
LISTNUM 1 \l 11954 COMMISSIONER CUGINI: Does one complaint equal an investigation or do you accumulate a number of complaints before you would investigate the complaint?
LISTNUM 1 \l 11955 MR. HILL: Our system has worked quite well and we have very few complaints. Invariably when a consumer raises an issue with us, we pass that on and initiate that first step by passing it along to the member.
LISTNUM 1 \l 11956 COMMISSIONER CUGINI: Maybe you are anticipating this last question.
LISTNUM 1 \l 11957 Since you have this do not contact service in place, what are the lessons that you have learned with the operation of it that we could perhaps implement in the Do Not Call rules?
LISTNUM 1 \l 11958 MR. HILL: Keep it lean and keep it simple. That will be the formula that ensures a high level of compliance.
LISTNUM 1 \l 11959 COMMISSIONER CUGINI: Do you believe that there should be a complaint threshold before the DNCL operator initiates a complaint?
LISTNUM 1 \l 11960 MR. HILL: I would suggest in this case that would probably make sense. You are going to be operating with a different standard here. We have a new law in place. In this instance, it may make sense to establish a threshold of a certain number of complaints before resources are expended on a more detailed investigation.
LISTNUM 1 \l 11961 COMMISSIONER CUGINI: Do you have any suggestion as to what that number should be?
LISTNUM 1 \l 11962 MR. HILL: Not as yet. I think there is an Operations Committee working with representatives from our organization and others, with the Commission, to look at establishing some of those details, thresholds in this case.
LISTNUM 1 \l 11963 COMMISSIONER CUGINI: In terms of the severity of complaint, should there be a graduated scale of what type of complaint would initiate an investigation?
LISTNUM 1 \l 11964 MR. HILL: I think in this case the complaints are going to be pretty standard: I'm on the list and I was called.
LISTNUM 1 \l 11965 In our earlier submission we suggested that there should be some safe harbour provisions adopted in the regulations that indicate where an organization is able to demonstrate that they have shown the due diligence and taken all of the necessary steps and something untoward has happened to create the problem and the ensuing complaint, then that should be a defence that can be taken into account.
LISTNUM 1 \l 11966 I believe that that is something that is touched on in the law itself in fact.
LISTNUM 1 \l 11967 COMMISSIONER CUGINI: You are one of the organizations who support a 60‑day grace period when we are talking about when consumers are on the list and they don't want to be called in reference to what you think would constitute a complaint.
LISTNUM 1 \l 11968 Isn't 60 days a long time to receive calls that you have already said you don't want to receive? What is the issue with telemarketers being able to scrub the list in a shorter period of time?
LISTNUM 1 \l 11969 We have heard everything from 70 to 90.
LISTNUM 1 \l 11970 MR. HILL: Right.
LISTNUM 1 \l 11971 COMMISSIONER CUGINI: You have fallen on 60.
LISTNUM 1 \l 11972 What is the issue?
LISTNUM 1 \l 11973 MR. HILL: Our program, internal do not contact program, involves providing the suppression list every 30 days to members. So in our case we advise consumers who ask to be placed on the list that it will be six to eight weeks before all the calls will have stopped.
LISTNUM 1 \l 11974 In the case of the new do not call list, in consultation with a number of members, especially larger organizations, they have indicated to us that when they produce the list and check it with do not call suppression lists, either their own internal one or ours, they then send it off and it can be difficult to be sure that they will track it down and pull it back in order to update it.
LISTNUM 1 \l 11975 So they felt that they needed approximately 60 days, and some actually proposed a longer period of time. But on balance it seemed that 60 days would work.
LISTNUM 1 \l 11976 COMMISSIONER CUGINI: When you advise consumers that it may take six to eight weeks before they are removed from the list, what is their reaction?
LISTNUM 1 \l 11977 MR. HILL: The reaction is that they are fine with it; acceptance.
LISTNUM 1 \l 11978 I have not had a single consumer complaint on that point.
LISTNUM 1 \l 11979 I won't say that there hasn't been ever, but certainly in my time with the Association people are pleased to know that they are going to be getting on the list and that in a fairly short period of time the calls will start going down.
LISTNUM 1 \l 11980 COMMISSIONER CUGINI: So you think the consumers, knowing that in six to eight weeks they will be removed from the list, will tolerate calls during that period of time?
LISTNUM 1 \l 11981 MR. HILL: Yes. I think it is a matter of expectations and understanding that the solution may take a little bit of time to go into effect.
LISTNUM 1 \l 11982 COMMISSIONER CUGINI: Are your individual members required to maintain their own do not contact list?
LISTNUM 1 \l 11983 MR. HILL: Yes. The Commission's own rules require that organizations maintain internal do not contact lists, and our own Code of Ethics mirrors that rule as well.
LISTNUM 1 \l 11984 COMMISSIONER CUGINI: Just so that I understand, your members maintain their own. And then does the CMA have a master do not contact list?
LISTNUM 1 \l 11985 MR. HILL: Yes, we do.
LISTNUM 1 \l 11986 COMMISSIONER CUGINI: How do you harmonize the two?
LISTNUM 1 \l 11987 MR. HILL: That's up to the individual organizations. We simply maintain a do not contact list for those people who have called in. Organizations look after their own internal lists, predominantly consisting of existing customers of theirs who are on those lists.
LISTNUM 1 \l 11988 COMMISSIONER CUGINI: All right.
LISTNUM 1 \l 11989 Moving on to what both in your written submission and in your comments today is obviously one of your priorities, and that is business‑to‑business and the issues that arise out of that.
LISTNUM 1 \l 11990 I know that you have provided a revised definition for telemarketing wherein you include the use of telecommunications facilities to make unsolicited calls to residential consumers.
LISTNUM 1 \l 11991 You also state in your written submission that only 3 to 5 percent of complaints that you have received so far are related to business‑to‑business calls in support of your position.
LISTNUM 1 \l 11992 My first question there is: As you have mentioned, our rules currently do apply to business‑to‑business calls. So do you think it appropriate that they continue to apply if we say that business‑to‑business is excluded from the do not call list?
LISTNUM 1 \l 11993 MR. HILL: We feel that the existing rules in place, which have been in place for the past five or six years, should continue to apply to business‑to‑business calls.
LISTNUM 1 \l 11994 We believe that the do not call list framework should not apply to business calls.
LISTNUM 1 \l 11995 COMMISSIONER CUGINI: What do you see as the potential impediments to business if we do include business‑to‑business in the do not call list rules?
LISTNUM 1 \l 11996 What are the obstacles that business‑to‑business marketing will face if they are placed on the do not call list?
LISTNUM 1 \l 11997 MR. HILL: We believe that it really comes down to the day‑to‑day operations of organizations. Frequently you are talking about sales organizations following up on very small call lists. It just doesn't make sense to require an individual sales person to be cross‑referencing a short call list of a couple of dozen names to organizations to require that individual to cross‑reference the list with a do not call list.
LISTNUM 1 \l 11998 COMMISSIONER CUGINI: Even for those businesses who also engage in telemarketing to consumers?
LISTNUM 1 \l 11999 MR. HILL: In that instance, in terms of their telemarketing to consumers, we would expect that they would be using the do not call list.
LISTNUM 1 \l 12000 COMMISSIONER CUGINI: Is there a technical reason why a business number could not be registered on the do not call and relating that to being able to cross‑reference lists?
LISTNUM 1 \l 12001 MR. HILL: I don't think there is a technical reason. I think it makes life more complex, more difficult, more of a burden in terms of day‑to‑day business activities.
LISTNUM 1 \l 12002 Quite frankly, I think this exercise has been about addressing a concern, a growing concern, amongst Canadian consumers in their home life, and so on, of being annoyed, interrupted, in some cases feeling they are being hassled by telemarketers.
LISTNUM 1 \l 12003 I don't believe that the same situation applies to the business‑to‑business environment.
LISTNUM 1 \l 12004 Certainly we have not been exposed to complaints, and believe me, we hear from consumers. We know what complaints are about telemarketing. But we do not hear from businesses.
LISTNUM 1 \l 12005 COMMISSIONER CUGINI: Not even from home‑based or small two‑line businesses?
LISTNUM 1 \l 12006 Do you believe that they should be afforded the same opportunity to receive business‑to‑business calls?
LISTNUM 1 \l 12007 MR. HILL: Well, to the extent that smaller home‑based businesses might feel that they are being intruded upon by businesses. That is one of the reasons that we have suggested that internal do not call lists should be retained.
LISTNUM 1 \l 12008 Not only is it a fallback in the case where individual consumers do not want to hear from a business that they are dealing with, it also will cover that B‑to‑B exemption. It will cover the charities exemption.
LISTNUM 1 \l 12009 If you talk to people, there are individuals who will say to you: I'd prefer not to hear from both businesses or charities. The fact is the charitable exemption has been built into the law. But keeping internal do not call lists allows for individual consumers to make that choice, contact the organization and get on their list.
LISTNUM 1 \l 12010 So we feel it would deal with the small home businesses, charities and the existing customer exemption, the existing customers that we had urged be built into the law as well.
LISTNUM 1 \l 12011 COMMISSIONER CUGINI: You do say in your written submission that contravention of both DNCL and other telemarketing rules should constitute a violation in respect of which an administrative monetary penalty may be imposed.
LISTNUM 1 \l 12012 So you do support that the DNCL operator can enforce the other telemarketing rules.
LISTNUM 1 \l 12013 MR. HILL: We support the notion of the Commission enforcing both the DNCL and the other telemarketing rules. I think those are two issues there.
LISTNUM 1 \l 12014 We believe it makes sense to have some teeth in these rules so that the Commission can enforce the rules. That, I think, has been a challenge under the old system for organizations. We believe that the administrative monetary penalties do make sense.
LISTNUM 1 \l 12015 COMMISSIONER CUGINI: Then how else would you limit the role of the DNCL operator?
LISTNUM 1 \l 12016 MR. HILL: We believe that the DNCL operator should be limited to the administration of the list itself, the database, taking names, having them registered on the list and working with the various subscribers to the list to ensure that they have access to it at an affordable rate.
LISTNUM 1 \l 12017 We believe that the enforcement dimensions of this new regime, which we have argued should include the other telemarketing rules that don't relate to the list, should be the mandate of the CRTC and we believe should be covered by a funding from other than the fees paid to access the list itself.
LISTNUM 1 \l 12018 COMMISSIONER CUGINI: In terms of investigation of violations, do you believe that should be the Commission or the operator?
LISTNUM 1 \l 12019 MR. HILL: Only to the extent that the operator can verify. It would be a very cursory first level. The person's name indeed was on the list and in fact the company is a subscriber, for example, if the target of the complaint is a subscriber or perhaps failed to subscribe or did not do a download, whatever the case is.
LISTNUM 1 \l 12020 The first level passed along to the Commission to then follow up and find out what has gone wrong.
LISTNUM 1 \l 12021 In that instance you would be getting into potentially a more detailed process.
LISTNUM 1 \l 12022 COMMISSIONER CUGINI: Who do you think should be required to pay the fees to access the DNCL list?
LISTNUM 1 \l 12023 MR. HILL: To access the list itself?
LISTNUM 1 \l 12024 COMMISSIONER CUGINI: Yes.
LISTNUM 1 \l 12025 MR. HILL: We believe, we anticipate that marketers should be able to cover the costs of the list itself and accessing the list.
LISTNUM 1 \l 12026 COMMISSIONER CUGINI: And not the call centres that would be engaged by the marketers?
LISTNUM 1 \l 12027 MR. HILL: Well, that gets into an issue of structuring the program. I think there is some discussion around should there be a service bureau model.
LISTNUM 1 \l 12028 I will let Ms McLachlan speak to that.
LISTNUM 1 \l 12029 It is possible that in some instances there might be a master licence where a service bureau would take up that licence and provide service to others.
LISTNUM 1 \l 12030 MS McLACHLAN: Certainly it would make sense to have a continuum of fees for accessing the service, everything from a bull‑blown national subscription where you could download daily and get updates, right the way down to simple small volume number checking, and everything in between.
LISTNUM 1 \l 12031 So if you only need it a couple of times a year, you could get what you need.
LISTNUM 1 \l 12032 We would also suggest that being able to get numbers on a regional basis makes sense as well and that it should be scaled accordingly.
LISTNUM 1 \l 12033 There may also be a role for third party providers ‑‑ we would suggest through a licensing system ‑‑ that would enable companies that were not themselves database savvy and couldn't handle the work in‑house to be able to hire a company to do this.
LISTNUM 1 \l 12034 In that case most likely the marketer would be responsible for the fee. But the call centre company or the service provider would access the list on their behalf.
LISTNUM 1 \l 12035 COMMISSIONER CUGINI: It also addresses the issue of small business versus big business and the graduated fee structure in that scenario that you just described.
LISTNUM 1 \l 12036 MS McLACHLAN: It absolutely does. And it looks to the issue of encouraging compliance.
LISTNUM 1 \l 12037 COMMISSIONER CUGINI: Thank you, Mr. Chair. Those are all my questions.
LISTNUM 1 \l 12038 THE CHAIRPERSON: Commissioner Langdon.
LISTNUM 1 \l 12039 COMMISSIONER LANGFORD: Langdon, Smith, Jones.
LISTNUM 1 \l 12040 THE CHAIRPERSON: Langford.
LISTNUM 1 \l 12041 COMMISSIONER LANGFORD: Going back to this B‑to‑B, I don't quite think you have convinced me yet that there is a mischief to having them in.
LISTNUM 1 \l 12042 Parliament didn't put them in as an exemption. There are some existing business relationships but that is not quite the same thing.
LISTNUM 1 \l 12043 So Parliament took a good hard look at this and didn't put them in. They put in charities. They put in surveyors and whatnot, but they didn't put in business.
LISTNUM 1 \l 12044 What is the mischief? What is the big harm?
LISTNUM 1 \l 12045 If you are only getting a small percentage of complaints a year, shouldn't Joe's Pizza, who only has one line, be able to say I just don't want any more of these calls?
LISTNUM 1 \l 12046 MR. HILL: I think the issue is just: Is it a necessary regulatory burden?
LISTNUM 1 \l 12047 I would submit that it is not; that the issue of any irritant on a business‑to‑business basis can be taken care of with internal Do Not Call Lists.
LISTNUM 1 \l 12048 So let's keep it simple. Let's keep it focused on the issue that had preoccupied Parliamentarians, which was the consumers.
LISTNUM 1 \l 12049 In terms of the exemptions, I mean, that was an interesting process. I think at the end of the day, parliamentarians were finding that they were assailed by outside observers when it came to the issue of exemptions and were simply reluctant, at the end of the day, to consider more than a very, very few.
LISTNUM 1 \l 12050 COMMISSIONER LANGFORD: Well, we are pretty reluctant to go against Parliament's wishes. I mean, it's something we try not to do.
LISTNUM 1 \l 12051 I can't see the fear in it. You are talking about simplicity. What can be simpler than all consumers of services and goods having the same protection from annoyance, which is what this is all about? And you are saying, "Well, you get one level of protection if you are in a house and another level of protection if you are in an office".
LISTNUM 1 \l 12052 But I put to you that particularly small offices, maybe even Primerica has enough staff that, you know, somebody can be assigned and, you know, they can absorb the cost, but if you are in a small accounting office, two or three people, a mom and pop operation somewhere, I put to you that would be just as
annoying to them, that they are consumers ‑‑
LISTNUM 1 \l 12053 MR. HILL: Yeah.
LISTNUM 1 \l 12054 COMMISSIONER LANGFORD: ‑‑ that the y are consumers of products and services.
LISTNUM 1 \l 12055 And if you are looking for administrative simplicity, what can be easier than the 3 percent to 5 percent you are talking about, saying, "Hey, we're on the list. Don't bother us"?
LISTNUM 1 \l 12056 MR. HILL: I don't think it's an issue of preventing businesses, in this case home businesses, from registering on the list. The question is: who will be required to subscribe to the list and for what purpose?
LISTNUM 1 \l 12057 So I think it comes down to a situation where those home businesses that you are perhaps thinking about can register and would be protected from calls that relate to a consumer product that is being sold, but they would not necessarily be protected, to use that term, from a call coming from another business, because that business would not be required to use the Do Not Call registry suppression list as a cross‑reference for their own call list.
LISTNUM 1 \l 12058 COMMISSIONER LANGFORD: Why wouldn't they be?
LISTNUM 1 \l 12059 MR. HILL: Well, under the suggested regime that I'm speaking of, if business‑to‑business calls were not covered, they would ‑‑
LISTNUM 1 \l 12060 COMMISSIONER LANGFORD: So you are essentially trying to ‑‑ don't let me put words in your mouth, but are you essentially trying to protect or trying to take the burden off of telemarketers who only sell to businesses? Because if they have even one residential customer, they got to buy the list or they have got to get access to it somehow.
LISTNUM 1 \l 12061 MR. HILL: That's true. If they were approaching people with some sort of a consumer product. But if the purpose of their call campaign is strictly business to business, they would not, under our proposal, be required to use the suppression list.
LISTNUM 1 \l 12062 COMMISSIONER LANGFORD: That's the group you are trying to protect: the person who sells the pizza boxes to Joe Pizza ‑‑
LISTNUM 1 \l 12063 MR. HILL: Correct.
LISTNUM 1 \l 12064 COMMISSIONER LANGFORD: ‑‑ but doesn't sell them ‑‑
LISTNUM 1 \l 12065 MR. HILL: Correct.
LISTNUM 1 \l 12066 COMMISSIONER LANGFORD: ‑‑ retail?
LISTNUM 1 \l 12067 MR. HILL: Or is perhaps trying to build a brand new business and is wanting to call and speak to businesses of potential interest.
LISTNUM 1 \l 12068 It may, on occasion, annoy one of those businesses, but we would submit that it is not good for the Canadian economy and good for the kinds of situations that I just described to intervene in these areas, and not necessary, based on the driving force behind this particular initiative, which has been the frustration of consumers with these kinds of calls.
LISTNUM 1 \l 12069 And to the extent that there is a frustration, again, I have to point to the availability of internal Do Not Call Lists and maintaining those, as we have suggested, as a fall‑back position for someone to utilize in a case where they continue to be frustrated by calls they don't want to receive.
LISTNUM 1 \l 12070 COMMISSIONER LANGFORD: Well, I hear you.
LISTNUM 1 \l 12071 One other area, on this inclination you have that we can't find someone to delegate the enforcement services to that isn't somehow conflicted, can you give me a little more ‑‑ I mean, you have said that in your written brief, you have said it again today, but no matter how I parse it, I don't quite see that as such a huge problem.
LISTNUM 1 \l 12072 I mean, couldn't we find some, I don't know, accounting firm or something ‑‑ right now, when we have our contribution scheme under telecom, we use Welch's accounting firm as the central administrator. They seem to be, as far as I know, doing fine job.
LISTNUM 1 \l 12073 MR. HILL: It's possible that you will find someone, but we would argue that you are potentially limiting those that would participate. And even those that do may find themselves in a bit of a conflict of interest from time to time in that they may be faced with passing judgement and penalizing ‑‑ applying the law and penalizing customers of theirs.
LISTNUM 1 \l 12074 I think that may have been one of the difficulties in the previous regime.
LISTNUM 1 \l 12075 COMMISSIONER LANGFORD: If you are going to leave the final decision to us, how much policing work could we delegate? In other words, if you look upon us as the court, and we want to set up a police force so that we are not both the police and the court, how much could we delegate, and to whom, in your view, might we be able to delegate? Fact collecting, in other words.
LISTNUM 1 \l 12076 MR. HILL: We would argue that, as I said a few moments ago, it should be quite restrictive and limited to simply an initial check through the list operator as to whether an individual complainant was registered or not and the situation of the target of the complaint, assuming a company, and whether they are a subscriber to the list.
LISTNUM 1 \l 12077 Beyond that, we believe that, as is the case, for example, with the Competition Bureau, that these matters of investigation and the laying of penalties are the jurisdiction of the public body and not a hired administrator.
LISTNUM 1 \l 12078 COMMISSIONER LANGFORD: Yes, Parliament has, you know, very clearly given us the power to delegate, they have given us the green light.
LISTNUM 1 \l 12079 Let me try something else on you. I don't want to prolong this unnecessarily, but this seems to be a pretty key factor in the sense of keeping costs down, perhaps, which would impact on your members.
LISTNUM 1 \l 12080 We wear another hat, the CRTC, we also wear a broadcasting hat, where we award radio and television licences and we police the standard of broadcasting and the content of broadcasting, much to the chagrin of many Canadians and much to the joy of others, we are pleased to say.
LISTNUM 1 \l 12081 One of the things we have done is to set up an association‑run complaints standards bureau, and so that members or television, broadcasting companies, radio companies and whatnot, have delegates on this bureau and they can look into some of the allegations of standards that have been violated, and only if complainants aren't happy do they then come to us. So we are, in a sense, an appeal board or a final voice, a final decision.
LISTNUM 1 \l 12082 Could you see something like that working?
LISTNUM 1 \l 12083 MR. HILL: Well, I think, as a first step, potentially. I think that the details need to be worked out. But some previous witnesses suggested that when a complain is raised it might make sense for there to be a protocol whereby, as a first step, the administrator brings the situation to the attention of the alleged offender and perhaps it can be sorted out very quickly. At the end of the day, that might make a lot of sense, in terms of keeping the system unburdened, the complaint investigation and enforcement system unburdened, so....
LISTNUM 1 \l 12084 COMMISSIONER LANGFORD: So not necessarily members, if I can call it that. It wouldn't be members of the telemarketing community that would be sort of self‑policing at the first level? This would be at the kind of operator level. Is that the way you see this?
LISTNUM 1 \l 12085 MR. HILL: Well, I think the operator might be tasked with that kind of bringing it to the attention of a company.
LISTNUM 1 \l 12086 COMMISSIONER LANGFORD: One last question. Finally, you speak in your written comments and submission, and again today, about some thresholds. The sense I'm getting from you and from a lot of witnesses today, and a lot of the written submission is: well, surely, nobody's going to go and penalized single‑point errors here? Surely, there will be thresholds, there will be kind of a cumulative situation where somehow people will magically know, okay, you have gone too far now.
LISTNUM 1 \l 12087 The problem I have with that is that Parliament hasn't necessarily directed us in that way. They have given us discretion and they have talked about common‑law defences and whatnot, but if you go into a threshold situation, then a violation isn't a violation any more cause everybody knows, oh, well, you can get away with three or four or five or ten or twenty or...so, you know, just do a little due diligence and you can keep the hounds off your back.
LISTNUM 1 \l 12088 But is that satisfactory to consumers? I mean, isn't the whole point of this to say to consumers, "You've got some rights here, you've got some privacy rights, and if they're violated, we're going to see to it that somebody pays"? So how do we find that balance? You have had some experience with this? How do we find the balance?
LISTNUM 1 \l 12089 We don't want to say, "Huh, violations aren't really violations until they stack up this high or this high". At the same time, they are violations and we want to try to ensure that there are no violations. That's the ideal.
LISTNUM 1 \l 12090 So what do you really mean when you say "thresholds"? What are you pointing us at? What's your instinct on this issue?
LISTNUM 1 \l 12091 MR. HILL: Well, we feel that it's legitimate to establish some thresholds, in terms of the number of people perhaps affected in an incident or the number of times that a complaint target has been found to be breaking the rules. And in the first instances, at an appropriate level, a warning in order to allow an organization to get itself into compliance with the rules we believe makes sense.
LISTNUM 1 \l 12092 I guess it's that's simple. I don't know what those thresholds are here today. I know that those issues are under some discussion. But we believe that it would make sense that where the transgression has been minimal and is a first time, I mean, that will be determined. But repeated, clearly, is going to result in a more serious penalty, and that's, I think, part of the awareness and education process that can go on, in terms of building this new system and building strong compliance with it.
LISTNUM 1 \l 12093 COMMISSIONER LANGFORD: Thank you very much.
LISTNUM 1 \l 12094 Those are my questions, Mr. Chair.
LISTNUM 1 \l 12095 THE CHAIRPERSON: Commission Duncan.
LISTNUM 1 \l 12096 COMMISSIONER DUNCAN: Just two questions for you, Mr. Hill.
LISTNUM 1 \l 12097 I just wanted to understand, on the issue of the amount of time required to cleanse the lists.
LISTNUM 1 \l 12098 Your individual members have their own internal lists and those are the lists that will required to be cleansed, so does it take 60 days because they are also cleansed against a list that you control? I just want to make sure I understand that.
LISTNUM 1 \l 12099 MS McLACHLAN: I'm sorry, I think I heard you say that it was their own internal lists that were being cleansed. In fact, with our Do Not Call List, it's a prospecting list because you are allowed to contact your existing customers. So these are externals lists that are then cleansed.
LISTNUM 1 \l 12100 COMMISSIONER DUNCAN: So the requirement in the legislation, even as it is now, is that you have your own internal Do Not Call Lists, but you do not have that, is that what you are ‑‑
LISTNUM 1 \l 12101 MS McLACHLAN: No, that you would have the internal Do Not Call List ‑‑
LISTNUM 1 \l 12102 COMMISSIONER DUNCAN: Okay.
LISTNUM 1 \l 12103 MS McLACHLAN: ‑‑ and that would be applied against your own customers, plus any external lists, but ‑‑
LISTNUM 1 \l 12104 COMMISSIONER DUNCAN: So for the individual members, with their internal Do Not Call Lists, they would be matched against the national Do Not Call. And do you still think that would take 60 days ‑‑
LISTNUM 1 \l 12105 MS McLACHLAN: Their Do Not Call List?
LISTNUM 1 \l 12106 COMMISSIONER DUNCAN: Yes. I am misunderstanding what you are saying, then.
LISTNUM 1 \l 12107 I'm understanding they would each have ‑‑ it's a separately incorporated company, they would have their own internal Do Not Call List?
LISTNUM 1 \l 12108 MS McLACHLAN: That's correct, each company has their own.
LISTNUM 1 \l 12109 COMMISSIONER DUNCAN: And then that list, under what's proposed, would be cleansed against the national Do Not Call List?
LISTNUM 1 \l 12110 MR. HILL: No ‑‑
LISTNUM 1 \l 12111 MS McLACHLAN: No.
LISTNUM 1 \l 12112 MR. HILL: ‑‑ it would not. The way it works, I mean, we are talking about three different lists here.
LISTNUM 1 \l 12113 COMMISSIONER DUNCAN: Yes, I'm trying to understand.
LISTNUM 1 \l 12114 MR. HILL: There is the marketing list that a marketing organization may have rented from a list broker. What we are talking about here is that list must be checked against both their internal list, which may include many of their own existing customers on that list, and, in our current situation, that marketing list must be checked against the CMA Do Not Call List, or, in the future, would be the national Do Not Call List.
LISTNUM 1 \l 12115 So it's a two‑step process that organizations are going to ‑‑ I don't know the technicalities of it, and it probably can all be done quite quickly together, but, I mean, at the end of the day, they are two discrete processes.
LISTNUM 1 \l 12116 COMMISSIONER DUNCAN: So because it is two steps, then, is that the reason you are suggesting it should take 60 days, as opposed to the 30 days some parties have suggested or as opposed to the U.S. requirement?
LISTNUM 1 \l 12117 MR. HILL: No. In terms of the 60 days, it really just came down to if the organization is a larger organization and has had their marketing list cleansed against the national Do Not Call List, that list may be sort of out in their system, if you will, and difficult to retrieve, pull back, track down, in terms of its various components and they suggested to us, our larger members, that 60 days would probably be a reasonable period for them to ensure that their lists, the lists that they were using, were up to date.
LISTNUM 1 \l 12118 COMMISSIONER DUNCAN: Thank you, Mr. Hill.
LISTNUM 1 \l 12119 My second question is with respect to costs, and your recommendation that the CRTC should secure government funding. If government funding wasn't available, then, where would you suggest that we would turn for funding?
LISTNUM 1 \l 12120 MR. HILL: That's an interesting question.
LISTNUM 1 \l 12121 I think that, at the end of the day, if government funding is not available, in order to keep the list affordable, we should look at all options. It might be ‑‑ and I don't think this is desirable, it's not something we have suggested ‑‑ but it might be that it is a small fee that consumers are paying. So that's one possibility.
LISTNUM 1 \l 12122 COMMISSIONER DUNCAN: You are not suggesting the telephone companies should absorb it as part of their ‑‑
LISTNUM 1 \l 12123 MR. HILL: Well, I mean, that's certainly another alternative that the Commission might look at. Certainly, you know, they are, and continue to be, the owners of the channel, so it would be a sharing of the costs in that instance.
LISTNUM 1 \l 12124 We believe that the costs that we are talking about, where I think the enforcement component is probably the largest, we believe that those are properly the domain of government, and in many other instances, certainly I know not in the case of the Commission, the Commission is normally exercising jurisdiction over regulated companies who benefit from that regulation.
LISTNUM 1 \l 12125 In this case, that's not what we are talking about. We are talking about companies out there competing quite aggressively, and, I would submit, that this is a situation that's much more like the regulation that we see the Competition Bureau, for example, discharging, and in those cases the taxpayers pay for the investigation, enforcement, and so on.
LISTNUM 1 \l 12126 COMMISSIONER DUNCAN: Thank you very much.
LISTNUM 1 \l 12127 THE CHAIRPERSON: Mr. Hill, I would like to go through your three points, if I may, because you have given a lot of thought to this and you have a lot of experience in it.
LISTNUM 1 \l 12128 The business‑to‑business requirement, you are asking us to add an exemption, and that exemption would be for business‑to‑business telemarketing.
LISTNUM 1 \l 12129 MR. HILL: That's correct. It might be done through the definition. For example, the definition proposed by the companies today has been read several times, with some slight amendment to that. That might cover it by focusing it on consumers.
LISTNUM 1 \l 12130 THE CHAIRPERSON: Well, we would certainly like, assuming we could be convinced in principal, to find a way not to have another exemption. I mean, it's all very well to say the Senate wanted it, but if the Senate wanted it, why didn't it recommend it? Two senators made a comment, but there was no specific recommendation.
LISTNUM 1 \l 12131 MR. HILL: Yeah. Well, I think they were anxious to get the bill passed in the context, I think, of the times.
LISTNUM 1 \l 12132 THE CHAIRPERSON: I know, but we can't, you know, say, "Wally Hill told us you guys were anxious, so we've added a few more exemptions". That, I'm afraid, is just not going to do.
LISTNUM 1 \l 12133 I guess I'm trying to understand the practicality of it. We could say to you small business might not want to be bothered. They would, therefore, initiate action to put themselves on a list, and your recommendation is we should tell them, no, and that you would say, yes.
LISTNUM 1 \l 12134 But there's another public policy purpose, and the other public policy purpose is reducing the regulatory burden on some relatively small businesses that are starting out, that wish to contact certain specialized lines of business, maybe across the country, maybe in every area code, and we think that it would be a undue burden for them to have to scrub those lists against a national Do Not Call List. Is that a fair way of stating it?
LISTNUM 1 \l 12135 MR. HILL: Well, I don't think we are suggesting that small businesses, any business for that matter, but I think it would be some smaller businesses, home‑based businesses, should be prevented from getting on the list. That would protect their number from receiving calls related to a marketing campaign that is a consumer‑oriented marketing campaign.
LISTNUM 1 \l 12136 However, a business who might want to contact that small business, or any other number of small businesses, that is clearly engaged in a business‑to‑business marketing campaign, would be not, for that matter, using the Do Not Call List, would be engaging in their phone calls on the basis of doing a business‑to‑business marketing campaign, which we try to provide a definition for.
LISTNUM 1 \l 12137 THE CHAIRPERSON: Yeah, that would be the thing. I really think, Mr. Hill ‑‑ because I can see your point, I hope you can see ours, but what we really need from you is a form of words, preferably not in the form of an exemption, that would ensure that the goods and services being offered had to be consumer‑oriented, and, therefore, that if the goods and services being offered were transparently intended for a business ‑‑ and I don't think this is a trivial problem ‑‑ transparently intended for a business, they would not be defined as "telemarketing", or something along those lines, or would not be defined as "telemarketing", as the act applies enforcement measures to it.
LISTNUM 1 \l 12138 MR. HILL: Well, we have taken a stab at that, Commissioner, in our earlier submission, and suggested definitions both for "consumer marketing" and "business‑to‑business marketing". That's at paragraph 25 in our submission of March 27th.
LISTNUM 1 \l 12139 THE CHAIRPERSON: Well, that's nice. That's what I just said. What we need is to marry that to some part of the ‑‑
LISTNUM 1 \l 12140 MR. HILL: Yes.
LISTNUM 1 \l 12141 THE CHAIRPERSON: ‑‑ prospective structure of regulation ‑‑
LISTNUM 1 \l 12142 MR. HILL: Yes.
LISTNUM 1 \l 12143 THE CHAIRPERSON: ‑‑ so that it accomplishes the objectives you want.
LISTNUM 1 \l 12144 MR. HILL: Yes, correct. And I would ‑‑
LISTNUM 1 \l 12145 THE CHAIRPERSON: This is nice, but, frankly ‑‑
LISTNUM 1 \l 12146 MR. HILL: Yes.
LISTNUM 1 \l 12147 THE CHAIRPERSON: ‑‑ it's not what I'm looking for.
LISTNUM 1 \l 12148 MR. HILL: And I was suggesting that the definition that had been suggested by the companies in relation to exemptions and so on might be a place where that could be built in. It tends to use the word "individual or organization", and I would suggest that we substitute "consumers" for that.
LISTNUM 1 \l 12149 By the way, while I'm talking about that definition, would suggest that we tack onto the end of it the exception relating to ‑‑ they have said only the exceptions mentioned in the act. I would suggest that's the spot, also, to put in "also accept where consent has been provided by a consumer".
LISTNUM 1 \l 12150 THE CHAIRPERSON: Okay, we will note that.
LISTNUM 1 \l 12151 I'm going to say it one more time, and you don't have to say the same thing one more time either, but, you know ‑‑ and another exemption is going to be very difficult, but the spirit of what you are trying to accomplish, I don't think we are far away.
LISTNUM 1 \l 12152 So if we can find some way to permit someone who voluntarily wants to put himself ‑‑ and, by the way, we don't have any way to police it anyway ‑‑ on this list for mass consumer campaigns which work their way through a predictive dialling program over thousands of people, we both share the desire to prevent that sort of thing occurring even to a small business.
LISTNUM 1 \l 12153 On the other hand, we both share the desire not to unduly burden a specialized business‑to‑business marketing campaign, which will not be saved by a tariff adjustment for a small draw, because it may well be a national campaign, but it may only be five numbers in each area code or fifteen numbers in each area code, so we have that real problem.
LISTNUM 1 \l 12154 So do we understand that we are both going to try to find a way, and you are going to keep thinking and have even more inspiration in light of what I'm suggesting to you, to marry this business‑to‑business in such a way ‑‑ and if the company's definition is there, great, but we need that kind of advice.
LISTNUM 1 \l 12155 MR. HILL: We will certainly look at it more closely.
LISTNUM 1 \l 12156 THE CHAIRPERSON: Super. Thank you.
LISTNUM 1 \l 12157 Second point is enforcement. You are, of course, not alone raising this issue, and there are some important legal questions involved. I guess the only point I would make is that the Commission is anxious, and in fact has no choice but to take the ultimate responsibility for penalties that are levied ‑‑ excuse me, not penalties. Not penalties. We are not allowed to levy penalties ‑‑ administrative monetary penalties that are levied. So we have to take responsibility for that and there has to be an appeal mechanism, or some form of adjudication at our level, and we know that.
LISTNUM 1 \l 12158 So we are really arguing about where in the middle the transfer takes place. I'm a little, you know, worried about not finding a list to operate without conflict of interest. I don't know whether I want to die on the hill of explaining, "Well, we've chosen this list, operator. Yeah, they've got a conflict of interest, but we couldn't find anybody else".
LISTNUM 1 \l 12159 Anyway, it's a problem, I think. But would you, please, just restate once and for all, for my benefit, is this because you believe that adding these additional responsibilities to a delegate or a list operation runs counter some fundamental juridical conception you have about AMPS should be applied or whether it's a purely pragmatic argument intended to expand the reservoir of potential contractors?
LISTNUM 1 \l 12160 MR. HILL: I think it's a purely pragmatic argument to avoid having marketers pay for what could be a substantial exercise. We are very concerned that this continue to be an affordable system for markets, and so we believe that in this instance, as is the case in some other regulatory activities, it is fair to argue that it should be undertaken and the costs should be borne by general government, as opposed to the users, in this case, of the program.
LISTNUM 1 \l 12161 THE CHAIRPERSON: Well, I hear you, Mr. Hill, but if it's strictly a matter of cost, I suggest to you that your version of fairness and others' version of fairness are pretty contestable and that there will be a very lively debate over that one.
LISTNUM 1 \l 12162 Okay, well, that's clear about what you are trying to do.
LISTNUM 1 \l 12163 The third issue you have raised is who ultimately pays for whatever costs will not be paid for by your members, and others who are engaged in similar activities. Thank you for your advice with respect to Industry Canada. I just suggest to you that if you are serious about it, I hope you will take some steps to tell someone other than ourselves, because, frankly, you know, the fact that you told us here doesn't cut much ice on the other side of the river when we go to see them.
LISTNUM 1 \l 12164 So if you genuinely believe that there is a serious problem of financing, and that serious problem of financing is most appropriately addressed by government appropriations, I would urge you to make your views known to people closer to the process of government appropriations than ourselves.
LISTNUM 1 \l 12165 You realize that we never figure in the budgetary process, or only marginally, because we raise the money we are funded by from the industries we regulate. This is, indeed, another case, as you have pointed out, and rightly so.
LISTNUM 1 \l 12166 But our absence from that process means that when we decide we want to participate in it, we aren't taken very seriously. Now, I have to be frank with you and say ‑‑
LISTNUM 1 \l 12167 MR. HILL: Okay.
LISTNUM 1 \l 12168 THE CHAIRPERSON: ‑‑ that I hear you. I think there's a reasonable argument to be made to go in the direction that you are going in, but just telling us, it doesn't matter if it's champagne or 7Up, you are spitting into the wind. It's still going to come back in your face.
LISTNUM 1 \l 12169 MR. HILL: We will certainly pursue the issue ‑‑
LISTNUM 1 \l 12170 THE CHAIRPERSON: Thank you.
LISTNUM 1 \l 12171 MR. HILL: ‑‑ with government and with Industry Canada.
LISTNUM 1 \l 12172 THE CHAIRPERSON: Great.
LISTNUM 1 \l 12173 Commissioner Cram, please.
LISTNUM 1 \l 12174 COMMISSIONER CRAM: On the 60 days, can you tell me why American businesses can do it in 31 and Canadian can't do it unless it's 60? You are going to have to really give me a very good reason, because I have a hard time explaining to consumers that it's because Canadian businesses are less efficient.
LISTNUM 1 \l 12175 MR. HILL: Commissioner, I can only convey to you what our members have advised us, or at least some of them, that being able to ensure that they could do it within the 30‑day period was a problem and challenging.
LISTNUM 1 \l 12176 COMMISSIONER CRAM: Is the process any different from what they would be doing in the States?
LISTNUM 1 \l 12177 MR. HILL: I rather doubt it.
LISTNUM 1 \l 12178 COMMISSIONER CRAM: Moving on to business‑to‑business, right now businesses being marketed are entitled to say, "Put me on your Do Not Call List". You agree with me?
LISTNUM 1 \l 12179 MR. HILL: Their internal Do Not Call Lists, yes.
LISTNUM 1 \l 12180 COMMISSIONER CRAM: Yeah. And that has not really been an impediment to your marketers, has it?
LISTNUM 1 \l 12181 MR. HILL: No.
LISTNUM 1 \l 12182 COMMISSIONER CRAM: So why would you anticipate that if businesses got on the Do Not Call List that would be more of an impediment?
LISTNUM 1 \l 12183 MR. HILL: I'm not sure that I follow the question.
LISTNUM 1 \l 12184 COMMISSIONER CRAM: Okay. Right now I can be put on an internal Do Not Call List if I'm a business. Right?
LISTNUM 1 \l 12185 MR. HILL: Correct.
LISTNUM 1 \l 12186 COMMISSIONER CRAM: And that has not been an impediment to your marketers?
LISTNUM 1 \l 12187 MR. HILL: No.
LISTNUM 1 \l 12188 COMMISSIONER CRAM: Why would the fact that it's a national Do Not Call List be any more of an impediment?
LISTNUM 1 \l 12189 MR. HILL: Because the national Do Not Call List is an across‑the‑board barrier to organizations calling those that are registered on it. Internal Do Not Call Lists, by their nature, are a very targeted vehicle and, again, by their nature, require the individual who's decided that they want to be on it and do not want to hear from the organization that maintains that list, to take an action, pick up the phone, call them up and say, "Please add me to your internal list".
LISTNUM 1 \l 12190 It's different, substantially,in terms of scope and both in terms of how, ultimately, it happens.
LISTNUM 1 \l 12191 COMMISSIONER CRAM: And so the onus is on a business, who is in the business of making money, to spend their staff time and spend their efforts to get themselves being put on every list? That's what you are essentially saying? It's reversing the onus and saying, "Okay, the businesses we are marketing are going to have spend the time and energy to get off every single Do Not Call List". Is that what you are saying?
LISTNUM 1 \l 12192 MR. HILL: That's correct, in theory. The number of lists that one's going to be talking about is going to be much shorter than the number of lists that you are talking in the consumer campaign, where you are talking about, you know, many non‑profit organizations, companies, and so on.
LISTNUM 1 \l 12193 MS HARVEY: Another considerable difference between an internal "do not contact" list and a national "do not contact" list, particularly as it applies to business‑to‑business application, is frequently internal "do not contact" lists are quite short and they can apply a name, a specific name, to the telephone number, whereas, it's my understanding, based on all of the discussions and of the CISC committee, that we are looking at probably just having one single telephone number.
LISTNUM 1 \l 12194 So whereas if I am calling your organization of five, I can put, "I'm not going to call Barbara but I'm still allowed to call Richard", and you are all at the same telephone number, and if Mr. French calls me and says, "Actually, we do want to get numbers", and then I call you and you happen to answer the phone, this is something that is certainly very easy to do in a small internal "do not contact" list, but it's not possible with a national list.
LISTNUM 1 \l 12195 There's a massive complexity of applying DNCL regulations to B to B. Right off the bat, I can think of, if one of these people over here is your receptionist and they decide that they're going to put your number on the Do Not Call List, you are never going to get any calls from me any more, despite the fact that you want to.
LISTNUM 1 \l 12196 Also, if your number is reassigned internally, there's no way for the list operator to track that; whereas, when consumer numbers are reassigned, there is a way for that to be tracked. There's multiple complexities of business‑to‑business marketing.
LISTNUM 1 \l 12197 COMMISSIONER CRAM: But you are really talking about centrex systems, aren't you, in a lot of those, when there's a lot of numbers in a single business?
LISTNUM 1 \l 12198 MS HARVEY: Yes. But internally, businesses tend to be allocated a certain number of telephone numbers, so if I quit and my replacement get that, now she or he is not getting any business‑to‑business calls, and there's no way.
LISTNUM 1 \l 12199 MR. HILL: And, I mean, I would remind, Commissioner, again, that we are talking about a very different category. Just as in the PIPEDA Act, in terms of protecting personal privacy, they have treated business contact information differently for a reason. It's a different issue and they have allowed businesses to use the business contact information of individuals and exempted it and not treated it as personal information that should be guarded by the provisions of that act.
LISTNUM 1 \l 12200 COMMISSIONER CRAM: How technically could we do this? Would the Do Not Call operator say, "Are you a business, yes/no?", in which case you can't register? Is that how we would do...?
LISTNUM 1 \l 12201 MR. HILL: No. Businesses could be registered. I think it comes down to ‑‑
LISTNUM 1 \l 12202 COMMISSIONER CRAM: The type.
LISTNUM 1 \l 12203 MR. HILL: ‑‑ at the other of the process, who is using the list? And if you are genuinely engaged in a business‑to‑business campaign of calls, then you would not be using the suppression list, which ‑‑
LISTNUM 1 \l 12204 COMMISSIONER CRAM: Okay, so ‑‑
LISTNUM 1 \l 12205 MR. HILL: ‑‑ I think addresses many of the issues of the small business, home‑based business, that is wanting to at least filter out those calls that they are getting at home from many consumer marketing organizations.
LISTNUM 1 \l 12206 COMMISSIONER CRAM: Okay, so the Do Not Call List person then says, "Thank you very much for registering with us", if you are a business, you should know that for items that would normally be sold to a business, you can still be marketed. This is not very effective.
LISTNUM 1 \l 12207 Now, these items that are normally marketed to a business can include ‑‑ and I'm asking myself about what we have done to people's expectations if we do something like that, and, secondly, how do you limit it?
LISTNUM 1 \l 12208 I can see printers being able to be sold to consumers, as well as businesses. Is it defined by the kind of item that's being sold? What's it defined by?
LISTNUM 1 \l 12209 MR. HILL: I think it would be defined, in large measure, by the use, if it's a product or service that is being used by another business.
LISTNUM 1 \l 12210 COMMISSIONER CRAM: So then it's left to the individual business who has registered with the Do Not Call List to complain if they are being marketed on a campaign that could be or could not be only to businesses? Like, what certainty do you provide if you do that kind of an exception?
LISTNUM 1 \l 12211 MR. HILL: Well, it's certainly an exemption that applies in the U.S. system. It's been a very successful program down there and it does not seem to have raised a lot of issues. I would reference that experience as a good example where accepting business‑to‑business from the whole process has not been a great issue.
LISTNUM 1 \l 12212 COMMISSIONER CRAM: But only for business‑to‑business campaigns?
LISTNUM 1 \l 12213 MR. HILL: Correct.
LISTNUM 1 \l 12214 COMMISSIONER CRAM: Okay.
LISTNUM 1 \l 12215 MR. HILL: There is no barrier ‑‑ as I understand it, I do not believe there is a barrier from a business registering their number in the U.S. list. I stand to be corrected on that, but I believe that's the case.
LISTNUM 1 \l 12216 COMMISSIONER CRAM: Okay. And then you are saying that for charities and for marketers that are doing business‑to‑business marketing, they will both have an internal Do Not Call List?
LISTNUM 1 \l 12217 MR. HILL: Correct. We believe that maintaining the internal Do Not Call List makes good sense ‑‑
LISTNUM 1 \l 12218 COMMISSIONER CRAM: Yeah.
LISTNUM 1 \l 12219 MR. HILL: ‑‑ for a range of reasons.
LISTNUM 1 \l 12220 COMMISSIONER CRAM: And yet at paragraph 92 of your initial presentation, you say there should be no unique registration numbers. I'm sure, if you were here today, you heard me asking: how do I prove that ‑‑
LISTNUM 1 \l 12221 MR. HILL: Yes.
LISTNUM 1 \l 12222 COMMISSIONER CRAM: ‑‑ I asked ABC Charity, or, as a business person, I asked XYZ to put me on their Do Not Call List?
LISTNUM 1 \l 12223 MS McLACHLAN: I'm happy to discuss that a little bit. Putting unique registration numbers on the list does, as was referenced when you talked about this earlier, make the list, itself, a much more complex beast.
LISTNUM 1 \l 12224 I think that certainly our experience, and I believe the experience in the U.S., is that you can, in the U.S., call and find out if your number is registered or you can look it up on their website. So you can assure yourself that you number is on the list by checking it.
LISTNUM 1 \l 12225 Certainly, in our experience with our list, consumers put their numbers on the list and it's accepted. If they are saying that their number has been on the list, then that's accepted. If we can't find it, it may have been that there was a processing error.
LISTNUM 1 \l 12226 I mentioned in the DOWG CISC subcommittee one of the problems is that we receiving information for our list via mail and fax, and sometimes it's very hard to read the handwriting, and so there are errors. So a number that has come in just doesn't get onto the list, but it doesn't mean the consumer, in good faith, doesn't believe that it was there.
LISTNUM 1 \l 12227 Invariably, my experience with our list has been that when we contact the company that has called, they immediately put that consumer on their internal Do Not Call List, and there has been no problem in addressing it.
LISTNUM 1 \l 12228 I would suggest for the Commission's issue with tracking problems, I think that does become one of frequency. And if you find a trend where there's a marketer consistently saying, "Oh, the number wasn't on the list or this consumer", then I think there's a different problem has been exposed.
LISTNUM 1 \l 12229 COMMISSIONER CRAM: Well, I mean, we have upped the anti, though, in the sense that if you are ABC Charity and I get myself put on the Do Not Call List, you are subject to monetary penalties. And would it be all right if we did the reverse onus, if the consumer says ‑‑ the same as you do with your list ‑‑ "I'm sure I was on the list" and ABC says, "Well, we can't find it on the list", but we go with the presumption that the consumer said they are on the list, then they are on the list? I mean, you see, we are getting into bigger stakes.
LISTNUM 1 \l 12230 MS McLACHLAN: No, I certainly understand that, and I would ask the corollary question: if a consumer says that they are on the list and they have inadvertently misplaced their confirmed registration number, are we not putting a burden on the consumer to have to guard yet one more piece of paper on the chance that they may get calls that are bothersome to them?
LISTNUM 1 \l 12231 COMMISSIONER CRAM: Now, I don't know, Mr. Hill, if you are aware of what happened in the UK. If I understand it correctly, Ofcom had to split up its rules because it was both policeman, prosecutor and judge, and it was subjected to a legal challenge for doing that.
LISTNUM 1 \l 12232 So particularly as we have similar kinds of laws, I would suspect that your proposal would be somewhat difficult to implement.
LISTNUM 1 \l 12233 MR. HILL: I'm not that familiar with the UK model, but I would simply point to the example of the Competition Bureau in this country, that has the authority to investigate and levy administrative monetary penalties in the course of its work.
LISTNUM 1 \l 12234 It doesn't seem that ‑‑ I am not a lawyer, so I am not well‑versed in all of the arguments that one may deal with here, but I just would look to that example as one that seems to indicate that having the investigation and the penalizing power, at least where they are administrative monetary penalties, is something that is allowed under Canadian law.
LISTNUM 1 \l 12235 COMMISSIONER CRAM: On the Competition Bureau, doesn't the tribunal assess the amps and the bureau does the investigation and the prosecution?
LISTNUM 1 \l 12236 MR. HILL: I believe the competition tribunal would be the assessor of the penalties, but...
LISTNUM 1 \l 12237 COMMISSIONER CRAM: So then you have got the separation of duties, because they are separate entities, the bureau itself, and then the tribunal.
LISTNUM 1 \l 12238 MR. HILL: Right. And I don't know whether that situation would be possible in the case of the CRTC.
LISTNUM 1 \l 12239 COMMISSIONER CRAM: Yeah, we will make ourselves into two and become schizophrenic more than we are.
LISTNUM 1 \l 12240 Anyway, thank you very much.
LISTNUM 1 \l 12241 THE CHAIRMAN: Counsel.
LISTNUM 1 \l 12242 MR. MILLINGTON: Thank you, Mr. Chairman.
LISTNUM 1 \l 12243 I just wanted to go over, at the risk of belabouring a point, but I want to go over and make sure I understand, Mr. Hill, your rationale with respect to costs, because you have suggested your first choice would be the government, taxpayers of Canada, second choice would be perhaps the companies ‑‑ I'm not sure whether you have had an opportunity of testing how willing they would be to absorbing those costs ‑‑ and the third possibility would be the consumers paying a fee as a way of covering the costs.
LISTNUM 1 \l 12244 Other than simply reducing ‑‑ and I don't want to put words in your mouth ‑‑ other than simply reducing the cost to your membership, can you provide us with any other rationale as to why the costs of this system should be borne by either of those three parties or in lieu of the telemarketing industry itself?
LISTNUM 1 \l 12245 MR. HILL: Yeah. I mean, first of all, what we have suggested is that the government should bear the enforcement costs, and I have noted the other as possibilities. The main reason, beyond the issue of costs, is compliance. By keeping the list, the Do Not Call List subscriptions affordable, we will encourage compliance.
LISTNUM 1 \l 12246 MR. MILLINGTON: So you are telling us, you are giving us a warning, that your membership would not comply with the regime if they, in their own wisdom, determined that the fee structure be too high?
LISTNUM 1 \l 12247 MR. HILL: Well, I mean, you will encourage compliance with a reasonable fee structure and you will not discourage the use of telemarketing. And this is another issue that we haven't touched on, but that I think some other, you know, witnesses will.
LISTNUM 1 \l 12248 I mean, this is an important industry, and if you drive up the costs to marketers of using this particular channel, you are going to put people out of work. It's as simple as that.
LISTNUM 1 \l 12249 We are already putting in place a system that we think is warranted, that will respect consumer choice, but let's not add to it by making the costs of using this channel unduly high and burdensome.
LISTNUM 1 \l 12250 MR. MILLINGTON: If costs is the issue, what evidence have you got for us today, or can you provide to us, as to what the threshold of those costs should be in order to achieve the balance between compliance and covering the expenses associated with such a regime?
LISTNUM 1 \l 12251 I mean, I understand that we are all a little bit limited, in terms of being able to speculate as to what the revenue that would flow from this scheme would be, because we don't necessarily have available to us the number of organizations that would access the list, and so on, but ‑‑
LISTNUM 1 \l 12252 MR. HILL: Fine. It's difficult because of the ‑‑
LISTNUM 1 \l 12253 MR. MILLINGTON: ‑‑ can you provide us any guidance in that respect at all, or are you going to leave it entirely to us to sort of come up with?
LISTNUM 1 \l 12254 MS McLACHLAN: As part of the DOWG subcommittee, CMA has committed to work with Mr. Lylyk and the chair to try and identify that number, because it's very difficult to quantify, as is witnessed by the difficulty they had in the U.S. and the consistent revisions that they have had there. So we are doing our best to try to quantify that number.
LISTNUM 1 \l 12255 MS HARVEY: Further, I believe that the DMA has some statistics as to how the size of the market before the implementation of a national "do not contact" list in the United States and the impact that it had on the industry at their level of funding originally, so that might be an instructive resource for the Commission to consider.
LISTNUM 1 \l 12256 I mean, what we are looking for here, we have always recognized that there is a consumer interest that needs to be protected, but certainly there needs to be a balance between protecting an industry and the jobs and protecting consumer interests. So it's not an easy question, I don't envy you, but there are some resources that you might be able to harken to.
LISTNUM 1 \l 12257 THE CHAIRPERSON: Thank you very much.
LISTNUM 1 \l 12258 I know that the Canadian Marketing Association has played a long and honourable role, and I count on you to continue to do so. We appreciate your expertise and advice, and I'm sure it won't be the last time we will call on it.
LISTNUM 1 \l 12259 Thank you.
LISTNUM 1 \l 12260 I don't think that we will proceed. There's a member of the panel who has an obligation, which means that we have to rise fairly shortly.
LISTNUM 1 \l 12261 THE SECRETARY: Mr. Chairman ‑‑
LISTNUM 1 \l 12262 THE CHAIRPERSON: Sorry.
LISTNUM 1 \l 12263 THE SECRETARY: ‑‑ we do have undertakings for CMA.
LISTNUM 1 \l 12264 THE CHAIRPERSON: Undertakings. You have undertakings.
LISTNUM 1 \l 12265 MR. HILL: All right. Thank you.
LISTNUM 1 \l 12266 THE CHAIRPERSON: We will rise and meet tomorrow at 9 o'clock, not nine thirty. We will begin with our friends from PIAC. We appreciate their wait and their patience and look forward to meeting them tomorrow morning. And if necessary tomorrow night, we will go later than six o'clock.
LISTNUM 1 \l 12267 Thank you very much. Anything further, madame le secrétaire?
LISTNUM 1 \l 12268 THE SECRETARY: No.
LISTNUM 1 \l 12269 THE CHAIRPERSON: Thank you very much.
‑‑‑ Whereupon the hearing adjourned at 1750, to resume
on Wednesday, May 3, 2006 at 0900 / L'audience est
ajournée à 1750, pour reprendre le mercredi
3 mai 2006 à 0900
REPORTERS
_____________________ _____________________
Marc Bolduc Lynda Johansson
_____________________ _____________________
Jean Desaulniers Sandy Kelloway
_____________________
Monique Mahoney
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