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Telecom Public Notice
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Ottawa, 21 September 1993
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Telecom Public Notice CRTC 93-58
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USE OF AUTOMATIC DIALING-ANNOUNCING DEVICES
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I BACKGROUND
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In Use of Automatic Dialing-Announcing Devices, Telecom Decision CRTC 85-2, 4 February 1985 (Decision 85-2), the Commission reviewed the advantages and disadvantages of Automatic Dialing-Announcing Devices (ADADs) in light of comments received from those responding to CRTC Telecom Public Notice 1984-17, 22 March 1984 (Public Notice 1984-17). In that Public Notice, the Commission had invited comment on whether the use of ADADs should be prohibited or restricted, and the nature of any such restrictions.
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An ADAD is automatic equipment incorporating the capability of storing telephone numbers to be called or which has the capability of producing numbers to be called, and which can be used, alone or in conjunction with other equipment, to convey a prerecorded or synthesized voice message to the telephone number called.
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The majority of residential telephone subscribers who commented in response to Public Notice 1984-17 were opposed to the use of ADADs for commercial solicitation purposes. Bell Canada (Bell) and BC TEL filed submissions proposing restrictions on the use of ADADs. Those using, selling or manufacturing ADADs generally agreed with the proposed restrictions.
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In Decision 85-2, the Commission concluded that, at least until it had been demonstrated that reasonable safeguards were not adequate to deal with the perceived abuses associated with the use of ADADs, outright prohibition on their use was not warranted. In reaching this conclusion, the Commission stated that it was influenced by the beneficial use to which such devices may be put. It was concerned, moreover, that the outright prohibition of ADADs would preclude persons who wish to receive notice of goods and services through telephone solicitation from obtaining access to those goods or services, and that businesses would be prevented from making use of the then new ADAD technology.
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The Commission subsequently approved tariffs with restrictions on the use of ADADs for the telephone companies then under its jurisdiction. These restrictions include the following terms: (1) the requirement that ADAD users notify the telephone company to whose facilities the device is to be attached, providing certain information (the telephone company is authorized to refuse to permit the attachment of the ADAD where it appears that network congestion would result); (2) a prohibition on using an ADAD for sequential or random dialing; (3) a requirement that ADAD calls begin with a statement identifying the caller, the nature of the call and that the called party may terminate the call by hanging up; and (4) a prohibition on the use of ADADs outside of certain calling hours. AGT Limited has similar restrictions in its tariffs.
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In 1987, complaints made to the Commission respecting ADADs represented less than 3% of all complaints received with respect to telecommunications. In recent years, the Commission has experienced a dramatic increase (more than doubling each year) in the number of complaints from subscribers related to the use of ADADs. By 1992, complaints on this topic had grown to represent over 25% of all complaints made to the Commission. Further, between 1 January and 30 June 1993, the Commission has received almost 5,000 complaints respecting ADADs. This represents over 40% of all complaints relating to telecommunications received by the Commission during this period.
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In the Commission's view, the complaints received by the Commission indicate a sharply increasing level of public annoyance with the use of ADADs. They also indicate that a significant number of ADAD users appear to be violating the tariff restrictions in a number of ways, thereby causing undue inconvenience and nuisance to subscribers. The violations complained of include the following:
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(1) calling outside of permitted hours, often waking subscribers and their children;
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(2) engaging in random or sequential dialing, thereby reaching subscribers with unpublished numbers and tying up consecutively numbered telephone locals in such multi-line institutions as hospitals; and
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(3) providing deficient caller identification statements, which prevent the caller from being identified and, therefore, contacted by the called party.
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In addition, some ADAD users are disseminating recorded messages that feature a 976 service number much more prominently than a number where the calling party can be reached; as a result, many subscribers who call intending to complain about the intrusion and/or request that they not be called again inadvertently dial a 976 number and incur the associated charges.
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To exacerbate the situation, often subscribers have complained to the Commission that they have received several of the identical offending calls daily, sometimes in rapid succession.
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The Commission notes that the restrictions established by Decision 85-2, as subsequently incorporated into Bell's tariffs, were amended in 1989 and again in 1992 in an attempt to address concerns expressed to the Commission respecting the annoyance caused by ADAD use. In the Commission's experience, restrictions on ADAD use have not been an effective means of preventing undue inconvenience and nuisance to subscribers.
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In late 1991 and 1992, Bell also filed an application with the Commission (Tariff Notices 4199 and 4199A) to amend its tariffs to address issues respecting the use of ADADs and predictive dialers (equipment that provides the called party with a live operator rather than a prerecorded or synthesized voice message). In its amended application, Bell proposed to replace its current provisions relating to ADADs with new ones that would have restricted the use of predictive dialers as well as ADADs and, in particular, would have restricted the use of these devices for commercial purposes.
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However, in view of difficulties it was experiencing with respect to certain operational aspects of its proposals, Bell subsequently sought to withdraw its amended application. By letter dated 26 March 1993, the Commission approved Bell's request. However, at that time the Commission also indicated that it was aware of, and shared, subscriber concerns respecting this use of Bell's facilities for unsolicited calling and would explore other options to deal with these concerns.
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More recently, on 6 August and 2 September 1993, Bell filed Tariff Notices 4869 and 4869A, respectively, in which it proposes to replace its existing rules respecting ADADs with restrictions on telemarketers, commercial solicitation and with new restrictions on automatic dialing devices. The term "automatic dialing device" (ADD), defined in Bell's proposal, is intended to include predictive dialers and facsimile devices as well as ADADs. If approved, certain of Bell's proposed restrictions would apply to all ADDs except those used for emergency purposes, while other restrictions would apply to all telemarketers.
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In support of its filing, Bell stated that consumer concerns about privacy and unsolicited telephone calls have continued to increase since its tariff was introduced in 1985. Bell states that its proposed restrictions are intended to ensure the consumer's right to privacy with respect to both telephone and facsimile solicitation.
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The Commission will issue a public notice with respect to Bell's tariff filing in the near future.
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II THE COMMISSION'S PROPOSAL
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In June 1993, Parliament enacted the Telecommunications Act, S.C. 1993, c. 38 (the Act). This legislation, which will come into force on 25 October 1993, both clarifies the Commission's role regarding unsolicited telecommunications and strengthens its powers to deal with this matter.
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Section 7(i) of the Act expressly states for the first time that an objective of Canadian telecommunications policy is "to contribute to the protection of the privacy of persons". In particular, section 41 of the Act provides that:
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The Commission may, by order, prohibit or regulate the use by any person of the telecommunications facilities of a Canadian carrier for the provision of unsolicited telecommunications to the extent that the Commission considers it necessary to prevent undue inconvenience or nuisance, giving due regard to freedom of expression.
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In the Commission's view, these legislative enactments demonstrate Parliament's concern with the protection of privacy of Canadians. The Commission also considers that the Act reflects Parliament's desire to provide the Commission with a clear mandate to take action regarding unsolicited telecommunications that may unduly infringe the privacy of subscribers.
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In view of the dramatic increase in subscriber annoyance regarding unsolicited ADAD calls, the apparent inability of the restrictions on the use of ADADs to control this trend, the capability of each ADAD to make thousands of calls a day, and the concerns of the public and legislators regarding the protection of privacy, the Commission considers that it may be in the public interest to prohibit the use of ADADs for certain purposes.
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The Commission proposes to prohibit the use of ADADs to place calls for a commercial purpose. Calls made with the use of ADADs in which money or money's worth is solicited from the called party (whether directly or indirectly, and whether on behalf of the ADAD user or for another party), and all calls made with the use of ADADs by commercial organizations would also be prohibited, regardless of whether the relationship or the purpose of the call might otherwise be characterized as commercial.
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The Commission notes that, in addition to calls which would ordinarily be considered to be commercial in nature, the proposed prohibition on the use of ADADs would include fund-raising calls placed by or on behalf of charities. Under the proposal, ADAD calls inviting the called party to call a 976 or 900 telephone number would be considered indirect solicitation of money.
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The Commission does not propose, however, to prohibit the use of ADADs for emergency or administrative purposes by organizations such as fire and police departments, schools, hospitals and similar social organizations. As well, the use of ADADs by commercial organizations to notify customers of safety-related product recalls would not be prohibited.
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The Commission contemplates that its proposal would apply to the connection of ADADs to the networks of all carriers under its jurisdiction.
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Interested parties are invited to comment on the Commission's proposal. The Commission also invites comment on what additional exemptions, if any, should exist (for example, to allow the use of ADADs to collect overdue accounts or for survey research).
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Persons who wish to propose an alternative approach for addressing the privacy concerns raised by the use of ADADs should describe that approach specifically. Those proposing an alternative approach, and those supporting retention of the current regulatory approach, should present any supporting material required to demonstrate why that approach would be both preferable to the Commission's proposal and effective in protecting against the undue inconvenience and nuisance caused by ADADs.
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The Commission notes that section 41 of the Act requires the Commission to give due regard to the freedom of expression guaranteed by the Canadian Charter of Rights and Freedoms. The Commission invites parties to comment on the extent to which proposals for eliminating undue inconvenience and nuisance caused by ADADs are consistent with this guarantee.
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III PROCEDURE
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1. The mailing address to be used in connection with this proceeding is:
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Mr. Allan J. Darling
Secretary General
CRTC
Ottawa, Ontario
K1A 0N2
Fax: 819-953-0795
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The record of the proceeding will be available for public inspection at the offices of the CRTC in the following locations:
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Room 201
Central Building
Les Terrasses de la Chaudière
1 Promenade du Portage
Hull, Quebec
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Suite 1007
Bank of Commerce Building
1809 Barrington Street
Halifax, Nova Scotia
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Suite 1920
Place Montréal Trust
1800 McGill College Avenue
Montréal, Quebec
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Suite 820
Standard Life Centre
121 King Street West
Toronto, Ontario
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Suite 1380
800 Burrard Street
Vancouver, British Columbia
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2. Persons who wish to comment, but who do not wish to participate in this proceeding as registered parties, may do so by writing to the Commission any time prior to 15 November 1993. These comments will form part of the record of this proceeding.
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3. Persons wishing to participate as registered parties to this proceeding must notify the Commission in writing of their intention to do so by 1 November 1993. Registered parties will be required to serve copies of their comments on all other registered parties. The Commission will issue a complete list of registered parties and their mailing addresses.
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4. Registered parties may file comments with the Commission, serving copies on all other registered parties, by 15 November 1993.
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5. Registered parties may file reply comments with the Commission, serving copies on all other registered parties, by 6 December 1993.
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6. Where a document is to be filed or served by a specific date, the document must be actually received, not merely mailed, by that date.
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Allan J. Darling
Secretary General
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