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Telecom Decision
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Ottawa, 13 June 1994
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Telecom Decision CRTC 94-10
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USE OF TELEPHONE COMPANY FACILITIES FOR THE PROVISION OF UNSOLICITED TELECOMMUNICATIONS
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I BACKGROUND
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A. The Current Regime
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An automatic dialing-announcing device (ADAD) is automatic equipment capable of storing or producing telephone 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 number called. The Commission's policy with respect to ADADs was first established in Use of Automatic Dialing-Announcing Devices, Telecom Decision CRTC 85-2, 4 February 1985 (Decision 85-2).
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In the proceeding leading to Decision 85-2, the majority of residential subscribers were opposed to the use of ADADs for the purpose of commercial solicitation. Both Bell Canada (Bell) and BC TEL filed submissions proposing restrictions on the use of ADADs. 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, an outright prohibition on their use was not warranted.
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The Commission subsequently approved tariffs with restrictions on the use of ADADs for telephone solicitation for the telephone companies then under its jurisdiction. These restrictions include the following: (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 and the nature of the call, and noting that the called party may terminate the call by hanging up; (4) a prohibition on the use of ADADs outside of certain hours; and (5) a requirement that the ADAD be disconnected within ten seconds of the called party hanging up.
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B. The Commission's Proposal
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On 21 September 1993, the Commission issued Use of Automatic Dialing-Announcing Devices, Telecom Public Notice CRTC 93-58 (Public Notice 93-58), in which it stated the view that restrictions on ADAD use have not been an effective means of preventing undue inconvenience and nuisance to subscribers.
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In that Public Notice, the Commission noted that, in 1987, complaints to the Commission respecting ADADs represented less than 3% of all complaints received with respect to telecommunications. However, by 1992, complaints on this topic had grown to represent over 25% of telecommunications complaints. Further, between 1 January and 30 June 1993, the Commission received almost 5,000 complaints respecting ADADs, representing over 40% of all complaints relating to telecommunications received during that period.
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The Commission expressed the view that the complaints it had been receiving indicated a sharply increasing level of public annoyance with the use of ADADs. The Commission also considered that these complaints indicated that a significant number of ADAD users appeared to be violating the tariff restrictions in a number of ways, thereby causing undue inconvenience and nuisance to subscribers.
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The Commission noted that section 41 of the Telecommunications Act (the Act) states:
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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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The Commission also noted that one of the policy objectives set out in section 7 of the Act is "to contribute to the protection of the privacy of persons".
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The Commission stated that it may be in the public interest to prohibit the use of ADADs for certain purposes, 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.
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Pursuant to section 41 of the Act, the Commission proposed in Public Notice 93-58 to prohibit the use of ADADs to place calls for a commercial purpose. This would include 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); 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. The Commission's proposed prohibition on the use of ADADs would also include calls placed by or on behalf of charities. 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 did not propose 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 contemplated that its proposal would apply to the connection of ADADs to the networks of all the telephone companies then under its jurisdiction, specifically, AGT Limited (AGT), BC TEL, Bell, The Island Telephone Company Limited (Island Tel), Maritime Telegraph and Telephone Company Limited (MT&T), The New Brunswick Telephone Company Limited (NBTel), Newfoundland Telephone Company Limited (Newfoundland Tel) and Northwestel Inc. (Northwestel).
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Interested parties were invited to comment on the Commission's proposal and were given an opportunity to propose alternative approaches. The Commission also invited 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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The Commission also invited parties to comment on the extent to which proposals for eliminating undue inconvenience and nuisance caused by ADADs are consistent with the freedom of expression guaranteed by the Canadian Charter of Rights and Freedoms (the Charter).
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C. Bell's Proposal
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On 6 August and 2 September 1993, Bell filed Tariff Notices 4869 and 4869A, respectively, in which it proposed to replace its existing rules respecting ADADs with new restrictions on automatic dialing devices (ADDs) and on the use of its facilities by telemarketers. Bell defined an ADD as:
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... any automatic equipment, including facsimile, which has the capability of storing telephone numbers to be called, or a random or sequential number generator capable of producing numbers to be called, and the capability, working alone or in conjunction with other equipment, to convey a message to the telephone number called.
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Thus, the proposed restrictions would apply to a broader range of equipment than is currently the case, including predictive dialers and facsimile machines.
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Bell proposed to define a "telemarketer" as any person who utilizes the company's facilities to contact new or existing customers. It would include any person promoting its business through a third party. Bell subsequently amended its proposal, stating that this definition would not apply to (1) charitable organizations with tax-exempt status, provided that they did not use a telemarketing organization; (2) market research and survey firms; and (3) parties calling for account collection purposes.
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Certain of Bell's proposed restrictions would apply to the use of its facilities in conjunction with ADDs; other restrictions would apply to all calls placed by telemarketers, regardless of whether or not an ADD was used.
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Under Bell's proposed tariffs, all users of ADDs would be required to register with the company. Further, Bell could refuse to permit the attachment of any ADD to its facilities if it anticipated that network congestion would result. Bell also proposed tariff provisions that would apply to all ADDs other than those used for emergency purposes (specifically, the provisions would not apply to ADDs such as those used by police, fire, utilities and other services to provide emergency announcements). These provisions would permit the company to suspend service to an ADD when usage resulted in network congestion or blockage. In addition, ADD users would be required to: (1) minimize the number of calls where an operator was not immediately available, when using an ADD to deliver a "live voice" message; and (2) disconnect within ten seconds of the called party hanging up.
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Telemarketers using Bell's facilities would be required: (1) to transmit to the called party, for display, an inquiry telephone number that could be called to register any concerns (this inquiry number could not be the originating number, and telemarketers would be required to subscribe to an alternate number display service); (2) when conveying live messages, to identify the person on behalf of whom the call is made and to provide, upon request, an inquiry telephone number at which a responsible party could be reached to discuss the message, at no charge; (3) when conveying live messages, to abide by the called party's request not to be called again; (4) not to generate telephone numbers to be called on a sequential or random basis; (5) to abide by calling hour restrictions; (6) when referring customers to a 976 or 900 number, to state clearly the cost of the call prior to giving the number to the called party; and (7) when using ADADs, to include in their messages, within 30 seconds of the called party answering and also at the conclusion of the message, a statement clearly specifying the identity of the person on whose behalf the call is made and an inquiry telephone number at which a responsible party could be reached, at no charge, to discuss the message.
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Bell's proposed tariff revisions also set out terms governing customer complaints regarding annoying calls and the suspension and termination of service to telemarketers who violated the restrictions. Bell proposed a definition of "annoying call" which, as amended by the company during the proceeding, would apply to a voice or facsimile call received by a called party within 30 days of his or her request not to be called again by that caller.
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Finally, Bell proposed that Business Trunk Line rates (General Tariff Item 70.5) apply to the central office line or Centrex local to which an ADD is connected. In addition, such rates would apply to the central office line or Centrex local used by a telemarketer for commercial solicitation. Commercial solicitation would be deemed to occur when any business in the pursuit of commercial interests seeks to obtain new business.
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In support of its filing, Bell stated that consumer concerns related to privacy and unsolicited telephone calls have continued to increase since its current tariff was introduced in 1985. The company stated that the proposed restrictions better reflect current technology and provide a means of ensuring the consumer's right to privacy with respect to telephone and facsimile solicitation.
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On 27 September 1993, the Commission issued Bell Canada - Proposed Tariff Revisions Related to Commercial Solicitation, Telemarketers and the Use of Automatic Dialing Devices, Telecom Public Notice CRTC 93-59 (Public Notice 93-59), inviting comment on Bell's application. The Commission noted that interested persons might also wish to comment in the proceeding initiated by Public Notice 93-58.
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II POSITIONS OF PARTIES
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Public Notices 93-58 and 93-59 generated comments from a wide variety of parties, including individuals, businesses, market and survey research agencies, consumer organizations, charities and various fund-raisers. Stentor filed comments on the Commission's proposal on behalf of AGT, Bell, BC TEL, Island Tel, MT&T, NBTel, and Newfoundland Tel.
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In general, the Commission's proposal to ban ADADs for solicitation received broad support. The Consumers' Association of Canada (CAC), the Fédération nationale des associations de consommateurs du Québec (FNACQ) and other parties expressed concern with respect to the annoyance and invasion of privacy caused by ADADs. FNACQ also submitted that telemarketing violates the privacy of subscribers. CAC, based on its experience with its membership and on the complaints it has received from the general public, was of the view that the current regulation of ADADs has been ineffective. CAC also observed that public annoyance and inconvenience with respect to the devices appears to be growing.
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However, many parties considered that the proposed prohibition was too broad and that it would prohibit the continued use of ADADs for many legitimate commercial purposes (for example, scheduling customer service, appointment reminders, notices of special offers or activities). Such parties stressed the importance of such "telemarketing calls" for efficient business operations and, in the context of "live voice" calls, the importance of solicitation calls for charitable and non-profit organizations for fund raising.
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A number of parties emphasized the importance of telemarketing to the Canadian economy generally and, in particular, to job creation. Parties also emphasized that ADAD users and other callers who found the rules too restrictive could simply place their calls from a jurisdiction with a more liberal regime. In this case, not only would the Commission's purpose be frustrated, the associated jobs and economic activity would be lost.
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Certain parties cautioned that the Commission's proposed prohibition on virtually all ADAD use could be overly broad and thus subject to challenge under the Charter. This was also argued in the context of Bell's proposal.
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The Canadian Direct Marketing Association (CDMA), among others, suggested that ADADs restrictions be limited to unsolicited calls made to individuals where there is no previous relationship or, alternatively, that no restrictions be placed on calls to existing customers. Strategy Forum, on the other hand, disagreed that the existence of a prior relationship necessarily indicates that the called party will be receptive to a solicitation call.
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Certain groups (notably survey researchers, account collectors and charities) requested exemptions for their activities with respect to all or part of both the Commission's proposed ban on ADAD use and Bell's proposed restrictions. Survey researchers argued in particular that, if they were subject to the requirement not to dial randomly, research results used for product and service development and for public policy formulation would not be reliable, and the legitimate survey research industry in Canada would be crippled. They were supported in this by many users of survey research. Such parties also argued that there is a fundamental difference between the activities of a survey researcher and those of a telemarketer. They argued that researchers are subject to codes of ethics governing their activities, and that these activities have not been shown to be the cause of the complaints to which the Commission referred in its Public Notice.
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Unitel Communications Inc. (Unitel) supported the use of ADADs for solicitation purposes to request that the called party hold until a live operator was available.
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III CONCLUSIONS
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A. General
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In assessing whether or not to impose greater restrictions on the use of ADADs (or on telemarketing and the use of ADDs, in the case of Bell's proposal), the Commission has taken into account the number and nature of the complaints it has received, comments filed with respect to its proposal, as set out in Public Notice 93-58, and comments filed with respect to Bell Tariff Notices 4869 and 4869A. In arriving at its conclusions, the Commission has considered how it may best fulfil the intent of section 41 of the Act and achieve the objectives set out in section 7 (in particular, the objective "to contribute to the protection of the privacy of persons"). At the same time, the Commission has taken into account the legitimate uses to which ADADs can be put and the concerns expressed as to the negative consequences of overly broad restrictions on the use of telephone company facilities to make unsolicited calls. As required by section 41, the Commission has also given regard to the guarantee of freedom of expression set out in the Charter, as discussed below.
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The Commission is cognizant of the point raised by various interveners that a few irresponsible operators have been the cause of the majority of complaints the Commission has received. In this context, the Commission would note that it has found its current regime inadequate to deal with the complaints it has received, regardless of the number of operators responsible.
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Based on the framework described above, the Commission finds that the inconvenience or nuisance caused by unsolicited telecommunications, as well as the perceived invasion of privacy, varies depending on the nature of the call, i.e., whether it is "live" or delivered by means of an ADAD, and on the purpose of the call, i.e., whether it is for the purpose of solicitation or for some other purpose. In general, unsolicited ADAD calls cause greater inconvenience or nuisance than unsolicited live voice calls, and are more likely to be perceived as an intrusion, because ADAD calls do not permit the called party to interact with the caller. In addition, calls for the purpose of solicitation are more likely to be perceived as an intrusion or nuisance than calls for certain other purposes, which may be perceived by the called party as providing a benefit. Further, based on the record of the proceeding, the Commission finds no material distinction, in terms of nuisance, inconvenience and invasion of privacy, between a call made to solicit on behalf of a charity and one made to solicit on behalf of a "commercial organization".
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B. Prohibition on ADAD Calls for the Purpose of Solicitation
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Based on the above, the Commission finds that it is in the public interest to prohibit the use of ADADs to make unsolicited calls for the purpose of solicitation, defined as the selling or promoting of a product or service, or the soliciting of money or money's worth, whether directly or indirectly and whether on behalf of the ADAD user or of another party. The Commission does not consider it appropriate to exempt from this definition ADAD calls made to solicit on behalf of a charity, the use of ADAD messages to request that a called party hold until an operator is available (when the purpose of the call is to solicit), activities such as radio station promotions, or ADAD calls referring the called party to a 900 or 976 Service number. The prohibition is to apply in the territories of AGT, BC TEL, Bell, Island Tel, MT&T, NBTel, Newfoundland Tel and Northwestel.
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As noted above, in arriving at its determination to prohibit the use of ADADs for the purpose of solicitation, the Commission has taken into account the guarantee of freedom of expression set out in the Charter. In this regard, the Commission has limited the scope of its prohibition to those kinds of calls most clearly demonstrated to constitute an undue inconvenience, nuisance and invasion of privacy to subscribers.
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The Commission would also note that the purpose of the prohibition is not to restrict the content of the message in question. These same messages can still be delivered via live voice or facsimile. Rather, the Commission's purpose is to limit the consequences of the use of ADADs, i.e., the inconvenience and nuisance brought about by an uninvited and, because of its prerecorded or synthesized form, particularly annoying intrusion into the homes of telephone subscribers.
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In this context, the Commission notes the evidence before it, both on the record of the proceeding and in the form of the complaints it has received, as to the annoyance experienced by many subscribers on receiving calls such as those the Commission is prohibiting. In the Commission's view, this evidence demonstrates both the inefficacy of the existing restrictions and the importance ascribed to this issue by telephone subscribers.
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In light of the above, the Commission is of the view that, should the prohibition approved in this Decision be found to violate the Charter guarantee of freedom of expression, it would also be found to constitute a "reasonable limit" that can be "demonstrably justified in a free and democratic society". As noted above, the Commission has sought to limit its prohibition to those activities that clearly cause undue inconvenience or nuisance, as specified in section 41 of the Act.
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In light of comments (primarily in the context of Bell's filing) as to the range of devices that could potentially be considered ADADs, the Commission considers it appropriate to clarify the applicable definition. Accordingly, for the purposes of this Decision, an ADAD is defined as "automatic equipment incorporating the capability of storing or producing telephone numbers to be called, 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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Consistent with its later remarks, the Commission considers that those who violate the prohibition on the use of ADADs to make unsolicited calls for the purpose of solicitation should be subject to having their service terminated upon two business days' notice from the telephone company.
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C. Proposed Restrictions on Unsolicited ADAD Calls for Purposes other than Solicitation
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1. General
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Based on the general framework described in Part A, the Commission finds that it is not in the public interest to prohibit unsolicited ADAD calls where no attempt is made to solicit, for example, calls for emergency purposes, calls to collect overdue accounts, calls for market or survey research and calls to schedule appointments.
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The Commission does not currently impose conditions on the use of ADADs for purposes other than telephone solicitation. Since the Commission's proposal would have entailed an outright prohibition of the use of ADADs for commercial purposes, it did not include proposals as to conditions on their use for purposes other than solicitation. However, the Commission received comments on the possibility of applying such conditions in the context of both its own proposal and Bell's proposed tariff. In order to reduce any undue inconvenience, nuisance and invasion of privacy from permitted unsolicited ADAD calls, the Commission is of the preliminary view that additional tariff provisions, described below, should be adopted to apply to such calls in the territories of AGT, BC TEL, Bell, Island Tel, MT&T, NBTel, Newfoundland Tel and Northwestel. In general, the proposed conditions mirror the practices already followed by responsible ADAD users.
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The Commission does not propose that these conditions apply to calls made for public service reasons, i.e., calls made for emergency and administrative purposes by police and fire departments, schools, hospitals or similar organizations.
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2. Calling Hours
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Most comments on the question of appropriate calling hours were made in the context of Bell's proposal. Bell's proposed calling hours, to apply to calls from telemarketers, differed somewhat from those presently in place for the use of ADADs for telephone solicitation. Specifically, Bell proposed that calls from telemarketers be permitted weekdays between 9 a.m. and 9 p.m., Saturdays between 10 a.m. and 6 p.m., and Sundays between noon and 5 p.m. Bell also proposed that calls not be permitted on statutory holidays. Bell stated that these proposed calling hours are a compromise between the existing hours and those favoured by the telemarketing industry.
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Standard Radio argued that the limitation on calling hours (and the requirement to identify the client) would reduce the effectiveness of telephone surveys. Several other parties commented on the appropriateness of applying calling hour restrictions to ADAD calls for account collection purposes.
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The Commission is of the preliminary view that the calling hours currently applicable to ADAD calls for telephone solicitation in the territories of Bell, BC TEL, and Northwestel should now apply to unsolicited ADAD calls for purposes other than solicitation. In particular, such ADAD calls should be made only between 9:30 a.m. and 8 p.m., Monday to Friday, between 10:30 a.m. and 5 p.m., Saturday, and between noon and 5 p.m., Sunday. The Commission notes that these calling hours also currently apply in the territory of AGT, with the exception that Sunday calling is not permitted.
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The Commission notes that provincial legislation may govern certain calling activities, for example, legislation governing the collection of overdue accounts setting out the hours during which calls for that purpose may be made. In such cases, the calling hours proposed in this Decision would not apply.
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3. Calling Party Information, Call-back Lines
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The existing regime requires that ADAD calls for telephone solicitation begin with a statement identifying the caller. Bell proposed that telemarketers using ADADs also be required to repeat the identification message at the end of the call. Canadian Tire suggested that the identification be repeated only when the message delivered exceeded, for example, 60 seconds.
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In order to permit called parties to better identify the caller and to assist in the tracing of calling parties who may violate the conditions, the Commission considers that each permitted unsolicited ADAD call should begin with a clear message identifying the person on behalf of whom the call is being made. This identification message should include: (1) a mailing address, and (2) a telephone number at which the called party can reach, at no charge, a responsible individual representing the originator of the message. If the actual message relayed exceeds 60 seconds, the identification message should be repeated at the end of the call, thus giving the called party a second opportunity to note the information in question.
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The Commission notes that Standard Radio argued that the requirement to identify a client would reduce the effectiveness of telephone surveys. Under the terms of this Decision, live voice calls for survey research will not be subject to restrictions. Thus, where identification of the called party would, for example, bias the results, surveys could still be conducted by means of "live" operators.
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4. Display of Originating Number
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The Commission notes that Call Number Display will generally display a calling party's telephone number, unless the caller takes some action to prevent it. The Commission considers that those making permitted unsolicited ADAD calls should be required to display the originating calling number, except where number display is unavailable for technical reasons, in order to permit called parties to better identify the caller and assist in the tracing of calling parties who may violate the restrictions. Alternatively, ADAD users may subscribe to an alternate number display service, and thus display another telephone number at which the call originator can be reached.
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In light of the above, the Commission also considers that Bell's tariffs should be amended to specify that those who resell Centrex Service are to make all reasonable efforts to ensure that the end-user does not employ the service to transmit unsolicited ADAD calls other than those made for public service reasons.
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Where the ADAD caller uses an alternate service provider, the telephone company should be required to provide the caller's originating number or an alternate display service number to that service provider, unless this is impossible for technical reasons.
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5. Dialing Restrictions
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The rules that now apply prohibit sequential and random dialing only for ADAD calls made for solicitation purposes. In the context of Bell's proposal, market and survey researchers, and their clients, were particularly opposed to the proposed prohibition on random dialing.
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When the Commission first imposed the requirement not to dial randomly or sequentially on ADADs used for solicitation, it was in response to concerns that dialing should not result in calls to emergency lines or healthcare facilities. The Commission's original concern that unsolicited ADAD calls not tie up lines to such facilities remains. In addition, the Commission's experience indicates that sequential dialing causes difficulties for many multi-line customers. Accordingly, the Commission considers that a prohibition on sequential dialing should apply to permitted unsolicited ADAD calls. However, neither the record of the proceeding nor the complaints received indicate that there is a general problem with respect to random dialing for calls for purposes other than solicitation. Accordingly, the Commission will allow random dialing for permitted unsolicited ADAD calls, as well as calls to non-published numbers. However, the Commission considers that it would be appropriate to allow random dialing only if parties making permitted unsolicited ADAD calls ensure that no such calls are made to emergency lines and healthcare facilities.
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6. Ten-second Disconnect Rule
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The present rules require that ADADs used for telephone solicitation must disconnect within 10 seconds of the called party hanging up. The purpose of this rule is to ensure that an ADAD replicates the actions of a human caller, i.e., that it hangs up within a reasonable period, thus permitting the called party to regain control of his or her telephone line.
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Canadian Tire submitted that the rule is unnecessary in light of the deployment of digital technology with end-to-end call supervision. Sears suggested that the wording of the rule should be amended to take into account malfunctions in either the telephone company's or the ADAD caller's equipment.
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The Commission notes that there are switching technologies that cannot ensure that the call is disconnected when the called party hangs up. Therefore, in order to ensure that the called party is not denied access to his or her line, it is necessary to require that ADADs have the capacity to recognize that the called party has hung up.
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In light of the above, the Commission considers it appropriate to apply the 10-second rule to permitted unsolicited ADAD calls. However, as suggested by Sears, the Commission proposes to amend the rule to specify that callers using ADADs are to make all reasonable efforts to ensure that their equipment disconnects within 10 seconds of the called party hanging up.
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7. Enforcement
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The Commission received extensive comment on the question of enforcement in the context of Bell's Tariff Notices 4869 and 4869A. Consistent with its remarks in Section D with respect to Bell's proposed enforcement provisions, the Commission considers it appropriate that those who violate any of the restrictions on permitted unsolicited ADAD calls may have their service terminated after two business days' notice from the telephone company.
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The Commission would note that its comments with respect to Bell's proposed tariffs as to proper evidentiary standards for the suspension or termination of service and the need to provide alleged violators with an opportunity to respond to any complaints will apply equally to the enforcement of the conditions ultimately approved for permitted unsolicited ADAD calls.
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8. Procedure
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Parties to this proceeding may file comments setting out any reasons why the conditions proposed above should not apply in the territories of AGT, BC TEL, Bell, Island Tel, MT&T, NBTel, Newfoundland Tel and Northwestel Tel. The Commission notes that, in the territory of Manitoba Telephone System (Manitoba Tel), ADAD calls for the purposes of telephone solicitation are already prohibited and some restrictions on other types of ADAD calls are in place. The Commission considers that it may be appropriate to apply the above conditions to unsolicited ADAD calls for non-solicitation purposes in the territory of Manitoba Tel. Parties may also address this issue in their comments.
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(1) Parties to the proceeding established in Public Notices 93-58 and 93-59 may file comments with respect to the above, serving copies on all other parties, by 11 July 1994.
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(2) Manitoba Tel is directed to file and serve on all parties, by the same date, comments as to the appropriateness of applying the Commission's proposed conditions for permitted unsolicited ADAD calls in its operating territory. Parties commenting with respect to the applicability of those proposed conditions to Manitoba Tel should also serve copies of their comments on that company at the following address:
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Mr. David Werthman
Director
Regulatory Affairs
Manitoba Telephone System
Box 6666
489 Empress Street
Winnipeg, Manitoba
R3C 3V6
Fax: (204)775-2560
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(3) Parties and Manitoba Tel may file reply comments, serving copies on each other, by 25 July 1994.
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D. Bell - Conditions for Unsolicited Live Voice and Facsimile Calls for the Purpose of Solicitation
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1. General
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The Commission considers that unsolicited live voice and facsimile calls that solicit have greater potential to cause inconvenience or annoyance than such calls placed for other purposes. In light of this assessment, Bell's proposals are overly broad in the range of activities to which they would apply. For example, the proposed conditions would apply to a call to advise an existing customer that an order is in or a call by a doctor's office to advise a patient of a changed appointment.
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In light of the above, the Commission denies Bell's Tariff Notices 4869 and 4869A. However, it has drawn on Bell's proposals in establishing certain additional conditions, to apply in Bell territory only, on the use of live voice operators or facsimile equipment to make unsolicited telephone calls for the purpose of solicitation, defined as selling or promoting a product or service, or soliciting money or money's worth, whether directly or indirectly and whether on behalf of the caller or of another party. These conditions are described below. They will not apply to live voice and facsimile calls that do not solicit, including calls for account collection and market and survey research, since these calls have less potential to cause undue inconvenience or nuisance. However, they will apply to calls on behalf of charitable institutions for the purpose of solicitation.
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2. "Do Not Call" List
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Bell proposed tariff provisions that would require telemarketers to comply with a called party's request not to be called again. Bell submitted that it should be the responsibility of each telemarketer to maintain its own "do not call" list, stating that it would be disruptive, time-consuming and unnecessary for the company to keep a centralized list.
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Bell also proposed tariff provisions related to the suspension or termination of service for placing "annoying calls". Bell initially defined an "annoying call" to be two unsolicited calls or facsimiles received by a customer from the same telemarketer within 30 days. In response to concerns expressed by parties, Bell subsequently proposed to define an "annoying call" as a call received by a called party within 30 days of his or her request not to be called again by that caller.
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CDMA noted that the average campaign lasts about a month, and indicated that, generally, telemarketers would not contact an individual more than once during a campaign. The Canadian Centre for Philanthropy stated that charities may call the same household more than once a month for different purposes, for example, first to solicit a donation and subsequently to extend an invitation to a special event.
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In the Commission's view, it is entirely consistent with section 41 and section 7 of the Act that parties placing unsolicited live voice or facsimile calls for the purpose of solicitation be obliged to comply with a called party's request not to be called again, since repeated calls to solicit from the same party after such a request cause considerable inconvenience and nuisance to subscribers. Bell's tariffs are therefore to state that parties placing unsolicited live voice or facsimile calls to solicit are to ensure that a subscriber's request not to be called again is respected and that the subscriber's name and telephone number are removed from calling lists. Where a professional organization is calling to solicit on behalf of a client and the called party requests not to be called again by that organization, the organization is to remove the called party's name and telephone number from its calling lists.
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The Commission notes CDMA's submission that the average "campaign" lasts about a month and that, generally, an individual would not be contacted more than once during a campaign. In light of concerns expressed as to the time needed to update lists, the Commission considers it reasonable that parties calling to solicit be given a period within which to comply with a request not to be called again, and finds 30 days to be a reasonable period for that purpose. As to the comments of the Canadian Centre for Philanthropy, the Commission notes that the obligation not to call again will apply only to calls made for the purpose of solicitation.
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A subscriber's "do not call" request is to remain active for three years.
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In conjunction with its prohibition on the use of ADADs to make unsolicited calls for the purpose of solicitation, the Commission considers the above provisions sufficient to prevent undue inconvenience or nuisance to subscribers from repeated calls to solicit. Accordingly, the Commission does not consider specific tariff provisions related to "annoying calls" to be necessary.
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3. Caller Identification and Contact Information
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Bell proposed that telemarketers be required to identify the person on whose behalf the call is made; a professional calling organization would also be required to identify the organization. Telemarketers placing facsimile calls would be obliged to provide a telephone number at which a responsible party could be reached at no charge to discuss the message. Telemarketers placing live voice calls would be obliged to provide the same information, upon request. In the case of live voice calls, the telemarketer's representative would be required to make reasonable efforts to speak with the called party before the end of the next business day.
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Certain charitable groups objected to the cost involved in providing a telephone number that the called party could contact at no charge.
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The Commission considers it appropriate that Bell include in its tariffs provisions requiring both individuals and professional organizations placing unsolicited live voice and facsimile calls to solicit to provide sufficient information to permit the called party to take any further action he or she considers necessary with respect to the call. Thus, Bell's tariffs should specify that those placing unsolicited live voice and facsimile calls to solicit are to identify the person on behalf of whom the call is made. Those placing facsimile calls to solicit are also to provide the caller's telephone number, facsimile number and the name and address of a responsible person to whom the called party can write. Those placing live voice calls to solicit are to provide, upon request, the caller's telephone number and the name and address of a responsible person to whom the called party can write.
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Professional calling organizations placing unsolicited live voice or facsimile calls to solicit are also to provide the same information with respect to the organization.
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The Commission does not consider it necessary to require that called parties be able to telephone the caller free of charge.
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4. Display of the Originating Number
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Bell proposed that telemarketers be required to transmit an inquiry telephone number different from the originating number; telemarketers would not be permitted to block the display of the number. Various parties, while not necessarily objecting to the display of their number, objected to being required to display a number different from the originating number, which would oblige them to subscribe to Bell's alternate number display service. The Canadian Centre for Philanthropy requested that they be provided with the service free of charge.
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Unitel expressed concerns about the competitive implications for alternate carriers if Bell's tariff required the display of information that was not available through the network.
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The Commission notes that calling number display has proven useful in the filing and investigation of complaints against persons violating existing ADADs tariffs. Accordingly, the Commission considers that parties making unsolicited live voice or facsimile calls to solicit should be required to display the originating telephone number, unless Call Number Display is unavailable for technical reasons. The Commission does not consider it necessary to impose the additional requirement that the number displayed be different from the originating number, as the originating number, in conjunction with the other identification requirements set out in this Decision, should be sufficient for the purposes of contacting the caller and enforcing the tariff. However, if callers choose to subscribe to alternate number display, that option is acceptable, as the alternate telephone number is clearly traceable to the caller.
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In light of the requirement to display the originating number, Bell's tariffs are to specify that those who resell Centrex Service are to make all reasonable efforts to ensure that the end-user does not employ the service to transmit unsolicited live voice or facsimile calls for the purpose of solicitation.
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Where the caller uses an alternate service provider, the telephone company is directed to provide the caller's originating number or the alternate number to that service provider, unless the network is incapable of delivering the information.
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These requirements are to apply equally to facsimile messages for the purpose of solicitation.
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5. Sequential and Random Dialing
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Consistent with its proposals for permitted ADAD calls, the Commission considers it appropriate to prohibit sequential dialing for unsolicited live voice and facsimile calls for the purpose of solicitation. The Commission will allow random dialing and calls to non-published numbers. However, Bell's tariffs are to specify that parties placing unsolicited live voice and facsimile calls to solicit must ensure that calls are not placed to any emergency line or healthcare facility.
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6. Enforcement
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Bell's proposed tariff revisions specified that telephone service could be terminated five days after notice from the company of any violation. They also stated explicitly that notification by a called party to Bell of an alleged violation could constitute evidence of that violation.
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The proposed tariffs further specified that, when a customer complained to Bell about receiving "annoying calls", the company could inform the caller that service would be suspended for five days; the caller's service could be terminated after three such suspensions, five days after notice from the company.
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Many parties expressed concerns that the enforcement provisions of Bell's tariff, when combined with its definition of an "annoying call", would give Bell too broad a discretion to suspend or terminate service on the basis of a very few, possibly unfounded, complaints.
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In replying to parties' concerns, Bell stated that it recognizes the need for caution in handling complaints. It stated that complaints would be thoroughly investigated and that an historical record of complaints would play a large role in the administration of the tariff. Bell proposed to establish a "telemarketing complaints centre", accessible via a 1-800 telephone number. Bell also stated that it was developing internal policies, which were not yet available, for the handling of telemarketing complaints.
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The Commission recognizes parties' concerns with respect to enforcement, and notes Bell's acknowledgement of the need to investigate complaints to ensure that they are founded in fact. Such an investigation would necessarily entail an opportunity for callers who have allegedly violated the tariff provisions to respond to any complaints. Further, any assessment of the sufficiency of the evidence as to an alleged violation must be made with reference to the serious consequences that can flow from termination of service.
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The Commission does not consider it necessary that Bell include a tariff provision to the effect that "notification by a called party to the company of an alleged violation may constitute evidence of that violation". Bell stated that this provision was included so that it would not be bound to accept each report of an alleged violation on its face. In the Commission's view, the proposed wording is merely a statement of the obvious and neither adds to nor detracts from the obligation to investigate complaints thoroughly, giving the alleged violator an opportunity to respond, and to assess the sufficiency of evidence in light of the consequences to the alleged violator of having service terminated.
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In the Commission's view, Bell's proposal that telephone service may be terminated five days after notice from the company of a violation should be amended to provide that service may be terminated upon notice after two business days. In the Commission's experience, certain callers take advantage of the existing five-day period to continue to place a very large number of calls in violation of the tariff, knowing that they have this five-day period before disconnection. In view of this, the Commission considers a period of two business days appropriate.
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Bell stated during the proceeding that all telemarketing lines associated with the account to which an offending line is billed would be subject to suspension or termination. The Commission agrees with this approach, but notes that the wording of Bell's tariff, as filed, is broader, i.e. it refers to the possible termination of "telephone service to a telemarketer". The Commission considers that Bell's tariff should make it clear that the services subject to suspension or termination are those used in the placing of calls that violate the tariff conditions.
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Bell proposed that, when any of its services is used to route an ADD message, that service be subject to its proposed tariff. This condition is included in Bell's current tariff with respect to restricted ADADs and was added relatively recently to address the situation where a caller uses a Centrex reseller and the caller's originating calling number is hidden from called parties.
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As noted above, Bell's tariff will specify that all lines used in connection with the placing of calls in violation of the tariff conditions will be subject to suspension or termination. Further, resellers of Centrex Service will be required to make all reasonable efforts to ensure that the end-user does not employ the service to transmit unsolicited live voice or facsimile calls for the purpose of solicitation. Accordingly, the Commission finds that an additional tariff provision, such as that proposed by Bell, is no longer required.
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Bell proposed additional enforcement provisions with respect to the suspension or termination of 900 or 976 Service used in conjunction with soliciting telephone calls. Given that service to lines used to place unsolicited calls to solicit can be terminated for a violation of the tariff conditions, the Commission considers that this additional sanction is not required. In addition, such a provision is not consistent with the enforcement provisions applicable to parties selling or promoting other products or services, whose other business lines will not be subject to suspension or termination. Finally, as noted below, there are restrictions in the 900 and 976 Service tariff regarding, among other things, effective notice to the caller of applicable charges, and that these tariffs specify appropriate sanctions for violations.
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E. Other Provisions Proposed by Bell
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1. Operator Availability
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Bell proposed that callers using predictive dialers in conjunction with a live message be required to minimize the number of calls where an operator is not immediately available when the called party answers. The proposed provisions would require that, when an operator is not available immediately, the caller would have to provide a prerecorded or synthesized message or call again as soon as an operator is available.
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CDMA expressed concern that use of an ADAD in such situations would provoke consumer irritation. Bell and CDMA were both of the view that a second live voice call would be more reassuring than annoying to called parties. CDMA stated that it expects that new software developments will make it possible to virtually eliminate the problem within a year.
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In the Commission's view, parties using predictive dialers to place live voice calls to solicit should minimize the number of calls where an operator is not immediately available. The Commission encourages such callers to adopt any technical advances in predictive dialing that would assist in achieving this objective. The Commission will monitor the complaints it receives in order to determine whether there is a particular problem with respect to calls where an operator is not immediately available.
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However, the Commission agrees with CDMA that callers should not be required to provide a prerecorded or synthesized message when an operator is not available. Indeed, the Commission's prohibition on the use of ADAD messages to introduce live voice calls for the purpose of solicitation would preclude this practice.
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The Commission does not consider it appropriate that parties who call to solicit be required to call again as soon as an operator is available, as the possibility exists that such calls could also provoke consumer irritation.
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2. Calling Hours
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The complaints that the Commission has received do not indicate that subscribers are experiencing difficulties with respect to the times at which they are receiving live voice telephone calls for the purpose of solicitation. Further, the other restrictions approved in this Decision provide an appropriate measure of increased privacy and subscriber control over the calls they receive. Accordingly, the Commission does not consider it appropriate to specify calling hours for live voice calls for the purpose of solicitation. Similarly, the Commission sees no need to specify hours to apply to facsimile calls, given the nature of facsimile communications.
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3. Referrals to 900 and 976 Service Telephone Numbers
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Bell proposed that callers referring customers to 900 or 976 Service numbers be required to state the cost of the call for such services before providing the telephone number. As noted earlier, ADAD calls referring the called party to a 900 or 976 Service telephone number will now be subject to the Commission's prohibition on the use of ADADs to place unsolicited calls to solicit. In addition, 976 and 900 service providers are required, by virtue of the tariffs applicable to those services, to state the cost of the telephone call at the beginning of each advertisement or other communication concerning the 976 or 900 service in question. The Commission does not consider that additional consumer protection in this respect is required.
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4. Rates
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Bell proposed to apply its Business Trunk Line rates to central office and Centrex local lines to which an ADD is connected and to all such lines used by a telemarketer for "commercial solicitation", as defined in Bell's proposal.
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In the Commission's view, Bell has not adequately supported its proposal to apply the higher rate more broadly, as described above. In particular, the company provided no information as to costs incurred with respect to lines attached to ADDs or lines used by telemarketers in general. In addition, the company provided no rationale to justify its rates (based, for example, on particularly heavy usage). On the latter point, the Commission notes that, in its submission with respect to Public Notice 93-58, Stentor stated that ADADs can place a far greater number of calls than technology linked to a live operator.
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5. Network Issues
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Bell's proposed tariff revisions would require all ADD users to inform it of the attachment of the equipment; further, the company could refuse the attachment if network congestion was anticipated, or suspend service if the device was already attached (ADADs for emergency purposes would be exempt from the latter requirement).
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The Commission is not aware of any particular difficulties with network congestion caused by dialing devices other than ADADs used for solicitation. Further, the Commission agrees with parties that Bell's proposed definition of an ADD is overly broad and would capture technologies that are unlikely to cause undue inconvenience or nuisance to subscribers. Finally, the Commission notes that the telephone companies' Terms of Service contain provisions that allow them to suspend or terminate service where a customer uses or permits others to use services so as to prevent fair and proportionate use by others.
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In light of the above, the Commission does not consider necessary specific tariff provisions applicable to network congestion caused by ADDs or by telemarketers generally.
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Bell's proposed tariff provisions would also have required all ADD users to ensure that their equipment disconnected within 10 seconds of the called party hanging up. The Commission has proposed, with respect to all of the telephone companies, that a 10-second disconnect rule apply to all permitted unsolicited ADAD calls. The Commission does not consider such a provision necessary when automatic dialing equipment is used in conjunction with a live operator for the purpose of solicitation. Further, the Commission does not consider the record of this proceeding sufficient to support a disconnect rule with respect to facsimile equipment used for the purpose of solicitation.
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6. Provision of Caller Information to Bell
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Bell proposed that telemarketers using an ADD provide it with contact information (name, address, telephone number, etc.). The conditions approved in this Decision for unsolicited live voice and facsimile calls for the purpose of solicitation will ensure that sufficient information about the caller is provided to the called party. The Commission does not consider it necessary to require that parties placing such calls also provide contact information to Bell.
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7. Parties' Agreement that Certain Rules Do Not Apply
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Bell proposed to permit called and calling parties to agree that certain conditions proposed in its tariff would not apply (specifically, provisions regarding calling party contact information, free "call back" lines and calling hours).
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The Commission notes that the prohibition on the use of ADADs and the conditions prescribed with respect to live voice and facsimile calls in Bell territory apply only to unsolicited calls for the purpose of solicitation. If called and calling parties make the sort of express agreements contemplated by Bell, the calls in question may cease to be unsolicited calls. Accordingly, the Commission does not consider it necessary at this time to include the proposed provision.
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IV IMPLEMENTATION
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AGT, BC TEL, Bell, Island Tel, MT&Tel, NBTel, Newfoundland Tel and Northwestel are directed to file, by 11 July 1994, proposed tariffs implementing the prohibition on the use of ADADs to place unsolicited calls for the purpose of solicitation. Bell is directed to file, by 11 July 1994, revised proposed tariffs incorporating the conditions to apply in its territory to unsolicited live voice and facsimile calls for the purpose of solicitation.
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Once final tariffs implementing the above are in place, the Commission intends to direct the telephone companies to notify their subscribers by means of a billing insert. The Commission also intends to direct that, in the normal cycle of directory publications, all applicable rules be included in the introductory pages of the directories provided by the telephone companies.
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Allan J. Darling
Secretary General
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