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Telecom Decision

Ottawa, 15 March 1994
Telecom Decision CRTC 94-7
AGT CELLULAR AND ROGERS CANTEL INC. - TERMS OF SERVICE
I BACKGROUND
AGT Cellular Limited (AGT Cellular) and Rogers Cantel Inc. (Cantel) filed applications for approval of tariff revisions providing for the introduction of Terms of Service. By letter dated 13 February 1992, the Commission directed each company to file documentation comparing its proposed Terms of Service with those approved by the Commission in Review of the General Regulations of the Federally Regulated Terrestrial Telecommunications Common Carriers, Telecom Decision CRTC 86-7, 26 March 1986, as amended by Telecom Order CRTC 86-593, 22 September 1986 (Decision 86-7).
On 11 March 1992, the Commission issued AGT Cellular Limited and Rogers Cantel Inc. - Introduction of General Terms of Service, Telecom Public Notice CRTC 92-12 (Public Notice 92-12), inviting public comment on the Terms of Service proposed by the companies. Bell Cellular Inc. filed comments, to which AGT Cellular and Cantel filed replies. In addition, AGT Cellular requested interim approval of its proposed Terms of Service.
On 23 October 1992, the Commission denied AGT Cellular's request for interim approval and addressed interrogatories to both companies. On 20 November 1992, Cantel filed responses to the Commission's interrogatories, as well as revisions to its proposed Terms of Service. On 21 December 1992, AGT Cellular filed responses to the Commission's interrogatories, as well as revised proposed Terms of Service, drafted in a "plain language" style. AGT Cellular requested that its "plain language" proposed Terms of Service be substituted for its original filing.
II CONCLUSIONS
A. General
The Commission is of the view that the Terms of Service proposed by the companies are appropriate, with certain exceptions. Subject to those exceptions noted below, the Commission approves Cantel's proposed Terms of Service, as amended by its filing of 20 November 1992, and AGT Cellular's proposed Terms of Service, as set out in its filing of 21 December 1992.
B. Annoying/Offensive Calls
The existing wireline Terms of Service, as approved by Decision 86-7, provide that customers are prohibited from using telephone services or allowing them to be used "for the purpose of making annoying or offensive calls".
Both AGT Cellular and Cantel proposed variations on this provision. AGT Cellular proposed requiring customers to ensure that services are not "used...to make annoying or offensive calls", while Cantel proposed prohibiting customers and users from using services "for annoying any person."
Consistent with the wireline Terms of Service, the Commission finds it appropriate that the words "for the purpose of" be included in order to make it clear that, in order to fall within this provision, the customer or person using the service must intend to make an annoying or offensive call. The Commission therefore directs that the words "for the purpose of" be added to Article 5.1 of AGT Cellular's Terms of Service and to Article 2(c) of Cantel's Terms of Service.
C. Resale
AGT Cellular proposed a provision prohibiting resale of its services unless authorized by tariff or by written agreement with the company (Article 5.2). Cantel's equivalent provision prohibits resale and sharing without the express written consent of the company (Article 2(d)).
In Resale and Sharing of Cellular Services, CRTC Telecom Decision 91-8, 30 May 1991, the Commission found acceptable the practice whereby cellular providers may, by specific tariff provisions, permit the resale of cellular service for certain applications, while prohibiting its resale for others. Consistent with that Decision, the Commission considers that resale of cellular services should be permitted by approved tariff only, and not by an agreement, written or otherwise, with a cellular provider.
Accordingly, the Commission directs AGT Cellular to delete the words "or by written agreement with AGT Cellular" from Article 5.2. Similarly, the Commission directs Cantel to amend Article 2(d) to read as follows:
 The Company's services shall not be resold or shared, except as authorized by specific Items in the Company's approved tariffs.
D. Limitations of Liability
Both AGT Cellular and Cantel proposed comprehensive limitation of liability provisions in their Terms of Service, many of which are similar to those in the wireline Terms of Service. The Commission considers the proposed provisions appropriate, subject to the exceptions set out below.
Each company proposed a broad general limitation of liability, providing that it is not liable to customers, users of a customer's service or third parties for any claims for damages, including those for personal injury, arising out of the provision of cellular services. Each company proposed that this limitation extend to cases where damages arise from its own negligence.
The Commission notes that the wireline Terms of Service limit the carrier's liability to a nominal amount for all claims other than those for physical injuries, death or damage to customer premises or property occasioned by the company's negligence. The wireline Terms of Service also provide that the company's liability is not limited in cases of deliberate fault or gross negligence, or of breach of contract where the breach results from the gross negligence of the company.
In its side-by-side comparison with the wireline Terms of Service, Cantel submitted that its proposed provision is appropriate, given that the potential exposure of a cellular carrier is quite different from that of a wireline carrier, in terms of its ability to control the use of its facilities. In particular, Cantel submitted that cellular providers should not be exposed to lawsuits for personal injury and property damage resulting from the driver of a vehicle's use of a cellular telephone, or for economic loss occasioned by "dropped" radio telephone calls. Cantel noted that, absent this exclusion of liability, the cost of providing cellular service could rise.
In response to a Commission interrogatory, AGT Cellular stated that it agreed with Cantel's submission in this regard. AGT Cellular emphasized, in particular, that it would not accept liability for damages arising out of a vehicle accident, if the accident resulted from the operation or the failure of cellular telephone or paging equipment.
The Commission accepts the submissions of AGT Cellular and Cantel that cellular providers should not be liable for lawsuits stemming from vehicle accidents. However, the Commission is of the view that cellular providers should not be entitled to any greater protection from liability than the wireline carriers. In this regard, the Commission considers that, as a matter of general policy, carriers should be liable for personal injury and property damage caused by their own negligence.
Accordingly, the Commission directs AGT Cellular to amend Article 19.1 to read as follows:
 Unless otherwise specifically provided in these General Terms of Service or the AGT Cellular Tariff, AGT Cellular is not liable to any AGT Cellular customer, any customer of another telecommunications company or any other person, except with regard to physical injuries, death or damage to property occasioned by AGT Cellular's negligence, for any damages, loss of profits, loss of earnings, loss of business opportunities or other loss, or special or consequential damages, arising directly or indirectly out of or in connection with the provision of cellular telephone or paging services by AGT Cellular to the customer or other person, including without limitation, those arising from mistakes, errors, delays, interruptions or omissions in the transmission of material or messages described in Item 19, whether negligent or otherwise, which would, but for this Item, give rise to a cause of action in contract, tort or any other doctrine in law or equity.
In addition, AGT Cellular is directed to amend Article 19.7 to commence with the words, "Notwithstanding Article 19.1".
Similarly, the Commission directs Cantel:
(1) to amend Article 7.1(a)(i) to read as follows:
 (a) Unless otherwise specifically provided in these Terms of Service, the Company shall not be liable to a customer, user, or other person, except with regard to physical injuries, death or damage to property occasioned by the Company's negligence, for:
...
 (i) any damages, loss of profits, loss of earnings, loss of business opportunities or other loss resulting directly or indirectly out of or in connection with an agreement for cellular services or other use of the Company's communications services or equipment;
(2) to amend the final paragraph of Article 7.1(a) to read as follows:
 This limitation applies to acts or omissions of the Company, its servants or agents, whether negligent or otherwise, which would, but for this item, give rise to a cause of action in contract, tort or any other doctrine of law.
(3) to add the following as paragraph (c) to Article 7.1:
 (c) Notwithstanding Item 7(a), the Company shall not be liable to a customer, user, or other person for any accident or injury caused by or to a vehicle, watercraft, or aircraft owned or operated by a customer or another person if the accident resulted from the operation or failure of cellular telephone equipment.
E. Disclosure of Customer Information
1. General
Both companies proposed provisions dealing with the disclosure of customer information that are similar to those contained in the wireline Terms of Service. The Commission is generally satisfied with the provisions as drafted, with the exceptions described below.
2. Disclosure to a Law Enforcement Agency
The companies proposed that they be permitted to release customer information to a law enforcement agency. However, the two companies proposed different conditions precedent for such disclosure.
Cantel proposed, in Article 8(a)(vi), that it be permitted to release customer information:
 to a law enforcement agency whenever the Company has reasonable grounds to believe that the Customer has knowingly supplied the Company with false or misleading information or is otherwise involved in unlawful activities.
AGT Cellular proposed, in Article 14.4(g), that it be permitted to disclose such information to:
 a law enforcement agency if AGT Cellular has reasonable grounds to believe that the customer or anyone using the customer's equipment is or will be engaged in fraudulent or other unlawful activities against AGT Cellular.
The Commission is concerned that the proposed provisions are too broadly worded. Rather, the Commission considers that the circumstances in which the cellular providers may disclose customer information to law enforcement agencies should be limited to cases where there are reasonable grounds for believing that the customer, or anyone using the customer's equipment, has committed a fraud against the cellular provider in question.
Accordingly, the Commission directs Cantel to amend Article 8(a)(vi) to read as follows:
 to a law enforcement agency whenever the Company has reasonable grounds to believe that the Customer has knowingly supplied the Company with false or misleading information or is otherwise involved in unlawful activities directed against the Company.
Similarly, the Commission directs AGT Cellular to amend Article 14.4(g) to read as follows:
 a law enforcement agency if AGT Cellular has reasonable grounds to believe that the customer or anyone using the customer's equipment is engaged in fraudulent or other unlawful activities against AGT Cellular.
3. Liability for Wrongful Disclosure
The two companies proposed provisions that would exclude all liability for damages arising out of disclosure of customer information in circumstances other than those permitted under Cantel's Article 8(a) and AGT Cellular's Articles 14.4 and 14.5, respectively.
In response to a Commission interrogatory and in its side-by-side comparison with the wireline Terms of Service, Cantel stated that it was concerned that the release of confidential information might give rise to actions for damages many times greater than the value of the cellular services provided by the company. Cantel noted that the liability clauses approved for MT&T Mobile Inc. (MT&T Cellular) and Island Tel Cellular do not remove the release of confidential information from the scope of those carriers' general limitation of liability provisions.
The Commission considers that, consistent with the wireline Terms of Service, the companies should be liable when they wrongfully release customer information, either deliberately or through negligence. In the Commission's view, to find otherwise would be to render the restrictions on disclosure of customer information meaningless.
Accordingly, the Commission denies Cantel's Article 19.5 and AGT Cellular's Articles 14.4 and 14.5 and directs each company to include in its Terms of Service a provision, similar to that contained in Article 11.2 of the wireline Terms of Service, providing that the company's liability for disclosure of customer information is not limited by its general limitation of liability.
F. Dispute Procedure
AGT Cellular proposed adding provisions to its Terms of Service regarding the customer's right to dispute charges. The company indicated that it intends to provide customers with the full Terms of Service or key portions thereof when customers subscribe to service.
Cantel indicated that customers are informed of their right to dispute charges by way of a notice on the back of its invoices. Cantel did not include a dispute settlement provision in its proposed Terms of Service.
The Commission notes that neither company has included information regarding the Commission's role in arbitrating disputes relating to the Terms of Service. The Commission considers that cellular customers should be apprised of their right to bring unresolved disputes to the Commission.
Accordingly, the Commission directs AGT Cellular to add the following as Article 16.5 of its Terms of Service:
 16.5 If the customer is not satisfied after dealing with AGT Cellular, the customer may write to the Secretary General, Canadian Radio-television and Telecommunications Commission, Ottawa, Ontario K1A 0N2 (fax: 819-953-0795).
In addition, the Commission directs AGT Cellular to ensure that customers receive this information upon subscription to service.
The Commission considers the dispute procedure outlined on Cantel's invoices to be reasonable, in so far as it describes how the customer should proceed vis-a-vis the company. However, the Commission also directs that Cantel include on its invoices language similar to that required above for AGT Cellular, informing customers of their right to bring disputes to the Commission. As long as Cantel continues to set out the applicable procedures on its invoices, it need not include a dispute settlement procedure in its Terms of Service.
G. Suspension of Service
AGT Cellular proposed, in Article 11.2(f), that it be permitted to suspend a customer's service, without notice, if the customer "is a company which becomes bankrupt or has a receiver or a receiver-manager appointed to govern the customer's affairs".
In the Commission's view, service should not be suspended simply because a company is in receivership. In fact, the Commission considers that such behaviour could constitute unjust discrimination under the Telecommunications Act. The Commission notes that many businesses in receivership continue to meet their day-to-day liabilities, and that a lack of cellular telephone service could be a major impediment to the ongoing operation of some firms. In the Commission's view, the only issue for the cellular service provider is whether adequate arrangements can be made for payment of the customer's accounts. The Commission notes in this regard that, pursuant to Article 9.1, AGT Cellular may require a deposit from a customer in several circumstances, including where the customer clearly presents an abnormal risk of loss.
Accordingly, the Commission directs AGT Cellular to amend Article 11.2(f) by deleting the words after the word "bankrupt".
H. Customer Inspection of Records
Article 11.3 of the wireline Terms of Service provides that customers may, upon request, inspect any company records regarding their service.
In its revised proposed Terms, AGT Cellular included a provision making records available for inspection provided that (1) the customer reimburses AGT Cellular for the costs of any extraordinary research required to produce the requested records, and (2) there is no reasonable possibility that release of the information to the customer will affect AGT Cellular's competitive position. AGT Cellular did not provide a rationale for the inclusion of the latter provision.
The Commission considers that a customer of a cellular provider should generally have the right to see any records concerning the customer, regardless of the effect on the company's competitive position. The Commission also considers that any potential harm to the company's competitive position from allowing a customer to see his or her own records would be minimal. Accordingly, the Commission denies AGT Cellular's Article 14.6(b).
III FURTHER PROCESS
In Public Notice 92-12, the Commission stated that it would issue a draft of the final proposed Terms of Service, and that it would, at that time, set out further process for the filing of comments. In view of the number and nature of comments received in response to Public Notice 92-12, the Commission considers it unnecessary to provide for further process with respect to the proposed Terms. Accordingly, the Commission directs AGT Cellular and Cantel to issue final tariff pages setting out their proposed Terms of Service as amended by this Decision, serving copies on the parties to this proceeding, by 5 April 1994.
IV CONSISTENCY WITH OTHER CELLULAR CARRIERS
The Commission notes that there are some material inconsistencies between the Terms of Service approved in this Decision for AGT Cellular and Cantel, and the tariffs of some other cellular service providers, with respect to the protection of the confidentiality of customer information and the company's limitations of liability.
In this context, the Commission considers that those cellular providers whose tariffs do not now incorporate provisions to protect the confidentiality of customer information should be required to add such a clause. With respect to limitations of liability, the Commission is unaware of any circumstances that would justify requiring AGT Cellular and Cantel to assume a greater exposure to liability than the other cellular service providers. Accordingly, by letters dated (see letters dated the same as Decision), the Commission has directed BC TEL Mobility Cellular Inc., Bell Mobility Cellular Inc. and MT&T Cellular to file proposed tariff revisions and/or revisions to their service agreements, as applicable, providing for limitations of liability and provisions governing disclosure of customer information consistent with those approved in this Decision.
The tariffs of Island Tel Cellular specify that the Terms of Service of The Island Telephone Company Limited (Island Tel) apply, except where inconsistent with the tariffs of Island Tel Cellular. In its own tariffs, Island Tel Cellular has set out specific limitations of liability that are not consistent with those approved here. Accordingly, the Commission has also written to Island Tel Cellular, directing it to file proposed tariff revisions to make its limitations of liability consistent with those approved in this Decision.
The above-noted cellular carriers, most of whom were not parties to this proceeding, have also been provided with an opportunity to comment on the appropriateness of such revisions.
The Commission notes that (1) NBTel Cellular is bound by the General Regulations of The New Brunswick Telephone Company Limited (NBTel), and (2) NewTel Mobility Limited incorporates by reference the General Regulations of Newfoundland Telephone Company Limited (Newfoundland Tel). Accordingly, the Terms of Service applicable to customers of these cellular services are generally consistent with those approved in this Decision. The Commission also notes that the Terms of Service of NBTel, Newfoundland Tel and Island Tel are currently the subject of a separate Commission proceeding, initiated by Telecom Public Notice CRTC 92-45, 21 August 1992.
Finally, the Commission notes that it has, by letter, requested that all of the cellular providers (other than AGT Cellular) advise it as to whether customers are provided with copies of their Terms of Service and, if so, by what means.
Allan J. Darling
Secretary General
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