ARCHIVED -  Telecom Decision CRTC 95-3

Telecom Decision

Ottawa, 8 March 1995

Telecom Decision CRTC 95-3

PROVISION OF DIRECTORY DATABASE INFORMATION AND REAL-TIME ACCESS TO DIRECTORY ASSISTANCE DATABASES

I BACKGROUND

In Bell Canada - Provision of Telephone Directory Database Information in Machine-Readable Form, Telecom Decision CRTC 90-12, 14 June 1990 (Decision 90-12), the Commission found that the provision of subscriber listing information by Bell Canada (Bell) to Tele-Direct (Publications) Inc. (Tele-Direct) was a service incidental to a telephone business and therefore subject to the Railway Act. The Commission found that, in providing non-confidential, non-residential listing information exclusively to Tele-Direct, Bell was conferring an undue preference on Tele-Direct, and that the benefits associated with requiring Bell to provide such information in machine-readable form pursuant to a general tariff would outweigh any associated disadvantages. The Commission was not persuaded that the similar provision of residential directory database information would be in the public interest.

In Bell Canada - Directory File Service, Telecom Decision CRTC 92-1, 3 March 1992 (Decision 92-1), the Commission approved Bell's provision of Directory File Service (DFS). Under this service, Bell makes available, in machine-readable form, a master file and a monthly update containing raw information, free of any sort or classification, with respect to customers listed and to be listed in its non-residential directories.

On 3 November 1993, White Directory of Canada, Inc. (White Directory) filed an application, pursuant to section 62 of the Telecommunications Act (the Act), requesting that the Commission review and vary Decisions 90-12 and 92-1. Specifically, White Directory requested that the Commission direct Bell to:

(1) make non-confidential residential listing information available in machine-readable form for use in the publication of telephone directories in competition with those of Tele-Direct, Bell's affiliate;

(2) make non-confidential, residential and non-residential listing information available, on request, in machine-readable form, by telephone exchange; and

(3) revise the rates for basic listings and updates to reflect the incremental cost of providing residential and non-residential listing information, plus a reasonable profit.

In Telecom Order CRTC 93-490, 22 June 1993 (Order 93-490), and in Telecom Order CRTC 93-685, 11 August 1993 (Order 93-685), the Commission approved revisions to the Directory Assistance (DA) tariffs of AGT Limited (AGT), BC TEL, Bell, The Island Telephone Company Limited (Island Tel) and Maritime Tel and Tel Limited (MT&T). In the proceedings that led to those orders, Rogers Cantel Inc. (Cantel) requested real-time access to the databases of AGT, BC TEL, Bell, Island Tel and MT&T for residential and business telephone numbers, in order to provide DA services directly to its cellular telephone customers. In Orders 93-490 and 93-685, the Commission stated that Cantel's request should be considered in a separate proceeding relating generally to access to the telephone companies' databases for the provision of DA services.

On 14 January 1994, the Commission issued Provision of Directory Database Information, Telecom Public Notice CRTC 94-3, initiating a proceeding with regard to:

(1) whether AGT, BC TEL, Bell, Island Tel, MT&T, The New Brunswick Telephone Company Limited (NBTel) and Newfoundland Telephone Company Limited (Newfoundland Tel) (the telephone companies) should be required to make the following information generally available, in machine-readable form, on a periodic basis:

(a) non-confidential non-residential listing information, including information unbundled by geographic region; and

(b) non-confidential residential listing information, including information unbundled by geographic region;

(2) the terms and conditions that should govern the provision of the above information, including any consumer safeguards that should apply to access to the information by:

(a) Canadian carriers (as defined in the Act) with approved Terms of Service; and

(b) other customers;

(3) any additional issues raised by White Directory's application of 3 November 1993;

(4) whether the telephone companies should be required to provide electronic access to cellular service providers and/or other Canadian carriers as defined in the Act, on a real-time basis, so that such carriers could provide DA services directly to their customers, and any terms and conditions that should apply to that access;

(5) possible amendments to the Terms of Service of the telephone companies and of other Canadian carriers (in particular, to those Terms governing the confidentiality of customer records) that may be required as a result of the provision of access to telephone company directory database information; and

(6) the appropriate level and structure of rates for the provision of the database access services in general.

The following parties filed comments: the Association of Directory Publishers, Government of British Columbia (BCG), Cantel, Canadian Daily Newspaper Association (CDNA), Competitive Telecommunications Association (CTA), The Director of Investigation and Research, Bureau of Competition Policy (the Director), Fédération Nationale des Associations de Consommateurs du Québec (FNACQ), Information and Privacy Commissioner for the Province of Ontario (Ontario Privacy Commissioner), Government of Ontario (Ontario), Ontario Telephone Association, The Other Book, Privacy Commissioner of Canada, Smart Talk Network (STN), Southam Inc., Unitel Communications Inc. and White Directory. AGT, Bell and Stentor Resource Centre Inc. (Stentor) filed reply comments on 11 July 1994.

II PROVISION OF DIRECTORY DATABASE INFORMATION

A. General

The Telecommunications Act came into effect on 25 October 1993, repealing those sections of the Railway Act pertaining to telecommunications. However, the relevant provisions of the Act are the same in all material respects as those formerly set out in the Railway Act. Consistent with Decision 90-12, the Commission finds that the provision of listing information to third parties is a telecommunications service as defined in subsection 2(1) and section 23 of the Telecommunications Act.

B. Non-confidential Non-residential Information

1. BC TEL, Island Tel, MT&T, NBTel and Newfoundland Tel

Based on the record of this proceeding, and consistent with Decision 90-12, the Commission finds that BC TEL, NBTel and Newfoundland Tel are conferring a preference on their directory publishers, i.e., BC TEL on Dominion Directory Company, NBTel on Tele-Direct, and Newfoundland Tel on Info-text Limited, in providing them with non-confidential, non-residential directory listing information on an exclusive basis. The Commission also finds that MT&T and Island Tel, who produce their own directories, are similarly conferring a preference on themselves. Further, the preference is undue in that other parties wishing to offer directory services in competition with either the telephone company or the directory affiliate are at a significant disadvantage.

2. Issues Specific to AGT

AGT stated that directory operations in its territory can only be understood in the context of the transactions that occurred as part of the privatization and reorganization of the Alberta Government Telephones Commission (AGT Commission), which created Telus Corporation (Telus), AGT, 423337 Alberta Ltd. (License Co.) and AGT Directory. AGT stated that, in the course of those transactions, ownership of AGT Commission's directory-related physical assets was ultimately transferred to AGT Directory. AGT Commission granted an exclusive licence (via Telus) to License Co. to use the directory database and to obtain updated customer listing information on a daily basis. License Co., in turn, granted a non-exclusive licence to AGT Directory to use the database and updates. Finally, AGT Commission's rights as licensor were transferred, under an assignment and novation agreement to AGT (again, via Telus).

AGT stated that, in the result, License Co. holds the licence for the exclusive right to use the directory database, while AGT Directory otherwise owns the directory database, holds a non-exclusive sub-licence for its use and physically controls it. AGT submitted that it does not have the right to provide the listing information to third parties wishing to compile directories. AGT also stated that the assets of AGT Directory or License Co. never formed part of AGT or any other entity subject to the Commission's jurisdiction, and that the exclusive licensing agreement does not involve the giving of an undue preference, since it was AGT Commission who granted the exclusive license to License Co.

The licensing agreements provide that AGT will provide License Co. with customer listing information on a daily basis, and that License Co. will provide this information to AGT Directory. The agreements also provide that AGT will provide to License Co., and License Co. to AGT, processed service update information permitting AGT to provide DA service.

The Commission notes that AGT Commission's rights as licensor of the exclusive right to use the directory database were assigned to AGT. Under the terms of the assignment and novation agreement, AGT steps into the shoes of the licensor "as if AGT had been originally named as the licensor." Thus, in law, it is AGT who has granted License Co. the exclusive right to use the database and to obtain updates. The Commission notes that, as licensor, AGT extended the original license agreement, which expired in October 1993, to 31 May 1994, and recently renewed it. The Commission finds that, in granting an exclusive right to License Co. to use the database and to obtain daily updates, AGT has conferred an advantage or preference on License Co.

AGT argued that it has no access to the directory database, as AGT Directory is the owner of the directory database and has physical control over it. However, the Commission notes that AGT Directory's right to use the database is derived solely from the sub-license. AGT Directory's rights are expressly subject to the rights of License Co., as exclusive licensee of the right to use the database. As well, AGT Directory's rights of ownership are explicitly subject to AGT's rights of possession and use of the directory database upon termination of the exclusive licensing agreement.

In the Commission's view, it is AGT who currently holds the ultimate authority to dispose of the rights to use the database and to obtain updated listing information. Through the arrangements between AGT and License Co., License Co. has an exclusive right in law to use the directory database and updated information. The record of the proceeding indicates that, in fact, AGT Directory has had exclusive access, via License Co., to the directory database and updates. AGT Directory's rights to the database flow from License Co.'s rights, which are ultimately derived from AGT, which stands in the shoes of the original licensor. Accordingly, the Commission finds that AGT is also conferring an undue preference or advantage on AGT Directory.

The Commission also notes that, while licensing agreements provide that updated information will pass between AGT and AGT Directory via License Co., the record of this proceeding indicates that, in fact, there is a direct exchange of information between AGT and AGT Directory.

In addition to the above, the Commission finds that parties wishing to produce competing directories would be at a significant disadvantage because of License Co.'s exclusive access in law and AGT Directory's exclusive access in fact to non-confidential non-residential subscriber listing information in machine-readable form. Accordingly, the Commission finds as a matter of fact that the preferences that AGT confers on License Co. and AGT Directory are undue, contrary to section 27 of the Act.

C. Non-confidential Residential Information

As noted above, the Commission concluded in Decision 90-12 that the benefits of providing non-confidential, non-residential listing information in machine-readable form pursuant to a general tariff would outweigh any associated disadvantages. However, based on concerns related to subscriber privacy, the Commission was not similarly persuaded that the provision of residential directory database information would be in the public interest.

During this proceeding, concerns were expressed that telephone subscribers would be more exposed to unsolicited calls and that their privacy would be eroded if machine-readable, non-confidential, residential directory listings, unbundled by geographic region, were available from the telephone companies.

BCG and FNACQ opposed the provision of non-confidential, residential listing information. In their view, the provision of such information would not be in the public interest, because of its impact on the protection of privacy. Ontario, Ontario Privacy Commissioner and the Privacy Commissioner of Canada, while not entirely opposed, had privacy concerns. All other interested parties were generally in favour of providing such listing information, including information unbundled by geographic region.

CDNA and CTA noted that the Commission has the power under the Act to deal with unsolicited calls and has already considered such issues in Use of Telephone Company Facilities for the Provision of Unsolicited Telecommunications, Telecom Decision CRTC 94-10, 13 June 1994. CTA submitted that the information being requested is not sensitive information regarding individuals, as recognized by the fact that it is already published in telephone directories.

Subject to concerns related to privacy, among other things, Bell and Stentor were amenable to the provision, under tariffs, of residential and non-residential, non-confidential, white pages listing information in machine-readable form. Bell stated that it was prepared to provide the information elements specified in Decision 92-1. Stentor stated that it is neither necessary nor appropriate that information other than that which would appear in a company's directory listings be provided in machine-readable format to third parties.

Bell stated that it was willing to provide such information unbundled to the exchange level, while Stentor stated that it was amenable to the provision of such information unbundled by geographic region.

AGT noted that residential and non-residential listing information may be obtained from a number of sources, such as direct marketing firms, Canada Post Corporation, Statistics Canada, municipal agencies and Central Registries. AGT stated that, since non-confidential listing information is currently available from other sources, most notably suppliers of optically scanned directories, it may not be possible to impose effective consumer safeguards.

White Directory supported reasonable measures to ensure that subscriber privacy is properly protected in the provision of information to directory publishers. White Directory stated that it is prepared to purchase listing information from the telephone companies on the condition, set out by tariff, that the information be exclusively used for the compilation, production, publication and distribution of directories, and that it not be resold, rented or otherwise disposed of to any third party. White Directory stated that privacy concerns relate mostly to the provision of listing information to telemarketers, pollsters, direct marketing firms and similar organizations (collectively, telemarketers).

Based on the record of the proceeding, the Commission finds that non-confidential, residential listing information in machine-readable form is now widely available in the Canadian marketplace from sources other than the telephone companies. In this context, the Commission notes Stentor's comments that, since Decision 90-12, technological advances in computing technology and in optical character readers have decreased processing costs and improved the accuracy of transcription, to the extent that non-confidential white pages listings in the public domain are being used by organizations for producing and distributing directories. In addition, such information can currently be purchased by telemarketers and other organizations through the directory affiliates of AGT, BC TEL, Bell and NBTel, as well as from non-telephone based sources.

In light of the above, the Commission considers that the balance struck in Decision 90-12 between the protection of subscriber privacy and the benefits of competition in the provision of directory services is no longer appropriate. While listing information is now available from other sources, the telephone companies or their directory affiliates continue to represent the best source of the up-to-date listing information required by competing directory publishers. At present, directory publishers are generally unable to get access to that up-to-date information. At the same time, sufficient residential listing information is now available that the privacy of subscribers is not significantly enhanced by the fact that the most current listing information is not available in machine-readable form under the general tariffs of the telephone companies.

In addition, the Commission notes that, with respect to the distribution of listing information by the telephone companies or their directory affiliates, certain safeguards exist for protecting the privacy of subscribers. These safeguards do not exist with respect to listing information available from other sources. Currently, customers with non-published telephone numbers are not included in listings that are provided by telephone companies or their directory affiliates to third parties. In addition, customers with published telephone numbers can request that their names and numbers be removed from listings sold or rented to third parties. Thus, with regard to information provided by the telephone company or an affiliate, the customer already has a greater degree of control over the availability and distribution of listing information than is currently the case with non-telephone sources. Further, the Commission considers that, if the existing safeguards are strengthened, customer privacy may well be enhanced through making listing information available in machine-readable form from the telephone companies, to the extent that the telephone companies become the prime or preferred source of such information.

In light of the above, the Commission finds that it would be in the public interest to make non-confidential, residential listing information, including information unbundled on an exchange-level basis, available in machine-readable form pursuant to the general tariffs of the telephone companies. Accordingly, if the telephone companies were to retain exclusive access to such information in machine-readable form, or grant access solely to their affiliates, it would constitute an undue preference or unreasonable advantage. Therefore, in Section D, below, the Commission is requiring that the telephone companies make such information available under their general tariffs. However, in order to ensure the proper balance between subscriber privacy and the benefits to be derived from facilitating competition in the provision of directory services, the Commission considers that the existing safeguards relating to subscriber privacy should be strengthened. In addition, the telephone companies should be required to increase efforts to make customers more aware of the fact that listing information is provided to third parties and that their names and numbers can be removed from such listing information.

In this context, the Commission notes that the procedures whereby customers can have their names and numbers removed from lists sold to third parties vary from company to company. The customer must make a request either to the telephone company itself or to its directory affiliate. While some companies accept a verbal request, others require that it be in writing.

In order to assist customers who wish to have their names and numbers removed from lists supplied to third parties, the Commission directs the telephone companies to establish, at least 30 days before the availability under tariff of residential listings in machine-readable form, a 1-800 toll-free number to which customers can direct any enquiries regarding the availability of listing information and through which they can request that their names and numbers be removed at no charge from listing information that is sold or rented.

Further, the Commission notes that some of the telephone companies inform customers calling to initiate service or those calling with privacy concerns of the method by which their names can be removed from listings that are sold or rented to third parties. Those telephone companies that do not already have these measures in place are directed to implement them, also by 30 days prior to the availability under tariff of residential listing information in machine-readable form.

Finally, the Commission agrees with Stentor that the most effective way of increasing customer awareness of, and control over, the distribution of listing information to third parties is through billing inserts. Accordingly, the telephone companies are directed to send a billing insert to all customers informing them of the provision of non-confidential listing information to third parties and of the means by which they can have their names and related information excluded. The billing insert should be issued in a time frame that takes into account when residential listing information in machine-readable form will be made available under general tariff, discussed in Section E, below.

D. Conclusions

In light of all the above, the Commission finds that the telephone companies should be required to make residential and non-residential, non-confidential subscriber listing information available in machine-readable form, on an exchange-level basis, under their general tariffs. Specifically, the telephone companies are to make available the information elements specified in Decision 92-1. The Commission's findings as to specific tariff provisions are set out below, as are the Commission's directions as to the filing and issuing of tariff pages.

E. Specific Tariff Provisions

1. Copyright

The issue of whether or not the telephone companies can assert claims of copyright arose in this proceeding as it did in the proceedings leading to Decisions 90-12 and 92-1. However, in this proceeding, the telephone companies have not asserted that their claims of copyright prevent the Commission from regulating directory database-related services. Rather, they stated that they should not, as a result of this proceeding, be deprived of the rights pertaining to those claims of copyright, nor should these rights be weakened by any means. AGT, in particular, suggested that its copyright interests should be protected by requiring White Directory and other entrants seeking to use directory listing information to enter into a sub-licensing agreement.

In Decision 92-1, the Commission stated that, in its opinion, basic non-confidential listing information cannot attract a claim of copyright in and of itself. However, the Commission expressed the view that copyright could attach to a compilation of basic non-confidential listing information as a result of the sorting, arrangement or classification of that information.

White Directory submitted that information sorted by geographic region does not attract copyright. Moreover, in its reply, White Directory noted that the Commission need not address the copyright issue because the telephone companies are amenable to providing the listing information at fair and reasonable prices. The Director expressed the view that the Commission should not truncate its jurisdiction on the grounds of copyright.

In reply, the telephone companies argued that unbundled listings do attract copyright, since the creation of the databases that contain directory listing information involves substantial skill, labour and judgment. Stentor submitted that each telephone company has, in effect, a copyright on databases containing directory listing information used to produce white pages directories.

The Commission notes the telephone companies' arguments that the directory information does not exist in a raw form and that the information is, at first instance, collected by the telephone company in its database. The Commission considers that it may be possible for the telephone companies to claim copyright for a directory database and the contents therein, either in hard copy or in electronic form. Moreover, in the Commission's view, compilations such as those that White Directory is seeking, (by telephone exchange) may well attract a claim of copyright.

The Commission notes that the Act requires it to ensure that the telephone companies, in relation to the provision of a telecommunications service, do not unjustly discriminate or confer an undue or unreasonable preference or advantage. A claim of copyright cannot be used to permit the telephone company to unjustly discriminate or to confer an undue preference on any person, contrary to the Act. However, the Commission considers it acceptable that tariffs for the provision of listing information include a condition requiring the customer to enter into a sub-licensing agreement, in order to protect any copyright the telephone company may have.