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ARCHIVED - Order CRTC 2001-192

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Order CRTC 2001-192

  Ottawa, 2 March 2001
 

CRTC denies an application by CAC/MSOS to review and vary the decision to allow MTS to charge $0.75 for unsuccessful requests for directory assistance

  Reference: 8662-C27-02/00
  The Commission, by majority decision, denies an application by the Consumers' Association of Canada and the Manitoba Society of Seniors (CAC/MSOS) to review and vary the decision to allow MTS Communications Inc. to charge $0.75 for unsuccessful requests for directory assistance.
  The Commission finds that CAC/MSOS failed to demonstrate that there is substantial doubt as to the correctness of the Commission's decision.
1.

In Telecom Order CRTC 99-741, the Commission allowed Bell Canada to charge customers for directory assistance (DA) queries that may not result in a number being provided.

2. In Order CRTC 2000-197, the Commission confirmed its decision in Order 99-741 and stated that charging customers for these types of DA requests:
 
  • will have a positive effect on the efficiency of DA service;
 
  • is consistent with existing policy to move rates closer to costs and will facilitate competition;
 
  • will reduce the subsidy paid by non-users of DA; and
 
  • will continue to encourage customers to supply accurate information and retain search results for future reference.
3. On 12 October 1999, the Commission issued MTS Communications Inc. - Revisions to directory assistance and introduction of automated directory assistance call completion service, Telecom Order CRTC 99-985.
4. Order 99-985 authorized MTS to charge $0.75, effective 1 January 2000, on DA requests in circumstances where MTS is unable to provide a listing or the telephone number is not available in the current directory.
 

Application by CAC/MSOS for review and variance of Order 99-985

5. On 14 April 2000, CAC/MSOS filed an application pursuant to s. 62 of the Telecommunications Act and the Commission's Guidelines for review and vary applications, seeking to vary paragraphs 7, 8,10(1) and 10(2) of the order on the basis that there is substantial doubt as to their correctness.
6. CAC/MSOS also relied upon the dissenting reasons given by Commissioner Langford in Order 99-985 and by Commissioners Langford, Cram, Cardozo, Wilson and McKendry in Order 2000-197.
7. CAC/MSOS argued that, as a consequence of Order 99-985:
 

a) consumers making a single request for information are treated in a discriminatory manner when compared to those making multiple requests;

 

b) the statutory objective of improving the network's efficiency is weakened by a system that creates a perverse incentive for MTS to expand unlisted service, and

 

c) the removal of the exemption from DA charges for unsuccessful calls deletes the only effective mechanism by which MTS can be held accountable for unsuccessful requests related to its own errors. The Commission's proposed quality of service indicators for DA speed and accuracy have no value in the measurement of unsuccessful requests resulting from company error.

8. Comments were filed by MTS and a reply was filed by CAC/MSOS.
 

Treatment of multiple requests

9. CAC/MSOS submitted that, under Item 1610 of the General Tariff (Item 1610), as it now stands, an individual who makes a single request for DA information will be charged $0.75 whether or not MTS is able to provide that information.
10. However, in cases where multiple requests for information are made and MTS is only able to provide information for certain requests, the DA charges will only be applied to each request for which information was provided.
11. Similarly, if multiple requests for information are made during a DA call and MTS is unable to provide any of the information requested, only one DA charge will be applied. A charge will not be applied to each unsuccessful request.
12. In the submission of CAC/MSOS, substantial doubt exists as to the correctness of Order 99-985. In their view, the Commission erred in law by approving a tariff which treats those making an individual request for information which the Company cannot provide in a discriminatory manner compared to those making multiple requests.
13. MTS submitted that passing on to a customer a saving associated with multiple requests for DA information is not discriminatory. MTS noted that the telephone operator's time and labour involved in replying to single or multiple requests during DA calls is comparable. Although customers making multiple requests during a single call are asking for more DA information, the operator spends less time per request responding to such a call than if the operator were obliged only to respond to one request per call. By answering multiple requests during one call, the operator effectively is able to handle up to three calls in one, which eliminates the need to terminate then re-initiate a call after the first request, which would require the operator to repeat identification and greetings to the caller. This also would necessitate that the caller repeat or re-clarify the request. Therefore, according to MTS, responding to multiple requests during a single call represents an efficiency and cost-saving to MTS, which saving is passed on to the customer.
14. While it is true that customers making multiple requests are treated differently from customers making a single request, the Commission is of the view that this difference in treatment is justified and appropriate. As stated by MTS, there are cost savings associated with multiple-request calls to DA and the Commission considers that it is appropriate to pass these savings on to the customers.
15. In the Commission's view CAC/MSOS, in its arguments regarding the difference in the application of the charge for unsuccessful DA single requests and multiple requests, have not demonstrated that there is substantial doubt as to the correctness of the original decision to charge for unsuccessful requests.
 

Incentive to expand unlisted service

16. According to CAC/MSOS, the imposition of a DA charge shifts part of the financial burden associated with unlisted numbers to individuals who do not benefit from the service and who have no control over the decision to choose an unlisted number. There is a direct causal relationship between the decision to opt for unlisted service and the need for DA. But for the decision to choose unlisted service, there would have been no need for the DA request.
17. CAC/MSOS submitted that if MTS is now claiming that the costs of providing the unlisted service are not fully compensatory, then it should seek to recover these costs from the users of the service. In CAC/MSOS' view, doing otherwise sends false pricing signals.
18. CAC/MSOS stated that, to the extent that MTS realizes a positive financial contribution from the DA charges related to unlisted services, it has a clear incentive to encourage the utilization of unlisted numbers through marketing and through minimizing the service fees for those actually using the unlisted service. In CAC/MSOS' view, an expansion of unlisted numbers due to false pricing signals will only weaken the efficient operation of the telecommunications system.
19. CAC/MSOS submitted that, while consumers must have the option of choosing an unlisted number, it is not consistent with overall efficiency for MTS to have a false incentive to steer consumers towards that choice.
20. MTS replied that CAC/MSOS give no foundation or basis to support its arguments. MTS noted that it does not promote non-published (unlisted) numbers to customers but, rather, this option is implemented at the customer's request.
21. MTS noted that its Directory Assistance and Non-Published Number services are distinct and separate, and are offered and charged on that basis. The rates for these services are applied individually to the user of the specific service and they do not subsidize one another.
22. The Commission does not agree that the charge for unsuccessful DA requests creates a false incentive for customers to subscribe to Non-Published Number service.
23. The Commission stated in Order 99-741, that an unsuccessful DA request can occur when the requested number is either an unlisted number or does not exist or when the request is not sufficiently precise.
24. In Order 2000-197, the Commission stated that charging customers for unsuccessful DA requests will have a positive effect on the efficiency of DA service and will reduce the subsidy paid by non-users of DA.
25. In the Commission's view CAC/MSOS, in its arguments regarding unlisted numbers has not demonstrated that there is substantial doubt as to the correctness of the Commission's findings with respect to the public interest in charging for unsuccessful DA requests.
 

Unsuccessful requests due to company error

26. According to CAC/MSOS, one of the issues raised in Order 99-985 was whether the user or the Company should bear the consequences of a Company error resulting in the failure to fulfill an information request. The issue was also canvassed in the proceedings related to Order 99-741, a decision expressly relied upon by the majority in Order 99-985.
27. CAC/MSOS stated that it has been suggested that any concerns relating to unsuccessful DA requests resulting from Company error are best dealt with as a quality of service issue. CAC/MSOS further stated that in rejecting the application tovary, the Commission, in Order 2000-197 which rejected an appeal by the Public Interest Advocacy Centre to overturn a Bell Canada DA ruling, expressed the view that quality of service indicators related to DA speed and accuracy would address the issue of unsuccessful DA requests related to company error.
28. In CAC/MSOS' view this reasoning appears to be flawed. According to CAC/MSOS, the Commission's proposed quality of service indicators for DA speed and accuracy do not address the issue of a number that cannot be provided due to company error. They measure two entirely different problems: the time taken to reach DA service and the accuracy of numbers provided by DA service.
29. CAC/MSOS stated that the likely reason for this fundamental shortcoming is the impossibility of distinguishing between unsuccessful DA requests caused by company rather than user error. Absent the ability to separate user from company error, there is no way of measuring company error. CAC/MSOS submitted that the issue of unsuccessful calls cannot be addressed as a quality of service issue.
30. In CAC/MSOS' view, if MTS is equally reimbursed for failure and success, it has no financial incentive to minimize errors in the provision of this service. CAC/MSOS submitted that, given the absence of an appropriate quality of service indicator, the quality of service is likely to deteriorate.
31. MTS noted that the Commission, in Order CRTC 2000-197, stated, "the Commission was aware when it made its decision that some unsuccessful DA requests result from errors made by the company, but considers that concerns in that regard are best dealt with as a quality of service issue."
32. According to MTS, Order 99-985 does not authorize MTS to charge customers when it has provided incorrect information or no information to a customer due to Company error. MTS stated that, in accordance with Company policy and with Article 19 of its Terms of Service, MTS will refund or remove charges where incorrect information or no information was provided to a customer due to Company error. Therefore, according to MTS, it accepts accountability for unsuccessful requests due to Company error.
33. MTS stated that it considers the Directory Assistance accuracy outlined in Decision 2000-24includes the elimination or reduction of Company error in respect of DA, including errors which result in unsuccessful requests.
34. CAC/MSOS responded that the new quality of service indicators do not and cannot identify whether the consumer or the Company is responsible for the error. They simply cannot perform the function which MTS ascribes to them
35. CAC/MSOS suggested that, given the inability to determine whether the error is due to the consumer or to the Company, MTS' claim that it will refund charges when the failure to provide the information requested is due to Company error offers little solace to consumers.
36. In CAC/MSOS' view, there are a variety of causes for the failure to provide information including customer, operator, data base and system error. Until a mechanism can be developed which properly attributes responsibility, the imposition of DA charges in cases where information cannot be provided will continue to inequitably disadvantage consumers.
37. The Commission addressed the issue of company error in Order 2000-197 where it stated:
 

29. The Commission was aware when it made its decision that some unsuccessful DA requests result from errors made by the company, but considers that concerns in that regard are best dealt with as a quality of service issue.

 

30. In Decision CRTC 2000-24, Final standards for quality of service indicators for use in telephone company regulation and other related matters, dated 20 January 2000, the Commission set the final standards for directory accuracy at 93.8%. The decision stated its preliminary view that a quality of service indicator should also apply to DA speed and accuracy and established a process to determine a standard for DA. These quality of service indicators are intended to ensure that company accuracy does not fall below an acceptable level.

38. In the Commission's view CAC/MSOS has raised no new arguments with respect to company error that would raise substantial doubt as to the correctness of the original decision.
 

Disposition

39. In light of the above, by majority decision, the Commission finds that CAC/MSOS has failed to demonstrate that there is substantial doubt regarding the correctness of Order 99-985, and denies its application to review and vary that order.
  Secretary General
  This document is available in alternative format upon request and may also be examined at the following Internet site: www.crtc.gc.ca 

 

 

Dissenting Opinion of Commissioner David McKendry

  I would vary Telecom Order CRTC 99-985 (the Order). The Consumers' Association of Canada and the Manitoba Society of Seniors (CAC/MSOS) have demonstrated that there is substantial doubt as to the correctness of the Order.
  Substantial doubt as to the correctness of the Order is the primary test for determining whether the Commission should exercise its power under section 62 of the Telecommunications Act. Section 62 allows the Commission to review and rescind or vary any decision made by the Commission.
  A bridge not too far
  The first bridge to be crossed in considering CAC/MSOS's application is whether or not it is just and reasonable to charge customers for directory assistance when no assistance is provided. A customer who calls Manitoba Telecom Services Inc. (MTS) for directory assistance and who is not provided assistance - for example, the requested number is unlisted - is charged a fee by MTS. After reviewing the record with respect to CAC/MSOS's application, I do not find MTS's tariff to be just and reasonable because:
 
  • The customer may not have been provided directory assistance due to an error by MTS in responding to the customer's request.
 
  • The customer may not have been provided information because the requested number is unlisted. The customer who unlisted his or her number is the cause of MTS not being able to respond to the customer who is seeking the number. As CAC/MSOS points out, customers calling directory assistance have no control over the decision to choose an unlisted number. The service that caused the cost - that is, unlisted number service - should bear the cost of unsuccessful directory assistance requests due to unlisted numbers.
 
  • I note that the number of unlisted numbers may become more significant as more consumers attempt to protect the privacy of their directory listing information. The Commission stated in 1998 that unlisted number service may be the only effective way for subscribers to control dissemination of their listing information. MTS states that the company does not promote unlisted numbers to customers, a situation that may not accord with consumers' concerns about privacy and the importance attached to unlisted number service by the Commission with respect to the protection of privacy.
 

Flies in the face

  Substantial doubt as to the correctness of the Order also arises because a fee for unsuccessful directory assistance flies in the face of common sense and generally accepted marketplace practices. For example, video rental, book, and music stores are often asked by telephone if they have a particular title available. Would any consumer expect a bill from a book store because he or she was told that a book was out of print? One response to this argument might be that MTS, unlike the book store, has a billing system at hand that makes it feasible to levy a fee for unsuccessful directory assistance requests. However, this is not the test for determining whether or not MTS's practice is fair and whether or not the tariff is just and reasonable. The Internet makes it feasible to acquire intellectual property without the payment of copyright fees. But this does not make it right.
 

The good punished with the bad

  One might argue that some customers provide incorrect information to MTS's directory assistance service, imposing costs on the company and its general body of subscribers as the company's staff and computers attempt to respond to these customers. Undoubtedly some customers provide incorrect information to MTS. However, is it fair to tar all customers making unsuccessful directory assistance requests with the sins of a few? No. Just as I have no difficulty in allocating the costs of responding to directory assistance requests for unlisted numbers to MTS's unlisted number service, I have no difficulty in allocating the costs of responding to incorrect information provided by customers to these customers. However, this development awaits the creation of a system by MTS to account for cases where customers have provided incorrect information, assuming the number of cases justifies the costs of developing a system.
 

Double standard is discriminatory

  According to CAC/MSOS, the Order creates a double standard for the treatment of individual and multiple requests for information:
 

"In the respectful submission of CAC/MSOS, substantial doubt exists as to the correctness of Order 99-985. In their view, the Commission erred in law by approving a tariff which treats those making an individual request for information which the Company cannot provide in a discriminatory manner compared to those making multiple requests.

 

"In essence, the Tariff has established a double standard for DA charges. An individual making three individual requests for information will be charged $2.25 even if the Company is only able to provide the information for one request. Someone choosing to make the same three requests in the course of one DA call will be charged $0.75.

 

"Likewise, an individual making four individual requests for information will be charged $3.00 even if the Company is unable to provide any of the information requested. Someone choosing to make the same four requests in the course of one DA call will be charged $0.75.

 

"On its face, the treatment of those making an individual request for information which the Company cannot provide is discriminatory."

  According to MTS, the company's directory assistance rates are not discriminatory:
 

"MTS submits that passing on to a customer a saving associated with multiple requests for Directory Assistance information is not discriminatory. MTS wishes to note that the telephone operator's time and labour involved in replying to single or multiple requests during Directory Assistance calls is comparable. Although customers making multiple requests during a single call are asking for more Directory Assistance information, the operator spends less time responding to such a call than if the operator were obliged only to respond to one request per call. By answering multiple requests during one call, the operator effectively is able to handle up to three calls in one, which eliminates the need to terminate then re-initiate a call after the first request, which would require the operator to repeat identification and greetings to the caller. This also would necessitate that the caller repeat or re-clarify the request. Therefore, responding to multiple requests during a single call represents an efficiency and cost-saving to MTS, which saving is passed on to the customer. This is neither discriminatory rate making nor discriminatory application of the rate since MTS sets the rate and applies it in alignment with the cost to MTS of each type of Directory Assistance request."

  Based on the record of this proceeding, I do not accept that the resources required to deal with multiple directory assistance requests during a single call are the same as the resources required to respond to a single request. I note that MTS does not say that resources are the same. The company states that the time and labour are comparable, a conclusion that I would not dispute since "comparable" means only that the resources can be compared and that the resources have characteristics in common. Comparable does not mean that the resources are the same. In any event, common sense dictates that more resources are required to deal with multiple requests in one call than a single request, a notion that is reinforced by the complete absence of cost information in MTS's answer to CAC/MSOS's application. Based on the record of this proceeding, I agree with CAC/MSOS that customers making a single request for information are treated in a discriminatory manner when compared to customers making multiple requests.

1 Telecom Public Notice CRTC 98-6, Guidelines for review and vary applications, March 20, 1998, at paragraph 9.

2 CAC/MSOS application, April 14, 2000, at paragraph 27.

3 Telecom Order CRTC 98-109, February 4, 1998, at paragraph 26.

4 MTS answer to CAC/MSOS's application, May 12, 2000, at paragraph 17.

5 Apparently a maximum of three requests is applied by MTS during a single call. MTS's answer to CAC/MSOS's application, May 12, 2000, at paragraph 13.

6 CAC/MSOS application, April 14, 2000, at paragraphs 14-17.

7 MTS answer to CAC/MSOS's application, May 12, 2000, at paragraph 14.

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