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ARCHIVED - Telecom Decision CRTC 2004-27

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Telecom Decision CRTC 2004-27

  Ottawa, 22 April 2004
 

Follow-up to Telecom Decision CRTC 2003-33 - Confidentiality provisions of Canadian carriers

  Reference: 8638-C12-200308363
  In this decision, the Commission directs all Canadian carriers, as a condition of providing telecommunications services, to include in their service contracts or other arrangements with resellers the requirements that these resellers abide by the confidentiality provisions approved in Confidentiality provisions of Canadian carriers, Telecom Decision CRTC 2003-33, 30 May 2003, and amended in Telecom Decision CRTC 2003-33-1, 11 July 2003, and previous determinations. The Commission also determines that these confidentiality provisions apply, effective the date of this decision, to all existing contracts and other service arrangements between Canadian carriers and resellers, regardless of whether the provisions were included in the service contracts or other arrangements entered into by those resellers.
 

Background

1.

Canadian carriers, with the exception of providers of non-switchedmobile wireless services, such as paging services, are required to comply with certain confidentiality provisions. These provisions were first set out in Review of the general regulations of the federally regulated terrestrial telecommunications common carriers, Telecom Decision CRTC 86-7, 26 March 1986, and amended in Telecom Order CRTC 86-593, 22 September 1986. For all local exchange carriers, the provisions were further amended in Provision of subscribers' telecommunications service provider identification information to law enforcement agencies, Order CRTC 2001-279, 30 March 2001 and in Provision of subscribers' telecommunications service provider identification to law enforcement agencies, Telecom Decision CRTC 2002-21, 12 April 2002.

2.

In Confidentiality provisions of Canadian carriers, Telecom Decision CRTC 2003-33, 30 May 2003 (Decision 2003-33), and amended in Telecom Decision CRTC 2003-33-1, 11 July 2003, the Commission expanded the forms of express consent required by Canadian carriers for the disclosure of confidential customer information.

3.

In the proceeding leading to Decision 2003-33, a number of Canadian carriers submitted that they were at a competitive disadvantage since the confidentiality provisions applied only to Canadian carriers, and not to other competitive service providers such as resellers, including resellers of Internet service. A number of consumer groups submitted that all competing companies under the Commission's jurisdiction should be subject to the same confidentiality requirements.

4.

In Decision 2003-33, the Commission directed all Canadian carriers to show cause, by 30 June 2003, why, as a condition of providing telecommunications services to any resellers not currently covered by the confidentiality requirements, they should not include in their service contracts and other arrangements with such resellers the requirement that these resellers abide by the confidentiality provisions.
 

Process

5.

The Commission received comments from TELUS Communications Inc. (TCI) on 27 June 2003. By letter dated 22 July 2003, TCI clarified that it submitted its comments on behalf of all the carriers in its corporate family, including TELUS Communications Inc., the TELE-MOBILE COMPANY and TELUS Communications (Québec) Inc.

6.

On 30 June 2003, Bell Canada filed comments on behalf of itself, Aliant Telecom Inc., Bell Mobility Inc., MTS Communications Inc., NorthernTel Limited Partnership, Northwestel Inc., Northwestel Mobility Inc., Saskatchewan Telecommunications and Société en commandite Télébec (collectively, the Companies). Also on 30 June 2003, the Commission received comments from Futureway Communications Inc., doing business as FCI Broadband.

7.

On 2 July 2003, Allstream Corp. (Allstream) filed comments with the Commission.

8.

The Commission received reply comments from the Companies dated 8 August 2003.
 

Position of parties

9.

The Companies and TCI supported the extension of the confidentiality provisions to all resellers but expressed concerns related to the enforcement of these provisions.

10.

The Companies questioned the appropriateness of having Canadian carriers police the data protection practices of their competitors. The Companies stated that the improper disclosure of confidential information by resellers would be largely invisible to carriers in the ordinary course of business, and that any customers of resellers affected by a wrongful disclosure were unlikely to complain to the carrier with whom they had no direct relationship. Similarly, TCI submitted that a Canadian carrier was not in the position to monitor the activities of a reseller vis-à-vis its individual end-customers.

11.

TCI submitted that in cases where a complaint was brought to the attention of the Canadian carrier, the only remedy available to the Canadian carrier was termination of service to the reseller because of non-compliance with the confidentiality requirements in the applicable tariff or contract provision. The Companies expressed the same concern, stating that disconnection was a severe and inflexible enforcement mechanism that would have severe impacts on the end-customers. The Companies further submitted that this raised important questions about mechanisms for the continuity of service to such end-users.

12.

The Companies noted that, in many markets, their main competitors were companies related to, and providing services in association with, incumbent broadcasting distribution undertakings (BDUs). According to the Companies, the incumbent BDUs possessed sizeable monopoly-derived customer data assets and were able to disclose customer data to affiliated wireless, toll and local exchange service providers without express customer consent. The Companies urged the Commission to impose on cable carriers confidentiality restrictions similar to those imposed on telecommunications service providers (TSPs). The Companies submitted that the Commission could make this imposition by condition of licence or regulation under the Broadcasting Act, and argued that without such a restriction, the playing field favoured telecommunications competitors affiliated with incumbent BDUs.

13.

Similarly, TCI submitted that extending the confidentiality requirements to resellers did not address inconsistencies relative to the confidentiality regime applicable to telecommunications market players who were not Canadian carriers or resellers contracting with such carriers.

14.

TCI requested that the Commission clarify the range of activities embraced by the term 'resale' in order for Canadian carriers to be able to determine which resale scenarios attract the confidentiality requirements set out in Decision 2003-33.

15.

TCI raised concerns about undue administrative complexity and expense related to the opening of hundreds of existing resellers' agreements for the insertion of a clause requiring resellers' adherence to the confidentiality provisions. TCI proposed that the Commission deem all existing contracts and other service arrangements for forborne services, between Canadian carriers and resellers, to include a provision reflecting the confidentiality requirements, effective the date of this decision.

16.

Allstream and FCI Broadband agreed that the confidentiality provisions should be extended to resellers.
 

Commission analysis and determination

17.

The Commission is guided by the telecommunications policy objectives set out in section 7 of the Telecommunications Act (the Act). One of these objectives is to contribute to the protection of the privacy of persons. The Commission considers that it would be consistent with this objective to have Canadian carriers require, as a condition of providing telecommunications services, that resellers abide by the confidentiality provisions.

18.

The Commission notes that section 24 of the Act states that the offering and provision of any telecommunications service by a Canadian carrier are subject to any conditions imposed by the Commission or included in a tariff approved by the Commission. The Commission considers that the power provided to the Commission under section 24, to impose conditions of service applicable to customers such as resellers, is an appropriate means by which to extend the confidentiality provisions to all resellers.

19.

The Commission notes that it investigates complaints relating to non-compliance with conditions imposed under section 24 of the Act and that suspension and termination of service are only two examples of measures that the Commission can use to enforce compliance with a section 24 condition.

20.

The Commission notes that neither the Companies nor TCI suggested any alternative means to protect the confidential information of resellers' customers.

21.

With respect to TCI's request for clarification of the range of activities embraced by the term 'resale', the Commission notes that TCI, and other TSPs, explicitly define the term resale in their respective Carrier Access Tariffs in accordance with the Commission's determinations. Therefore, the Commission considers that there is no need to define 'resale' in order to make a determination in this proceeding.

22.

In light of the above, the Commission directs Canadian carriers, as a condition of providing telecommunications services to any resellers not currently covered by the confidentiality requirements, to include in their service contracts and other arrangements with such resellers the requirement that these resellers abide by the confidentiality provisions approved in Decision 2003-33 and previous determinations.

23.

The Commission determines that these confidentiality provisions apply, effective the date of this decision, to all existing contracts and other service arrangements between Canadian carriers and resellers, regardless of whether the provisions were included in the service contracts or other arrangements entered into by those resellers.
 

Other matters

24.

With respect to the concerns raised by the Companies and TCI about BDUs, the Commission notes that it has already dealt with arguments relating to BDUs submitted by the Companies and TCI in the proceeding leading to Decision 2003-33. In Decision 2003-33, the Commission noted that the confidentiality provisions apply equally to all Canadian carriers, which would include BDUs that offer telecommunications services as Canadian carriers within the meaning of the Act, except in respect of wireless services that are not public switched wireless services. As for the Companies' request that the Commission extend the confidentiality provisions to BDUs, operating in their capacity as BDUs, through a condition of licence imposed under the Broadcasting Act, the Commission considers this request to be outside the scope of this proceeding.
Secretary General
  This document is available in alternative format upon request and may also be examined at the following Internet site: http://www.crtc.gc.ca

Date Modified: 2004-04-22

Date modified: