ARCHIVED -  Telecom Decision CRTC 2004-35

Ottawa, 21 May 2004

Review of telemarketing rules

Reference: 8665-C12-13/01

In this decision, the Commission implements changes to the regulation of telemarketers with more specific identification procedures, constraints on the use of predictive dialling devices and mandatory reinforcement of do not call lists for all telemarketers. The Commission also requires the tracking and reporting of complaints and establishes a multi-faceted awareness program for both consumers and telemarketers. The Commission recognizes the merits of expanded enforcement but finds that additional regulatory action is contingent on increased powers being provided through legislative change.

Introduction

1. The Commission issued CRTC seeks public input on telemarketing rules, Public Notice CRTC 2001-34, 5 March 2001 (Public Notice 2001-34) announcing its intention to review its rules, including enforcement procedures, regarding unsolicited telecommunications for the purpose of solicitation from persons who represented for-profit and not-for-profit organizations, generally called "telemarketers".

2. In Public Notice 2001-34, the Commission invited comments on: whether the current rules, along with enforcement procedures, could be made more effective; whether new restrictions were required on live voice calls from individuals, businesses and non-profit organizations who solicit for money or money's worth; what restrictions, if any, should apply to unsolicited communications which were not made for the purpose of solicitation, such as market or survey research calls. Other issues included the adequacy of current rules dealing with unsolicited facsimile (fax) solicitation, whether such faxes should be entirely prohibited; the effectiveness of do not call lists, any improvements, and who should maintain the lists as well as dead air or hang up calls which may be related to uncompleted telemarketing calls. In addition, parties were asked to comment on whether the use of automatic dialing-announcing devices (ADADs) should be permitted when communicating with a client with whom a firm has an on-going business relationship.

3. The Commission noted that in the proceeding that led to Telemarketing restrictions extended to all telecom service providers, Order CRTC 2001-193, 5 March 2001 (Order 2001-193), there had been a significant number of comments raised related to consumer inconvenience and annoyance caused by unsolicited calls. The Commission also noted that, in recent years, there had been a broad range of concerns and complaints expressed about unsolicited communications using live voice calls and fax transmissions and it had been monitoring complaints received from the Canadian public concerning telemarketing practices. The Commission concluded that the time had come to seek comments regarding both the effectiveness of its rules and other options or measures to deal with these concerns.

4. In Public Notice 2001-34, the Commission made the following Canadian carriers parties to the proceeding: Aliant Telecom Inc. (Aliant Telecom), Bell Canada, MTS Communications Inc. (MTS), Northwestel Inc. (Northwestel), Saskatchewan Telecommunications (SaskTel), and TELUS Communications Inc. (TELUS). Forty-four additional parties registered with the Commission as interested parties to the proceeding.

5. On 24 April 2001, the Commission received submissions from Aliant Telecom, Bell Canada, MTS, Northwestel and SaskTel, collectively called "the Companies", AT&T Canada Corp., on behalf of itself and AT&T Canada Telecom Services, now known as Allstream Corp. (Allstream), Action Réseau Consommateur, Fédération des associations coopératives d'économie familiale du Québec and the Public Interest Advocacy Centre (ARC et al.), Chris Aikenhead, Call-Net Enterprises Inc. (Call-Net), the Canadian Association of Financial Institutions in Insurance (CAFII), the Canadian Fax Telebroadcasting Coalition (CFTC), the Canadian Marketing Association (CMA), the Consumers' Association of Canada (CAC), C-Comm Network Corp. (C-Comm), EastLink Limited (EastLink), Fred Ennis, Games Trader Inc., InfoLink Communications Limited (InfoLink), the Institute of Canadian Advertising (ICA), the Manitoba Call Centre Association (MCCA), Microcell Telecommunications Inc. (Microcell), Primus Canada Telecommunications Inc. (Primus), Michael L. Ryshpan, TouchLogic Corporation (formerly Telelink Call Management), TELUS and Xentel DM Incorporated (Xentel).

6. On 14 May 2001, the Commission addressed interrogatories to the above parties, and to the Canadian Wireless Telecommunications Association (CWTA), Gateway Telephone, GT Group Telecom Services (Group Telecom), Halifax Cablevision, Vidéotron Télécom ltée (Vidéotron) and Futureway Communications Inc. (Futureway). Interrogatory responses were received on 5 June 2001. On 14 September 2001, the Commission issued a second round of interrogatories and, after granting an extension, received responses on 30 November 2001.

7. On 19 December 2001, the Commission issued a third round of interrogatories to Allstream and Call-Net. Interrogatory responses were to be filed by 28 December 2001.

8. Parties filed final comments on 21 December 2001.

9. On 21 January 2002, reply comments were received from the Companies, ARC et al., Allstream, Call-Net, Canadian Survey Research Council (CSRC), Microcell, Primus, TELUS, and Thunder Bay Telephone.

10. On 3 May 2002, the Commission issued interrogatories to CMA and Xentel with interrogatory responses due 13 May 2002. On 7 May 2002, Xentel filed its response but CMA requested an extension to 1 June 2002. On 31 May 2002, CMA filed interrogatory responses.

11. The Commission also received comments from other parties, including more than 2,470 individuals.

Background

12. Telemarketing refers to the use of telecommunications facilities to make unsolicited calls for the purpose of solicitation where solicitation is 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 another party. This includes solicitation of donations by or on behalf of charitable organizations. There are several types of organizations that engage in these activities. Local businesses may engage in small-scale telemarketing campaigns to promote their services in the neighbourhoods in which they operate. Larger businesses, such as department stores or telecommunications carriers, may engage in similar endeavours to promote product sales or services but on a larger scale in terms of numbers of people called and geographical area covered. Agencies may engage in telemarketing on behalf of enterprises that want to promote their products or services through telemarketing but do not wish to do it themselves. Charitable organizations may also use these agencies for fund-raising campaigns.

13. The Commission's authority in respect of unsolicited telecommunications derives from the Telecommunications Act (the Act), specifically section 41. Section 41 reads, "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." Section 7 of the Act is also relevant. That section reads, "7. It is hereby affirmed that telecommunications performs an essential role in the maintenance of Canada's identity and sovereignty and that the Canadian telecommunications policy has as its objectives.(i) to contribute to the protection of the privacy of persons."

14. It was pursuant to section 41 of the Act that the Commission introduced most of the telemarketing rules in effect today. The Commission, in establishing its rules, considered how best to fulfill the intent of section 41 and to achieve the objectives in section 7, while allowing for the legitimate uses of such communication. The Commission also took into account the right to freedom of expression set out in the Canadian Charter of Rights and Freedoms (the Charter).

15. The Commission first approved certain restrictions on the use of ADADs for telephone solicitation in Use of Automatic Dialing-Announcing Devices, Telecom Decision CRTC 85-2, 4 February 1985 (Decision 85-2). An ADAD is automatic equipment capable of storing or producing telephone numbers to be called and can be used alone or in conjunction with other equipment to convey a pre-recorded or synthesized voice message to the number called.

16. The Commission set out the rules and conditions for unsolicited communications using voice or fax transmission in Use of telephone company facilities for the provision of unsolicited telecommunications, Telecom Decision CRTC 94-10, 13 June 1994 (Decision 94-10), and Telecom Order CRTC 96-1229, 7 November 1996 (Order 96-1229). In Decision 94-10, the Commission determined that the restrictions on ADAD use had not been an effective means of preventing undue inconvenience and nuisance to consumers. The Commission therefore found that it was in the public interest to prohibit the use of ADADs to make unsolicited calls for solicitation of money or money's worth. The Commission did not prohibit unsolicited ADAD calls wherein no attempt was 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.

17. In Decision 94-10, the Commission also imposed a number of restrictions on unsolicited live voice and fax calls, including the requirement for telemarketers to maintain company-specific do not call lists. The Commission established rules to, among other things, facilitate consumer use of such company-specific do not call lists. The Commission also established specific enforcement procedures whereby service to lines used to place unsolicited calls to solicit might be terminated by the telephone company for a violation of the conditions of service, as set out in the tariff, upon notice, after two business days.

18. In Order 96-1229, the Commission added restrictions to unsolicited fax transmissions for solicitation. These included restrictions on hours during which such faxes could be sent and confirmation of the seven day period within which a fax broadcaster must add a consumer to its do not call list.

19. In Local competition, Telecom Decision CRTC 97-8, 1 May 1997 (Decision 97-8), the Commission extended the telemarketing rules and conditions to the competitive local exchange carriers (CLECs) operating in the territories of those incumbent local exchange carriers (ILECs) to whom the rules applied. In Order 2001-193, the Commission concluded that the rules should apply to all ILECs, including independent telephone companies, all CLECs, interexchange carriers (IXCs), wireless service providers (WSPs) and resellers of telecommunications services provided by the above companies and their customers.

Positions of parties

20. The majority of the parties who commented on the effectiveness of the existing rules agreed that the current restrictions represented a fair and adequate balance between the interests of customers and telemarketers. Many parties agreed that the extension of the rules set out by the Commission in Order 2001-193 was a positive step. Most identified adequate enforcement of the existing rules as the major issue and that awareness of the rules by both consumers and telemarketers was an area that required particular attention. Parties submitted varied suggestions related to stronger enforcement capability and programs aimed at increased understanding of the rules. Many of the complaints from consumers indicated significant dissatisfaction with the telemarketing industry in general and focused on the difficulties encountered by consumers in registering this dissatisfaction and preventing continued unwanted contact.

21. The Companies submitted that, before considering adopting any new rules or imposing new and costly control mechanisms on the telemarketing industry, the Commission should take steps to make the current rules and restrictions more effective. The Companies submitted that the first step would entail improving the awareness of customers and telemarketers of the current restrictions and options available to customers for managing incoming calls, such as the present individual do not call list requirements. The second step would entail the Commission taking concrete steps to improve the enforcement of the current restrictions, including designating a single agency for accepting and investigating telemarketing complaints. The Companies argued that, only after these steps were implemented, would the Commission be in a position to reasonably determine whether any of the more elaborate and costly approaches to regulation, such as a national do not call list, were necessary. Finally, the Companies submitted that a longer-term solution to enforcement difficulties should be pursued through seeking legislative changes that would provide the Commission greater flexibility with respect to sanctions for non-compliant telemarketers.

22. TELUS submitted that the current application of telemarketing rules was adequately addressed in Order 2001-193, which extended the existing rules to apply uniformly to all telecommunications service providers (TSPs) across the country. This imposition of a common set of rules for telemarketing across all TSPs was essential in helping to reduce the high volume of complaints the Commission and the telephone companies receive each year.

23. TELUS submitted that the current telemarketing rules and the enforcement of those rules could be made more efficient if the rules were simplified. TELUS noted that the current rules were complex due to the different permissions and prohibitions that applied whether or not a telemarketer was using voice, fax or ADADs communications. TELUS suggested that the effectiveness could be improved if the rules for all forms of telemarketing were independent of the type of calls or technology used in contacting the called party. TELUS submitted that it would also be easier for a TSP to enforce the rules if the permitted hours of calls, the identification of the calling party, including originating number, company name and contact information as well as the requirement to maintain a do not call list were the same for all forms of communications.

24. TELUS submitted that the current rules for unsolicited live voice solicitations were adequate. TELUS noted that calling parties were required to identify themselves and the purpose of the call. A consumer receiving such a call would have the option to continue with the call or to end the call. TELUS argued that the current rules were sufficient to allow customers to manage their privacy by providing the opportunity to accept the call or not, as well as to request placement on a do not call list.

25. The CMA submitted that the current regulatory framework governing telemarketing, wherein the Commission had standardized its telemarketing rules and extended them to all TSPs across the country, was reasonably effective but it also submitted that better enforcement was required.

26. The CMA stated that it had received numerous complaints from consumers who found it extremely difficult to lodge a complaint with the correct TSP when there has been a contravention of the existing rules. In order to better identify the TSP, the CMA suggested the establishment of a central system or body that would be able to direct consumers to the carrier providing a particular telephone number. The consumer could then contact the telephone carrier directly. This system would also allow the telephone companies and the Commission to identify those who might not be complying with telemarketing rules. The CMA submitted, however, that any additional regulation would have to strike a balance between the rights of consumers and the protection of telemarketing jobs and the economic contribution made by this growing medium.

27. CAC submitted that it was most concerned with making telemarketing undertaken by legitimate businesses work better for consumers. CAC submitted that the problem of voice calls made during inconvenient times needed examining to determine if changes to the rules were required. CAC noted that there were currently no restrictions on the hours for voice calls. CAC submitted that telemarketing calls should only be made between 9 a.m. and 9:30 p.m. on weekdays and between 10 a.m. and 6 p.m. on weekends, with no calls on statutory holidays. CAC pointed out that this limitation would be the same as required by the CMA for all its members.

28. CAC submitted that an information campaign was required to ensure that all telemarketing companies, as well as charities undertaking telemarketing, were familiar with the current rules. CAC also suggested providing telemarketing companies with a distinct registration number that could be included in the opening pitch to consumers.

29. CAC also raised the issue that, as the use of cell phones and other wireless technologies increased, telemarketing firms would likely make more calls to these devices. The owners of cell phones pay airtime fees for both incoming and outgoing calls. The portable nature of these phones also means that incoming calls might be received in inappropriate or even dangerous locations, such as in automobiles. CAC cited reports that wireless text messaging services offered as standard equipment on most portable phones were also being used for unsolicited marketing purposes. The system generally used a combination of phone numbers and the carrier's name, allowing advertisers to target specific people or identifiable groups. CAC submitted that the extent and costs of these solicitations needed examination and, if necessary, a policy response regarding appropriate regulation must be developed in consultation with consumer groups and industry representatives.

30. When commenting on the effectiveness of the current regulatory framework, most of the parties emphasized the issue of enforcement. All were in general agreement that enforcement of the telemarketing rules was the key to addressing the concerns of consumers.

31. The Companies argued that, although the rules might be adequate, their effectiveness had been impaired by a lack of awareness and inconsistent enforcement. The Companies stated that while they were fulfilling their enforcement responsibilities, the same could not be said for certain other TSPs. They maintained that enforcement could only be improved if the Commission were to take a greater role in enforcing the telemarketing restrictions directly on telemarketers.

32. The Companies stated that attempts by TSPs to enforce the rules and sanction offenders have not reduced customer complaints. The Companies argued that the requirement to enforce could place TSPs in a conflict of interest situation where they not only provided facilities to telemarketers but also functioned as telemarketers themselves. It could place them, inappropriately, into a judicial or quasi-judicial role in the context of attempting to resolve telemarketing disputes. The Companies submitted that the Commission, or some other government agency, was best positioned to carry out investigation of complaints and enforcement of rules that would be national in scope, expeditious, fair and accompanied by progressive sanctions that would be real deterrents for telemarketers.

33. The Companies also submitted that a longer-term solution to enforcement difficulties should be pursued through legislative changes that would provide the Commission, or some other government agency, greater flexibility with respect to sanctions, such as fines. The Companies submitted that significant fines and prosecution would be much more effective tools against non-compliant telemarketers than disconnection, particularly because the Companies were required by tariff to reconnect a disconnected telemarketer on request and some telemarketers considered disconnection as merely a cost of doing business.

34. Call-Net noted that the Commission is currently able to order the disconnection of telemarketers and that, while fines might provide an additional deterrent, many of the offending telemarketers were proficient at rapidly winding-up operations and re-establishing themselves under a different guise, thereby avoiding any payment. Call-Net submitted that there should be financial penalties in the case of high volume, repeat offenders.

35. TELUS submitted that it had the authority to enforce the rules only with its own customers and had no authority to enforce the rules on parties that are not its customers. TELUS noted that it received customer complaints about either a soliciting party who is a TELUS customer originating calls in TELUS operating territory, or a soliciting party who is not a TELUS customer but who is originating calls in TELUS operating territory; or a soliciting party who is originating calls from outside of TELUS operating territory using another TSP, or a soliciting party where a reseller provides the telecommunication services being used for the unsolicited telecommunication. TELUS's authority to enforce the Commission's privacy policies were limited to those situations where its own customers were in breach of the unsolicited telecommunications provisions contained in its General Tariff. TELUS noted that any TSP would be powerless to enforce the telemarketing rules, when the complaint concerned a telemarketer using another TSP's service.

36. Allstream submitted that the role of TSPs in the enforcement process should be limited because the resources and the powers required to enforce the rules made it inappropriate for carriers to be responsible for this function. Allstream submitted that, under the current regulation, a telemarketer who violated the rules could continue to operate without consequence. Allstream claimed that even if such a telemarketer's services were terminated, it could use other lines that had not been suspended or it could simply change carriers. The carrier who disconnected the telemarketer would lose a customer to a competitor and there would be no real impact on the telemarketer.

37. Allstream noted that the existing rules generally governed the relationship between telemarketers and customers and submitted that the costs associated with administering and enforcing the rules should not be attributable to carriers. Instead, Allstream argued that an independent central body, such as the Commission, should handle complaints, undertake investigations and enforce the rules. Allstream also submitted that disconnection might not be a sufficient deterrent and that more severe penalties such as fines might be necessary.

38. Vidéotron submitted that the TSPs should not be required to take on more enforcement responsibility. Vidéotron submitted that the Commission should more actively intervene by directly issuing warnings to offenders and by imposing fines and issuing disconnection or suspension of service orders for repeat offenders.

39. The CMA submitted that the Commission must enforce the rules, handle complaints and conduct investigations that relate to non-compliance. It submitted that a series of escalating fines were required, leading to the ultimate penalty of disconnection or suspension of service, which should be reserved for the most serious cases. The CMA recognized that this proposal would require legislative change.

40. ARC et al. submitted that it was clear that the current regime was not working but better rules alone wouldn't solve the problem since effective enforcement was required. ARC et al. submitted that the Commission had unused powers of enforcement that it could and should begin using. These powers included consent to prosecution under section 73 of the Act, and section 51 mandatory orders which could be registered with the Federal Court. ARC et al. also stated that the primary mechanism for enforcement and deterrence should be monetary fines of a magnitude sufficient to constitute effective deterrence. In addition, individuals should have a statutory right of action for damages, with a minimum amount of damages for each instance of non-compliance.

41. ARC et al. submitted that the Commission should seek amendments to the Act, as necessary, to create these enforcement mechanisms. ARC et al. also argued that disconnection should be available but not relied upon as the primary enforcement mechanism and that TSPs should not have the primary role in the handling of complaints and investigations. Instead complaints should be directed to the Commission who should investigate and determine the appropriate action to be taken. ARC et al. submitted that it should be the Commission that issues disconnection orders after a show cause proceeding, thus removing liability from the local exchange carrier (LEC), and that such orders should prohibit all LECs from reconnecting the telemarketer.

42. Some of the telemarketers also criticized the Commission's current approach to enforcement and called for more active enforcement. The CFTC submitted that improvements were needed regarding enforcement. The CFTC submitted that the penalties for repeat offenders should be stiffened because, in their view, the vast majority of complaints resulted from the actions of a few telemarketers who failed to follow existing rules and who represented a very small segment of the industry. The CFTC argued that a graduated set of penalties starting with a warning, followed by escalating financial penalties that raised the cost of non-compliance high enough to ultimately change the behaviour, was needed. The CFTC submitted that enforcement should be centralized and an oversight body, comprised of government, industry and private citizen representation, could adjudicate complaints brought before it and could have the power to impose sanctions such as prohibitions and fines.

43. In commenting on the existing requirement for telemarketers to maintain a do not call list, the parties generally agreed that a common or national registry would be more efficient than the current company-specific do not call lists. There was no consensus on how to set up such a national list or how to fund the start-up or the maintenance and administration of the system.

44. TELUS submitted that the current rules for maintaining do not call lists should continue to be the responsibility of the company that had the relationship with the customer. TELUS argued that the development of a national central registry for do not call numbers, coupled with rules that require telemarketers to both register and vet their lists against the registry on a regular basis, would be an unworkable solution. TELUS submitted that there are many ways in which telemarketing companies could legitimately acquire personal information that would circumvent this measure.

45. The Companies argued that it would be far more prudent for the Commission to first take action with respect to awareness and enforcement of the current regime. Only then would the Commission be in a position to determine whether the regime governing unsolicited telemarketing calls required augmentation via any of the more costly approaches to regulation, such as a national do not call list. In this respect, the Companies urged the Commission to take the more cost-effective step of addressing the education and enforcement issues before contemplating the necessity of further measures.

46. The Companies submitted that a national do not call list was neither a sufficient nor necessary solution to customer telemarketing concerns at this time. Absent any action to address a lack of awareness of the telemarketing rules on the part of consumers and telemarketers, any new mechanisms to regulate the industry would be no more effective than the current rules. The Companies argued that a national do not call list - or any of the conceptual network-based approaches to controlling telemarketing calls - would fail to address the root causes of customer concerns and, hence, would be insufficient measures to resolve those customer concerns.

47. The Companies further submitted that the cost to establish and maintain elaborate solutions such as a national do not call list would be very high. Requiring telemarketers to fund any proposed solution in its entirety would act as a disincentive to participation and could increase non-compliant telemarketing activity. The Companies submitted that the high cost of a national do not call list program, combined with the lack of equitable funding options, might make a national do not call list impractical.

48. The Companies submitted that one of the ongoing costs associated with a national do not call system would be the maintenance of an expiry date. The Companies argued that without an expiry date, a national do not call list would eventually no longer reflect customers' views. When customers moved or changed numbers for any reason, updating the do not call list would not be paramount in their minds and it would be unrealistic to expect such customers to notify the do not call list administrator. Further, the costs of setting up a process to update a national do not call list when a telephone number is reassigned would far outweigh its usefulness. In lieu of a complex mechanized process to handle number changes, the Companies submitted that, if required, the adoption of a "sunset" rule with an expiry date might be a simple and cost-effective means of managing telephone number churn.

49. The CMA submitted that it currently manages its own do not contact program on behalf of its members. The CMA stated that the program was compulsory for CMA members and was also offered to non-member companies. The CMA submitted that it administered the program at no cost to the consumer but telemarketing companies had to pay a subscription fee to participate. This program enabled consumers to reduce the number of marketing offers they receive by mail and telephone by registering to have their names removed from internal marketing lists of CMA members. Four times a year the names of consumers registered under the do not contact program are distributed to CMA members and others who have subscribed to the program. Consumers who requested removal of their names and addresses would see a reduction in mail and telephone solicitations within three months of registering. The CMA stated that it planned to expand the program to include fax marketing. They also planned to switch the management of the do not contact program to an Internet-based system, which would allow consumers to register directly on-line resulting in a much shorter implementation period.

50. The CMA supported the establishment of a national do not call list in principle. The CMA stated however, that it had some serious questions regarding the application and practicality of such a service. The CMA argued that several major issues would need to be studied in advance, including how such a system would be funded, and who would be responsible for operating the system and its applications and affordability for small business.

51. CAC noted that consumers who did not want to receive telemarketing calls were required to deal with each telemarketer separately since there was no universal do not call list. CAC submitted that a method whereby consumers could register with one agency to have their phone number removed from all telemarketing lists would be a great improvement. Given the sophisticated computer software available to the telephone companies and telemarketing companies, CAC was of the view that developing such a system would not place onerous costs on either of these types of organizations. CAC submitted that the Commission, the telemarketing industry and the telephone companies needed to study and explore methods of developing a universal do not call list. CAC noted that a national list would, however, have to be developed in such a way as to protect the privacy of those people on the list.

52. Parties also submitted their assessment of the general effectiveness of aspects of the current regulatory framework related to telemarketing activity and proposed minor changes to the rules based on that assessment.

53. The Companies submitted that there was no need for additional restrictions or elaborate technical measures in an attempt to enhance the existing restrictions. The Companies maintained that the real issue was the effective implementation of the existing restrictions and that effective implementation required aggressive education and direct regulation of telemarketers by the Commission.

54. The Companies strongly opposed the mandatory implementation of technical solutions, such as network-based automatic call blocking, to concerns that might arise from telemarketing complaints. The Companies submitted that technical means by which consumers might restrict or screen telemarketing calls would require expensive upgrades to existing systems. The Companies also stated that these mechanisms were not technically reliable and were questionably feasible. Other carriers also submitted that call blocking through the network would not be practical. The CMA submitted that a system which allowed consumers to block certain telephone numbers was impractical and would not address consumers' problems. ARC et al. supported call blocking but expressed concern about the cost and effectiveness.

55. The Companies did not support a complete ban on fax solicitation. The Companies stated that the number of complaints concerning fax solicitation was low relative to the high volume of faxes sent by fax broadcasters. The Companies argued that the complaints were caused by the actions of a fairly small number of non-compliant fax broadcasters. An outright ban of unsolicited faxes would be a drastic response that the Companies considered would be out of proportion with the scope of the problem. The Companies also argued that better enforcement of the current restrictions would ensure that the non-compliant fax broadcasters bear the burden of their non-compliance. In contrast, an outright ban on unsolicited faxes would unfairly penalize the large number of fax broadcasters who have followed the rules.

56. TELUS submitted that the current rules for unsolicited fax calls used to solicit were not adequate for the purposes of enforcement. TELUS proposed wording changes to the current rules to assist complaining subscribers in taking action themselves in contacting the originating party of the unsolicited faxes and demanding that they stop. TELUS also suggested the requirement that the fax message display an alternate manned live voice number, where the originator could be reached. TELUS argued that this would provide more effective enforcement, by making it easier for the customers to resolve complaints on their own, while retaining the freedom of expression provided for in the Charter.

57. CAC also reported that it had received complaints about unsolicited faxes to home-based businesses and small not-for-profit organizations. CAC stated that these faxes had two costs associated with them. The first was related to the cost for fax paper but the second, a potentially more expensive cost, was the lost business resulting from the phone line being busy receiving the unsolicited fax. CAC argued that it was not even possible to quickly hang up because most fax machines have automatic redial for up to five attempts. CAC did recognize that there was a difference between home faxes, home-based business faxes, not-for-profit faxes and other businesses that advertise their fax numbers.

58. The Companies and TELUS noted that, under the current restrictions, the conditions for unsolicited live voice and fax calls did not apply to market and survey research calls. The Companies submitted that unsolicited calls for the purpose of market research where there was no attempt to sell should continue to be exempt from the conditions for unsolicited live voice and fax calls for the purpose of solicitation.

59. ARC et al. argued that, for many consumers, market research calls were as annoying, intrusive and unwanted as telemarketing and fundraising calls. According to ARC et al., many consumers refused to respond to telephone surveys for that reason.

60. ICA submitted that any new restrictions on survey calls would impact on its members' ability to obtain accurate and cost-effective data vis-ŕ-vis their products, services and media consumption. According to ICA, research calls did not generate a significant amount of complaints from the public. ICA submitted that the status quo remained appropriate as the industry did an effective job of regulating itself and treated the privacy rights of Canadians with the utmost respect.

61. CAC submitted that silent or dead air calls were a major concern to the elderly, single women, and others who might feel threatened or those unfamiliar with the cause of these calls. Answering the phone and being met by silence, clicking sounds or the sounds of people talking in the background could be extremely frightening to these people. They might even suspect that criminals were targeting them or their houses for nefarious purposes. CAC submitted that the Commission needed to monitor the number of hang-ups or silent calls to determine if these were a serious problem, especially among vulnerable members of society. Should this be the case, CAC submitted that the Commission, in consultation with consumer groups and the various industry players, should devise methods of reducing the number of silent calls.

62. CAC also noted that many consumers have requested and paid a premium for unlisted telephone numbers in the belief that these numbers would not be made public and that they would not receive unsolicited telephone calls. CAC indicated that there were many reasons for choosing an unlisted number including the protection and safety of family members. CAC argued that receiving a telemarketing call on an unlisted number was most annoying and questioned the rationale of paying extra for this service. In the case where the unlisted number was chosen for the protection of family members, answering a phone and being met by silence could be terrifying. CAC submitted that the way that unlisted telephone numbers become part of telemarketing lists needed to be investigated, and based on the findings, methods were needed to ensure that these numbers were not available to telemarketers, or other members of the general public.

63. With regard to permitting the use of ADADs when communicating with a client with whom a firm has an on-going business relationship, CMA submitted that ADADs provided a legitimate and effective means for businesses to communicate with their existing customers. CMA described potential ADAD uses as scheduling customer service and installation calls, order pick-ups, appointment reminders, notices of warranty/subscription expirations, scheduled maintenance and notification of special offers/activities. CMA maintained that once a consumer purchased a product or service, there would be a reasonable expectation by the individual that a company would want to build an ongoing relationship with that person. CAFII, InfoLink and Telelink all agreed that ADAD calls should be allowed when an ongoing business relationship existed between caller and clients.

64. The Companies, TELUS and ARC et al. did not support changes to the current rules respecting the use of ADADs. ARC et al. also argued that the use of ADADs should not be permitted in any marketing context, whether or not the recipient was an existing customer.

65. In response to requests from the Commission, the ILECs, who had been made party to this proceeding, provided statistics for the period 1996-2000, on the type and number of complaints each carrier had received regarding unsolicited voice and fax communications.

66. Aliant Telecom submitted that, between 1996 and 2000, it had received 76 complaints regarding unsolicited voice and fax communications. Aliant Telecom noted that these complaints included only those that were addressed to the executives of Aliant Telecom's member companies and those that were sent to the Commission and then referred to Aliant Telecom for action. Aliant Telecom noted that, prior to 5 March 2001, there were no tariff restrictions in Aliant Telecom's territory on the use of its facilities for voice or fax telemarketing. Aliant Telecom did state, however, that in addressing any concerns expressed by its subscribers, all complaints were investigated and, in some cases, letters of education were issued to the telemarketer involved.

67. Bell Canada submitted that, between 1996 and 2000, it had received 6,362 complaints regarding unsolicited voice and fax communications that were either referred internally to Bell Canada's senior management or which were forwarded by the Commission to the company for action. Of these complaints, 461 related to dead air, 2,477 concerned voice telemarketing and 3,424 raised issues about fax telemarketing. Bell Canada noted that its 1996 and 1997 data was incomplete, as data for Ontario was unavailable for 1996 and only available from July onwards in 1997.

68. According to Bell Canada, during the period 1996-2000, approximately 5,000 complaints resulted in enforcement action such as education letters, e-mails or phone calls to fax and live voice telemarketers. In addition to complaints concerning apparent violations of the telemarketing restrictions, Bell Canada noted that it had received a significant number of complaints from subscribers where the telemarketer in question was operating within the restrictions. In these cases, a company representative explained to the complainant the scope of allowable telemarketing, and the applicable terms and conditions that a telemarketer must respect.

69. MTS submitted that, during the 1996-2000 period, its officers and department heads had received 23 telemarketing complaints. According to MTS, its records did not distinguish between voice and fax telemarketing complaints. MTS also stated that its statistics were incomplete and understated because it was unable to locate some of the records, particularly those from the earlier years of the requested reporting period.

70. According to MTS, a majority of calls received by its service representatives were not escalated to an officer or department head. According to MTS, these calls typically did not concern situations where the rules had not been followed but were usually from customers who either wish to be removed from the calling list used by the telemarketer or from customers who are concerned because of their unfamiliarity with such occurrences as dead air or fax tones that are associated with telemarketing calls. MTS stated that such calls were routinely handled by service representatives as part of their normal activities and MTS did not maintain separate statistics for these calls.

71. Northwestel submitted that, between 1996 and 2002, it had received no complaints regarding either fax or voice telemarketing which were serious enough to be escalated to its senior management. According to Northwestel, its customer service representatives had only received a few dozen calls relating to telemarketing. Northwestel also submitted that its customers had not identified telemarketing as a major concern. Northwestel stated that it had not identified any long-term, continuous telemarketing agencies based in its operating territory and, therefore, it had not maintained a statistical database that specifically recognized telemarketing complaints. Northwestel emphasized that the few complaints it received were not generally recurring. According to Northwestel, most telemarketing activities involving violations of the restrictions originated outside of Northwestel's serving territory.

72. SaskTel reported that, between 1996 and 2000, it had received a total of 5,201 complaints about telemarketing. SaskTel submitted that its statistics were not logged on a company-wide basis until 2000 and that its statistics prior to 2000 did not accurately reflect all telemarketing complaints. According to SaskTel, the majority of concerns it had received related to dead air, do not call requests and faxes sent to voice lines.

73. TELUS submitted that it had received 2,977 complaints relating to voice and fax telemarketing during the period 1996-2000. TELUS stated that complaints had been received by a number of departments and not all of its departments maintained records of complaints received. TELUS submitted that, as a result, the complaint statistics filed did not reflect the total number of complaints it had received during that period. TELUS indicated that statistics were available for only seven months in 1999 along with 2000 for Alberta and for the years 1995-2000 for British Columbia. TELUS noted that prior to 1999, complaints about unsolicited voice and fax calls were grouped with other types of general complaint calls. TELUS stated that, in May 1999, its customer relations staff began categorizing such complaints as fax/nuisance.

74. Allstream submitted that it had received 38,280 voice and fax complaints over the five year period. The number of complaints received had increased each year. Allstream did not provide any details on how it had compiled these numbers.

75. The CFTC argued that the available data was only available in highly aggregated form because the details of complaints were not recorded by either the Commission or the carriers at the time of the receipt of the complaint. The CFTC argued that, for the Commission to do a proper job of balancing all the issues, better information was required. In the CFTC's view, no further changes should be made to the telemarketing regulatory framework until detailed data was collected and provided to all interested parties for evaluation and comment.

76. All parties took the position that both telemarketers and consumers would benefit from improved awareness and understanding of the telemarketing rules. Several parties submitted that the effectiveness of the current rules would be greatly enhanced through further customer education.

77. TELUS argued that consumers were generally unaware of the rules governing telemarketing in Canada. In TELUS's view, the responsibility rested with the telemarketing industry to educate its members on how to minimize consumer annoyance and disturbance.

78. TELUS stressed that consumers must be provided with information on how to handle unwelcome calls, for instance, telling the caller's company not to call again, contacting the originating caller's company to specify restrictions on types of calls to be made, or blocking calls from certain numbers. TELUS submitted that focus groups could be used to discover what information consumers require and to identify the best means of making such information available. TELUS stated that telemarketers should fund this research.

79. The Companies indicated that customers needed to have a better understanding of the types of telemarketing activities that were allowed and those that were prohibited. The Companies noted that many customers were not aware of the existence of do not call lists and that even when they were, they were not utilizing the options currently available to them. In addition, customers needed to be aware that a do not call request should identify all numbers associated with their telephone service if they wanted to ensure that they would not receive any more calls.

80. The Companies acknowledged that some valid customer complaints involved small telemarketers who were unaware of the telemarketing restrictions. According to the Companies, many of these small operations did not identify themselves as telemarketers when requesting service. The first opportunity for the Companies to provide information and education occurred when addressing complaints from customers. The Companies indicated that, when responding to complaints, they routinely ensured awareness of the restrictions and encouraged adherence. They submitted that a possible further step to better awareness would be to require a positive indication, or "sign-off" from the telemarketer, acknowledging that it had read, understood and pledged to comply with the rules.

81. ARC et al. submitted that education and awareness initiatives were badly needed. According to ARC et al., consumer awareness of the telemarketing rules and some of the options for managing privacy could be improved via telephone directories, billing inserts, information placed on CRTC, industry association and individual company websites, as well as other relevant information channels.

82. SaskTel emphasized that the objective of any awareness program should be to communicate in clear, plain language with both consumers and telemarketers.

Commission analysis and determination

Enforcement

83. The Commission notes that restrictions on and requirements for telemarketers have been well established in a series of Commission decisions and for the most part are included in the tariffs of incumbent service providers. The Commission also notes, however, the general agreement of all parties that better enforcement of the existing rules is the major factor in increasing their effectiveness.

84. Many submissions were critical of the principal enforcement provision currently available whereby service providers may suspend or disconnect the service of a person for breaching the rules on unsolicited telecommunications. The Commission heard arguments that certain telemarketers viewed disconnection as an acceptable cost of doing business and not as a deterrent. Even if disconnected from one service provider, these telemarketers could switch to another service provider. The Commission recognizes that each service provider's enforcement activities are limited to its own customer base and therefore each service provider is not able to track previous non compliance or to refuse service to telemarketers based on past violations.

85. The Commission notes that carriers are expected to respond to customer complaints related to breaches of their tariffs and that they may suspend or terminate service for breaches of their tariffs. The Commission is also aware that the disconnection sanction is rarely employed against telemarketers even when complaints indicate breaches of the rules. The Commission recognizes that telemarketers are often very large customers of the carriers and those TSPs are often telemarketers themselves.

86. The Commission notes that many parties to this proceeding argued that the Commission should play a greater role in enforcement. Many also argued that there should be a graduated enforcement approach that could result in more serious sanctions in cases where non compliance continues.

87. The Commission notes that there are a number of enforcement tools available to it to deal with breaches of the telemarketing rules. The Commission could issue an order that service to a telemarketer be suspended or disconnected. The Commission could also issue an order prohibiting all service providers from reconnecting that telemarketer for a set period. The Commission considers that such tools, which deprive a customer of service, would be most appropriate when there is an indication that the customer does not intend to comply with the rules, but are less appropriate consequences for, for example, a first breach of the rules. The Act provides for the possibility of a criminal prosecution pursuant to section 73. It also provides for a mandatory order requiring compliance pursuant to section 51, and for contempt of court proceedings in the event of a subsequent violation. The Commission notes that both prosecutions and contempt of court proceedings require the Commission to proceed through court proceedings, which may be lengthy or costly. The Commission considers that these tools are generally better suited to situations where non compliance is ongoing rather than for a first breach of the rules.

88. The Commission has considered the submissions of many parties, that, if it could impose appropriate fines on telemarketers who have breached the telemarketing rules, its ability to enforce the rules would be improved. The Commission does not currently have the authority to impose fines pursuant to the statutes that empower it. The Commission notes that Parliament has given the power to impose administrative monetary penalties (AMPs), similar to fines, to many other agencies and departments. This AMP power permits these agencies and departments to provide a flexible, timely and cost-effective response to violations that do not warrant criminal prosecutions or other costly and lengthy procedures. The Commission is of the view that, if it had an AMP power, this would greatly increase the effectiveness of its telemarketing enforcement powers. Such a fining power would enable the Commission to directly affect the bottom-line of a non-compliant telemarketer through the application of penalties that would be proportional to the frequency and severity of the infractions. The Commission also considers that such a power would have a significant deterrent effect.

89. The Commission considers that the ideal way to effectively deal with the issues raised in this proceeding would be to provide the power to the Commission to undertake suitable enforcement. This power once granted through legislative change would enable the Commission to develop key enforcement processes and the critical sanctions which are required to protect the rights of both consumers and telemarketers.

90. The Commission considers that, given appropriate legislation, it would also be advantageous to delegate various powers to an administrator to handle telemarketing complaints. The Commission notes that precedents exist in the Act relating to numbering and contribution administration. The Commission is of the view that, with appropriate changes to its mandate, it would have increased power to conduct investigations, to impose AMPs on non-compliant telemarketers, to appoint a third party administrator, to raise funds to cover the administrative costs and to develop and implement a national do not call list if deemed appropriate.

Do not call lists

91. The Commission notes that, under the current regulation, all telemarketers must maintain a do not call list of consumers who have requested that they are not called again. The Commission recognizes that separate do not call lists for each telemarketer are less effective and more onerous on the consumers who have to contact each telemarketer separately. The Commission recognizes the efficiency of a national do not call list where a consumer could register just once and effectively stop all unwanted telemarketing calls.

92. The Commission believes that there is considerable merit in the establishment of a national do not call list. The Commission is aware of the reported costs of establishing such a system recently in the U.S., as well as legislative authority provided by the U.S. government. The Commission considers that implementing a national do not call list in Canada without appropriate start-up funding and without effective fining power for enforcement would be counter productive. The Commission recognizes that there is a need for significant enforcement power, such as the power to impose AMPs, which is not available to the Commission under current legislation. The Commission has also considered the comments that the establishment and maintenance of a national registry would be expensive and would likely require a separate administrator. The Commission is of the view that, at this time, it is not feasible to establish a national registry without due consideration and resolution of the related framework.

93. The Commission does however consider that, as an interim measure, some reinforcement is required for the rules governing the maintenance of company-specific do not call lists. In order to ensure that consumers are as protected as possible, the Commission requires that, effective 1 October 2004, telemarketers must provide the requesting party with a unique registration number at the time of the request. This registration number will confirm receipt of the request and, if further calls are received, will serve as proof that the request was made. This requirement also applies to requests that are faxed to a telemarketer. The Commission further requires telemarketers to process do not call requests at the time of the call, rather than forcing consumers to place another call.

94. The Commission also requires that when an agency calling on behalf of clients receives a do not call request during a call, it must ask the requesting party if the name and number should be removed from only the client's list, only the agency's list or both. The Commission is of the view that this will assist called parties in ensuring that their names are removed from the maximum number of lists possible while preserving their right to receive calls from organizations they may wish to hear from.

95. In addition to providing better access to do not call lists, the Commission considered whether there were any network-based technical solutions available that might enable automatic selective call-blocking by consumers who don't want to receive telemarketing calls. The Commission notes that there is general consensus in the comments received from parties that these types of solutions are very expensive and of questionable value in resolving the problem. The Commission is of the view that network-based solutions involving selective call-blocking would not be cost-effective, technically feasible or even viable at this time.

Changes to the current rules

96. Absent the legislative power to impose fines, the Commission is making certain adjustments to the current regulation by imposing some additional requirements on telemarketers, by requiring additional data collection concerning complaints and by creating an awareness program that will highlight the options available to consumers.

97. The Commission received considerable public comment in this proceeding. The comments received related mainly to the difficulty of identifying and reaching telemarketers, excessive time spent contacting telemarketers, calls that were an invasion of privacy and calls that were costing the called party money. The Commission notes that the solutions proposed ranged from a complete ban on telemarketing calls to various measures for more stringent enforcement. The Commission also heard considerable support for a national do not call list. The Commission notes that many complainants displayed a lack of awareness of the existing rules, particularly the processes in place to protect them from nuisance calls.

98. The Commission recognizes that there must be a balance maintained between the right to privacy of consumers who are subjected to unsolicited calls and the right of the telemarketers to conduct their business. The Commission notes that parties were generally in agreement that more rules would not necessarily eliminate all the complaints. The Commission also notes that the few changes that were proposed were generally for minor rule modifications. In this decision, the Commission sets out certain regulatory changes that will provide additional clarity and consistency and assist consumers in dealing with unwanted unsolicited calls.

99. The Commission has already established restrictions on unsolicited live voice and fax calls for solicitation which include, but are not confined to, requirements for self-identification, restrictions on hours for fax calls, compulsory provisions for de-listing recipients who so request, prohibitions against sequential dialing and prohibitions against calls to emergency lines or healthcare facility lines.

100. The Commission notes chief among the complaints that it received in the course of this proceeding were the problems surrounding identification of and access to the particular telemarketer who had caused the concern. In response to this issue, the Commission considers that certain changes are required to the rules governing identification of telemarketers.

101. In order to enable called parties to better identify the telemarketer placing a live voice call, the Commission requires that the caller identify both the person and the organization calling. If an agency is calling on behalf of a client, the caller is required to identify himself/herself, the name of the agency as well as the client for whom the call is placed. This identification of the caller must be provided before any other communication and before asking for a specific individual.

102. The telemarketer must also provide a telephone number before any other communication and before asking for an individual. The Commission requires that the telephone number supplied must allow toll free access to the telemarketer for questions or comments about the call. The Commission also stipulates that the number provided must be manned during business hours with an after-hours interactive voice mail backup system.

103. The Commission notes the comments that unsolicited faxes pose different problems than voice calls, involving added costs for the called party such as paper and ink. The Commission considers that it is even more important under those circumstances to be able to identify and contact the sender if the faxes are unwanted.

104. In order to enable consumers to correctly identify the source of an unsolicited fax, the Commission requires that caller identification must be provided at the top of the first page of the fax in font size 12 or equally clear print that is at least as large. The identification must contain the caller's name, along with the name of any agency calling on behalf of the client, and must provide the originating date and time of the fax. The Commission also requires telemarketers to include a contact telephone and fax number on the front page of all unsolicited faxes. These numbers must provide toll free access and the telephone number must be manned during business hours with an after-hours interactive voice mail backup and they must also allow for the processing of do not call requests. The Commission concludes that, with these new rules designed to provide clear caller identification and easier access to do not call lists, there is no need to prohibit unsolicited faxes at this time.

105. The Commission notes that the current restrictions apply only to unsolicited calls made for the purpose of solicitation. The current restrictions do not apply to unsolicited live voice and fax calls that do not solicit, including calls for emergency purposes, account collection and market and survey research. In Decision 94-10, the Commission determined that the conditions imposed on live voice and fax solicitations would not apply to calls that did not solicit. The Commission concluded that these calls had less potential to cause undue inconvenience or nuisance.

106. The Commission notes that the majority of parties in this proceeding did not support any changes to the application of these rules. Further, the Commission considers that those parties, who advocated that market and survey research calls be covered by the restrictions, did not provide compelling evidence to demonstrate any undue inconvenience or nuisance.

107. The Commission further notes that those parties representing the market and survey research industry, such as the CAFII, CSRC and the ICA, argued that applying the solicitation conditions to market and survey research calls would impact on the ability of those conducting such calls to obtain accurate and cost-effective data. The Commission also notes that several TSPs reported that they had not received a significant number of complaints related to market and survey research calls.

108. The Commission considers that, in the absence of evidence demonstrating undue inconvenience or nuisance, it is inappropriate to amend the rules that apply to market and survey research calls at this time.

109. The Commission notes that there are currently no specific restrictions associated with the use of predictive dialing devices (PDDs) which are devices that automatically initiate outgoing calls. The PDD dials the next call in advance so that the operator can then speak to the next prospect as soon as the current call is terminated. These devices generate dead air calls when a telemarketing representative is not immediately available. The Commission notes the comments that dead air or silence, when answering the telephone, is both disturbing and annoying, even frightening. The Commission also notes that the PDDs can be specifically programmed to dial calls based on pre-set rates and that telemarketers can make adjustments to minimize dead air.

110. The Commission considers that establishing a maximum call abandonment rate is the best option to effectively reduce the number of hang-ups and dead air calls that consumers experience. The Commission considers that pre-setting the PDDs dialling rates to ensure a maximum abandonment rate of 5%, measured over a calendar month, would be reasonable and would balance the concerns of all parties. The Commission requires that telemarketers using PDDs maintain records that provide clear evidence that they have complied with this rule. The Commission also requires TSPs to specifically monitor complaints regarding dead air and to report these to the Commission. The Commission will continue to monitor the number of complaints to determine if further consideration is required.

111. With regard to whether the use of ADADs should be allowed when communicating with a client with whom a firm has an ongoing business relationship, the Commission considers that when a consumer purchases a service or product from a company, or donates to a particular charity, there is no "implied consent" as a result of that purchase to receive future solicitations. The Commission is of the view that explicit consent should be obtained before a future solicitation is presumed to be acceptable.

112. The Commission notes that, in Decision 94-10, it determined that it was in the public interest to prohibit the use of ADADs to make unsolicited calls for the purpose of solicitation. The Commission also found that ADAD calls for the purpose of soliciting existing customers would not be permitted. The Commission established the rules regarding the prohibition of ADAD use for solicitation in response to a significant number of complaints. The Commission is of the view that the present rules have proven to be effective given a substantial decrease in the number of ADAD complaints. The Commission also found that it was not in the public interest to prohibit unsolicited ADAD calls where no attempt was made to solicit such as calls for emergency purposes; to collect overdue accounts; for market or survey research; and to schedule appointments. The Commission finds that no changes are required to the current rules regarding the use of ADADs.

Implementation

113. In conclusion, based on the foregoing, the Commission directs the ILECs to file, for approval, tariff page revisions incorporating all the changes to the telemarketing rules set out in this decision, including those related to the identification requirements, the dead air restrictions and the do not call procedures within 30 days of the date of this decision.

114. The Commission also directs all IXCs, WSPs and CLECs, pursuant to section 24 of the Act, as a condition of offering and providing telecommunications services, to adhere to the new rules set out in this decision. The Commission notes that these new requirements are in addition to the existing requirements imposed on these service providers in Order 2001-193. The Commission also reminds all LECs that they are required, as a condition of providing service to resellers wherever they operate, to include a contractual stipulation which would oblige resellers to adhere to the additional rules set out in this decision.

Management of complaint statistics

115. The Commission considers that, along with the changes to the rules and other measures outlined in this decision, and while awaiting possible legislative changes, there is a need to continue monitoring complaints concerning telemarketers who contravene the rules. The Commission requires comparable statistics to track progress in the reduction of complaints and to identify other issues that might require further changes to the current policies.

116. Although numerous sets of statistics with respect to complaints about telemarketing were filed on the record of this proceeding, the Commission notes a number of problems associated with the data provided. The complaint statistics did not always provide the level of detail required. The Commission could not accurately compare the number of telemarketing complaints with the total number of complaints about telecommunications in general nor the number of fax and voice telemarketing complaints as separate subsets of telemarketing complaints overall. As a result of these combined inconsistencies, the Commission considers that the statistics available do not reliably illustrate the extent of the nuisance to consumers that is caused by actual violations of the rules, nor the areas of telemarketing in which the violations are actually taking place.

117. The Commission considers that more accurate and detailed statistics will help to maintain a telemarketing regime that strikes the appropriate balance among the interests of consumers, telemarketers and TSPs. Improved statistics and complaint reporting will assist the Commission and other stakeholders to better determine more clearly where difficulties continue to exist and what further changes are required to the regulatory regime.

118. The Commission directs all TSPs to file semi-annual reports summarizing telemarketing complaint statistics in the format set out in the appendix to this decision. The first report is to cover the period 1 January to 30 June 2005 and is to be filed within 60 days of the end of the period.

119. The Commission directs that all complaints concerning telemarketing activity, that are addressed in written or verbal form to officers and department heads of the company or referred to the company by the Commission, must be included in the semi-annual report.

120. The Commission further directs that the reports are to include the following information:

1. the total number of telecommunications complaints;
2. the total number of telemarketing complaints;
3. the number of complaints where no rule was breached; and
4. the number of out-of-territory complaints when service is provided to the telemarketer by another TSP.

121. In order to monitor the types of complaints, the Commission also directs the TSPs to report the following statistics separately for voice and fax related complaints:

1. calls placed outside of prescribed hours;
2. calling party not properly identified;
3. unable to place the do not call request at time of call;
4. do not call request not confirmed with a registration number;
5. do not call requests not effective within 30/7 days;
6. toll-free number provided by the telemarketer busy or no answer;
7. the number of dead air complaints; and
8. the number of ADAD complaints.

122. In addition to the above statistical report, the Commission directs each TSP to provide:

1. the name and any other identifying information, where available, of any telemarketer allegedly breaking the rules;
2. the rule breached, reported separately for voice and fax;
3. the concern of caller if no rule is breached but caller is still unhappy; and
4. the names of any parties who have been disconnected for non-compliance along with the associated reason.

123. The Commission will continue to monitor telemarketing complaints received at the Commission and will compile its statistics in a similar format.

Awareness program

124. The Commission notes that many parties submitted that awareness of the rules governing telemarketers was generally lacking and that the effectiveness of the rules could be enhanced through further customer communication. The Commission is of the view that consumers need to have a better understanding of the types of telemarketing activity that are allowed and those that are prohibited. The Commission also recognizes that consumers often do not know what to do in order to prevent unsolicited calls. The Commission understands that the rules pertaining to telemarketers are set out in its decisions and orders which are not generally consulted by the ordinary consumer. For this reason, the Commission finds that there is a need to further publicize the telemarketing rules to the consumers and also to ensure that all telemarketers are fully aware of the rules governing their operations. The Commission encourages the telemarketing industry to continue to educate its members on ways to minimize customer annoyance and disturbance.

125. In addition to the changes to the existing rules that it initiates in this decision, the Commission finds that a substantial multi-faceted awareness program for both consumers and telemarketers is required. The Commission considers that this program must be clear and readily accessible to all. The Commission intends to prominently display on its website separate fact sheets concerning telemarketing regulation for both the public and for telemarketers. The Commission will also describe the recourse that consumers have when they feel unduly bothered by unsolicited calls.

126. The Commission directs all TSPs to produce a billing insert clearly describing the rules concerning unsolicited telecommunications and to file it for approval within 30 days of the date of this decision. The Commission further directs all TSPs to distribute the approved insert to all subscribers, once annually, for three consecutive years, immediately following approval.

127. The Commission directs ILECs to prominently explain all the telemarketing rules in a separate full page section of the introductory pages of the white pages directories, beginning with the next directory publication.

128. The Commission directs all TSP to inform business customers of the rules and the consequences for breaching rules at time of installation of service if the TSP has reasonable grounds to believe that the customer intends to use the service for the provision of unsolicited telecommunications.

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

Appendix

CRTC Semi-annual telemarketing complaints form

Name of reporting company:

Reporting officer/contact:

Date of report:

Period covered: 1 January - 30 June 2005

Complaints addressed (in written or verbal form) to Officers and Department Heads of the telephone company including complaints referred to the company by the Commission for resolution.

Date modified:

2004-05-21