ARCHIVED - Telecom Decision CRTC 2004-65
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Telecom Decision CRTC 2004-65 |
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| Ottawa, 4 October 2004 | |
Infolink Communications Inc. v. Bell Canada - Voicecasting service |
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| Reference: 8670-B2-02/01 | |
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1. |
The Commission received a letter from Infolink Communications Inc. (Infolink), dated 7 September 2001, requesting that the Commission prevent Bell Canada from suspending or terminating the services that it provided to Infolink used in the provision of Infolink's Voicecasting service (Voicecasting). In a letter dated 5 September 2001, Bell Canada had requested that Infolink take the necessary steps to comply with Bell Canada's General Tariff item 1800 (GT Item 1800). Bell Canada also indicated that GT Item 1800 allows Bell Canada to suspend or terminate all telephone lines which contravene GT Item 1800 on two business days notice. |
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2. |
On 7 June 2004, the Commission advised the parties that it would adjudicate this matter in accordance with the process established in Expedited procedure for resolving competitive issues, Telecom Circular CRTC 2004-2, 10 February 2004. |
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3. |
A panel of three Commissioners heard the matter on 24 September 2004. In addition to the oral component of the proceeding, the Commission considered Infolink's comments of 17 September 2001, Bell Canada's answer of 20 September 2001 and responses to interrogatories of 23 November 2001, Infolink's responses to interrogatories of 7 December 2001, Bell Canada's comments of 18 October 2002, Infolink's comments of 21 October 2002 and reply comments of 25 October 2002, Bell Canada's reply comments of 28 October 2002, the parties' summaries and responses to additional Commission interrogatories of 13 August 2004, interventions by Nelson King and L. Green of 4 and 13 September 2004 respectively, and Bell Canada's and Infolink's undertaking of 24 September 2004. |
Regulatory framework |
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4. |
In Use of telephone company facilities for the provision of unsolicited telecommunications, Telecom Decision CRTC 94-10, 13 June 1994 (Decision 94-10), the Commission found that it was in the public interest, pursuant to section 41 of the Telecommunications Act (the Act), to prohibit the use of automatic dialing announcement devices (ADADs) to make unsolicited calls for the purpose of solicitation. In Decision 94-10, solicitation was defined as the selling or promoting of a product or service, or the soliciting of money or money's worth. |
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Section 41 of the Act is as follows: |
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The Commission stated that it had taken into account the number and nature of the complaints it had received regarding the use of ADADs for solicitation purposes and also made some findings of fact: |
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a) that unsolicited ADAD calls were generally more inconvenient and intrusive than unsolicited live voice calls because ADAD calls did not permit the subscriber to interact with the caller; and |
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b) that ADAD calls for the purpose of solicitation were more likely to be perceived as an intrusion or nuisance than calls for certain other purposes, which may be perceived by the called party as providing a benefit. |
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7. |
The Commission noted that the purpose of the prohibition on ADADs was not to restrict the content of the message but to limit the undesirable consequences of ADADs, i.e., the inconvenience and the nuisance occasioned by an uninvited and annoying form of synthesized communication intruding into the homes of telephone subscribers. |
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8. |
The Commission directed the incumbent local exchange carriers to file tariffs by 11 July 1994 to prohibit the use of ADADs to place unsolicited calls for the purpose of solicitation. Bell Canada filed GT Item 1800 in compliance with Decision 94-10. |
Issue |
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9. |
Whether Bell Canada can suspend or terminate telephone lines provided to Infolink on the basis that Voicecasting contravenes GT Item 1800. |
Position of parties |
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10. |
Infolink submitted that Voicecasting did not meet the definition of an ADAD, as specified in GT Item 1800, because there was no call to the telephone subscriber. Rather, Voicecasting involved non real-time computer-to-computer communication which engaged the voice mailbox of the recipient, not the message recipient. The telephone handset never rang. Infolink submitted that, since there was no ringing telephone and the message recipient's telephone line was not engaged when the message was deposited in the recipient's voice mailbox, there was no "call" and therefore a material part of the definition of an ADAD, which related to "the telephone number called" was not satisfied. |
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11. |
Infolink also submitted that Voicecasting did not cause the undue inconvenience or nuisance that the Commission sought to eliminate by prohibiting ADADs. Infolink submitted that the evidence from subscribers regarding the annoyance of ADADs had indicated that their activities were interrupted by ringing telephones at various times of day, they were being put on hold until an operator was free and they could not use their telephone immediately after an ADAD call because their line was still tied up. |
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Infolink further submitted that any ambiguity as to the application of GT Item 1800 to Voicecasting should be resolved in favour of excluding Voicecasting from the ambit of the tariff as section 41 of the Act requires that due regard be given to freedom of expression and the application of GT Item 1800 would abrogate Infolink's freedom of expression rights. |
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13. |
Bell Canada submitted that Voicecasting satisfied all the elements of the definition of an ADAD in GT Item 1800, including that Voicecasting was used to make unsolicited calls for the purpose of solicitation. Bell Canada also submitted that Infolink's interpretation of the term "call" as requiring a ringing telephone was too narrow. Bell Canada submitted that a call was a transmission of information between parties by means of telecommunications and included initiating a transmission as well as attempts to initiate such a transmission. |
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Bell Canada also submitted that the original public policy rationale in Decision 94-10 for prohibiting the use of ADADs for the purpose of solicitation also applied to Voicecasting. Bell Canada noted that, as with active ringing ADADs, calls placed using Voicecasting do not allow the message recipient to communicate immediately or directly with the caller. Consequently, a Bell Canada subscriber who wished to be removed from Infolink's call list must either contact Infolink's customer who contracted to have the message sent, Bell Canada or the Commission and rely on one of those parties to contact Infolink so as to be removed from the call list. |
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Bell Canada cited other examples of complaints by its subscribers and potential problems to illustrate how Voicecasting was a nuisance and inconvenience, including unnecessarily tying up a subscriber's telephone line to retrieve messages and filling the limited storage capacity of a subscriber's voice mailbox with solicitation messages. |
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Bell Canada stated that it did not track the number of complaints received by its front line personnel with respect to Voicecasting. Bell Canada stated that, of the 2,585 complaints received by its Wireline Executive Office since August 2003, 193 pertained to voicemail issues. However, Bell Canada indicated that these numbers were not precise as some voicemail concerns did not pertain to Voicecasting, while some Voicecasting complaints might not have been categorized as voicemail complaints. |
Commission's analysis and determination |
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17. |
The Commission notes that in Decision 94-10, it found that unsolicited real-time recorded messages delivered using ADADs were an undue inconvenience or nuisance in part because of the number and the nature of complaints regarding the use of ADADs for solicitation purposes. The Commission noted that in 1987, complaints with respect to ADADs accounted for less than 3% of all telecommunication complaints made to the Commission. By 1992 that number had grown to over 25% and for the first 6 months of 1993, the Commission received almost 5,000 complaints with respect to ADADs, which accounted for over 40% of all telecommunication complaints received by the Commission. |
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The Commission also notes that subscriber complaints with regard to the undue inconvenience and nuisance caused by ADADs included complaints that they received ADAD calls at all hours of the day that interrupted their activities, that they received several identical ADAD calls daily, sometimes in rapid succession, that ADADs did not always disconnect when they hung up and that ADADs could tie up their telephone lines unduly and pose a safety hazard in emergency situations. |
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The Commission noted, in Decision 94-10, that the restrictions imposed on the use of ADADs had not been an effective means of preventing undue inconvenience and nuisance to subscribers. Accordingly, the Commission found that it was in the public interest to prohibit the use of ADADs to make unsolicited calls for the purpose of solicitation. |
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Similar to ADADs, the Commission notes that Voicecasting can deliver unsolicited recorded messages to subscribers. However, the Commission notes that Voicecasting delivers messages directly into subscribers' voice mailboxes and, unlike ADADs, does not interrupt subscribers' activities in real time with a ringing telephone and does not tie up their lines in the same manner as ADADs. |
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The Commission notes that Bell Canada does not track the number and nature of Voicecasting complaints received by its front line personnel, where most subscriber complaints are lodged. The Commission notes that the evidence submitted by Bell Canada regarding complaints to its executive office since January 2004 indicates that (a) the total number of complaints pertaining to voicemail issues, which includes Voicecasting, is low, (b) the number of voicemail complaints relative to all annoyance complaints is low, and (c) the number of complaints is not increasing on a month-to-month basis. Further, the Commission notes that Bell Canada has not undertaken any research to determine the level of inconvenience and nuisance caused by Voicecasting. |
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The Commission also notes that Infolink's statistics indicate that, in 2004, individual voicemail subscribers will receive relatively few messages using Voicecasting, even in the most frequently targeted markets. |
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23. |
In light of the above, the Commission considers that its determination, in Decision 94-10, of the undue inconvenience and nuisance caused by ADADs does not apply to Voicecasting. |
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24. |
Accordingly, the Commission finds that Voicecasting is not subject to GT Item 1800 and grants Infolink relief from disconnection by Bell Canada. |
| 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: 2004-10-04
- Date modified: