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Letter
Ottawa, 23 March 2004
File No.: 8622-U11-200306135
By facsimile
Ms. Teresa Griffin-Muir
Vice President - Regulatory Affairs
Allstream Inc.
112 Kent Street, 14th Floor
Ottawa, Ontario
K1P 5P2
Dear Ms. Griffin-Muir:
Re: Part VII Application under Part VII of the Rules of Procedure filed by l'Union des consommateurs against Allstream Inc. for non-compliance with telemarketing rules
On 6 May 2003, l'Union des consommateurs filed an application with the Commission under Part VII of the Rules of Procedure against Allstream Inc. for non-compliance with telemarketing rules.
In its application, l'Union des consommateurs stated that employees had received calls from Central service de nettoyage (Central) for the purpose of solicitation. L'Union des consommateurs claimed that the calls from Central, an Allstream customer, were made from an Automatic Dialing-Announcing Device (ADAD) used in conjunction with a recorded message, thereby contravening the telemarketing rules established by the Commission.
L'Union des consommateurs said that, after the first call, it had notified Allstream on 11 April 2003 that its customer was not respecting the telemarketing rules, specifically those that prohibit calls made from an ADAD for purposes of solicitation, and requested that Allstream suspend service or disconnect the telephone lines used by Central to make calls for the purpose of solicitation.
According to l'Union des consommateurs, during a call to Allstream on
29 April 2003, it was told by the Allstream representative that the phone number of l'Union des consommateurs had been deleted from Central's solicitation list and that the matter was closed.
Allstream, in its comments of 19 June 2003, said that Central had been contacted and had confirmed that the telephone number of l'Union des consommateurs had been placed on its "do not call" list. Allstream replied that contrary to the allegations of l'Union des consommateurs, its customer was not using an ADAD for purposes of solicitation. Allstream said that its customer was using a predictive dialer to make its calls for purposes of solicitation in conjunction with a recording asking the called party to hold until an operator was available. Allstream claimed that this recording was not a solicitation.
In addition, Allstream contested the argument put forward by l'Union des consommateurs to the effect that Allstream must suspend or terminate the service of any customer that does not comply with the rules. According to Allstream, the telemarketing regulations stipulate that telephone service to the lines used in placing calls that contravene these rules may be suspended or terminated within two business days of notification from the telephone company. Accordingly, Allstream contended that the fact that it had not disconnected its customer did not constitute non-compliance on the part of the Company.
In its response of 30 June 2003, l'Union des consommateurs claimed that Allstream did not conduct an investigation after its initial complaint and that Allstream confirmed, in its description of the equipment used by its customer, that the customer had used an ADAD in a context prohibited by the regulations.
In its response of 29 September 2003 to l'Union des consommateurs's application for costs, Allstream stated that it had explained the ADAD rules to its customer.
On 2 October 2003, l'Union des consommateurs filed an affidavit to show that it had received more unsolicited calls made by Central using an ADAD after Allstream had said that it had explained the rules to its customer.
At the request of Commission staff, Allstream submitted additional responses on 23 October 2003 and confirmed that its customer had modified its equipment and was no longer using equipment to transmit recorded messages. Allstream indicated that, on 6 May 2003, it had explained to its customer that the use of a pre-recorded message was not allowed and that the penalty for non-compliance with the Commission's rules could be suspension or termination of service.
However, Commission staff notes that Allstream has stated, in its response of 19 June 2003, that its customer was not using an ADAD. In that response, Allstream seemed satisfied with the fact that its customer had placed l'Union des consommateurs on its "do not call" list. Therefore, staff is not sure that Allstream understood the telemarketing rules on the use of ADADs when it handled the complaint from l'Union des consommateurs.
In Use of telephone company facilities for the provision of unsolicited telecommunications, Telecom Decision CRTC 94-10, 13 June 1994, the Commission indicated that the use of a recorded message asking the called party to hold until an operator is available, for the purpose of solicitation, constitutes a breach of the regulations on the use of ADADs.
Commission staff notes that in Appendix 2 of Telemarketing restrictions extended to all telecom service providers, Order CRTC 2001-193,
5 March 2001, the Commission defines an ADAD as:
"any automatic equipment which stores or produces telephone numbers to be called, used alone or with other equipment to convey a pre-recorded or synthesized voice message to the telephone number called."
In light of the facts presented, Commission staff considers that Central seems to have violated the rules established regarding the use of ADADs for purposes of solicitation. Commission staff also considers that Allstream was negligent in handling this complaint, both with regard to the interpretation of the rules in question and to the amount of time it took to act. Allstream should have known that using ADAD messages asking the called party to hold until an operator was available contravened the Commission's rules.
However, Commission staff notes that Allstream confirmed that its customer had modified its equipment and was no longer using equipment to transmit recorded messages. Consequently, Commission staff is satisfied that the situation has been resolved and believes that no further action is required in this case.
Commission staff considers that Allstream should have acted more promptly to ensure that the customer was complying with the Commission's ADAD rules. In the future, the following steps should be taken as soon as a well founded complaint is made:
1. Immediately contact the customer by phone and advise it that it must immediately cease the activities that contravene the Commission's rules;
2. Explain the rule that is the subject of the complaint and the fact that Allstream could terminate or suspend service in the event of further offence;
3. Confirm the telephone conversation in writing and send a copy of the rules in question; and
4. Document the file in order to be able to provide information to the Commission when requested.
Yours truly,
Mario Bertrand
Acting Director
Consumer Affairs
c.c.: L'Union des consommateurs
Madeleine Bisson, CRTC (819) 953-5494
Date modified: 2004-03-23
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