ARCHIVED - Telecom - Commission Letter - 8665-U11-200407090 - Part VII application by the Union des consommateurs, the Public Interest Advocacy Centre and Option Consommateurs seeking CRTC intervention in the matter of dialers and modem hijacking

Re: Part VII application by the Union des consommateurs, the Public Interest Advocacy Centre and Option Consommateurs seeking CRTC intervention in the matter of dialers and modem hijacking

1.  In paragraphs 90 to 96 of their reply dated 10 December 2004 , the consumer advocacy groups described their view of the Commission's jurisdiction with respect to toll charges incurred by subscribers due to modem hijacking.   Indicate the sections of the Telecommunications Act (the Act) wherein the Commission is empowered to grant the remedies indicated in paragraphs 71-83 of their reply.   Explain if the carriers' liability for toll charges incurred by a subscriber as a result of modem hijacking is based on the fact that the carrier is acting as a toll service provider or as an Internet service provider.   Explain how subscribers who are victims of modem hijacking are also victims of discrimination within the meaning of section 27(2) of the Act.

2.  In paragraph 29 of their response dated 15 November 2004 , Aliant Telecom Inc., Bell Canada and Télébec, société en commandite (collectively, the Companies) submit that the activation and use of automatic dialers usually requires the consent of the subscriber. The Companies also provide (as an attachment) the example of a site that obtains the prior consent of the subscriber before activating an automatic dialer.

In paragraph 6 of their application dated 7 July 2004 and in paragraph 17 of their reply dated 10 December 2004 , the consumer advocacy groups allege that some sites do not advise the subscriber of the cost of the connection but rather act in an underhanded manner, and that the automatic dialers are installed fraudulently without the subscriber's agreement.

•  Provide additional information and specific examples of sites that fraudulently install automatic dialers and hijack subscribers' modems without their prior consent; and

•  Explain why a subscriber who visits a Web site that requires the express consent of the subscriber before installing an automatic dialer, as in the example provided by the Companies, should not be required to pay the toll charges billed.

3.  In paragraph 7 of their application dated 13 July 2004, the consumer advocacy groups indicate that they noted an increase from 2003 to 2004 of over 4500% in the number of complaints regarding modem hijackings through automatic dialers.   Provide the number of complaints received by the consumer advocacy groups, on a monthly basis, since January 2004.   Separate the complaints into those in which the subscriber gave express consent for the installation of an automatic dialer and those in which the subscriber did not give express consent.

4.  In their reply dated 10 December 2004 , the consumer advocacy groups note that "the dialers scam hits mostly those with dial-up Internet connections."   Specify whether or not it is possible to install an automatic dialer on a consumer's computer who subscribes to an Internet service other than switched access Internet service, and to hijack their modem.

5.  In paragraphs 32 and 33 of their reply dated 10 December 2004 , the consumer advocacy groups submit that modem hijacking calls into question the presumption that no fraud is committed when a message is simply transmitted from point A to point B via a telecommunication network. The consumer advocacy groups also state that the Commission should review its decision to forebear from regulating subscriber liability. In light of the decision by the Commission to allow subscribers and telephone companies to assign liability on a contractual basis, indicate, with underlying reasons, whether or not the Commission can compel telephone companies to issue a credit to their subscribers on a retroactive basis.

1.  In paragraph 7 of their application dated 13 July 2004, the consumer advocacy groups indicate that they noted an increase from 2003 to 2004 of over 4500% in the number of complaints regarding modem hijackings through automatic dialers.

•  Indicate how the Companies, MTS Allstream, SaskTel and TCI monitor statistics on modem hijackings via automatic dialers;

•  Provide the number of complaints received by the Companies, MTS Allstream, SaskTel and TCI, on a monthly basis, since January 2004; and

•  Indicate the average amount of the disputed bills in 2004.

2.  The telephone companies submit that they are required by contract to pay international carriers a contribution charge for their international traffic irrespective of whether the subscriber disputes their charges.   The telephone companies added that it would be an extremely costly and complicated task to insert clauses that would allow them to not pay contribution charges when their subscribers incur toll charges due to the number of parties involved and the relatively modest capability of regional telephone companies to negotiate in the world market.   In light of the evidence on the record which appears to demonstrate that modem hijacking via automatic dialers is a growing problem in several countries, indicate whether there has been any initiatives taken by telephone companies and/or regulatory agencies in different countries to address the problem.   If any such initiatives have been taken, indicate when they started, what they are to consist of, and the results achieved to date.   Indicate also whether or not the Companies, MTS Allstream, SaskTel and TCI are involved in such initiatives.

3.  In paragraph 17 of their response dated 15 November 2004, the Companies advised the Commission that the matter of Bell Canada's obligations with respect to its subscribers for toll calls due to an automatic dialer is the subject of a class action suit currently before the Superior Court of Ontario. Summarize the facts and the remedy or remedies sought in the class action suit and indicate what stage the proceeding is at.

4.  In paragraph 58 of their response dated 15 November 2004, the Companies indicate that Aliant is assessing the capabilities of a filter that would limit the subscriber's modem to only being able to dial the number of his or her usual Internet connection. The Companies indicate also that Aliant is developing a software solution that would alert the subscribers of its Sympatico service if an automatic dialer is downloaded.   Advise the Commission of the stage at which these initiatives are at.