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Afin de rencontrer certaines des exigences de cette loi, les procès-verbaux du Conseil seront dorénavant bilingues en ce qui a trait à la page couverture, la liste des membres et du personnel du CRTC participant à l'audience et la table des matières.
Toutefois, la publication susmentionnée est un compte rendu textuel des délibérations et, en tant que tel, est transcrite dans l'une ou l'autre des deux langues officielles, compte tenu de la langue utilisée par le participant à l'audience.
TRANSCRIPT OF PROCEEDINGS BEFORE
THE CANADIAN RADIO‑TELEVISION AND
TELECOMMUNICATIONS COMMISSION
TRANSCRIPTION DES AUDIENCES DEVANT
LE CONSEIL DE LA RADIODIFFUSION
ET DES TÉLÉCOMMUNICATIONS CANADIENNES
SUBJECT:
Proceeding to establish a
national do not call list
framework and to review the
telemarketing rules /
Instance visant à établir le
cadre de la liste nationale
de numéros de téléphone exclus
et à examiner
les règles de
télémarketing
HELD AT:
TENUE À:
Conference
Centre
Centre de conférences
Outaouais Room
Salle Outaouais
140 Promenade du
Portage
140, Promenade du Portage
Gatineau,
Quebec
Gatineau (Québec)
May 2, 2006
Le 2 mai 2006
Transcripts
In order to meet the
requirements of the Official Languages
Act, transcripts of
proceedings before the Commission will be
bilingual as to their covers,
the listing of the CRTC members
and staff attending the public
hearings, and the Table of
Contents.
However, the aforementioned
publication is the recorded
verbatim transcript and, as
such, is taped and transcribed in
either of the official
languages, depending on the language
spoken by the participant at
the public hearing.
Transcription
Afin de rencontrer les
exigences de la Loi sur les langues
officielles, les
procès‑verbaux pour le Conseil seront
bilingues en ce qui a trait à
la page couverture, la liste des
membres et du personnel du
CRTC participant à l'audience
publique ainsi que la table
des matières.
Toutefois, la publication
susmentionnée est un compte rendu
textuel des délibérations et,
en tant que tel, est enregistrée
et transcrite dans l'une ou
l'autre des deux langues
officielles, compte tenu de la
langue utilisée par le
participant à l'audience
publique.
Canadian Radio‑television and
Telecommunications Commission
Conseil de la radiodiffusion et des
télécommunications canadiennes
Transcript / Transcription
Proceeding to establish a
national do not call list
framework and to review
the telemarketing rules /
Instance visant à établir le cadre de la
liste nationale
de
numéros de téléphone exclus et à examiner
les règles de télémarketing
BEFORE /
DEVANT:
Richard French
Chairperson / Président
Elizabeth Duncan
Commissioner / Conseillère
Barbara Cram
Commissioner / Conseillère
Rita Cugini
Commissioner / Conseillère
Stuart Langford
Commissioner / Conseiller
ALSO PRESENT / AUSSI
PRÉSENTS:
Madeleine
Bisson
Secretary / Secrétaire
Stephen Millington
Legal Counsel /
Conseiller
juridique
HELD AT:
TENUE À:
Conference Centre
Centre de conférences
Outaouais Room
Salle Outaouais
140 Promenade du Portage
140, Promenade du Portage
Gatineau, Quebec
Gatineau (Québec)
May 2, 2006
Le 2 mai 2006
TABLE DES MATIÈRES / TABLE OF CONTENTS
PAGE / PARA
Presentation by Advocis
10 /
57
Questions by the
Commission
20 /
115
Presentation by CADRI
60 /
405
Questions by the
Commission
65 /
439
Presentation by the Canadian
Bankers Association 96 / 672
Questions by the
Commission
97 /
680
Presentation by the
Association of
132 /
940
Fundraising
Professionals
Questions by the
Commission
137 /
970
Présentation par l'Union des
consommateurs 160 /
1127
Questions by the
Commission
197 / 1307
Presentation by Primerica
Financial Services
227 / 1499
Questions by the
Commission
233 / 1534
Presentation by the Canadian
Marketing Association 276 /
1865
Questions by the
Commission
284 / 1914
Gatineau Quebec / Gatineau (Québec)
‑‑‑ Upon commencing on
Tuesday, May 2, 2006
at 0920 / L'audience débute
le mardi
2 mai 2006 à
0920
1
LE PRÉSIDENT : Mesdames et
messieurs, à l'ordre, s'il vous plaît.
Order, please.
2
Good morning, ladies and
gentlemen.
Welcome.
3
My name is Richard French. I
am the Vice‑Chairperson of Telecommunications for the
Commission.
4
With me today on the panel:
on my left, Elizabeth Duncan, Commissioner for the Atlantic Region;
Barbara Cram on my immediate right, Commissioner for Manitoba and Saskatchewan;
extreme left, Rita Cugini, Commissioner for the Ontario Region; extreme right,
Stuart Langford, National Commissioner.
5
We have a number of Commission staff here as
well.
6
Seated at the table are Madeleine Bisson, Consultation Secretary;
Commission counsel, Stephen Millington; Sean Kelly in the middle; Gerry Lylyk,
Director of Consumer Affairs; and their team members across the back, Susan
Gardiner, Mary‑Louise Hayward, Leah Ackerman, Kevin Pickel and Kelly Anne
Smith.
7
Au cours des prochains jours,
nous entendrons les présentations des parties intéressées à comparaître devant
nous. De plus, nous étudierons
attentivement tous les documents déposés dans le cadre de la présente instance,
tant ceux des parties qui comparaissent cette semaine que les autres
parties.
8
De nombreux Canadiens considèrent les appels de télémarketing comme une
atteinte à la vie privée. De
récentes modifications à la Loi sur les télécommunications, la Loi modifiée,
visent à mettre en place un cadre permettant d'atténuer les inconvénients
associés à certains aspects du télémarketing non
sollicité.
9
So in that context and the
framework of potential invasion of privacy by telemarketing, the amended Act,
when proclaimed ‑‑ and it has not yet been proclaimed ‑‑ will provide
the Commission with the authority to establish a national Do Not Call List and
to delegate the administration of that national Do Not Call List and related
functions to a third party.
10
The amended Act will also empower the Commission to levy administrative
monetary penalties, so called AMPs, for violations of its telemarketing
rules.
11
The amended Act sets out a list of telemarketing and telemarketing‑like
activities which will be exempt from any of the requirements or prohibitions
established by the Commission in relation to the national Do Not Call
List.
12
Such telemarketing will not necessarily be exempt from other aspects of
the framework which the Commission will establish consequent to the powers and
responsibilities vested in it by the Act.
13
Just an impression that some of the exempt parties ‑‑ that is,
exempted from the national Do Not Call List ‑‑ may also be exempt from any
controls on telemarketing. Not
true, or at least not necessarily true under the Act.
14
As noted in the Public Notice CRTC 2006‑4, a key step in developing
the national Do Not Call List will be the selection of the Do Not Call List
operator and the development of the terms according to which it will be
operated.
15
As you may be aware, a Consortium formation CISC subcommittee has been
established.
16
For those of you who are not familiar with the delightful acronyms that
festoon our business of regulation of telecom, CISC is the CRTC Interconnection
Steering Committee.
17
In parallel with the operation of this subcommittee, a Do Not Call List
operations CISC subcommittee ‑‑ how would you like to be the Chairman of
that?
18
A Do Not Call List operations CISC subcommittee will examine a number of
issues relating to the functioning of the national Do Not Call
List.
19
The address and resolution of these matters should enable the Consortium
to finalize the terms and conditions of the contractual arrangement with the Do
Not Call List operator.
20
For today, you may assume that all of the Commissioners will have read
your written submissions and are therefore familiar with your organization. Unless otherwise indicated, parties will
be allotted a maximum of ten minutes to make their
presentation.
21
The consultation Secretary will advise you when you have one minute
remaining.
22
I would ask parties to concentrate on the essential message which you
seek to leave with the Commission and to do so within the time
allotted.
23
Generally Commissioners' questions, as well as questions by Commission
counsel, if any, will come after each party has completed its
presentation.
24
Parties wishing to make a closing statement will be allotted five minutes
in the reverse order of their presentation after all the parties have made their
presentations.
25
Je voudrais préciser que le
but de l'audience est d'établir des principes, des politiques et des pratiques
qui serviront l'intérêt public en assurant l'efficacité de la mise en oeuvre de
la Loi que le Parlement a adopté.
26
Je demanderais à tous les participants à cette audience de revoir la
déclaration préliminaire à la lumière de ce principe.
27
I would like to point out that
the purpose of the hearing is to help the CRTC to implement the revised law in
an effective and efficient way.
What we are really looking for in your interventions today is specific
suggestions and advice in that respect.
28
Parliament has passed a law.
We don't need to spend time reconsidering that law but rather how it will
be applied, what the pros and cons of the various questions or aspects of
application raise from the point of view of your organization and your
expertise.
29
Si vous avez d'autres
questions sur le déroulement de la consultation, je vous demanderais de vous
adresser à la Secrétaire de la consultation, madame Madeleine
Bisson.
30
If you have any other
questions, please ask the Secretary of the proceeding, Madeleine
Bisson.
31
I now invite her to review some additional housekeeping
matters.
32
LA SECRÉTAIRE : Merci,
Monsieur le Président.
33
Avant de procéder, seulement quelques mises au point qui contribueront au
bon déroulement de cette consultation publique.
34
When you are in the hearing
room, we would ask you to please turn off your cell phones, pagers, Blackberries
and other text messaging devices as they are an unwelcome distraction for
participants and Commissioners, and they cause interference on the internal
communication system used by the translators and court
reporter.
35
We are counting on your co‑operation in this regard throughout the
consultation.
36
As indicated in the Organization and Conduct letter issued on 7th April
2006, except for today, we propose to sit from 9:00 a.m. to 6:00 p.m. each
day. We will take a 90‑minute lunch
break, as well as a 15‑minute mid‑morning and mid‑afternoon
break.
37
While we do not anticipate sitting into the evenings, it may be necessary
if the consultation falls behind schedule.
38
L'offre de comparution pour
cette consultation, telle que publiée à l'Annexe A de la lettre d'organisation
et de déroulement de l'audience du 7 avril 2006 a été révisée. Vous pouvez vous procurer une copie de
l'agenda révisé à la Salle Papineau.
39
The Papineau Room will serve
as the public examination room for this consultation. The room is open to all parties and to
the public for the duration of the consultation and contains a complete copy of
the record.
40
Furthermore, please leave at the reception table 25 copies of the text of
your oral presentation for the Commission's use and one copy for each of the 20
other parties presenting at the consultation.
41
Pour faciliter la distribution
de vos présentations aux autres parties, vous pouvez déposer les 20 copies
demandées sur la table à l'arrière de la salle. Je rappelle aux parties que les
présentations verbales sont distribuées par commodité seulement et ne font pas
partie du dossier public de cette consultation.
42
Also, parties will be asked to
come forward when making their presentation. Spokespersons will be required to
present themselves, their team members and to proceed with their presentation
within the prescribed timeframe.
43
Finalement, afin d'assurer que
la transcription de cette consultation soit la plus exacte possible, veuillez
vous assurer que votre micro est ouvert lorsque vous vous adressez au
Conseil.
44
A copy of each day's
transcript will be available in the Papineau Room at the start of the next
consultation day, and the full set of the transcripts will be posted on the
Commission's website shortly after conclusion of this
consultation.
45
Parties who wish to purchase copies of transcripts or other services from
Media Copy should deal with them directly.
46
Maintenant, Monsieur le
Président, nous allons poursuivre avec les
comparutions.
47
LE PRÉSIDENT : Madame la Secrétaire, j'ai oublié.
48
My conscience and confessor in
these matters, Commissioner Cram, reminds me that I had committed to our staff
to underline to you that there are some specific areas, both empirical and
normative, where we will be asking for some written support, further advice on
your part, which we call in our jargon undertakings.
49
The Commission staff and/or the Commission's legal staff will be seeking
those undertakings from you.
50
I would only request if you would be so kind as to consider whether you
can make a further constructive contribution by responding to those
undertakings.
51
Do we have any other details about that at this point? No.
52
I just mention that. You
will be contacted if your organization is among those from whom we seek these
undertakings.
Thanks.
53
Je m'excuse, Madame la
Secrétaire.
54
LA SECRÉTAIRE : Merci, Monsieur le
Président.
55
I will call on Advocis to make
its presentation.
56
Mr. McLeod, could you please introduce yourself and your
panel.
PRESENTATION /
PRÉSENTATION
57
MR. McLEOD: Good morning,
Commissioners, Commission staff and fellow presenters.
58
I am Gary McLeod, Chair of the National Board of Advocis, which is the
Financial Advisors Association of Canada.
59
I am joined by Sara Gelgor, our Vice‑President of Regulatory Affairs at
Advocis.
60
Thank you for the opportunity to appear before you. Before I proceed to the substance of my
presentation, please allow me to provide a brief overview of
Advocis.
61
Advocis is the largest voluntary professional membership association of
financial advisors, with 12,000 members across Canada. Our members are financial advisors
licensed to distribute life and health insurance, mutual funds and other
securities.
62
Advocis members provide financial and product advice to millions of
Canadians across a variety of distinct areas, including estate and retirement
planning, wealth management, risk management and tax
planning.
63
Our association traces its origins to the founding of the Life
Underwriters Association of Canada and this year marks our 100th
anniversary.
64
Personal communication is an integral component of a professional
financial advisor's business.
Professional financial advisors interact daily with numerous consumers,
often for the first time through personal referrals and other means as part of
their business development process.
65
Financial advisors compete effectively in the marketplace and have been
successful in doing so, provided the established regulatory environment promotes
a level playing field for all participants. Financial advisors also serve to
represent the views of their clients from a consumer protection standpoint in
the important debates of the day.
66
We support the government's efforts to alleviate telemarketing
irritations for Canadians, while striving to maintain a competitive environment
for business.
67
Advocis educates its members through practice standards and an
established Best Practices Manual.
68
Advocis standards are based on prescribed obligations and often exceed
even the most stringent regulatory requirements.
69
Today we wish to highlight the following key issues pertaining to the
framework of a national Do Not Call List:
exempting provincial financial services licensees; defining the existing
business relationship exemption; referrals; access to the Do Not Call List; and
investigation of complaints and assignment of penalties.
70
I will speak to the first three points and my colleague Sara Gelgor will
address the final two.
71
Our comments focus on ensuring financial advisors are able to operate
effectively within a national Do Not Call List framework that meets consumers'
needs.
72
The financial services industry is one of the most heavily regulated
sectors in Canada. Financial
advisors who sell insurance must be licensed by the appropriate government body
or agency for the province in which they operate, as well as meet the
requirements of any other jurisdiction in which they conduct
business.
73
The respective securities commission or commissions must similarly
license those who also sell securities.
Approximately three‑quarters of Advocis members are licensed to
distribute both insurance and mutual funds and therefore are already subject to
regulatory oversight my multiple regulators, possibly in multiple
jurisdictions.
74
In addition to meeting requirements through regulation, proprietary codes
of conduct are a cornerstone in protecting consumers within the financial
services industry.
75
Advocis and its predecessor organizations have had a professional code of
conduct in place for 100 years.
Advocis members must abide by our code of professional conduct in all of
their business activities as a condition of membership.
76
Failure to comply with any of the code's nine overriding principles can
lead to an investigation and possible disciplinary action, including expulsion
from membership and reporting to the appropriate regulatory
authority.
77
Furthermore, the financial services industry is a leader in administering
effective and meaningful complaint resolution structures. Given this backdrop of a stringent
regulatory regime, coupled with well‑established self‑disciplinary safeguards,
we strongly recommend individuals licensed by an insurance regulatory body or
securities commission be exempt from the national Do Not Call List
restrictions.
78
The ability to call those with an existing business relationship is key
in operating a national Do Not Call List that supports business needs. Financial advisors may find themselves
in a unique position, although we suspect this applies to other professions
which requires the Commission's attention.
79
When a financial advisor sells his or her block of business to another
advisor, it is common practice for the purchasing advisor to often introduce him
or herself to the new set of clients by phone. While clients typically stay with the
new advisor, some may choose to work with another advisor.
80
Clearly these calls of introduction if placed to a client registered on
the national Do Not Call List should not be considered as unsolicited. We recommend the rules support the
existing business relationship exemption clearly provide for introductory calls
where broker business has changed hands.
81
Another aspect requiring further clarification is the treatment of calls
made under the existing business relationships exemption within a group of
companies.
82
Specifically, would a company within the group without a direct
relationship to a client of another member company be permitted to contact the
client if they are registered on the national Do Not Call
List?
83
We note that outside of the group of companies such calls would be
prohibited. The only reason such a
call may be allowed within a group of companies is because one member company
has a direct relationship, no matter how minor, with the individual being
called.
84
Allowing a member company with a corporate group to contact a registrant
of the national Do Not Call List who has a relationship with another
organization within the group will give multi‑disciplinary companies an unfair
advantage over companies outside of the group.
85
We do not believe that in striving to protect consumers from unsolicited
telemarketing calls it was Bill C‑37's intention to tilt the playing field among
large and small business.
86
We recommend the existing business relationship exemption be based on
separate legal entities with a distinct product line or a function within a
group of companies.
87
Personal referrals are the foundation upon which professional financial
advisors develop their client base and occur only when an advisor and client
have an existing bridge of trust.
88
Ideally, the client will personally introduce the individual to the
financial advisor. However, if this
is not possible, it is common practice for the financial advisor to carry out
the client's suggestion by providing background information about his or her
services and placing an introductory call to the specific individual
referred.
89
Even where the individual being called is registered on the national Do
Not Call List, we suggest referral calls are not unanticipated and should not be
considered as violating the Do Not Call requirements.
90
We strongly recommend that at a minimum individuals licensed by an
insurance regulatory body or securities commission be permitted to undertake
word‑of‑mouth and personal telecommunications within the framework of a national
Do Not Call List registry.
91
We also recommend calls to a related person as defined by the Income Tax
Act be supported. Limiting calls to
the Income Tax definition of a related person, individuals connected by blood,
marriage, common law partnership or adoption, will set clear parameters and
restrict range of calls placed.
92
I would like now to invite my colleague, Sara Gelgor, to comment on the
operations of the national Do Not Call List framework.
93
MS GELGOR: Thank you,
Gary.
94
On the issue of access, we believe the national Do Not Call List must be
easy to access. Many financial
advisors are small business operations without sophisticated computer networks,
often due to cost considerations.
Financial advisors must be able to obtain and manage the information
required easily and at minimal cost.
95
The fee to access the registry must be fair and reflective of a business'
size and usage of the Do Not Call List
information.
96
Advocis has many years of complaint resolution experience through the
Chartered Life Underwriter Institute's well established process. The various exemptions to the national
Do Not Call List framework and potential imposition of violation penalties makes
it critical that clear guidelines on the investigation of complaints, issuance
of violation notices and imposition of penalties be developed to ensure all
stakeholders have a clear understanding and accurate expectation of the Do Not
Call framework.
97
Establishing a threshold to investigate complaints will help apply
investigative resources efficiently and follow a risk‑based approach to
regulation, a concept Advocis strongly endorses.
98
Also, defining the timeframe in which consumers must log any complaints
of violating calls to the Do Not Call List operator will help identify patterns
of non‑compliance and allow timely action to be taken to clamp down on any
troubling trends.
99
Advocis supports a 30‑day grace period during which time calls made to a
new registrant would not be considered as being in violation. In other words, the clock should not
start to tick until 30 days after an individual has joined the Do Not Call
registry.
100
We believe a 30‑day time period will give businesses the flexibility to
access and analyze the Do Not Call List on a periodic
basis ‑‑
101
THE SECRETARY: I'm sorry, Ms
Gelgor, you have one minute to conclude.
102
MS GELGOR: All
right.
103
‑‑ while protecting consumers by ensuring the overall integrity of the
list itself.
104
Prolonging this grace period will simply allow companies engaged in
telemarketing campaigns to extend their access to consumers registered on the Do
Not Call List unnecessarily.
105
The application of penalties to violators of the national Do Not Call
List must balance the need to effectively deter future non‑compliance against
the need to ensure penalties are proportionate to the infraction at hand and
applied fairly.
106
We support a graduated penalty scheme with a range of punishments of both
a monetary and non‑monetary nature and an escalating scale based on the severity
and repetition of infractions.
107
The legislation sets monetary penalties at a maximum of $1,500 for an
individual and $15,000 for corporations per infraction. We recommend these categories be further
defined to ensure penalties are applied fairly and
consistently.
108
For example, financial advisors may incorporate their businesses
primarily for succession planning reasons but in reality may operate as a
one‑person shop.
109
We believe it would be unfair to penalize such a person at the corporate
level when the individual is essentially self‑employed. Therefore, we would recommend at a
minimum a single shareholder corporation be defined as an individual for the
purpose of assigning penalties.
110
We applaud the establishment of a cost‑effective, simple‑to‑use national
Do Not Call List registry that meets consumers' desire to reduce unwanted calls
from telemarketers while fostering an environment conducive for
business.
111
The final outcome must provide an appropriate balance to ensure the needs
and specific circumstances of business, in this case the thousands of
professional advisors offering advice to millions of Canadians, are
supported.
112
Thank you for your time and attention today. We would be pleased to answer any
questions you may have.
113
THE CHAIRPERSON: Thank you
very much. Welcome to the
hearing.
114
Commissioner Duncan.
115
COMMISSIONER DUNCAN: Good
morning.
116
First of all, with respect to the overriding Do Not Call List rule, in
paragraph 22 of its submission The Companies propose that the key Do Not Call
List rule should read as follows:
"No person or
organization shall initiate a telemarketing call to a person or organization who
is validly listed in the National Do Not Call database unless the person or
organization from whom the telemarketing call originates is exempt pursuant to
section 41(7)(1) of the amended Telecommunications Act."
117
We are first interested in your view on the definition they have
recommended and if you think there are any changes
necessary.
118
MS GELGOR: As we had
indicated in your remarks, we believe that the definition should be limited to
the separate legal entities as opposed to the group of
companies.
119
COMMISSIONER DUNCAN: I think
probably the definition would cover that when it refers to "person or
organization".
120
MS GELGOR: But the
organization is the entire group of companies.
121
COMMISSIONER DUNCAN: So you
would rather see a reference to separate legal companies?
122
MS GELGOR: That is
correct.
123
COMMISSIONER DUNCAN: Thank
you.
124
With respect to the application of the DNCL rules to faxes, we are
wondering if you feel the DNCL rules should apply to unsolicited faxes and if
there are any technical, financial or administrative issues with applying those
rules to unsolicited faxes.
125
MS GELGOR: We do believe
that they should apply to unsolicited faxes. We do not have any comments with regard
to the cost implications.
126
COMMISSIONER DUNCAN: And no
comments on the technical. You are
satisfied.
127
MS GELGOR:
Yes.
128
COMMISSIONER DUNCAN: Thank
you.
129
With regard to access to the list by small telemarketers ‑‑ and you
have sort of touched on that ‑‑ we are wondering do smaller sized operators
require a different Do Not Call List regime to ensure their viability? And how would you define such a
regime?
130
Should the operators be classified by certain quantifiable data such as
gross income and given alternatives to accessing the database based on their
classification?
131
MS GELGOR: We do not have a
position as to how the smaller operators might be classified. We have certainly identified that there
may be different implications, both from a cost and compliance
perspective.
132
We have looked at either gross income or number of employees and our
concern is where do you draw the line?
133
For example, if you are looking at employees and you set the line at five
employees, if somebody has six employees is that really equitable
treatment?
134
We do not have any recommendations as to where you would draw the line,
but in talking about the imposition of the penalties and infractions we have
suggested that there be a range and that there be
discretion.
135
We recommend a similar approach with respect to how small operators would
be treated with respect to accessing the list.
136
COMMISSIONER DUNCAN: That
leads into my next question.
137
In your submission, and I think again in your remarks this morning, you
indicate a financial advisor may decide it is best to operate his or her
business as an incorporated entity.
138
MS GELGOR:
Right.
139
COMMISSIONER DUNCAN: But in
reality really operate as a one‑person shop.
140
I am wondering, first of all, what percentage of your 12,000 members
would fall into this category, would you estimate?
141
MR. McLEOD: I wish I could
give you an exact answer. It is a
high percentage of our members, given the changes in the industry over the last
few years.
142
It would be greater than 60 percent.
143
COMMISSIONER DUNCAN: You
suggest some consideration be given to defining a single shareholder corporation
as an individual rather than a corporation for the purpose of assigning
penalties.
144
I think some of the single shareholder corporations could grow to be
quite large in terms of revenue and employees, and I think we sort of touched on
that a few moments ago.
145
Can you suggest what other criteria we might take into consideration to
determine whether a single shareholder corporation should be considered as an
individual rather than a corporation for the purpose of assigning
penalties?
146
MS GELGOR: Again, you are
right in touching on the point that some of these corporations do grow to become
very large, even family owned, businesses.
147
Our members typically are small businesses and they remain as such. When I talked about the example of a
single shareholder corporation, that would be one way of looking at
it.
148
Typically the businesses are inter‑generational and the business is
passed on to family members. But
they do remain fairly small.
149
COMMISSIONER DUNCAN: You
see, my concern is with ‑‑ you could still be small in terms of ownership
but have a very successful large business in terms of revenue and even the
number of employees.
150
MS GELGOR:
Right.
151
COMMISSIONER DUNCAN: That is
just one of the things we will have to consider. Thank you.
152
MS GELGOR:
Okay.
153
COMMISSIONER DUNCAN: In
paragraph 77 of the CMA submission, the CMA submitted that the Commission should
adopt a regulation that would clarify that telemarketers may contact a consumer
by telephone even if he or she is on the Do Not Call List if the telemarketer
has received consent to do so.
154
So the consent would override the Do Not Call
List.
155
First of all, do you agree with the CMA's position that telemarketers
should be able to contact a consumer by telephone if the marketer has received
consent to do so, even if that person is on the Do Not Call
List?
156
MS GELGOR: The consent would
have to be very specific rather than a broad consent that one might sign in some
kind of an application form.
157
The concerns that we would have would be that there would be the
overriding of the original intention that was expressed by the
consumer.
158
I think there would have to be some kind of parameters within which a
consumer might provide specific consent, but it would have to be very, very
specific to the contact.
159
COMMISSIONER DUNCAN: I think
we agree on that point, especially if it were to lead to an investigation at
some point. It would have to be
documented or in some form that would substantiate or justify the
contact.
160
Would you agree?
161
MS GELGOR:
Yes.
162
COMMISSIONER DUNCAN: Thank
you.
163
I would like to get your comments on the value and need to maintain
internal Do Not Call Lists.
164
What are the issues associated with specific organizations maintaining
their own Do Not Call Lists in addition to the national Do Not Call
List?
165
I have four questions, so I will read you all four and then I can review
them as we go, so you don't have to feel like you have to remember them all at
once.
166
In your response, could you:
167
(1) explain the benefits of such an approach, having both lists, or
not;
168
(2) whether there are specific circumstances that necessitate the need to
maintain internal Do Not Call Lists;
169
(3) how internal Do Not Call Lists would integrate with the national
list; and
170
(4) how such an approach would not introduce complexity, duplicate effort
or increase regulatory burden that is not cost justified or
warranted.
171
Before we start to deal with each question, I will just preface the
comment with a recommendation or a comment from the Registered Education Savings
Plan Dealers Association.
172
They feel that it is reasonable to require telemarketers to maintain
internalists to accommodate consumers who may not wish to register on the
national list for all purposes but would like to prevent contact from specific
companies.
173
I mention that sort of to set the stage. That is one reason that we have been
given for maintaining two lists.
174
So the first question is if you could explain in your view how
maintaining individual internal Do Not Call Lists would be a benefit to the
system.
175
MS GELGOR: Certainly the
point that you have just addressed I think would be a primary reason where a
consumer does not want to block out all calls but there may be particular
companies with which the consumer does not want to have
dealings.
176
So that would probably be the most clear example of where two lists would
benefit.
177
My concern with having the two lists, again focusing on the types of
businesses our association represents, is really the burden and the cost that it
would impose, where we are talking about a small business having perhaps a
single or two people operating the business.
178
It is very difficult to comply with all of the provincial licensing
requirements, the regulatory requirements, the anti money laundering
requirements. And then a Do Not
Call List requirement that is internal and specific to the company over and
above any national list, our worry is that it would impose undue costs and
compliance requirements.
179
Short of areas where there would be a clear benefit to consumers ‑‑
and the one that we have just talked about is one ‑‑ where there may be
exemptions in place, you would certainly want to have internal lists there as
well.
180
We would not support a broad recommendation for having two lists across
the board for everybody.
181
COMMISSIONER DUNCAN: The
challenge we get into then of course is administering. It is easier if the rules are sort of
across the board. But that's all
right.
182
Currently you mention 12,000 members. Those members would currently maintain a
Do Not Call List, so they would have the processes in place for
that.
183
Would that be correct?
184
MS GELGOR: They may or they
may not.
185
COMMISSIONER DUNCAN: All
right.
186
I am just wondering, trying to imagine. How many calls would we be talking about
that they would be making in the run of a month? How difficult would it
be?
187
I am thinking if you had the numbers entered in some type of a computer
program that sorted them in numerical order, how difficult would it be to
maintain an internal list?
188
MS GELGOR: It would vary
depending on the type of business and what stage of maturity it would be
at. Somebody in a situation like
Gary, our Chair, would not be severely impacted. But a new advisor in the community
certainly has to start out his or her business and is looking at opportunities
to reach out to potential new clients.
189
Similarly, Gary pointed to the example where a broker business is
sold. Clearly there an advisor
would need to be able to make introductory calls.
190
So keeping the list and trying to grow and market a business while
respecting consumers' privacy is certainly going to be a
challenge.
191
COMMISSIONER DUNCAN: Would
you agree, though, that with all the software programs that we have available,
it probably wouldn't be too difficult to maintain an internal
list?
192
And of course that is the expectation today.
193
So what would follow from that, then, would be what would be
involved. And I am taking into
consideration your concerns.
194
What would you see being the difficulty with integrating that list with a
national list?
195
MS GELGOR: Again, it would
depend on the size and the nature of the business. For a very small company, for a
financial advisor who is starting out, the requirements may be
significant.
196
COMMISSIONER DUNCAN: And
that I suppose will be an aspect of what the CISC Operation Committee is working
on, because they will determine the costs and the manner in which smaller
operators would be able to check the numbers.
197
You don't need to check against thousands of numbers if you are only
operating in one exchange. So I am
sure that they will take all of that into consideration.
198
That's fine.
199
Is there anything else you would like to add to
that?
200
MS GELGOR:
No.
201
COMMISSIONER DUNCAN: Thank
you.
202
I think that is a big issue, the requirement to maintain both. So it is good to get as much on the
record as we can.
203
With respect to automatic dialling announcing devices, ADADs, the CMA has
recommended the Commission allow for companies to make digitally pre‑recorded
voice calls through ADADs for business‑to‑business relationships, telemarketing
to consumers with whom there is an existing business relationship, and for
telemarketing to consumers who have provided their consent to receive such
calls.
204
Could you comment on the CMA's recommendation.
205
So that is that people be allowed to use the ADADs for
business‑to‑business, telemarketing to consumers with whom they have an existing
business relationship and for telemarketing to consumers who have provided
consent to receive such a call.
206
MS GELGOR: We believe that
the general Do Not Call framework should apply.
207
COMMISSIONER DUNCAN: Okay;
thank you.
208
Right now they are not allowed.
ADADs are not allowed.
209
So you don't have any opinion.
210
MS GELGOR: We do not have an
opinion on that.
211
COMMISSIONER DUNCAN: That's
fine; thank you.
212
In paragraph 12 of Contact New Brunswick's submission, they raise the
question, and I quote:
"If all businesses
that call their customers are required to comply with the legislation, what will
be the impact on those businesses of installing the necessary telephony customer
relationship management software and systems required to keep them
compliant?"
213
Based on your experience, what would you estimate it would cost for a new
business or a business that has not previously had to adhere to the Do Not Call
List to access and adhere to the Do Not Call List system?
214
That is outside of the fee that you pay for accessing the
data.
215
I am thinking here in terms of any capital cost computers or software,
any other items.
216
MS GELGOR: We do not have
that information in front of us, but we could undertake to provide it to you at
some point.
217
COMMISSIONER DUNCAN: That
would be great, thank you, if you would.
218
What are your views on whether third party providers such as call
centres, ad agencies and call brokers should be allowed to access the Do Not
Call system on behalf of another organization in order to scrub the
list?
219
Should such access be granted and controlled?
220
And should third party providers be required to identify on whose behalf
they are accessing the list?
221
MS GELGOR: Sorry, could you
repeat that question, please.
222
COMMISSIONER DUNCAN:
Sure. This is dealing with
third party providers, so somebody subcontracting the job to a call centre or an
ad agency or a call broker.
223
We are wondering if those parties should be allowed to access the list or
if access should just be limited to telemarketers or the organizations
themselves.
224
And should such access be granted, how would it be
controlled?
225
And should third party providers be required to identify on whose behalf
they are accessing the list?
226
I guess the first thing is:
Do you think that those third party providers should be allowed to access
the system?
227
MS GELGOR: I'm sorry, I
don't have a view on that. The
Association does not have a view.
228
COMMISSIONER DUNCAN: That's
fine; thank you.
229
With respect to fees or potential rate structure, I know you have made a
couple of comments on the fees being graduated or at least taking into
consideration the size of different organizations.
230
The Companies have suggested the fees for making use of the national Do
Not Call List could be applied annually, quarterly, monthly or each time the
list is accessed.
231
The Companies suggest the fees could be charged on a per‑access basis,
which they suggest might be the most equitable.
232
In the U.S. the fees are charged based on the number of area codes for
which information is retrieved, with the first five being provided at no
charge.
233
In the U.K. the fee structure is based on the type of licence ‑‑ and
I think there are four types of licences ‑‑ and the quantity of area codes
an entity wishes to access.
234
What type of rate structure do you think would best serve Canadian
organizations?
235
Is there a particular structure that would be better suited to smaller
organizations?
236
MS GELGOR: We support an
approach that would be based on a per‑use basis. For our members, depending on the size,
they would be impacted differently.
237
COMMISSIONER DUNCAN: So as
long as it is technologically cost‑effective to do so, you would certainly agree
that would be an equitable way to do it?
238
MS GELGOR: That's
right.
239
COMMISSIONER DUNCAN: That's
great.
240
That concludes my questions, Mr. Chairman.
241
THE CHAIRPERSON: Thank you,
Madam Commissioner.
242
Mr. Langford.
243
COMMISSIONER LANGFORD: Very
quickly. Thank you very
much.
244
I have just a couple of very tiny matters arising out of your comments
this morning and a couple of your answers to Commissioner
Duncan.
245
Then I might ask you one or two questions about penalties that you spoke
about.
246
I want to talk to you about the sensitivity you have for small business
because a lot of your members ‑‑ over 60 percent, I understand from what
Mr. McLeod said ‑‑ are small businesses, very small
businesses.
247
Do you have any views on how they feel about the notion of
business‑to‑business soliciting, telemarketing? Would they like to be able to put
themselves on the list so they are not bothered?
248
MR. McLEOD: We haven't
specifically polled our members in terms of that specific question. Certainly that is one of the things that
we are effective at, and if we can be helpful in that way we are glad to do
it.
249
My sense is that they would not be concerned about being on the list for
that type of solicitation.
250
COMMISSIONER LANGFORD: I am
going to leave it to legal counsel as to whether he would like some follow‑up on
that and your offer to follow up.
If they would, they will certainly tell you.
251
We don't want to put you to having to hire Decima or something, although
at least you know with the surveyors they've got a right to get
through.
‑‑‑ Laughter /
Rires
252
COMMISSIONER LANGFORD: How
big is your own office, the Advocis office?
253
MR. McLEOD: We have about 60
employees.
254
COMMISSIONER LANGFORD: Is
that big enough in your mind to handle telemarketing calls during business hours
to you, or would you prefer they never happened: faxes, telemarketing
calls?
255
Do they tie up a lot of your time?
256
MR. McLEOD: They can. They certainly
can.
257
The requirement of an organization such as ours, where it is voluntary
membership and you run an organization like that on behalf of the members, is to
run it as efficiently and cost‑effectively as
possible.
258
So there aren't a lot of extra bodies around. If you are having to perform those types
of tasks, it adds to your costs significantly.
259
COMMISSIONER LANGFORD:
Interesting to know.
260
With the notion on page 5 of your comments this morning, just at the end
of your comments, Ms Gelgor, I think:
We also recommend, you say, that calls to related persons as defined in
the Income Tax Act be allowed.
261
How necessary is it?
Sometimes exemptions can really confuse things.
262
If my brother‑in‑law wants to call me to sell me insurance, he can get
me. He knows where I live. He knows where I play tennis. He knows my wife because he's my
brother‑in‑law.
263
Is it really necessary to have this kind of an exception in there, or can
these conversations take place in just the course of normal
life?
264
MS GELGOR: Well, you are
absolutely right. We struggled with
how we deal with referrals and that, as we indicated in our remarks today, can
be a key component in growing a business for financial
advisors.
265
We struggled specifically with the issue of do we want to put a
recommendation that would narrow definition as to
referral.
266
We looked to the Income Tax Act as a possible example of where there may
be a definition in the Income Tax Act, that being the related
parties.
267
What we didn't want to see is an outright ban or prohibition on making
calls to individuals who may be on the Do Not Call List but are in fact made by
referrals where there is a relationship already in place with another
party.
268
So we tried to find a balance that would allow financial advisors to
carry on their business while still respecting the privacy that consumers are
asking for and look to this as a possible example.
269
That really is the crux of it, is finding the right balance but making
sure that referrals are not prohibited.
270
COMMISSIONER LANGFORD: It's
a tough one, though, isn't it, because what is a referral? It really opens it up to
abuse.
271
Somebody happens to mention "hey, call Fred" and Fred has no interest in
that at all and doesn't take it well that he is being called when he is on a Do
Not Call List and would like to stay there.
272
It's a tough one to define, it seems to me, precisely how strong the
referral would have to be before you would look upon it as some kind of an
overriding factor.
273
I just wonder whether it wouldn't be simpler administratively that if
there is a referral to be done, the existing client does it or somehow makes the
introduction or suggests that one of your members sends out a package or
something like that so that you err on the side of caution but still be able to
reach out.
274
Can you not see the scope for abuse in this type of ‑‑ although I
can see why you want it. You have
been very clear. But can you see
the scope for abuse in this type of an exception?
275
MR. McLEOD: For sure. You can see where that possibility
exists. We have several concerns
around the fact of, what we talk about being level playing field. And I think it enters into this
discussion.
276
That is that if you limit in one area, you have an exemption within a
group of companies, an example where there is that related
situation.
277
Our members are small business people in Canada and we don't want them to
be disadvantaged in terms of this.
It's not so much the issue ‑‑ I could easily agree with you in the
sense of your referral comment, but having it apply equitably across all parties
is the important point in my line.
278
COMMISSIONER LANGFORD: If
that is your real fear, surely our best move here is to not have this group of
company connection, to not have the notion of organization so wide, so that
Rogers Cablevision, for example, can phone me if I want them to because I'm a
subscriber but their publication arm can't phone me and try to flog Macleans to
me because it's a totally different company within their
organization.
279
Surely that would be the better way to go than to try to sort of offset
it with some special case for referrals.
280
MR. McLEOD: Yes, you may be
correct in that.
281
COMMISSIONER LANGFORD: Well,
thank you for that.
282
The other problem, very quickly ‑‑ and I don't want to drag this
out.
283
This notion that you had that when a business is sold and there has to be
an introduction of a new owner, that is not a solicitation. That wouldn't be a violation, would
it?
284
If you are phoning up to say that you have sold your insurance company to
me and you are saying Stuart will phone you and he will introduce himself, you
are not selling anything.
285
MR. McLEOD: Our concern
would be ‑‑ because that is a common occurrence in our industry, that when
someone comes to retire they may sell their broker business to someone
else. That person then, because
they have made an investment, needs to introduce themselves to that particular
clientele.
286
The concern would be that if someone were on the Do Not Call List, would
they be prohibited from doing that?
287
COMMISSIONER LANGFORD: I
think the Chair would like to follow up on that.
288
THE CHAIRPERSON: Just on
this subject, if you don't mind, Stuart.
Thank you for your indulgence.
289
Clearly Stuart, it seems to me, is onto something. What he is basically saying is the
clientele consists of people who already have a business relationship with the
seller of the broker business. The
purchaser of the broker business is calling to say I now own this business. I am going to service your
account.
290
I think Stuart's argument is that that does not fall in the definition of
solicitation for money's worth, I think.
291
So the question for you and we to reflect on is whether or not in fact
this is the problem that you have, I think, appropriately raised to our
attention, and ask ourselves whether this would in fact be a violation because:
(a) the clientele consists of a group who have already signalled some sort of
willingness to transact with the seller; and (b) the contact is made only to
change the identity of the servicing and not necessarily to sell another $50,000
worth of insurance.
292
MR. McLEOD: And that is our
concern.
293
COMMISSIONER LANGFORD: Yes,
as long as you are not selling anything new, you are just introducing. I mean, I guess I can phone anybody and
introduce myself, you know, as long as I don't offer to cut their grass or, you
know, sell them a water softener, and I'm finished.
294
It would have to be a kind of lonely hearts club to get into that way of
life, but I suppose it would fall into an
exception.
295
Very quickly on penalties.
It seems to me that it's tough for you folks to have it both ways. If you want to be incorporated and have
all of those advantages of income splitting and taking dividends instead of
income and hiding stuff away or maybe putting the wife on the payroll as a
separate little company or whatever.
296
Then, you know, for your tax planning and your protection for your
liability so that if you get sued, you know you've got ‑‑ the wife is
running the insurance company, she has got the house in her husband's name and,
you know, all of those little benefits that small companies do quite
legitimately and quite rightly to protect themselves against the horrors of law
suits and the income tax collectors, then you're a
corporation.
297
And I guess you leave us into a bit of a mug's game. You are saying at the very least: leave
it for single corporations but, you know, it's a mug's game, isn't
it?
298
I mean, we can't really say: well, okay, one shareholder, then somebody
will say: what about two, my wife and I own it and someone will say three, we've
got the brother‑in‑law on board and it does seem a little
picky.
299
Isn't the answer for us to develop sentencing guidelines, if you want to
call it that, guidelines on how we are going to ‑‑ we are going to enforce
this thing and to adopt sort of a case by case on the facts
basis?
300
I mean, this isn't one size fits all sentencing here, if I can use it,
and maybe even the courts of the land look at the circumstances. Not everybody gets ten years for every
offence that has a maximum penalty of ten years. You know, if a man steals a little loaf
of bread because he is hungry, he is not up there with a bank robbery. He just doesn't get the same
sentence.
301
Don't we leave that sort of thing to the organization that's making the
judgment calls and rely on guidelines rather than try to parse it as to
membership and size and corporate structure?
302
MS GELGOR: We certainly do
highlight in our remarks this morning that there should be discretion and there
should be a range looking at things like severity and number of occurrences and
perhaps so we would throw into the mix, is looking at the nature of the
operation.
303
So where you have not necessarily the one person or one shareholder
corporation, but if you have a very small family on business, perhaps that
business should not be treated the same way as you would have a national
organization with thousands or hundreds of thousands of
employees.
304
COMMISSIONER LANGFORD: So we
leave that up to the discretion of the people examining the case, but have that
as perhaps part of the guidelines in looking at how you treat a
case.
305
MS GELGOR:
Yes.
306
COMMISSIONER LANGFORD: Or an
alleged violation.
307
Those are my questions.
Thank you very much, Mr. Chair.
308
THE CHAIRMAN: Thank you,
Commissioner Langford.
309
Commissioner Cram.
310
COMMISSIONER CRAM: Thank you
and thank you for coming today. Ms
Gelgor, I was looking at page 6 on your presentation
today.
311
In the second paragraph you refer to a range of punishments of both a
monetary and non monetary nature.
312
What punishment is of a non monetary
nature?
313
MS GELGOR: Well, to the
extent that there might be any, we would suggest that it, you know, you would
look at all of the variables that we have just talked
about.
314
COMMISSIONER CRAM: Do you
know what else we would have into our tool kit, what would be a non
monetary?
315
MS GELGOR: I don't have any
examples now.
316
COMMISSIONER CRAM:
Okay. The fact that we could
publish names of violators, do you think that would have a salutary effect or
would be really not effective?
317
MS GELGOR: I think it would
be an approach that is worth looking at, certainly.
318
COMMISSIONER CRAM: Is your
group self‑regulating or are you regulated by either the Securities Commission
or the Provincial Insurance Regulator?
319
MS GELGOR: We are an ‑‑
in our Association, we are incorporated by an active parliament, but we are not
a self‑regulatory organization.
320
COMMISSIONER CRAM:
Okay. And you talked about
your codes, Professional Code of Conduct and Best Practices
Manual.
321
What do you presently suggest or do you, in relation to when you obtain
people's names, addresses and phone numbers?
322
What do you do and I'm actually going to refer to it for you, what do you
suggest to your members, how they would comply with PIPIDA and specifically
Schedule 14.2, Principle 2, that when you obtain this information, you have to
provide the identifying purposes of it and the purposes for which the personal
information is collected shall be identified by the organization at or before
the time the information is collected?
323
What that says to me is once you have somebody who has bought an
insurance contract, you would be saying to them: I've got your address and your
phone number and I will be phoning you to sell you more insurance and you would
have to be telling that in order to comply with PIPIDA.
324
Am I correct?
325
What do you tell ‑‑ what do you tell people when you get their name
and number, that what use you're putting that information
to?
326
Mr. McLEOD: As you have
suggested, it would be for the purposes of talking to them about their
particular financial planning advice, et
cetera.
And so that you
must be clear about that and in terms of the introduction of those services and
then, that's how we prescribe that in terms of practices, et cetera, within the
norms of the industry.
327
COMMISSIONER CRAM: So, it
wouldn't be a stretch for us to say in any existing business relationship
exemption, that you would be required to inform people that you are keeping
their number and their name for the purposes of telemarketing at the
time?
328
Mr. McLEOD: It would
not ‑‑ it would not be a stretch.
329
COMMISSIONER CRAM: Thank you
for that.
330
I need to understand calls to related person.
331
My brother lives in Red Deer, let's say he has a broker and he, my
brother, says: sure, phone my sister in Regina and even though I am on a Do Not
Call List, I get a cold call from a broker in Red Deer and you are suggesting
that that would be ‑‑ that would be acceptable?
332
Mr. McLEOD: Within the
context of what Sarah has suggested, in terms of a definition, the answer to
that would be: yes.
333
Your comment about ‑‑ in our world, that's not a cold call, that's a
referral.
334
COMMISSIONER CRAM:
Yes.
335
Mr. McLEOD: And a cold call
would be a all to someone that, you know, let's pick this name out of the phone
book and I have no idea who they are or what they do, but I'm going to phone and
introduce myself to them. That's
cold.
336
In the sense that you have been referred through a family member, et
cetera, that's a direct referral.
337
COMMISSIONER CRAM:
Okay. Thank you. That's ‑‑ oh! wait. No. Thank you. Thank you very much, Mr.
Chair.
338
THE CHAIRMAN: Commissioner
Duncan.
339
COMMISSIONER DUNCAN: I just
have one last question as a result of something that Steward
asked.
340
You mentioned that you have a staff of 60 members at your Association, 60
employees at your ‑‑
341
MS GELGOR:
Yes.
342
COMMISSIONER DUNCAN: And so,
they are all located in Toronto; are they?
343
Mr. McLEOD:
Correct.
344
MS GELGOR:
Yes.
345
COMMISSIONER DUNCAN: I am
just wondering just in exploring the idea of Internal Do Not Call List and the
process for matching them with the national list, if you might consider, because
you have obviously many members across the country, if you might consider having
provincial or even regional lists that could be managed from your office in
Toronto.
346
I'm assuming ‑‑ and correct me if I'm wrong ‑‑ that the 60
employees that you have do not do telemarketing, that they support the
members. Is that the idea or do you
do telemarketing from Toronto?
347
Mr. McLEOD: In terms of our
membership renewals, et cetera, within the Association, but not,
no.
348
COMMISSIONER DUNCAN: Not the
customers for finance purposes.
349
Mr. McLEOD: Correct. That's
correct.
350
COMMISSIONER DUNCAN: So,
what would you, or would you consider ‑‑ I mean I'm just asking the
question now so you maybe have another chance to think about it ‑‑ but it
just seems to me that you have a large staff ‑‑ well, large, you have a
number anyway and whether it would be possible to support those Do Not Call
Lists from a central point so that each of your individual members don't have to
incur the expense or take the time managing it.
351
It may not involve too many employees to do such a thing, given
the ‑‑
352
Mr. McLEOD: The concerns
that I would see in that are several.
353
Number 1, I can assure you that 60 employees to service 12,000 members is
not a big staff and so we don't have a lot of additional capability within
that.
354
As I mentioned to one of your colleagues a little earlier on, it is the
responsibility of, say, (inaudible) too because it's a long term membership type
organization to take the utmost care in terms of keeping the costs in line in
that regard.
355
So, it would involve us increasing our costs and thereby our fees to the
members to do that and that may be an appropriate
result.
356
However, I think that the other issue is that although we have 12,000
members in that sense in terms of the financial services industry, having us do
it when there are ‑‑ when there are more than 12,000 people who are out
there because it's a voluntary organization, doesn't really solve the problem of
catching everybody in that net.
357
COMMISSIONER DUNCAN: I'm
just ‑‑ I guess first of all, on your point about costs and you've probably
touched on it anyway because, you know, your members may consider that it's cost
effective way to do it.
358
Mr. McLEOD: They may, I
agree.
359
COMMISSIONER DUNCAN: You
know. And administratively, they
might be happy to have the burden taken off their hands, so ‑‑ Anyway, it's
just food for thought.
360
MS GELGOR: I would just add,
it could turn out to be a bit of an administrative headache for
us.
361
While we do have 12,000 members, there are new members coming into the
industry or coming into the Association certainly and our members do retire from
time to time as well.
362
So, managing which lists we have in place and whether or not it's still
in effect and making sure on the part of the Association that it's up to date
would certainly be adding layers of compliance for the Association that are not
in place today.
363
COMMISSIONER DUNCAN:
Right. I just thought it
might be a way to facilitate your members, but anyway it's something to think
about.
364
Thank you very much both of you, thanks.
365
THE CHAIRMAN: Mr.
Langford.
366
COMMISSIONER LANGFORD: Sorry
for dragging this out, but something finally occurred to me just hearing this
last exchange.
367
Do you sell your membership list?
368
MS GELGOR:
No.
369
Mr. McLEOD:
No.
370
COMMISSIONER LANGFORD:
Never. Do you get consent
from your members to try and negotiate deals with hotel chains, CAA, that kind
of thing and then, in that way make them subject to kind of business offerings
of some sort?
371
Mr. McLEOD: We do have
supplementary services for our members on the basis of if they are a member of
the Association, that they might qualify for a discount in such a
situation.
372
COMMISSIONER LANGFORD: How
do they become informed of these deals?
Through you or through ‑‑
373
Mr. McLEOD: Simply part of
their annual membership package as a member here of the following
benefits.
374
COMMISSIONER LANGFORD:
Right. And then, it's up to
them to exercise their rights?
375
Mr. McLEOD:
Correct.
376
COMMISSIONER LANGFORD: Thank
you very much. That's my
question.
377
THE CHAIRMAN: Thank you very
much for your presence here. I am
not sure if we want to pursue further, counsel.
378
MR. MILLINGTON: Merci,
monsieur le président.
379
My first question is I want a clarification from Commissioner
Langford.
380
Were you leaving it up to me to determine whether we want to follow up on
that question with respect to their membership and the business to business
telemarketing?
381
COMMISSIONER LANGFORD: Yes,
please. I think you folks, having
prepared the briefings and anticipating what may be necessary and what holds
need to be filled, I would rather leave it to you now you see the way this thing
works out.
382
But I would rather leave it to you as to whether you want to follow up on
an offer which would require an undertaking of some
sort.
383
MR. MILLINGTON: Yes. I think it would be ‑‑
yes.
384
I think there would be an ‑‑ given the demographics of your
organization, Mr. McLeod, given the fact that they're on the small end of
corporations, it would be interesting to hear from your membership with respect
to whatever inconvenience they may determine telemarketing from other business
would constitute.
385
So, if you could undertake to pull your members and find out what their
views would be on that. In fact,
you can include in that your own views as an organization, with respect to being
telemarketed from by other organizations.
386
The second question I have is also for you, Mr. McLeod. You mentioned in your remarks this
morning that Advocis has many years of experience in the complaint resolution
process through the Chartered Life Underwriters processes and I am wondering if
there is anything in those processes that you believe would be of assistance to
the Commission in elaborating its own guidelines with respect to complaint
resolution?
387
Mr. McLEOD: As we mentioned,
because we are not an S.R.O., our role in terms of complaint and the resolution
of any complaint against the member is a sanction in terms of membership and/or
reporting to a regulatory body, which we might do in the appropriate, in the
appropriate circumstance.
388
And both of those are significant issues for any licensed member of our
organization and that works very well and effectively and has for many years in
that regard since in all provinces members of our Association must be licensed
to be able to transact business.
389
So, our mechanism is effective and I would suggest to you is a model that
is worth looking at in that sense.
390
MR. MILLINGTON: So, this is
a publicly available set of guidelines that we could consult
then?
391
Mr. McLEOD:
Yes.
392
MR. MILLINGTON: Okay. And, for example, you mentioned also
that the size of an organization should be considered by us in terms of one of
the criterian to look at with respect to our own complaint resolution
process.
393
Is that a criterian that you use in your own complaint resolution
process, how big the operator is?
394
Mr. McLEOD: Our members are
all individual members, so we don't look at that in terms of our
organization.
395
MR. MILLINGTON: Would you
undertake to send me those ‑‑ that process that you use, so that we could
take a look at it?
396
Mr. McLEOD: We'll send you
information on that, for sure.
397
MR. MILLINGTON:
Yes.
398
THE CHAIRMAN: There was one
other undertaking. You've got it
Shawn? Mr.
Kelly?
399
MR. KELLY: Yes, Mr.
President.
400
THE CHAIRMAN: Thank
you. Thank you very
much.
401
Madame la Secrétaire?
402
THE SECRETARY: Mr. Chairman,
CADRI and AFP informed me this morning that they have mutually agreed to change
the time of their presentation.
403
Par conséquent, j'appellerais
maintenant monsieur Louis Guay de CADRI et son équipe.
Bonjour.
404
Monsieur Guay, je vous demanderais maintenant de nous présenter votre
groupe, après quoi vous aurez dix minutes pour votre présentation. Merci.
PRESENTATION /
PRÉSENTATION
405
MR. GUAY: Mr. Chairman,
Commissioners and Commission
staff, good morning. My name is
Louis Guay. I am both a member of
the CADRI Operations Committee and manager Legal and Regulatory Affairs for TD
Meloche Monnex.
406
With me today are my colleagues, Lucie Sanscartier, at the far left. Also from TD Meloche Monnex, Denis Guertin here at my left,
from Belair Direct who is the CADRI's Incoming President and to my right, Laura
Gunn, advisor for CADRI.
407
CADRI is a Canadian Association of direct response insurers. We appreciate the opportunity to present
our views today on the establishment of the Do Not Call
List.
408
We should state at the outset that we understand the need in principle
for a national Do Not Call List. It
is clear that the public broadly supports this idea. Our concerns are focused on how such a
system will be implemented and what operational impact this will have on our
industry.
409
CADRI represents a particular kind of insurance company. Our members are mostly active on auto,
on the auto insurance market and home insurance
market.
410
We have a particular way of distributing to consumers, we sell direct,
meaning that we sell without intermediaries or middle men. Consumers contact us through call
centres and web sites, often in response to a direct mail
campaign.
411
Sometimes we contact consumers through telemarketing and other methods to
offer competitive quotes on insurance products.
412
I emphasize our business model because the insurance market place is
complex today with many products
and ways of selling them.
413
CADRI represents a simple low cost f distribution. Our members are respected financial
institutions subject to regulatory oversight on all of our activities by Federal
and Provincial government agencies.
414
We offer consumers value, convenience, accessibility and speed and we do
that by relying on technology and efficient business processes, including
telemarketing.
415
We account our members account for approximately 20 per cent of the auto
insurance market and 10 per cent of the home‑owners insurance sold in Canada
today.
416
We are also as individual companies member of the Canadian Marketing
Association. We abide by the CMA's
rule on telemarketing which are mandatory for our members.
417
In our written submission CADRI comments here on a number of issues under
consideration in this proceeding, but today we would like to focus on one issue
that is critical to our ability to continue delivering superior value to
insurance consumers. That is
follow‑up phone calls to consumers who have requested insurance
quotations.
418
It is common practice for home and auto insurers to collect expiry dates,
meaning the dates when a potential customer current insurance policy will
expire.
419
As you may know already, auto insurance and home insurance policies are
one‑year contracts.
420
This practice allows us to time our follow‑up contact precisely so that
our approach will come when it is the most useful to consumers, just when they
are thinking about renewing their policies and hopefully they are shopping
around and doing some price and value
comparisons.
421
This is a service to consumers that also enhances competition in the
marketplace because it gives consumers more information before they make their
decision about the insurance protection that best suits their
needs.
422
When our follow‑up calls are made, we remind customers that they have
expressed interest in receiving a quotation. They always have the option of
discontinuing the conversation if they wish and we will respect
that.
423
Most importantly this type of follow‑up call is one that the consumer has
already consented to in providing the expiry date. Therefore, our view is that this is not
an unsolicited call.
424
The Commission has defined telemarketing as the use of telecommunication
facilities to make unsolicited calls for the purpose of solicitation and goes on
to give further nuance to the concept of solicitation.
425
Solicited calls are not telemarketing as defined above, in our
opinion. They should be allowed,
regardless of whether a person has registered for the Do Not Call
List.
426
some might say that this situation is already covered under the exemption
for existing business relationships.
That is defined to include those who have requested information from a
company within the last six months.
427
However, the collection of expiry dates takes place all year long. A follow‑up call might not take place
within the six‑month window. It
might take longer because it is linked to a specific event: the consumer's
expiry date expiry of his policy.
428
You might ask: Why should we
call someone if they have registered for the Do Not Call List? Isn't that self‑defeating from a sales
perspective?
429
Well, there is a difference in our opinion between wanting protection
from dinner time phone calls from the whole universe of people selling things or
asking for donations over the phone and a specific product that you are
interested in.
430
It isn't difficult to imagine someone registering for the Do Not Call
List and not remembering that they have also asked specifically for an insurance
quote.
431
So generally a Do Not Call registration should not cancel out a specific
request for information.
432
From an operational standpoint, we should not have to incur the cost and
time involved in vetting our expiry date calling lists against a Do Not Call
List. As we have stated, our expiry
date lists are comprised of people who have already given consent to be
called. So they are not unsolicited
calls.
433
It should also be noted that the legislation providing for the Do Not
Call Lists complement existing federal and provincial privacy legislations, as
well as insurance legislations.
434
Our phone calls geared to expiry dates comply with all applicable privacy
and insurance legislations. These
are the issues that we hope you will consider in developing the interpretative
rules for the Do Not Call List regime.
435
The system ultimately adopted should allow calls to provide specifically
requested information to continue regardless of the date of the request. Therefore, we recommend that the
Commission adopt interpretative guidelines to provide greater clarity on that
issue.
436
Thank you for allowing us to share CADRI's comments about the
implementation of the Do Not Call List.
We would be happy to take your questions.
437
THE CHAIRPERSON: Thank
you.
438
Commissioner Langford.
439
COMMISSIONER LANGFORD: Thank
you very much.
440
Your source of interest is clear, but I actually do have a couple of
questions about it.
441
I have read your written submission, I heard you this morning and there
is a couple of things about the mechanics of what you are doing that I just
don't get.
442
You refer on page 3 to potential clients, potential
customers.
443
Are you saying that you are somehow collecting the expiry dates of
insurers who are not now customers of yours?
444
MR. GUAY: That is correct,
sir.
445
COMMISSIONER LANGFORD: How
do you get those?
446
MR. GUAY: We get that
through a variety of means. We get
it through the internet. Typically
what we do is we send our clients information about insurance products ‑‑
potential clients, that is.
447
We often get ‑‑ in the case of our company, TD Meloche Monnex, we
are a major group insurer. So we
get information about potential clients from the groups with whom we have
affinity agreements.
448
We send information to these potential clients and we invite them ‑‑
one of the things that we do in this publicity is we invite those potential
clients to let us know if they are interested in getting a quote, a
quotation.
449
One way we do that, one of the things we are offering is to these
potential clients to give us their expiry dates. So they can go on the internet, log on
one of our internet sites and just fill in the information that we
need.
450
They can send us, they can write down ‑‑ we typically include
sometimes a coupon and they can fill it out and send it
back.
451
COMMISSIONER LANGFORD: Can I
break this down? I don't want to
interrupt but it is getting too much for me.
452
MR. GUAY: I'm sorry about
that.
453
COMMISSIONER LANGFORD: Some
of these expiry dates and the names that go with them, you just find
yourself. You have tools of getting
on the internet, of digging into this kind of information and finding out, for
example, that my insurance expires August 31st or something, and then you would
contact me.
454
Is that how it works?
455
MR. GUERTIN: No. If I may try to answer your question, I
think what we do is we have several ways to propose to you, if you are a member
of an association that we have an agreement with. It could be through a welcome
package.
456
I will give you an example.
457
I am for Belair Direct and we have groups with policemen. So when they have new policemen, they
have packages and in those packages they say there is benefit for you. If you want to have a quote from Belair
Insurance, you send them this coupon with the expiry date and information. And then we follow
up.
458
COMMISSIONER LANGFORD: And
you would categorize that as you do on page 4 as not unsolicited because you
have a request.
459
MR. GUERTIN:
Yes.
460
COMMISSIONER LANGFORD: You
have a request saying please call me.
461
MR. GUERTIN:
Yes.
462
COMMISSIONER LANGFORD:
Okay. I'm with you. Give me another
example.
463
MR. GUERTIN: This is an
explicit consent from the consumer for us to follow up.
464
COMMISSIONER LANGFORD:
Right.
465
MR. GUERTIN: Our concern, of
course, is often the expiry date is beyond the six‑month window. And this is where we want to be
reassured that if you as a consumer ask us to follow up on an expiry date and
your expiry date is in ten months from now, that we would not be prevented from
doing so.
466
COMMISSIONER LANGFORD: Well,
we are a little late in the day for changing the legislation right
now.
467
MR. GUERTIN:
Yes.
468
COMMISSIONER LANGFORD: So
isn't your approach to find a way to work with that, to make one call within the
six months and invite consent to make a second or to follow up with a package
and ask them to mail something back if they want a
quotation?
469
We are not Parliament here.
We are the Commission. If
the six months is laid down, isn't really the answer for you to work around that
problem to adjust your ways of doing business?
470
THE CHAIRPERSON: Could I
make a suggestion to see whether we are on the same
wavelength?
471
COMMISSIONER LANGFORD:
Absolutely. Go
ahead.
472
THE CHAIRPERSON: If the
six‑month requirement appears to me to apply to a case where the contact has not
been explicitly about get in touch with me about something; it has rather been I
happen to know when the new lawn mower model comes out, let me know or
whatever.
473
But in this case it seems to me the issue would be how we would define a
defence for the greater than six‑month contact in the light of an explicit
request for information?
474
Would that possibly be a defence?
475
I put that up for what it may be worth.
476
COMMISSIONER LANGFORD: Well,
I was hoping to save them from needing a defence. But you are right, that's the way to
look at it.
477
If we want to go to the point where someone says sorry, nice try but you
are in violation, I suppose you could ‑‑ I suggest actually you read the
Bell Telephone brief. Boy, they've
got a list of defences in there that's longer than the New
Testament.
478
I take Chairman French's point of view, and I think if you want to follow
that up, it's your treat.
479
But to me, I don't understand precisely the techniques that you are
using. It seems sometimes you fish
and find these expiry dates. At
other times you actually get a written consent, but in that sense you are only
worried about the time.
480
Really, that's my question.
I simply don't understand how you do business that you would be worried
when it comes to violating the Do Not Call List, or what it appears to
say.
481
Are you basically trying to say that if I find ‑‑ I understand your
card example that you send out to the Police Association; no
problem.
482
But are you saying to us that if you can find an expiry date by some
other means, on the internet or somewhere, that would be in your mind not a
telemarketing call?
483
MR. GUERTIN: With all due
respect, I don't think we are saying we are fishing for expiry dates without
having the consumer giving it to us in a clear and valid
consent.
484
I don't think this is what we are trying to say
here.
485
We are saying once the client has requested from us very explicitly,
here's my expiry date and I would like you to contact me maybe a month before
because this is the time I am ready to listen, not six months before. That is what we are trying to suggest,
not that we are fishing for expiry dates without the client knowing. That's not at all what we do in our
business model.
486
COMMISSIONER LANGFORD: I
misunderstood you, then.
487
MR. GUERTIN:
Okay.
488
COMMISSIONER LANGFORD: My
suggestion ‑‑ and I am certainly not going to give anybody any free
business advice. That's exactly
what it would be worth.
489
But it would seem to me that rather than to try and strain the terms of
the legislation we have and to find ways to find subtle exceptions, it would
seem to me the easier route for people who have worries is to reconstruct,
restructure your business paradigm so that you come within the six months and
you cover it.
490
You have come up with clever ways of getting hold of members and
association members and whatnot through packages. It seems to me now it is just a matter
of timing.
491
But that is a gratuitous piece of advice and is worth precisely what you
paid for it.
492
Those are my questions, Mr. Chair.
493
THE CHAIRPERSON:
Commissioner Duncan.
494
COMMISSIONER DUNCAN: Good
morning.
495
MR. GUAY: Good
morning.
496
COMMISSIONER DUNCAN: I am
just going to go over some of the same questions that I asked the earlier
presenters so that we can get some of your answers to those questions on the
record.
497
With respect to the overriding Do Not Call List rule, in paragraph 22 of
its submission The Companies proposed that the key Do Not Call List rule should
read as follows:
"No person or
organization shall initiate a telemarketing call to a person or organization who
is validly listed in the National Do Not Call database unless the person or
organization from whom the telemarketing call originates is exempt pursuant to
section 41.7(1) of the amended Telecommunications Act."
498
Do you have any comments on that proposed wording? Are you satisfied with it or want to
make any suggestions?
499
MS SANSCARTIER: I don't
think we have any problem with the definition as it stands. I think our issue is with the term
"telemarketing". The types of calls
that we have described we submit don't belong within the ambit of telemarketing,
because they are not unsolicited calls.
500
COMMISSIONER DUNCAN: We have
noted your comments on that. That's
fine.
501
MS SANSCARTIER: But with the
definition, we have no problem with that.
502
COMMISSIONER DUNCAN: All
right, that's great.
503
With respect to the application of the Do Not Call List rules to faxes,
do you believe the Do Not Call List rules should apply to unsolicited
faxes?
504
Are you aware of any technical, financial or administrative issues with
applying those rules to unsolicited faxes?
505
MR. GUAY: If you allow me,
our members do not use that type of solicitation. So we have no comments on this
one.
506
COMMISSIONER DUNCAN: In case
that practice were to ever change, what would you say to it in that case? Or you would reserve comment until then,
I guess?
507
MR. GUAY: Yes, reserves our
comments; thank you.
508
COMMISSIONER DUNCAN: I am
reluctant to go by "never". Thank
you.
509
With regard to access to the list by small telemarketers ‑‑ and I
wouldn't consider your company small.
510
These people are all employees of either of your
companies.
511
With regard to access to the list by small telemarketers, do you think
that the smaller operators warrant a different regime to ensure their viability;
and if so, how would you define that regime, perhaps in terms of technology or
fees?
512
Should the operators be classified by certain quantifiable data such as
gross income and given different alternative ways for accessing the database,
for example?
513
MR. GUAY: Like you said
yourself, we represent fairly large companies, national companies, and we do
understand that perhaps some smaller operators will need some
flexibility.
514
COMMISSIONER DUNCAN: So you
wouldn't be opposed to a multi‑tier fee system ‑‑
515
MR. GUAY:
No.
516
COMMISSIONER DUNCAN: ‑‑ that takes into consideration
that.
517
That's great.
518
I just want to talk about the CMA's comment at paragraph 77 of their
submission: that the Commission should adopt a regulation that would clarify
that telemarketers may contact a consumer by telephone even if he or she is on
the Do Not Call List if the marketer has received the consumer's consent to do
so, which is along the lines of what you are talking
about.
519
We just want to know what you consider would be appropriate documentation
of that consent that would satisfy or stand up if there was to be an
investigation.
520
MR. GUAY: First of all, to
answer your question more specifically, yes, we support that comment, that
statement. It is logic from our
perspective.
521
From a privacy perspective and what type of consent we should be
expecting, as you may know, there is a patchwork of privacy legislation in
Canada. Quebec has its own,
Alberta, B.C. and there is PEPITA.
522
The privacy requirements are slightly different with respect to
consent. So to give you an honest
answer, PEPITA allows for an implicit consent, an implied
consent.
523
I think every type of consent that is legal from a privacy perspective in
the relevant province or region should be considered.
524
I know that even in our industry, the different players have adopted
different strategies to get their clients' consent.
525
For example, in our case, we have what we call an underwriting
consent. So when a client calls in,
we have a verbal script that our representative reads to the client to get their
consent. Not all companies do
that.
526
We have follow‑up documentation that informs customers about what we do
with their information and the purposes for which we collect and use the
information.
527
I think in all honesty it is difficult to answer your question, because
it may vary. But I think any legal
way of collecting or getting a consent should be
considered.
528
COMMISSIONER DUNCAN: Your
comments are very helpful in developing what the guidelines should be, the
compliance continuum. I think that
is very helpful.
529
MR. GUAY: Thank
you.
530
COMMISSIONER DUNCAN: With
respect to internal Do Not Call Lists, in your submission you indicate that it
shouldn't be necessary for organizations to maintain internal lists and thinking
that it might cause ‑‑ this is CADRI's, actually both of you, I gather, in
your suggestions indicated that you didn't feel it was necessary to maintain
internal lists.
531
But in CADRI's case specifically, you indicated it may cause confusion
and add costs.
532
I am just wondering if you have considered a consumer who does not want
to register on the national list but does not want to receive calls from a
specific company, a requirement to maintain internal lists in conjunction with
the national list would give those consumers added flexibility and would mean
that they could still be contacted by the telemarketers.
533
MR. GUAY: It's a very good
point, Ms Duncan.
534
It's funny because since we have done our presentation, we have had
further discussions and have reconsidered that point.
535
I think our position at this point would be that there is a need, there
is a logic for keeping our own lists.
536
So I will let my colleague complete the answer on
that.
537
MR. GUERTIN: Maybe the
original submission we made was more based on our concern on how to manage all
those lists, because for those who have experience in managing client lists and
databases, the more match you try to do, the more complex it becomes. You could have your own internal Do Not
Call, "do not mail", "do not e‑mail".
538
COMMISSIONER DUNCAN:
Yes.
539
MR. GUERTIN: I think our
concern was more the intent is right from a concern point of view, and we all
agree. This is why we have kind of
revisited our comments that we made in the original
presentation.
540
We agree that I could maybe as a consumer, maybe I don't want my name to
be on the Do Not Call List on a national basis, but I don't want your company to
call me. So for that purpose we
agree.
541
We were more concerned about the operational challenge that it will
bring.
542
So we do support the intent of having a company list, if you want. We are just going to have to find a way
to make it operationally viable.
543
COMMISSIONER DUNCAN: That's
encouraging that you do think that obviously it could be
managed.
544
MR. GUERTIN: Yes. We understand the need. And even for our own business it is not
a good thing to contact someone who doesn't want you to.
545
COMMISSIONER DUNCAN: That's
true. It's like shooting yourself
in the foot.
546
MR. GUERTIN: Yes,
exactly.
547
COMMISSIONER DUNCAN: With
respect to the CMA's recommendation that the Commission allow companies to make
digitally pre‑recorded voice calls through Automatic Dialling and Answering
Devices, ADADs, for business‑to‑business telemarketing, for telemarketing to
consumers with whom an existing business relationship exists, and for customers
who have provided consent ‑‑
548
First of all, maybe I should ask if ADADs would be useful in your
business. If they were allowed,
would you contemplate using them?
549
MR. GUERTIN: A quick survey
was made of our members, and we do not use this and our members do not intend to
use this. So whether it is
forbidden or not, that wouldn't seem to have an impact on what we intend to
do.
550
COMMISSIONER DUNCAN: Those
are helpful comments. Thank
you.
551
I would also like to ask the question that I asked about Contact New
Brunswick's concern with respect to cost.
Theirs is particular in regards to smaller companies setting up the
necessary equipment and hardware and software to be compliant with the new Do
Not Call List system.
552
I am wondering if you have any view or estimate on what the cost might
be.
553
I know that you are looking at a larger company and the economics are
completely different, but do you have an opinion on that?
554
MR. GUERTIN: I am not sure
that I have an opinion as much as an impression.
555
COMMISSIONER DUNCAN: That's
helpful.
556
MR. GUERTIN: It seems to me,
from our own experience, that whether you are trying to match a million names or
10,000 names, the infrastructure and the process is probably close to the same
in terms of the impact on costs.
557
It is a complex thing to match databases. I really want to stress this. Whether what you are doing is trying to
match a small list or a big list, there is a process to implement within your
own organization. For that process
to reach, let's say, 95 percent accuracy, this is where the investment is, in my
mind, more than the cost of the computer of doing that.
558
COMMISSIONER DUNCAN:
Considering the evolution of telemarketing in the U.S., and what will
happen here in Canada, do you think that at some point it would be reasonable to
expect that there would be off‑the‑shelf software
available?
559
Is that possible?
560
MR. GUERTIN: I must admit
that I have never thought about this.
561
COMMISSIONER DUNCAN: You
would have another line of business and you could sell what
you ‑‑
562
MR. GUERTIN:
Yes.
563
Yes, that could be.
564
COMMISSIONER DUNCAN: It
could be possible.
565
MR. GUERTIN: Because if
whatever the rules will be create the need, I am sure there will be people
thinking about it.
566
COMMISSIONER DUNCAN: Thank
you.
567
This might be something that would be more relevant to larger
companies. It would definitely be,
because they might want to engage a third party provider, for example, another
call centre, ad agency or call broker, to access the list on their
behalf.
568
We are wondering, first of all, if that should be allowed. Do you think that we should allow third
parties to access the list?
569
And how should such access be granted and
controlled?
570
Also, of course, there is an element of who should pay in there; and if
they should be required to identify on whose behalf they are accessing the
list.
571
MS SANSCARTIER: I'm sorry, I
might have missed some of the elements of your question.
572
With respect to third party users, our members don't have any problem in
principle with allowing them access.
573
I think, from our perspective, a lot of the questions you raise will be
worked out in private contracts between the outsourced party and the
institution.
574
So compliance and all of that for us is something that, if the member
company has an expectation, it is that their provider will comply with every
rule there is because they are representing them.
575
COMMISSIONER DUNCAN: So you
think that it could be managed through an outsourcing arrangement or a
contract.
576
MS SANSCARTIER:
Yes.
577
COMMISSIONER DUNCAN: Thank
you.
578
The last question that I have is on the rate structure ‑‑ the
potential rate structure for the system.
579
The companies have suggested that the fees for making use of the national
Do Not Call List could be applied annually, quarterly, monthly, or at the time
the system is accessed. That really
has a cash flow implication, but, at any rate, there are many options for doing
that.
580
The companies suggest that fees could be charged on a per access basis,
which I think they indicate is probably the most
equitable.
581
In the U.S., the fees are charged based on the area codes for which
information is retrieved, with the first five being provided at no
charge.
582
In the U.K., the fee structure is based on the type of licence ‑‑
and I think there are three or four types of licences ‑‑ and the quantity
of area codes that an entity wishes to access.
583
What type of rate structure do you think would best serve Canadian
organizations, and is there a particular structure that would be better suited
to small organizations?
584
MR. GUERTIN: I don't think
we have spent much time reflecting on what should be the preferred rate
structure. I think our comment
would be more like: Let's make sure
it is a level playing field for the small as well as the big
players.
585
I don't think the big players should pay more because they are big. As well, I don't think the small players
should have a disadvantage in accessing this, because it is now
mandatory.
586
I think that a per access basis seems to be an interesting scenario. I am not personally familiar enough with
the U.K. system to further comment.
587
COMMISSIONER DUNCAN: Do you
think, from a technical point of view ‑‑ because, obviously, you are
familiar with the software implications in developing a system like that ‑‑
do you anticipate that that would be insurmountable?
588
It sounds like a reasonable application to charge on a per access
basis.
589
MR. GUERTIN: Yes, I think
so.
590
We have other instances in our industry where we have to access third
party databases, and we have a different structure of fees, depending on what
database, and on a per access basis doesn't seem ‑‑
591
COMMISSIONER DUNCAN: All
right. Thank you very
much.
592
Those are my questions, Mr. Chairman.
593
THE CHAIRPERSON:
Commissioner Cram.
594
COMMISSIONER CRAM: Thank
you.
595
I wanted to go back to your six‑month concern.
596
Is it your position that, even if you get the explicit consent of the
individual, if that consent says "within the next 12 months", we would see that
as a violation?
597
MR. GUERTIN: Yes, that is
the concern that we wanted to raise this morning, that if we have consent from a
potential client, because there is no product relationship at the moment, and if
we were to follow up beyond the six‑month period, it would be considered a
violation.
598
COMMISSIONER CRAM: All
right. Here is the fact
scenario.
599
I am on the Do Not Call List, but I want Belair Direct to give me a
quote, and I see your coupon, and I have to send you something back ‑‑ in
paper always?
600
Is that ‑‑
601
MR. GUERTIN: On paper, or it
could be, also, on the phone.
602
In our case, we have digital recordings of all the calls, so in terms of
traces, we have different ‑‑
603
COMMISSIONER CRAM: One or
the other.
604
MR. GUERTIN:
Yes.
605
COMMISSIONER CRAM: Or the
Internet.
606
MR. GUERTIN: Or the
website.
607
COMMISSIONER CRAM:
Yes.
608
And I say, "I want you to call me anytime during the next 12 months," and
I give you my explicit consent to phone me within the next 12
months ‑‑
609
MR. GUERTIN:
Yes.
610
COMMISSIONER CRAM: You are
saying, even in that circumstance, you think that if you phone in the seventh
month, that would be a violation of the Do Not Call List?
611
MR. GUERTIN: We wanted to be
reassured that it would not be.
‑‑‑ Laughter /
Rires
612
COMMISSIONER CRAM: The next
thing I want to know is, what do you say to people when you get their name and
address of what use you are going to put to that
information?
613
Under PIPEDA, what do you tell them what you are going to use it
for?
614
MR. GUAY: Do you mean in the
context of getting the expiry date, or generally speaking?
615
COMMISSIONER CRAM: Getting
their information, the phone number and their name.
616
MR. GUAY: In relation
to ‑‑
617
COMMISSIONER CRAM: PIPEDA
says that you have to tell them the purpose of the use of that information. What do you tell
them?
618
MR. GUAY: Generally
speaking, like I said to Commissioner Duncan, our members have different
approaches to getting consent and telling ‑‑ you know, they have different
strategies in terms of privacy, depending, also, on where they
operate.
619
But, in general, most of our members, I think, have implemented an
underwriting consent. So when
somebody is calling, we tell them that we will be collecting their information
and using it for the specific purpose of offering
insurance.
620
In our case, if I can speak for TD Meloche Monnex, we have a brochure
that we send to all of our customers to explain what we will do with the
information and how they can find out more information about our privacy
policy.
621
Every time we are in contact with our customers, especially at ‑‑
one of the strong moments, if you want, in the insurance relationship, is when
there is a claim. So, obviously,
when someone is reporting a claim, it is another time when we try to get
specific consent.
622
It depends on the moment of the relationship, but what we basically do
is, every time we have a chance, we tell our customers what we will do with the
information, and the purposes are usually all the same from one company to
another. It is assessing their
profile. It is collecting the
information and using the information that we have collected from
them.
623
Sometimes, also, we ask them to give us the consent to verify or collect
information from third parties to complete the profile.
624
It is basically around those purposes.
625
COMMISSIONER CRAM: So given
the different jurisdictions and requirements, it would probably be better to
have a federal requirement that would apply across the
country.
626
Would it be a big stretch for you to inform these people that their name
and telephone number will be used for telemarketing purposes even if they are on
the Do Not Call List?
627
That wouldn't be a problem, would it?
628
MR. GUAY: No, I don't think
so. I can't think of
anything ‑‑
629
COMMISSIONER CRAM: Thank
you.
630
Thank you, Mr. Chair.
631
THE CHAIRPERSON: Thank you,
Commissioner Cram.
632
Counsel.
633
MR. MILLINGTON: I would like
to return to the question of consent.
634
As I understand the processes that your members use, there are a number
of different ways by which they get consent.
635
Would it be particularly onerous for your members to always maintain some
form of written evidence of the consent obtained and the nature and scope of
that consent?
636
MR. GUAY: In the context of
the expiry date, not really, because we actually get the information. It is the customer that is sending the
information, so written ‑‑
637
I want to clarify the term "written", because in our world we use
technology a lot, and we use the Internet.
So written ‑‑ I don't know what written means any
more.
638
I think any document that you can print, that is virtual but you can
print, could qualify, but it is not because you haven't printed it that it's not
written yet anyway.
639
As for the general consent that we get, I have to say that in our
industry, generally speaking ‑‑ and not only the companies doing business
directly with the public, but also the companies who are distributing their
products to brokers ‑‑ most of the companies rely on implied consent, and
there is not always ‑‑ you cannot find a piece of paper on which the
customer has signed a consent form or anything like that. The business is done over the phone,
mostly.
640
MR. MILLINGTON: I am just
going to the comment that you made in your submission this morning, where you
identified it as a critical issue, the ability to make these follow‑up phone
calls.
641
MR. GUAY:
Yes.
642
MR. MILLINGTON: If it is
that critical to your business, then surely you could take a step across your
membership, such that the record‑keeping of that consent was sufficient for at
least a couple of purposes.
643
I am not giving you advice here, I am just raising it as a
theory.
644
For example, there is under the Act, as it is currently drafted, common
law defences, and if there is consent and you can evidence the consent, that
might be something that your legal advisors could advise you on, as to whether
that might constitute a sufficient defence in that
context.
645
There is also another possibility that you might seek some advice
on ‑‑ and I am wondering whether you have ‑‑ which is, under
41.7(2)(a) ‑‑ it is the (b) subsection that refers to the six‑month period
that you are concerned about.
646
The preceding subsection, sub (a), talks about an 18‑month window, which
would address your 12‑month period.
647
Have you ever considered structuring your provision of the quotes as a
type of service, which, possibly, would make that subsection available to
you?
648
Have you looked into that at all?
649
MR. GUAY: Not yet. We haven't looked into
that.
650
MR. GUERTIN: I think the
hesitation that we had in trying to answer your question was more to do with
when you used the words "written consent", as opposed to "legally valid
consent".
651
Right now, as I said, there could be a consent given to us on our
website. Could we say that is
written?
652
We identified the person who was coming to our website, and they provided
us with their expiry date.
653
It could be done over the phone.
As I said, in our case we use digital recordings, and most provinces have
adopted legislation that allows that as being legally
valid.
654
So legal evidence of that, I think ‑‑ we could survey our members,
but my feeling is that they would agree with that.
655
The format, I think, is where we ‑‑ we would probably suggest that
it has to be a legally valid format, but written, in today's world, is not the
only legally valid format.
656
MR. MILLINGTON: The question
would be, then, is it so onerous for organizations that make up your membership
to comply with the legal evidentiary requirements of obtaining some form,
whether it is electronic or written or otherwise, but something that would be
legally satisfactory to constitute evidence of a consent, and therefore have
that available to you under the Act.
657
MR. GUERTIN:
Yes.
658
MR. MILLINGTON: As I say,
the alternative is to take a look at 47.2(a) to see what you could do with that
in order never to run amuck of the subsection in the first
place.
659
MR. GUERTIN: It seems to us,
I think, reasonable, feasible and legally sound.
660
Of course, in our association, we like to come back to our members and
ask if they have any issue that we don't see ourselves. But spontaneously, answering your
question, I think this is feasible and right as well.
661
LE PRÉSIDENT : Madame la Secrétaire, avez‑vous quelque chose à ajouter
avant que je remercie le panel?
662
LA SECRÉTAIRE : Non.
663
LE PRÉSIDENT : Merci beaucoup de votre présence. Ça été très utile.
664
Ladies and gentlemen, we will take a break for 15 minutes. We will be back at 11:35
a.m.
‑‑‑ Upon recessing at 1110 /
Suspension à 1110
‑‑‑ Upon resuming at 1135 /
Reprise à 1135
665
LE PRÉSIDENT: À l'ordre,
s'il vous plaît.
666
Ladies and gentlemen, if we could please take up ‑‑ take your
seats.
667
Madame la
Secrétaire?
668
LA SECRÉTAIRE: Oui, monsieur
le président. Nous allons continuer
avec Canadian Bankers Association, with Ms Linda
Routledge.
669
So, could you introduce your
colleagues, please.
670
THE CHAIRMAN: Just before we
begin, we do want you to introduce your colleagues for
sure.
You have a time
constraint and I've offered you to waive your right of initial presentation in
favour of our asking questions but, of course, it's your choice and your
option.
671
You've told me that essentially the comments you had prepared are
consistent with and representative of the written submission that you made and
so, it's completely up to you after you introduce your colleague, whether you
want to make a small or larger initial presentation, but obviously if you have
to leave us by 12:15, it is conceivable that the longer we do the initial
presentation, the less subsequent discussion and question there will
be.
PRESENTATION /
PRÉSENTATION
672
MS ROUTLEDGE: Okay. I am
Linda Routledge, director of Consumer Affairs with the Canadian Bankers
Association and with me today is Nathalie Zlatinsky who is running a call centre
with the Toronto Dominion Bank, TD Bank Financial Group.
673
MS ZLATINSKY: Thank
you.
674
THE CHAIRMAN:
Welcome.
675
MS ROUTLEDGE: I would like
to not do my entire presentation, but just touch on one thing because a number
of the other presenters have been talking about this and it's the whole idea of
consent and outside of being a problem in terms of being outside of the Do Not
Call List.
676
And what we would like to suggest is that the concept of unsolicited
calls be clarified. If an
individual without an existing relationship and whose number is listed on the
DNCL has given their consent for an organization to call, that consent should
override the DNCL prohibition on calling.
677
If I go to a home show and I fill out a form and say: please call me
about a garage door, clearly that person should be able to call me, that
business should be able to call me even if my name is on the Do Not Call
List.
678
So, I think if we could clarify what an unsolicited call is or is not,
that that may help the situation and with that, I'll move to
questions.
679
THE CHAIRMAN: Thank you very
much. Commissioner
Duncan.
680
COMMISSIONER DUNCAN: Good
morning. I'll take you through many
of the same questions as I've asked the others, but I do have some unique to the
Bankers presentation.
681
First of all, with respect to the overriding DNCL rule and the definition
that the companies have proposed, we are interested in whether you have any
comments on the wording or whether you would support it or would like to see any
changes and I'll just read it for you:
"No person or
organization shall initiate a telemarketing call to a person or organization
whom is validly listed in the National Do Not Call database, unless the person
or organization from whom the telemarketing call originates is exempt, pursuant
to Section 4171 of the Amended Telecommunications
Act."
682
MS ROUTLEDGE: I would
reiterate my comments just earlier.
I think if the person has given consent in one way or another, whether
it's ‑‑ if they have given consent, then it should override the DNCL
prohibition.
683
COMMISSIONER DUNCAN: With
respect to the application of the Do Not Call List rules to faxes, do you think
that they should apply to unsolicited faxes? I don't know if the bank uses those or
not, and if there are any technical financial or administrative issues with
applying those rules to unsolicited faxes?
684
MS. ZLATINSKY: To the best
of our knowledge, the banking industry does not use faxes to solicit customers
for products that they offer.
685
COMMISSIONER DUNCAN:
Oh! Thank you. So, you don't have an
opinion?
686
MS. ZLATINSKY:
No.
687
COMMISSIONER DUNCAN: Thank
you.
688
In your submission ‑‑ just one second now ‑‑ in your
submission, you recommend the calls between the telemarketer and any business be
exempt from the application of the National Do Not Call List and the application
of the National Do Not Call List be limited to calls to a residential
line?
689
MS. ZLATINSKY: That's
correct.
690
COMMISSIONER DUNCAN: Do you
believe the current telemarketing rules are appropriate for business to business
calls? Not the DNCL rules, but the
other rules.
691
MS ROUTLEDGE: I'm sorry, are
there specific rules that you are referring to?
692
COMMISSIONER DUNCAN: Well,
the rules that are in place right now, for example, that they maintain internal
Do Not Call Lists.
693
MS ROUTLEDGE: Yes, I think
that is appropriate.
694
COMMISSIONER DUNCAN: If you
do agree that the current telemarketing rules are appropriate, then why would
you feel the requirement that these calls, business‑to‑business calls, should be
excluded from the Do Not Call List rules?
695
Currently they do maintain internal Do Not Call List rules, for example,
and you support the current rules.
696
Why do you think that applying the Do Not Call List rules to
business‑to‑business calls is a problem?
697
MS ROUTLEDGE: From a
practical perspective, I think it is difficult. There are small businesses that yes, may
want to utilize the existing rules.
698
But from a practical standpoint, a lot of business is done from
businesses calling other businesses, and that's just the way the business is
done. It is an accepted way of
doing business and most regular businesses would accept
that.
699
COMMISSIONER DUNCAN:
Actually you touched on my next question.
700
You have indicated that small home‑based businesses, for example, should
be able to register on the list if they choose.
701
MS ROUTLEDGE: It is not a
position that we have solidified with our members, so I find it difficult to
give too much detail on that one.
702
COMMISSIONER DUNCAN: I guess
the problem that would follow out of all of this is how the automated system
would differentiate between a residential registration, a home business
registration, a business of whatever size you think would be appropriate, and
not allow that one to register.
703
MS ROUTLEDGE: I guess part
of the difficulties with businesses is where you have a business that has an
internal telephone network and how do you get into the practicalities of such
and such a number, extension so‑and‑so.
704
Those are the practicalities that we just thought would be very, very
difficult to implement in this type of a Do Not Call List.
705
COMMISSIONER DUNCAN: There
seems to be less of an issue there today because many people have direct
lines. But I guess we would have to
discuss with the companies just to see what the technical implications there
might be.
706
I think there is an increasing number of larger companies where you dial
directly through to the person's number.
707
But that's fine; thank you.
708
With regard to the registration period, The Companies propose that the
numbers should remain on the Do Not Call List for a period of three
years.
709
In your submission you also recommend an automatic expiry of the
registration on the Do Not Call List after three years.
710
It will cost, obviously, for the Do Not Call operator to re‑register
consumers every three to five years, both in terms of staffing and other dollar
costs, and will likely annoy and confuse
consumers.
711
In the U.K. consumer numbers remain on the list
indefinitely.
712
Assuming that disconnected numbers and re‑assigned numbers would be
removed by the carriers from the Do Not Call List, why shouldn't telephone
numbers remain on the Do Not Call List indefinitely or until otherwise
removed?
713
MS ROUTLEDGE: The removal by
the carriers would certainly address a lot of the problems that we
foresaw.
714
I guess we look at the way the Canadian Marketing Association list is run
now, and it seems to be very satisfactory.
As far as I know, they are not getting a lot of complaints when the
numbers expire after three years.
715
It gives the person an opportunity to reconsider whether things have
changed at that stage of the game.
716
COMMISSIONER DUNCAN: And of
course that weighs against the overall cost of operating a system, you know the
Do Not Call List system, which is going to have to be borne by the
participants.
717
You obviously think that it is important that people have a chance to
re‑evaluate their decision.
718
MS ROUTLEDGE: We
do.
719
COMMISSIONER DUNCAN: And you
are not concerned that it would annoy or confuse
consumers?
720
MS ROUTLEDGE: I think it is
a matter of the up‑front disclosure, knowing that it lasts for three years. If you disclose it to them at the
beginning, then there is a better understanding and acceptance of
it.
721
COMMISSIONER DUNCAN: Thank
you.
722
In paragraph 77, the CMA submitted that the Commission should adopt a
regulation that would clarify that telemarketers may contact a consumer by
telephone even if he or she is on the Do Not Call List if the telemarketer has
received the consumer's consent to do so, which I believe is your position as
well.
723
MS ROUTLEDGE: We definitely
agree with that.
724
COMMISSIONER DUNCAN: I am
wondering what you would consider would constitute consumer consent and how that
should be documented in order to provide sufficient documentation as a defence
in the case of an investigation.
725
MS ROUTLEDGE: With the banks
right now, the banks get consent from consumers as required under PIPEDA and it
is usually done with full disclosure on an application form or, in the case of
telephone sales, in a script or whatever up‑front.
726
There is disclosure that the information will be used for providing
information on our other products and services that might be of interest to
them.
727
So it covers a wide range.
It discloses the different types of products or businesses that are
associated with the bank and indicates that, by signing, they would be giving
consent to such marketing.
728
COMMISSIONER DUNCAN: Thank
you.
729
I'm just trying to be mindful of your schedule.
730
In your submission at paragraph 25 you indicate that the banks will
continue to maintain their own Do Not Call Lists for their existing clients as
required by regulation. And you
indicate that the national Do Not Call Lists should effectively deal with the
preference of all non‑customers with respect to that
list.
731
I take it from that that you don't think that internal Do Not Call Lists
are necessary for other companies, just the bank will continue to maintain
theirs because they are required to do so by regulation.
732
MS ROUTLEDGE: Yes. They maintain ‑‑ well, regulation
and just good customer service.
There is no point in the bank phoning someone that doesn't want to hear
from them about other products and services. So it makes good sense from that
perspective.
733
COMMISSIONER DUNCAN: You
probably heard my comments earlier.
The Registered Education Savings Plan Dealers Association made the point
that it is reasonable to maintain internal lists because it gives consumers an
opportunity to not register on a particular list but not exclude themselves from
the whole national, the potential of getting calls across the
board.
734
I just wondered, with that in light, considering that, or if you took
that into consideration in making your suggestion that it is not necessary for
them to ‑‑
735
MS ROUTLEDGE: I guess our
comment was made in light of the fact that as far as I know ‑‑ and there
could be some exceptions to this.
But as far as I know, the bank's telemarketing is done to existing
customers by and large. So they
would have the exemption under the existing customer and non‑customers aren't
generally telemarketed.
736
COMMISSIONER DUNCAN: So then
you wouldn't be opposed then giving more thought
to ‑‑
737
MS ROUTLEDGE: We would
certainly be supportive of more thought being given to the other part of
it.
738
COMMISSIONER DUNCAN: All
right.
739
MS ROUTLEDGE: At the moment,
we can't weigh in on it.
740
COMMISSIONER DUNCAN: Thank
you.
741
In regard to calling hours, the FCC rules state that telemarketing
calling hours are 8:00 a.m. to 9:00 p.m. Parties have recommended other
options. The CMA, The Companies and
PIAC have recommended the following hours for live voice and fax calls: weekdays, 9:00 a.m. to 9:30 p.m.;
weekends, 10:00 a.m. to 6:00 p.m.; and prohibited on statutory
holidays.
742
The Union des consommateurs has recommended the following hours: weekdays, 10:00 a.m. to 6:00 p.m.;
weekends, 11:00 a.m. to 3:00 p.m.; and prohibited on statutory
holidays.
743
In Order 96‑12‑29, the Commission established hours for the transmission
of unsolicited faxes for the purpose of solicitation and restricted them to the
hours between 9:00 a.m. and 9:30 p.m., Monday to Friday; and between 10:00 a.m.
and 6:00 p.m. on Saturday and Sunday.
744
Should there be a time restriction rule for voice telemarketing; and if
so, what do you consider to be the appropriate time
restrictions?
745
And also, do you agree with the suggestion in the interests of symmetry
that the hours of voice and fax telemarketing should be the
same?
746
Can you think of any reason that would justify having different hours for
voice and fax telemarketing?
747
MS ROUTLEDGE: I think I can
give a short answer to that.
748
The banks are all members of the Canadian Marketing Association, so I
think we could support the Canadian Marketing Association's proposed
hours.
749
As we don't do faxes, I would rather not weigh in on that
one.
750
COMMISSIONER DUNCAN: Thank
you.
751
What are you views on whether third party providers such as call centres,
ad agencies and call brokers should be allowed to access the system on behalf of
another party in order to scrub the list?
752
Should such access be granted and controlled?
753
Should third party providers be required to identify on whose behalf they
are accessing the list?
754
MS ZLATINSZKY: We have no
concerns with third parties accessing the list. Within our own organization we take
ownership for creating a list that we give to third parties. So we already scrub against the internal
Do Not Call List. We take full
accountability in‑house to make sure that they have the final list on all
contactable customers.
755
COMMISSIONER DUNCAN: So you
wouldn't contemplate have the third party scrub your lists. You are large enough that you will be
doing it yourselves.
756
MS ZLATINSZKY:
No.
757
COMMISSIONER DUNCAN: Thank
you.
758
I would like to ask you the question about the rate
structure.
759
The Companies have suggested that fees for using the list could be
applied annually, quarterly, monthly or each time the list is
used.
760
The Companies suggest the fees could be charged on a per‑access
basis. As I have indicated earlier,
they suggest that might be the most equitable.
761
In the U.S. the fees are charged based on the number of area codes for
which information is retrieved, with the first five being provided at no
charge.
762
In the U.K. the fee structure is based on the type of licence and the
quantity of area codes an entity wishes to access.
763
What type of rate structure do you think would best serve Canadian
organizations?
764
Is there a particular structure that would be better suited to smaller
organizations?
765
MS ROUTLEDGE: We haven't
considered in detail the subject of rate structure or anything like that. As far as we are concerned, whatever
rate structure is put in place should be equitable, cost‑effective, and so on
like that.
766
COMMISSIONER DUNCAN: Thank
you very much.
767
Mr. Chairman, that concludes my questions.
768
THE CHAIRPERSON: Thank you,
Commissioner Duncan.
769
Commissioner Langford.
770
COMMISSIONER LANGFORD: Thank
you, Mr. Chairman. I will try
to be brief.
771
I think we are doing all right by you. We will get you out the door on
time.
772
MS ROUTLEDGE: Thank you very
much.
773
COMMISSIONER LANGFORD: I
want to talk a little bit about enforcement and your position on
enforcement.
774
I have to tell you, perhaps I misunderstand it but it does leave me a
little bit confused. I want to see
if I can encapsulate my understanding.
And if I am wrong, I hope you will correct me
immediately.
775
It seems that what you are saying in your initial document filed with us,
from paragraph 43 through to about 48, is that rather than get involved in some
sort of consortium that might be working to kind of be an initial step in the
resolution process, you would prefer to stick with the sort of resolution
process you already have in place and that other ‑‑ my assumption is that
other people could do exactly the same thing.
776
Is that right?
777
MS ROUTLEDGE: Yes. What we are trying to say is that when a
customer of an organization has a problem with that organization, say it's a
bank, they should first approach the bank and try and resolve the problem
there.
778
Then if that doesn't work, then fine, there are other methods out
there.
779
COMMISSIONER LANGFORD: I
have looked at your careful description of your own problem solving
situation. It seems to be about a
four‑step process where you go through the internal process in the bank itself
on two different steps. If that
doesn't work, you can then go on to the ombudsman, the formalized ombudsman
system, as you refer to it, for what you call impartial and independent
resolution.
780
So there seems to be kind of four steps all the
way.
781
As good as that may be ‑‑ and I make no critical comment on it. I have never been involved in it. I have no first‑hand
knowledge.
782
So even based on the assumption that the system works and works well, if
you have your own system and X, Y and Z have their own systems and the insurance
people have their own system and the people who are selling subscriptions to
magazines have their own system, aren't we in danger of having a different set
of laws, as it were, for each different telemarketing industry, each different
telemarketing segment?
783
And is that ever a good idea in law when in the end you may end up going
to the final arbiter, which is either the operator or us, or some other
delegate?
784
Doesn't that strike you that we would end up with two, three, four, or
even 50 different systems of enforcement and that that is very unlikely to be
equitable and fair across the board?
785
MS ROUTLEDGE: I think it's
fair if each organization deals with its own complaints. The whole idea of this Do Not Call List
and the enforcement mechanisms associated with it is meant to not punish little
one‑off mistakes. I think I read
that somewhere.
786
What is the material? If
it's three or four or a dozen or two dozen complaints, then there is some kind
of mechanism for taking some action on it.
787
Similarly, if a consumer has a small complaint and immediately the bank
says gee, I'm sorry, would take you off the list and that person never has
another problem with the organization, then why should it have to go through the
whole regulatory process?
788
I can certainly see if there is repeated instances of problems with an
organization then you would need to go through and you would want the
standardized process that covers everybody.
789
I am just saying that I think individuals should have, or organizations
should have the opportunity to deal with the individual ones and deal with them
properly and take them right off the table first.
790
COMMISSIONER LANGFORD: Of
course, there is nothing to stop both of them running
parallel.
791
Can you see the danger that I am flagging for you: that here you have the
banks, who have set up an elaborate four‑step two‑tier system of problem
solving. Fine. And let's assume, as I say, that it
works perfectly. But on the other
level and for other groups, that may not exist.
792
So wouldn't it be better in a sense to be involved in some sort of
consortium, a self‑policing kind of level on the first level, the first stage,
to bring your expertise to that?
Others would bring theirs.
But at least to ensure that every telemarketing complaint had the
advantage of being handled in the same way.
793
It might very well be just simply settled at the consortium level and not
go any farther; as you say, a one‑off small
problem.
794
On the other hand, if it did move up through the different processes,
everybody would at least have the satisfaction of knowing that they were going
to get the same justice. It would
be justice for all and it wouldn't be one level for people with complaints at
the banks and another for people with complaints with magazine
subscriptions.
795
MS ROUTLEDGE: I think it
would be level if each consumer had the opportunity to make an attempt to
resolve it with the organization.
So whether it is Lou's Paving or it is one of the larger banks, if they
make that effort and it is successful, then it is looked
after.
796
If it is not successful, then it goes to the
process.
797
I am just saying that there should be an opportunity for an organization
to deal with the person one‑on‑one for one occasion, to give them the
opportunity, one opportunity, to look after it.
798
COMMISSIONER LANGFORD: If we
were to reject that position ‑‑ of course, there is nothing to stop you
keeping your own ombudsman and your own complaint
mechanisms.
799
But if we were to reject that, speaking hypothetically, and say no, we
want one system for all, would you then be more inclined to want to be part of
that system rather than to say no, we don't want to be part of it, we will just
wait; We will stand on the sidelines.
800
Let other people be in the consortium if they want; we are not going to
be there.
801
MS ROUTLEDGE: I think there
is certainly a role for all the stakeholder input, and we would want to have
stakeholder input.
802
COMMISSIONER LANGFORD: Could
you speak just a little louder. I'm
sorry.
803
I'm getting old and crotchety.
804
MS ROUTLEDGE: I'm
sorry.
805
THE CHAIRPERSON: Especially
crotchety.
‑‑‑ Laughter /
Rires
806
MS ROUTLEDGE: We would
certainly want to be part of the stakeholder consultations on how things are
done, yes.
807
As you would have seen from my speaking notes, we are not sure that the
consortium process would be the most cost efficient way of going about
overseeing the list operator, but certainly stakeholder feedback is important
and, through an advisory committee or whatever, it would be important, and we
are certainly at the table on both of the committees, and so on, looking at
it.
808
COMMISSIONER LANGFORD: So if
we go down that road, you want to be part of it. You still want to maintain your place
and your advisory role.
809
MS ROUTLEDGE:
Yes.
810
COMMISSIONER LANGFORD: Those
are my questions, Mr. Chair.
811
THE CHAIRPERSON: Thank you,
Commissioner Langford.
812
Commissioner Cram.
COMMISSIONER
CRAM: Thank you for
coming.
813
I was looking at your speaking notes and I noticed that the banks do have
Do Not Call Lists right now. Are
they working relatively well? Are
there any problems that you are aware of?
814
MS ROUTLEDGE: I am certainly
not aware of any problems. We
believe that they work well. But we
work with humans, so there are often mistakes.
815
COMMISSIONER CRAM: Is it a
30‑day registration?
816
Once you say that you want your name off, within 30 days it clicks
in?
817
Is that the deal?
818
MS ROUTLEDGE: It meets the
requirements of the existing rules.
819
COMMISSIONER CRAM: The
CMA?
820
MS ROUTLEDGE: Yes, and the
existing CRTC rules.
821
I would say that the name would go on the list immediately. As I said in my speaking notes, it could
be that a marketing list may have gone on down the line to one of the call
centres, or something, so there may be a bit of a time delay. There could be a marketing campaign
already in progress that that person's name wouldn't be removed from
immediately. That is why we were
suggesting that 90 days would be better, because of the processes allowed in
large organizations.
822
COMMISSIONER CRAM: But this
is all electronic, isn't it?
823
We are not going back to the Pony Express.
824
MS ZLATINSZKY: It is
electronic to a certain extent.
Within our organization, once the list is created, we do not refresh it
until the campaign ends, which is typically about 45 to 60
days.
825
COMMISSIONER CRAM: But there
is nothing wrong with ‑‑ it would be a fairly simple operation to look at
the list after 30 days, wouldn't it?
826
MS ZLATINSZKY: It could
easily be done, yes.
827
COMMISSIONER CRAM: On your
individual Do Not Call List, when I phone in and say, "Take me off your list,"
how do I know that I am off the list?
828
The next time you phone me, am I left with saying, "Why are you phoning
me? I asked to be put off the list
last time," or do you send them a notice?
829
What do you do?
830
MS ZLATINSZKY: I can speak
on behalf of our organization. We
do not send notification to the customer that verifies that they have been
removed from the list.
831
We do have the mainframe, which is applicable across all of our retail
branches and the call centres, where that is updated immediately at the time of
the call.
832
As Linda said, there is human error. It might have been missed in one case,
but we will catch it if we happen to call the customer
again.
833
COMMISSIONER CRAM: So I am
put in the position of not being able to prove that I asked to be put on your Do
Not Call List.
834
Is that right?
835
MS ZLATINSZKY: Potentially,
yes.
836
COMMISSIONER CRAM: How could
that be solved?
837
MS ZLATINSZKY: It could
easily be solved with some sort of electronic communication to the customer that
says, "You have been removed," or a letter. But with that comes additional costs to
the corporations.
838
COMMISSIONER CRAM: What
about giving a registration number in the phone call?
839
Would that be less expensive?
840
MS ZLATINSZKY: You could, as
long as it was an automated registration system, which means building that
platform, and it would have to be consistent across all of the organizations,
not just our own company.
841
That would be a unique registration number that would be consistent
across TD and CIBC and ‑‑
842
COMMISSIONER CRAM:
Yes.
843
MS ZLATINSZKY: It would need
to be a consistent platform.
844
MS ROUTLEDGE: But that would
be a significant systems cost. We
are talking millions of dollars to put that kind of system
in.
845
COMMISSIONER CRAM: Those
systems don't exist today?
846
MS ZLATINSZKY: No, they do
not.
847
COMMISSIONER CRAM: So it
would be cheaper to send out a letter.
848
MS ZLATINSZKY: Potentially,
absolutely.
849
COMMISSIONER CRAM: Thank
you. Those are my
questions.
850
THE CHAIRPERSON:
Commissioner Cugini.
COMMISSIONER
CUGINI: Good morning. I have one question, depending on your
answer.
851
I want to have some clarification around your definition of "corporate
group" in your written submission, where you say that the organization includes
a corporate group and that affiliates of an entity which has an existing
relationship with a customer will fall under the exemption, provided that the
necessary privacy consents for marketing across the corporate group have been
obtained.
852
How do you get consent across your corporate
group?
853
MS ROUTLEDGE: In the initial
application form, when the person signs up for the first product or service,
there will be a disclosure that says, "The bank has affiliates in the following
businesses," and it would list the different kinds of businesses that that
particular bank has affiliates for.
854
Then it would ask for consent to market products and services of the bank
and its affiliates, "as described above".
855
COMMISSIONER CUGINI: Would
the customer have a choice in saying yes for Entities or Affiliates Nos. 1, 4
and 6?
856
MS ROUTLEDGE: It would
depend on the bank. Some of the
banks can do it affiliate‑by‑affiliate.
Others, if they say that they don't want to be marketed by an affiliate,
would have to delete all of them.
857
COMMISSIONER CUGINI: I don't
know if you were here in the room this morning and heard Advocis' position on
this very same subject, where they say that the exemption would be based on
separate legal entities, with a distinct product or function within a group of
companies.
858
Obviously you don't agree with that position put
forward.
859
MS ROUTLEDGE: No, we
don't.
860
As long as the customer understands what is being asked and has given
consent, the customer should be able to do that. And this gives the customer control over
how their information is going to be used.
861
COMMISSIONER CUGINI: The
reverse of that, of course, is, once they have given consent to the bank, it is
automatic consent for all of the other products and
services.
862
You see it as consent; that the customer has consented to being contacted
by all of ‑‑
863
MS ROUTLEDGE: If that is
what happens, yes.
864
What I was saying, though, was that some banks can eliminate
some.
865
So, in those cases, no, it's not, they can select.
866
And at any time thereafter, the person can go back and withdraw
consent.
867
If six months down the line they say, "I am sick of getting all of this
stuff," all they have to do is call.
There should be a 1‑800 number, or whatever, in their materials. They can call that up and be removed
from the list.
868
COMMISSIONER CUGINI: How
long does it take to be removed?
869
MS ROUTLEDGE: I believe that
most of them will mark it immediately as "do not solicit", and "do not solicit"
would mean not only telemarketing, but any other kind of solicitation, as
well.
870
COMMISSIONER CUGINI: Thank
you very much.
871
THE CHAIRPERSON: Ms
Routledge, how are we doing?
872
Do we have another five minutes?
873
MS ROUTLEDGE: You are doing
absolutely great. Go ahead. Five minutes.
874
THE CHAIRPERSON: I have a
few specific questions.
875
Number one, what you are really asking us to do with respect to
complaints is not to receive complaints from the banks, but inform the
complainant that they must go to the bank and attempt to resolve their problem
in a first‑stage process with you.
876
MS ROUTLEDGE: At the first
stage, yes.
877
THE CHAIRPERSON: So you
would create a situation, then ‑‑ presumably a precedent ‑‑ in which
any telemarketing violation would have to be sent back to the telemarketer for a
preliminary process before the government agency, whatever it turns out to be,
would be seized of the complaint.
878
MS ROUTLEDGE: If the CRTC
received a complaint, I would certainly imagine that they would record it or, in
some way, deal with it.
879
THE CHAIRPERSON: We would
record it all right, but the question is whether we would proceed or
not.
880
MS ROUTLEDGE: We would like
to see the organization be given an opportunity to deal with that
complaint.
881
THE CHAIRPERSON: With the
greatest of respect, you want a little more than that. You want us to tell the complainant to
go to you first, whereas the complainant has chosen to come to another
instance.
882
I want to be clear that that is what you are asking
for.
883
If there is something else, tell me.
884
MS ROUTLEDGE: No, that is
what we are asking for.
885
THE CHAIRPERSON: On the
business‑to‑business, in which you are in favour, as a matter of principle, why
would we want to prevent a business entity from registering its phone numbers on
a Do Not Call List?
886
MS ROUTLEDGE: We believe,
from a policy perspective, that this is meant to be a consumer protection
measure, not a business protection measure.
887
Generally speaking, businesses are more sophisticated and don't need
consumer protection measures.
888
THE CHAIRPERSON: So you are
suggesting that the Commission would exempt business‑to‑business telemarketing
and would tell Parliament, "You didn't really understand what you were trying to
do. It's true that you didn't
exempt it, but we have been told that you meant to, so we are exempting
it."
889
I am sorry to phrase it that way, that is an unfair way to phrase it,
but, fundamentally, that is what you are asking us to do.
890
MS ROUTLEDGE: I think the
CRTC has the ability to expand the exemptions.
891
THE CHAIRPERSON: We do,
indeed. We have the legal ability
to do it, that's correct.
892
MS ROUTLEDGE: And we are
asking you to consider doing it. We
think it would be a good idea to do it.
893
THE CHAIRPERSON: So that the
consumer's choice to solve problems in his own way is being
compromised.
894
In the first place, he can't solve it with us until he solves it with
you. In the second place, if a
businessman says he doesn't want to be called, unfortunately, we know better and
we are going to tell him that he can be called?
895
I am trying to understand where this is coming from. It doesn't seem to be placing a high
premium on the consumer's choice.
896
MS ROUTLEDGE: I guess that
it could be interpreted that way.
897
THE CHAIRPERSON: How would
we, as a practical matter, prevent the registration of business
numbers?
898
MS ROUTLEDGE: From a
practical perspective, I guess, it would be difficult to prevent it. But I guess it is what is done with it
after, when one is investigating a complaint.
899
THE CHAIRPERSON: In other
words, we would accept the number, the business would complain, we would
investigate, find out it was a business, and then tell him that he didn't have
grounds for a complaint, because we would have passed an
exemption.
900
That is, essentially, what you are proposing?
901
MS ROUTLEDGE: I guess what I
would say is, if the rules were passed that it didn't include businesses, it
should be clear to businesses upfront that they weren't covered and shouldn't be
registering their number.
902
THE CHAIRPERSON: I am asking
you, as a practical matter, how we would distinguish between a business number
and a non‑business number when it came in the front door.
903
MS ROUTLEDGE: As far as I
know, there is no way you can do that.
904
THE CHAIRPERSON: Yes, I
think you are right.
905
On the question of registration, of who and what is being registered, do
I understand it correctly that you would prefer that the registration system
would be for a person and for a number?
906
MS ROUTLEDGE: Since we have
made our March submission, we have been party to a number of the discussions,
and I think we have come to the view that the number only would have probably
less privacy risk and would probably be more efficient and effective to
administer, so we would support the number
only.
907
THE CHAIRPERSON: The method
of authentication to ensure the identity of the person who is requesting that
they be listed on a national DNCL, you say that there should be one, but we
really need your help to describe what it should be.
908
MS ROUTLEDGE: I'm
sorry?
909
THE CHAIRPERSON: You said in
paragraph 6:
"The notice
mentions the various methods of operating a national DNC list, including using a
live operator, a fully automated system and the Internet to submit complaints or
registrations. We believe that it
is important that any system have a method of authentication to ensure the
identity of the person who is requesting to be listed on the national DNCL, and
that that person has the authority to register the given telephone
number."
910
I understand what you are saying, but what would you
suggest?
911
As a practical matter, what are you proposing to
us?
912
MS ROUTLEDGE: I guess,
initially, we were concerned that there would be people who would mischievously
register someone else's telephone number.
913
I understand, though, from discussions with the operator of the U.S. Do
Not Call registry, that that has not been a problem down
there.
914
THE CHAIRPERSON: So you are
less concerned about authentication.
915
MS ROUTLEDGE: We are less
concerned about it at this stage of the game, yes.
916
THE CHAIRPERSON: You have to
go. Is there anything that you
would like to add or say?
917
You didn't have an opening statement; maybe you have a closing
statement. And if you wish to put
something on the record, we would be delighted to hear it.
918
Also, possibly there will be some Commission questions, but before we do
that perhaps you would like to make a few remarks.
919
MS ROUTLEDGE: No, I think
that the definition of "unsolicited calls" was the main point that I wanted to
make in addition to what is there.
920
THE CHAIRPERSON: And the
definition of "unsolicited calls" would not include a call where you were able
to demonstrate, as a matter of explicit decision, that a consumer had in fact
waived his right or expressed his preference to be called.
921
Is that fair?
922
MS ROUTLEDGE: Expressed a
preference to be called, yes, through giving his consent.
923
THE CHAIRPERSON:
Counsel.
924
Me. MILLINGTON: Oui,
monsieur le Président, j'aurai une question.
925
I am going to refer to your document that you brought with you today, and
I want you to help me with the logic that underpins the statement toward the end
of page 2, which says: "We believe
that the oversight and enforcement costs," and that is of this whole regime,
"should be the responsibility of the federal government."
926
I am wondering why your organization believes that the proper party to
pay for the costs of this program should be the taxpayers of Canada, as opposed
to the industry players who earn money in the conducting of telemarketing and
the provision of the underlying services that allow for
telemarketing.
927
Why is it better for the taxpayer to bear the burden of this enforcement
scheme rather than the industry players?
928
MS ROUTLEDGE: I think our
rationale for it is that it is consumer protection legislation, that it is
consumer protection that the government has decided to offer, and that, in many
cases ‑‑ most other cases where the government is putting in consumer
protection, the oversight functions are undertaken by the
government.
929
We fully support the fact that the operation of the list should be paid
for by the telemarketers.
930
MR. MILLINGTON: Which
represents only a part of it, but I am still at a loss as to why any of the
burden for the regime, which is, as you say, consumer protection ‑‑ and it
is protection from people in the industry, presumably ‑‑ why that should be
borne by taxpayers, as opposed to the people who are in the industry, who earn
revenues and profit from the conducting of that business.
931
MS ROUTLEDGE: As I said, it
is a general consumer protection benefit and the general public ‑‑ all
taxpayers ‑‑ can benefit from it.
932
THE CHAIRPERSON: Ms
Routledge, I hope we have released you at an appropriate time. We thank you very
much.
933
MS ROUTLEDGE: I thank you
very much for your understanding.
934
THE SECRETARY: Mr. Chairman,
I am sorry to interrupt. I have
something for CBA. I have
undertakings for a few participants, and CBA is one of
them.
935
THE CHAIRPERSON: That's
fine.
936
These are the undertakings that we referred to earlier. You can pick them up on your way
out. I know you are in a
rush.
937
Thank you very much.
938
MS ROUTLEDGE: Thank
you.
939
THE SECRETARY: Our next
participant is Mr. Boyd McBride, for the Association of Fundraising
Professionals.
PRESENTATION /
PRÉSENTATION
940
MR. McBRIDE: Mr. Chairman,
Commissioners and Commission Staff, good afternoon and thank you for allowing me
to have this opportunity to testify here today.
941
I serve as the National Director of SOS Children's Villages, but I am
testifying today as Chair of the Government Relations Committee of the
Association of Fundraising Professionals.
942
As many of you know, the Association of Fundraising Professionals
submitted written testimony to the CRTC in March, and my intention is that my
remarks today would summarize the formal comments that we have already
provided.
943
If I could indulge you for a moment, I would like to start with a brief
story, just to underline some of the situations that we in the charitable sector
face.
944
Just yesterday I received a letter from a woman who wrote to me saying
that she was 90 years old and that her doctor had told her to get her affairs in
order. She said, "I have written
you into my will," that is, my organization, "but please send me confirmation of
your address."
945
I picked up the phone and called her, and her response was, "Thank you,
Mr. McBride. I have been waiting
for your call."
946
This is a woman who could have phoned me, who, instead, wrote me a letter
and asked me to send her written confirmation of my charity's address, but she
said, "I have been waiting for your call."
947
That is the power of the telephone in the charitable sector. It connects people in a way that almost
nothing else we do can.
948
Back now to my formal comments.
949
AFP represents about 27,000 professionals in 180 chapters around the
world, 2,700 of those in Canada, in almost every major city. Our members work for charities, NGOs,
charitable foundations, organizations that we all know and respect ‑‑ the
health charities, the universities, the social welfare organizations,
international aid agencies and the like.
950
We are looking after the needs of and stewarding relations with people
who care enough about our communities to want to give over and above what they
do through the tax system.
951
Therefore, the Association of Fundraising Professionals is vitally
interested in any decision that seeks to impose new regulations or new
constraints on charitable organizations and our activities with donors and
perspective donors over the phone.
952
And so, we were very pleased, really very pleased with the government's
decision to exempt registered charities from the new Do Not Call Legislation and
we are committed to assuring that any new ‑‑ helping insurer as much as we
can at any new decisions in this regard maintain the balance that we feel the
Legislators came to.
953
We are also conscious, frankly, that this is a major exemption. Charitable sector is a very large sector
and very busy, but a decision made in the interest of the public
good.
954
Three key points I wanted to touch on and I have already mentioned the
first that we are pleased that the CRTC has upheld this exemption as originally
implemented by Parliament.
955
The second, and I'll come back to this, is that we would urge the CRTC to
provide some form of guidance or education to the public about the exemption or
exemptions as you work them through, so that Canadians will understand that
charities are not subject to the restrictions on calling.
956
And finally, I guess, and this may be of more concern to you than
anything else, that we urge that the CRTC implement telemarketing rules that are
consistent with the National Do Not Call List exemption for registered
charities.
957
Now, if I can talk for just a few minutes about justification for the
exemption of registered charities and this may be ‑‑
958
THE CHAIRMAN: Well, Mr.
McBride, you're exempt.
959
MR. McBRIDE:
So?
960
THE CHAIRMAN: So, you really
don't need to justify it again.
Parliament made its decision.
961
MR. McBRIDE: All
right.
962
THE CHAIRMAN: The
Commission, notwithstanding your fears, has no intention of subverting the will
of Parliament as you so delicately put it in your
presentation.
963
So, please don't feel you have to explain to us why you need to be
exempt.
964
MR. McBRIDE: Thank you very
much, Mr. Chairman.
965
Well, then, I'll move to this, our comments on the educational component
for the public. We are conscious
that it is a major exemption taking that the charitable sector or the registered
charities at least out of the Do Not Call List Legislation and we feel that it
would be very helpful for our sector and in that sense I guess for the community
at large, if people had a clear understanding of that and weren't surprised
somehow when a call comes from the charity that they have been supporting over
the phone for some time.
966
I am not sure what role the CRTC can play in publicizing that kind of
exemption helping Canadians become aware of it, but we would certainly urge you
to do what you can.
967
The third point then that I wanted to touch on was around this concern
that as you work on regulations and bring greater definition to what the
telemarketing rules should now be, that you keep in mind our exemption and do
what you can to ensure that if the telemarketing rules, as they are amended,
they don't in fact impose additional obligations on the charitable sector, that
we don't have to deal with today.
968
And if regulations are being contemplated that might have some impact on
our sector, we would like to feel that you would contact us and give us an
opportunity to work with you, to help you understand what kind of impacts those
might be and help mitigate them if they might be damaging for the charitable
sector.
969
Thank you for your time.
That's really the essence of the presentation we wanted to make
today. I am, of course, happy to
answer questions in the time we have before your lunch
break.
970
THE CHAIRMAN: Well, thank
you Mr. McBride.
971
Let me first say to you that today is the day and this is the moment for
the other rules and in particular, you have been exempted by the Do Not Call
List, from the Do Not Call List, but not from the remainder of the regulation of
telemarketing that the Commission has or will put into
place.
972
And it would have been helpful if you had looked at the existing status
quo and been able to make the comments that you would like us to ask you to
later make because they are on the agenda today.
973
But let me try to work with you to see if I can induce you to make some
of the comments that would be relevant to us.
974
Do you think that your members should be required or rather, could you
explain to me to what extent your members will regard it as a burden to fulfil
their legal responsibilities, provided their own Do Not Call List specific to
their own organization?
975
MR. McBRIDE: Our members
would not see that as a burden. We
see that as a responsibility.
976
THE CHAIRMAN: And you
currently operate these Do Not Call Lists?
977
MR. McBRIDE: I can't speak
for every charity represented by the membership of A.F.P., but it is widely
understood that there is no value in our pursuing telephone relations donors who
have told us they don't like to be contacted by phone.
978
THE CHAIRMAN: Would you
regard it as part of the responsibilities of your organization to ensure that
all of your members knew and possibly had access to expertise that would help
them to establish such lists?
979
MR. McBRIDE:
Absolutely.
980
THE CHAIRMAN: Yes. Would you regard it as appropriate that
the Commission should regulate the hours of calling for
telemarketing?
981
MR. McBRIDE: I believe that
we would be quite comfortable with that, yes.
982
THE CHAIRMAN: And would you
have any suggestions about what those hours of calling might legitimately
be?
983
MR. McBRIDE: I think that
what has been proposed by the Canadian Marketing Association would probably be
acceptable to our membership.
984
THE CHAIRMAN: Do any of your
members use fax for telemarketing purposes or solicitation
purposes?
985
MR. McBRIDE: I don't believe
we do. Now, most of our donor base
is largely individuals. The kind of
contact we have with corporations is, I would expect in almost every case, more
sophisticated than a broadcast fax.
986
THE CHAIRMAN: What
proportion the telemarketing done by your members would be done on an out source
basis to a professional telemarketing operation and what proportion would be
done in house?
987
MR. McBRIDE: I would have to
come back to you with that information and I would be happy to try to get
it.
988
THE CHAIRMAN: Yes. I am not holding you to one ‑‑ let
me ask it a little different because it's unfair to spring a precise question
like that, but is it a common practice for charities to employ professional
telemarketing out bound call centres for purpose of
solicitation?
989
MR. McBRIDE: As with many
kinds of charitable fund raising these days, there are specialties emerging and
special skills and techniques and management needed to be
effective.
990
So, I would say there is probably an increasing trend to using third
parties who have demonstrated the sensitivity that's important to us in
representing the charity to a donor or perspective
donor.
991
THE CHAIRMAN: And I suppose
those organizations will be liable to use predictive
dialling?
992
MR. McBRIDE: Some may, but
honestly, in all my contact with colleagues in the profession, there is a pretty
widespread understanding that predictive dialling does not ‑‑ does not
achieve the kind of results we want with donors and prospective
donors.
993
THE CHAIRMAN:
Interesting. If the
Commission were to outline rules with regard to predictive dialling and one of
the points with regard to dead air and so‑called dead call phenomenon, you would
regard that as entirely consistent with the public interest and it would be
appropriate for all of your members to ensure that they could
comply?
994
MR. McBRIDE: I may be
getting a little beyond my depth in responding to that, but I have a feeling
that within our Association, people understand, as I've said, that this whole
business of predictive dialling and the dead air and all of that is ‑‑ just
doesn't work in trying to build relationships and that's really what securing
gifts is all about.
995
THE CHAIRMAN: Are you aware
of the existing requirements for in the state telemarketing rules of 2004‑35
with respect to the identification of telemarketer, the existence of requirement
of a number that the customer can phone to register on a Do Not Call List or to
register a complaint ‑‑ not on a Do not, yes, on an organization specific
Do Not Call List, are you familiar with that collection of
regulations?
996
MR. McBRIDE: A little, yes,
I am.
997
THE CHAIRMAN: And would you
regard it as essentially valid and appropriate that we should apply it to exempt
telemarketers?
998
MR. McBRIDE: To exempt, to
organizations ‑‑
999
THE CHAIRMAN: Yourselves, to
your members?
1000
MR. McBRIDE: No, I
wouldn't. I don't feel that it
would be appropriate. Again, the
kind of relationship we are trying to develop with a donor or prospective donor
isn't advantaged by our having to preface our comments by the ‑‑ or whoever
is calling, comments by identification that they are actually working for a
private company, not for the charity, that if there is any problems, they can
call 1‑800‑TROUBLE.
1001
These kinds of things just ‑‑ I just don't think that there is any
charity that would see that ‑‑ see them as anything but an impediment to
achieving what we are trying to achieve.
1002
THE CHAIRMAN: Are you
telling me that you would prefer to call a party to imagine that they are
dealing with a volunteer rather than a remunerated person?
1003
MR. McBRIDE: No, I am not
saying that. Certainly if someone
was to ask anyone calling on behalf of a charity: are you a volunteer? Do you work for the charity? Do you work for a third party? I think we have to be honest and respond
to the question.
1004
THE CHAIRMAN: What would you
say if you were in the position of myself and a panel and a bank said: why is it
that we have to follow this set of rules about identification, identification of
a phone number, on the hypothesis that we continue to require that, and all of
the other requirements of 2004‑35 and you have decided that not only are the
charities exempt, but they are also somehow do not require that these forms of
regulations, and what would be the ‑‑ what would be my answer to Mrs.
Routledge if she asked me that question?
1005
MR. McBRIDE: I think it
would go back to the fundamental distinction that we draw between private sector
and charitable organizations serving the public good.
1006
We are not making these calls to sell a product or make a profit. We are making the calls to advance the
public good and I think that is a fundamental distinction and I think Parliament
has understood from that, that there are ‑‑ can in fact be different
regulatory regimes because of that.
1007
THE CHAIRMAN: Yes. Parliament didn't go out of its way to
exempt you from anything, but the Do Not Call List, of course, but that's a,
it's at least ‑‑
1008
MR. McBRIDE: No, but my
written comments do note though that even under the Privacy Legislation, the
charitable sector has been given special consideration.
1009
I think there is an understanding that we are different from the private
sector.
1010
THE CHAIRMAN: Yes. You do understand that polling data
suggests that the called party doesn't make a huge distinction between yourself
and commercial telemarketers?
1011
MR. McBRIDE: I am not aware
of that polling data, but I am certainly not challenging
it.
1012
THE CHAIRMAN: Okay. Mr. McBride, just let me see if any of
my colleagues have any questions.
Commissioner Cram and then Commissioner Langford.
1013
COMMISSIONER CRAM: Thank you
for coming. Mr. McBride, you did
talk about having recognized the exceptional gift given charities by Parliament
and so, my question is: what are you going to give back?
1014
And number 1, you say you want us to tell the world that you are exempt;
why can't you and what are you doing about it?
1015
And number 2, you say you don't want any more rules, but surely we
have ‑‑ you have been required
by Parliament to set up a Do Not Call List and surely we can tell you how to
administer it and you have got to believe that if you don't adhere to your Do
Not Call List, that that would be a violation; would you not
agree?
1016
MR. McBRIDE: I do understand
it, yes.
1017
COMMISSIONER CRAM:
Yes?
1018
MR. McBRIDE: And I think our
sector understands that we do have responsibilities that come with the status
that we have been given.
1019
COMMISSIONER CRAM: With the
great gift you have been given by Parliament,
yes.
1020
MR. McBRIDE:
Yes.
1021
COMMISSIONER CRAM: So, what
are you planning on doing about educating the public? What are your plans and what have your
groups done?
1022
MR. McBRIDE: We will ‑‑
the Association of Fund raising Professionals has in every chapter a Government
Relations Committee and an Education Program.
1023
Part of our purpose as an association is to educate our members and
through our members to educate the staff and volunteers and ultimately, I
suppose, the donors in the organizations for whom our members
work.
1024
So, we understand that we have a responsibility to do education and we
will be pursuing this as it becomes clear what the regulations are and what the
expectations are of the sector.
1025
COMMISSIONER CRAM: But
you've already got the exemption and ‑‑
1026
MR. McBRIDE: Yes. And our sector, I think certainly our
membership is very much aware of that.
1027
COMMISSIONER CRAM: And is it
telling people that they are phoning that?
1028
MR. McBRIDE: I'm
sorry?
1029
COMMISSIONER CRAM: That
Parliament has given them an exemption?
1030
MR. McBRIDE: Yes. We have been telling them
that.
1031
COMMISSIONER CRAM: So, then
we get to rules on the Do Not Call List and I don't mind S.O.S. phoning me, but
I do mind if ABC phones me and I get on ‑‑ and I say to ABC: I want to be
on your Do Not Call List and two days later ABC, or 31 days later ABC phones me
again, how can I prove that I called ABC and requested to be on their Do Not
Call List?
1032
MR. McBRIDE: Well, most of
the charities in Canada are relatively small organizations and may not have a
sophisticated enough platform as the earlier speaker was describing it, to be
able to provide like a registration number or something.
1033
We can and do ‑‑ I know many of our charities do respond when
someone writes to us or without specific request about the number of contacts
that they would like in a year or whether or not they like telephone conduct, we
do tend to respond with a letter saying: thank you for telling us about this and
we'll do our best to honour your wishes, but I am not sure that it's a
universally done thing.
1034
COMMISSIONER CRAM: So, it
wouldn't be a problem though probably to do one or the other, to give a unique
registration number of to end a letter out confirming?
1035
MR. McBRIDE: No. I think the letter would probably be our
preference, as much as it costs money.
If people are ‑‑ if it's your wish that people be sort of given the
comfort of a confirmation.
1036
COMMISSIONER CRAM:
Yes.
1037
MR. McBRIDE: Then we would
do that and try to find a way to make people feel good about the fact that they
are still with us, even with the constraints they have
offered.
1038
COMMISSIONER CRAM: You're a
fund raiser, I am a lawyer and I need, in order for your Do Not Call List that
Parliament requires you to do to be effective, there has to be some way that I
can prove that ABC broke their Do Not Call List.
1039
MR. McBRIDE: I understand
your concern and I think we can find a way to live with it,
absolutely.
1040
COMMISSIONER CRAM: Yes. And in terms of telemarketing rules, you
don't have any problem with the present telemarketing rules applying to you; do
you? Like they're fine, you have to
identify yourself.
1041
MR. McBRIDE: Yes, we are
working within the rules. I don't
think there is a problem.
1042
COMMISSIONER CRAM:
Okay. So, what of the
old ‑‑ the new rules that have been stayed, which one of them are the
problems?
1043
MR. McBRIDE: I can't bring a
specific rule to your attention right now.
We are happy to review those and provide a written comment to you if the
timing is appropriate.
1044
COMMISSIONER CRAM: Well, you
don't have a problem with them, providing identification before any other
communication.
1045
THE CHAIRMAN: The calling
party.
1046
COMMISSIONER CRAM:
Yes.
1047
MR. McBRIDE: The calling
party, I am Boyd McBride from S.O.S. Canada.
1048
COMMISSIONER CRAM: Yes. You don't have a problem with
that?
1049
MR. McBRIDE:
No.
1050
COMMISSIONER CRAM: You have
a problem with if there is a telemarketer and they have to say: "I'm ABC
telemarketing phoning on behalf of S.O.S."
Is that what you have a problem with?
1051
MR. McBRIDE: I think most of
our membership feel that that would be problematic,
yes.
1052
COMMISSIONER CRAM:
Okay. You don't have a
problem having a phone number available upon request?
1053
MR. McBRIDE: Not at
all.
1054
COMMISSIONER CRAM:
Okay. And you don't have a
problem it being toll free?
1055
MR. McBRIDE: Yes. I work for a national charity, we have
had a toll free number for years, but I know there are many local charities that
might have difficulty with the costs associated with a toll free number for the
odd call that comes from outside their service area.
1056
COMMISSIONER CRAM:
Okay.
1057
MR. McBRIDE: There are just
some practical considerations for very small groups, I
guess.
1058
COMMISSIONER CRAM:
Uh‑huh! You would probably
have a problem with that number being staffed during business hours within after
hours interactive voice mail back‑up?
1059
MR. McBRIDE: Again,
anticipating the smaller charities, there might be some difficulties just again
with costs versus, you know, potential benefits for
them.
1060
COMMISSIONER CRAM: You do
not have a problem with somebody saying: when you phone me with me saying:
please put me on your Do Not Call List?
You do not have a problem with implementing it
immediately?
1061
MR. McBRIDE: No. No problem. Again, the practicalities of a mailing
or something already being in process, perhaps delaying for a few weeks or some
period of time making that a reality, but within hours in most organizations
those kinds of requests are processed into the data base and the change is made
in the donors records.
1062
COMMISSIONER CRAM:
Okay. And I noted with
interest that you were talking about e‑mails in your ‑‑ and saying that we
should get with it and worry about e‑mails and that others are doing it right
now.
1063
Do you have any concerns about IP faxing?
1064
MR. McBRIDE: IP faxing; is
this back to ‑‑
1065
COMMISSIONER CRAM: Faxing
directly from IP.
1066
THE CHAIRMAN: I wonder
Commissioner Cram, you can explain the technical ‑‑ what you mean by IP
faxing? I am just not sure that Mr.
McBride fully understands.
1067
MR. McBRIDE: I'm sorry, I am
not familiar with this.
1068
COMMISSIONER CRAM: You can
fax directly from an internet address.
1069
MR. McBRIDE:
Huh!
1070
COMMISSIONER CRAM: Are you
aware of any problems in that area at all?
1071
MR. McBRIDE: I'm sorry,
personally I am not.
1072
COMMISSIONER CRAM:
Okay. And what about ‑‑
what would be your position and you were very good on voice casting and the
others and especially on the transporter issues ‑‑ what would be your
position on telemarketing to wireless?
1073
MR. McBRIDE: Again, this is
an area a little beyond ‑‑
1074
COMMISSIONER CRAM: No
position?
1075
MR. McBRIDE: ‑‑ a little beyond me and I am wondering if perhaps
you're referring to some other submissions?
1076
COMMISSIONER CRAM: I don't
think so, but anyway, I am finished with my questions. Thank you very
much.
1077
MR. McBRIDE: Thank
you.
1078
THE CHAIRMAN: Thank you,
Commissioner Cram. Included in the
submission is your position submitted in 2004 on another proceeding, which
relates to some of those issues.
1079
Commissioner Duncan.
1080
COMMISSIONER DUNCAN: I have
a couple of questions. First of
all, just for clarification, the Association of Fund Raising Professionals is
not for profit. Is that
correct?
1081
MR. McBRIDE: That's correct,
it is.
1082
COMMISSIONER DUNCAN: But the
members that you represent that do the marketing for charities, they would be
for profit corporations, I assume?
1083
MR. McBRIDE: No. Most of our membership are individuals
like myself who work on salary for charitable organizations. There are some who are consultants in
private firms, offering advice or training or something else to the charitable
sector.
1084
But the vast majority of our members are people who work for a living for
charities.
1085
COMMISSIONER DUNCAN: I am
wondering because I know in your submission and again in your comments today,
that you're concerned that the public understand that the exemption was granted
by Parliament and it's a follow‑up to Commissioner Cram's
questions.
It's not just clear
to me what plans you have to promote that yourself and if you're undertaking to
do that?
1086
MR. McBRIDE: My suspicion is
that many of our members would see ‑‑ would feel a responsibility to
provide that information to donors and would probably be framing it in a way
that says: although we have been granted this exemption, we understand there may
be sensitivities and if you really don't want to be contacted by telephone or if
you want to be contacted in only particular ways, please let us know because we
would like to continue to have a good relationship with you and do things in a
way that you can live with, in fact that you like.
1087
COMMISSIONER DUNCAN: But
that might happen in a number of ways.
I mean, you could consider a National Education Program to get the
message out because what I hear you saying is that maybe you would answer that
in response to a question. I mean,
you are not going to call somebody and go into that field?
1088
MR. McBRIDE:
No.
1089
COMMISSIONER DUNCAN: It
would be more in a response?
1090
MR. McBRIDE: Well, it might
be by way of a newsletter, a story in one of... in a charity newsletter, a
posting on a charities web site, that kind of thing. Not that donors are generally ‑‑
usually interested in that, they are generally focused on what are we doing in
the community that is benefiting the community.
1091
But this is ‑‑ this is information that people need to
have.
1092
COMMISSIONER DUNCAN: How
extensive and in what format would you like to see the Commission, if the
Commission were to undertake it, how extensive and in what format would you like
the Commission to approach this education process with respect to charities
specifically?
1093
MR. McBRIDE: I can't offer
you a dollar figure and I don't know enough about how the CRTC communicates with
the broader public. There may be
ways that you could help get the message out, working in cooperation with
us.
1094
COMMISSIONER DUNCAN: I think
it certainly could go on our web site.
I just don't know if that's as visible as what you're
after?
1095
MR. McBRIDE: Well, even
something like that, which would allow us to send people the link so that they
could see the story told by someone other than the charity itself could be very
helpful.
1096
So, again, this is the sort of thing where I think if we have a chance to
sit down with your colleagues, we could probably work together on something and
achieve more together than we would, working
independently.
1097
COMMISSIONER DUNCAN: You are
probably aware that a number of the submissions have recommended that we have an
extensive Edu. consumer awareness program and I am just wondering, because those
people making those representations for the most part are going to be
responsible for paying for the fees incurred in operating the Do Not Call
List.
1098
How do you think that we would assess the charities then or could we or
how would you accept your role in that and is it fair to expect the piggyback on
the others?
1099
MR. McBRIDE: I certainly
would be on very shaky ground if I was to offer for the
sectors ‑‑
1100
COMMISSIONER DUNCAN: Get
your cheque.
1101
MR. McBRIDE: ‑‑ to help pick up that kind of a
bill.
1102
THE CHAIRMAN: Not the least
with your donors.
1103
MR. McBRIDE: Yes and it's
true, Mr. Commissioner, I don't think our donors would see that as their
funds well spent ultimately, every dollar we spend is a dollar we have raised
from the public or from government agencies, governments that support the work
we do.
1104
So, we have to be very cautious about committing to spend large sums of
money on a public education program that really doesn't speak to the mandate of
our organization.
1105
COMMISSIONER DUNCAN: Thank
you very much.
1106
THE CHAIRMAN: Counsel? No? Commissioner
Langford.
1107
COMMISSIONER LANGFORD:
That's all right. I
just ‑‑ you have been very patient, but there is something I am having
trouble with and it's I am just trying to get a kind of handle in perspective
that charitable, non‑profit world here in Canada and I am looking at the bottom
of your remarks today and they echo pretty well what was in your background
paper and your say there are 161,000 non‑profit organizations of those 80,000
are registered charities and you
represent 2,500 or 2,700 of them.
1108
So, are the rest of them just out there on their own or are there other
charitable organizations, are there other associations like
yours?
1109
MR. McBRIDE: Well, the
nature of the charitable sector is that it's made up of tens of thousands of
generally very small, mostly unstaffed organizations, the ones that you might
rime off if I asked you to name six or eight charities are exceptions to the general rule, the very
large charities that we know by name have significant staff and significant
budgets, but the vast majority of the 160,000 or the 80,000 registered are very,
generally very small.
1110
COMMISSIONER LANGFORD: And
of the 161,000, do they cover everything from sort of the girls ringuette league
of whatever in place
1111
MR. McBRIDE: Yes, that
larger number, the 160,000 is everybody.
1112
COMMISSIONER LANGFORD: This
is everybody, the kids out selling chocolate bars on a corner and doing car
washes.
1113
MR. McBRIDE: Every
association and club and community group that you can think of would be amongst
the 160,000, the 80,000 charitable registration is an additional hoop to go
through and generally only done by organizations that have in mind a more
significant ‑‑
1114
COMMISSIONER LANGFORD: So,
essentially, what you are telling us is that at best half of this group, half of
this community is covered by the exemption, 80,000 are registered, so they are
covered and the other 81,000 are not registered.
1115
MR. McBRIDE: I guess that's
correct.
1116
COMMISSIONER LANGFORD: Maybe
it would be laughable to think they all should be. How many ‑‑ do you have any sense
of how many of the unregistered group, the 81,000 use the telephone to solicit
funds, as opposed to those who do car washes and sell chocolate
bars?
1117
MR. McBRIDE: Gosh! A very very small number and if it
was ‑‑ you know, if it was ‑‑ I don't know, the nursery school in
your neighbourhood, if they were using the telephone, it would be a very, very
much an amateur activity. They
wouldn't be hiring anybody to work with them or do it on their
behalf.
1118
COMMISSIONER LANGFORD: So,
the scope for confusion should be fairly small then?
1119
MR. McBRIDE: I
think.
1120
COMMISSIONER LANGFORD: Thank
you. That's my questions, Mr.
Chairman.
1121
THE CHAIRMAN: Counsel? No. Mr. McBride, thank you very much. It is not always easy to pinch it and
it's not always easy to satisfy a group of people who have been supported by
professionals and preparing for the questions, so we appreciate your being here
and we appreciate your contribution.
1122
MR. McBRIDE: Thank you, Mr.
Commissioner.
1123
THE CHAIRMAN: I
think ‑‑ madame la Secrétaire, avez‑vous quelque chose à
ajouter?
1124
We will take a break for lunch now and will be back at two o'clock says
my colleague, Mr. Commissioner Langford.
So, two o'clock, please and we will start promptly at
two.
‑‑‑ Upon recessing at 1254 /
Suspension à 1254
‑‑‑ Upon resuming at 1358 /
Reprise à 1358
1125
THE CHAIRMAN: Order, please.
Madame la
Secrétaire.
1126
LA SECRÉTAIRE: Oui, monsieur
le président. Nous allons commencer
avec l'Union des consommateurs, avec madame Geneviève
Duchesne.
PRÉSENTATION /
PRESENTATION
1127
MME DUCHESNE: Oui. Alors, bonjour tout le monde. Avant de débuter pour les
commentaires, je voudrais juste vous signaler que l'Union des consommateurs
apprécie grandement d'avoir l'opportunité de commenter le cadre qui sera
applicable à la Liste nationale ainsi que les autres règles de télémarketing qui
seront mises en place puisque, évidemment, les principaux intéressés sont les
consommateurs.
1128
LE PRÉSIDENT: Madame
Duchesne, excusez, mais ce n'est pas de votre faute‑là. Il va falloir qu'on ouvre le micro parce
que c'est tout simplement insuffisant pour que ‑‑ non, mais ce n'est pas de
votre faute, c'est...
1129
MME DUCHESNE: O.K., mais je
peux changer.
1130
LE PRÉSIDENT: Non, mais ce
n'est pas... c'est tout simplement qu'il va falloir monter le volume puisqu'avec
des témoins féminins on a un peu moins de projection et puis elles ont le droit
de s'exprimer comme elles voudraient, mais quand même il faudrait aussi qu'on la
comprenne.
1131
Est‑ce que vous voulez recommencer, madame Duchesne, tout simplement
parce que je pense que ça n'a pas été suffisamment clair?
1132
MME DUCHESNE: Oui. Bien, je vais enchaîner en fait avec le
reste de la présentation.
1133
Alors, mes commentaires porteront, dans un premier temps, sur les règles
relatives à la Liste nationale de numéros de télécommunication exclus et, dans un
deuxième temps, sur les autres règles... bien, ce que le CRTC a qualifié dans
son Avis Public *d'autres règles
relatives au télémarketing+.
1134
Alors, bien, je vais procéder logiquement; je vais débuter avec
l'inscription à la Liste nationale.
À cet égard, l'Union des consommateurs considère que les consommateurs
devraient pouvoir inscrire plusieurs numéros de téléphone et qu'il soit
possible, également, d'inscrire des numéros de téléphone cellulaire. Il devrait également être permis
d'inscrire des numéros de télécopieur.
1135
Par contre, en ce qui a trait aux numéros de télécopieurs, compte tenu
des coûts qui sont associés aux documents envoyés par le biais de télécopieurs,
on considère que, dans la mesure où c'est possible, que les exemptions qui sont
prévues au Projet de Loi C‑37 ne devraient pas être applicables aux fax, aux
télécopieurs; c'est‑à‑dire que, finalement, aucun document non sollicité ne
devrait être envoyé via ce procédé‑là.
1136
Alors, l'inscription devrait être faite, évidemment, sans frais et
devrait pouvoir se faire par le biais à la fois du téléphone et de l'internet et
il en est de même pour le retrait du numéro de téléphone inscrit, c'est‑à‑dire
qu'il devrait pouvoir être retiré en tout temps par le biais des deux véhicules
précédemment mentionnés; c'est‑à‑dire l'internet et le téléphone et, évidemment,
sans frais pour le consommateur
1137
Un autre point sur lequel on insiste, c'est que durant les heures
normales de bureau, la personne qui désire procéder à l'inscription de son
numéro de téléphone à la liste devrait pouvoir avoir accès à une vraie personne,
c'est‑à‑dire à un préposé parce que, à notre avis, un système informatisé...
automatisé c'est‑à‑dire pourrait faire en sorte qu'elle ne répond pas à
certaines situations particulières et je pense à une situation assez simple, il
y a encore des personnes qui... et j'en connais, qui ont des téléphones à cadran
et qui ne pourraient pas, justement, faire une sélection par le biais de... en
appuyant sur un bouton 1, 2 ou ainsi de suite.
1138
Plus les problèmes classiques que d'autres groupes ont mentionnés et les
problèmes relatifs aux handicaps ou les personnes âgées qui seraient peut‑être
moins disposées à ce genre de technologie.
Alors, la technologie ne doit pas être un obstacle ici à
l'inscription.
1139
En ce qui concerne les renseignements personnels que devrait donner le
consommateur pour les fins de l'inscription, à notre avis, évidemment seuls les
renseignements qui sont nécessaires à la vérification que les numéros inscrits
sont bien celui de la personne qui a procédé à l'inscription devraient être
demandés.
1140
En ce qui concerne l'entrée en vigueur et la durée de l'inscription,
nous, les consommateurs, on considère que compte tenu de la technologie
actuelle, il est très aisé pour les télé‑vendeurs que de mettre à jour sur une
base quotidienne les numéros qui ont été... c'est‑à‑dire leur liste de numéros
de téléphone, c'est‑à‑dire de s'assurer quotidiennement que la liste dont ils
disposent ne contient pas de numéro de téléphone qui se retrouvent sur la liste
de numéros exclus.
1141
Donc, à notre avis, une fois que le numéro est inscrit à la liste de
numéros de... à la Liste nationale, la personne qui l'a inscrit ne devrait plus
recevoir d'appels de télé‑vendeurs suite à un délai de 24
heures.
1142
Et on insiste pour que la période de grâce soit très restreinte parce
que, en fait, si elle est longue... en tout cas, durant cette période‑là, les
consommateurs sont susceptibles de recevoir beaucoup d'appels de télé‑vendeurs
puisque c'est la période au cours de laquelle ils vont être disponibles et à la
suite de cette période‑là, bien il ne sera plus possible pour les télé‑vendeurs
de loger des appels à ces individus‑là.
1143
L'Union des consommateurs estime qu'une fois inscrit à la liste, un
numéro devrait rester jusqu'à ce que la personne titulaire du compte le retire
de ladite liste et jusqu'à ce que ce même numéro soit réaffecté ou simplement
désactivé.
1144
En ce qui a trait aux exemptions prévues au Projet de Loi C‑37,
l'exemption relative à la Liste nationale, on entretenait quelques inquiétudes
relativement ‑‑ et c'est revenu beaucoup aujourd'hui ‑‑ relativement à
l'exemption qui concerne les relations d'affaires.
1145
Alors, notre organisation invite le CRTC à préciser la relation... la
définition de relation d'affaires de façon à s'assurer que seul le commerce avec
qui le destinataire de l'appel a directement une relation d'affaires, bénéficie
de l'exemption, c'est‑à‑dire qu'il ne faudrait pas que l'exemption permette de
recevoir... permette à des filiales ou à des entités affiliées à l'entreprise
qui bénéficie de l'exemption, d'appeler les
consommateurs.
1146
En ce qui a trait à l'accès aux numéros inscrits à la Liste d'exclusions
nationales, bien pour nous il est fondamental que les informations se trouvant à
la Liste nationale soit diffusées de façon très très limitées. Et ce que l'on suggère pour ce faire,
c'est qu'un service informatisé permettant de soustraire de la Liste d'appels
soumise par le télé‑vendeur, les numéros inscrits à la Liste nationale soit par
le biais d'une mise à jour continue ou par le biais tout simplement d'une
commande activée par le télé‑vendeur, soit préféré à un système qui permet de
télécharger des numéros inscrits à la Liste.
1147
Pour nous c'est important parce que... bien, il ne faut pas oublier qu'un
des principes à la base de la mise en place de la Liste, c'est qu'on veut
protéger la vie privée des consommateurs et, en plus, ce système‑là ferait en
sorte qu'on s'assurait que les informations se trouvant à la liste sont obtenues
uniquement via l'exploitant de la Liste.
1148
Ça diminue les risques et a certains télé‑vendeurs qui se regroupent
ensemble pour avoir accès à l'information et à ainsi payer peut‑être moins pour
obtenir cette information‑là, c'est‑à‑dire de ne pas payer les frais qui
seraient normalement applicables.
1149
Toujours en ce qui concerne l'accès et limiter la diffusion des
informations contenues à la Liste, nous on considère que seul, en fait, les
personnes qui sont dans l'obligation de respecter les règles relatives à la
Liste devraient avoir accès à ces informations‑là.
1150
On sait, par exemple, qu'aux États‑Unis les organismes de charité ont un
accès à la Liste et ce, gratuitement.
Nous, c'est une mesure à laquelle on s'oppose.
1151
En ce qui concerne la question du voice casting, à notre avis les règles
relatives, c'est une question soumise, les règles relatives à la Liste nationale
devraient s'appliquer également au voice
casting.
1152
J'arrive aux règles relatives... c'est‑à‑dire aux autres règles relatives
spécifiquement au télémarketing, l'Union des consommateurs est d'avis que les
entités logeant des appels non sollicités ainsi que celles pour le compte
desquelles ces appels sont logés, devraient continuer de tenir leur propre liste
parce qu'il y a toutes sortes de raisons légitimes qui peuvent faire en sorte
qu'une personne ne s'inscrive pas à la Liste nationale, mais l'une d'entre
elles, puis on l'a mentionné plusieurs fois aujourd'hui aussi, c'est qu'un
individu peut vouloir sélectionner lui‑même les personnes de la part desquelles
il ne voudra plus recevoir d'appels.
1153
Bon. Sous réserve de ce qui
est prévu dans le Projet de Loi C‑37 relativement aux appels effectués dans
l'unique but de recueillir de l'information pour les fins d'un sondage public,
nous on considère que les règles applicables aux entités qui effectuent des
appels non sollicités à un numéro qui n'est pas sur la Liste nationale ainsi que
sur la liste qu'elle est tenue de maintenir, devrait être celle qu'a énoncée le
CRTC dans sa décision de Telecom CRTC‑2004‑35.
1154
Bon, vous l'avez dit également, précédemment, bon, à ces règles‑là, nous,
l'Union des consommateurs, on voudrait ajouter d'autres règles et on voudrait
que des restrictions soient imposées quant aux heures auxquelles les appels
téléphoniques non sollicités pourront être logés. Donc, vous avez mentionné quelle était
la proposition tout à l'heure de l'Union à cet
égard‑là.
1155
Et pour terminer, l'Union est inquiète de la possibilité que certaines
entités tentent justement de contourner les règles qui vont être établies
relativement aux cadres applicables à la Liste nationale ainsi que celles...
ainsi que les autres règles de télémarketing qui sont applicables, en aménageant
des clauses à ces effets‑là dans des contrats d'adhésion.
1156
Alors, à notre avis, il devrait être clairement prévu que les règles
relatives à la Liste nationale ainsi que les autres règles de télémarketing
devraient toujours avoir préséance sur toute clause contenue à un contrat
d'adhésion qui diminue les droits qui sont conférés aux consommateurs en vertu
de ces règles.
1157
Voilà, j'ai terminé.
Merci.
1158
LE PRÉSIDENT: Félicitations
d'avoir couvert tout un terrain et ça, très rapidement. Il y a deux ou trois points que je n'ai
pas tout à fait compris, mais je vais vous poser des questions au fur et à
mesure puis on va essayer de s'entendre ou de se comprendre au
moins.
1159
Si j'ai bien compris, vous considérez que la protection d'une Liste...
d'une L.N.N.T.E. devrait s'appliquer non seulement aux numéros de téléphone
résidentiels conventionnels, mais également aux numéros cellulaires, également
aux numéros de télécopieurs?
1160
MME DUCHESNE: C'est
ça.
1161
LE PRÉSIDENT: Et pour ce qui
est des télécopieurs, d'après vous, votre interprétation de la Loi, c'est qu'on
peut même aller aussi loin à ce qu'aucun usage ne soit fait du télécopieur dans
le domaine du télémarketing, de télé‑commercialisation?
1162
MME DUCHESNE: Je ne suis pas
convaincue honnêtement à 100 pour cent que la Loi le permette. C'est une question qu'on soulève, mais
nous, notre position est à l'effet que... puis on... en tout cas, sous réserve
de déterminer quelle est la portée de la Loi à cet
égard‑là...
1163
LE PRÉSIDENT:
Excusez‑moi.
1164
MME DUCHESNE:
Oui.
1165
LE PRÉSIDENT: Si le Conseil
avait le pouvoir vous seriez en faveur à ce qu'on
l'utilise?
1166
MME DUCHESNE:
Exactement. Dans la mesure
où c'est possible, nous, c'est une demande qui est faite; c'est‑à‑dire qu'on
considère que les exemptions, bien qu'il y en a certaines qui soient
justifiables, ne s'appliquent pas aux documents envoyés par télécopieur;
c'est‑à‑dire les documents non sollicités pour fins de
sollicitation.
1167
LE PRÉSIDENT: D'accord. Le consommateur devrait être capable de
s'enregistrer et ça, sans frais et par téléphone et par
internet?
1168
MME DUCHESNE:
Oui.
1169
LE PRÉSIDENT: Mais si j'ai
bien compris, puisqu'il y a encore un certain nombre de téléphones à cadran,
puisqu'il y a un certain nombre d'usagers qui peuvent être handicapés quant à
leur usage du téléphone, vous considérez que ce serait essentiel qu'un préposé,
un vrai être humain, soit au bout du fil pour ces personnes‑là en ce qui a trait
à l'enregistrement au L.N.T.E.?
1170
MME DUCHESNE:
Exactement.
1171
LE PRÉSIDENT: Maintenant,
les renseignements personnels, je ne suis pas sûr que j'ai complètement compris,
mais je pense que c'est la suivante : c'est que pour ce qui est des
renseignements personnels contenus donc dans une banque de données afin de
L.N.T.E., il faudrait que ce soit le minimum nécessaire pour l'administration
efficace de la Liste?
1172
MME DUCHESNE: Oui. En fait, notre position a évolué sur
cette question‑là au cours d'autres discussions, là, en tout cas sur le
fonctionnement de la Liste qu'on a eue dernièrement, en fait notre position sur
ça, c'est que le moins de renseignement possible devrait être demandé, même qu'à
la limite seul le numéro de téléphone devrait être
demandé.
1173
Une façon de vérifier au niveau... c'est‑à‑dire que c'est une pratique
qui pourrait être intéressante au niveau du téléphone, c'est‑à‑dire que, bon, je
vais enregistrer un numéro de cellulaire donné par le biais d'une cellulaire,
donc, j'utilise le cellulaire auquel est associé le numéro pour m'enregistrer,
j'utilise le téléphone à mon domicile pour enregistrer le numéro qui est associé
à ce téléphone‑là.
1174
Par contre, au niveau de l'internet, si on ne fait que mettre les... que
mettre notre numéro de téléphone et, en tout cas, ce qui a été proposé, c'est
notamment un système de vérification par le biais de courriel, c'est‑à‑dire
qu'on nous envoie un courriel à l'effet que, effectivement, on inscrit notre
numéro et qu'on *cliquerait+ sur un numéro pour
faire la vérification, à notre avis ça ne permet pas de vérifier beaucoup de
choses parce que c'est très facile de se créer une adresse de courriel et puis
je peux très facilement enregistrer votre numéro de
téléphone.
1175
Alors, on avait un questionnement par rapport à ça parce qu'on veut que
ça demeure très simple et on veut que l'exploitant de la Liste ait très peu de
numéros de téléphone, mais on veut quand même s'assurer que le consommateur qui
inscrit un numéro donné, bien, c'est bien son numéro qui a été inscrit et le
même chose surtout pour le retrait du numéro de téléphone; c'est‑à‑dire qu'on
veut s'assurer que c'est bien le consommateur qui a retiré son
numéro.
1176
Donc, ce qu'on proposait à cet égard‑là pour garder très simple la
procédure d'inscription, c'est que sur la facture associée au numéro de
téléphone qui est inscrit, qu'il soit inscrit que le numéro a été inscrit à la
Liste nationale, c'est‑à‑dire sur le compte‑là, sur le compte, associé à un
numéro donné, que ce numéro‑là a été...
1177
LE PRÉSIDENT: Le compte de
la compagnie de téléphone?
1178
MME DUCHESNE:
Exact.
1179
LE PRÉSIDENT: La
facture?
1180
MME DUCHESNE: Sur la
facture.
1181
LE PRÉSIDENT:
Oui.
1182
MME DUCHESNE: Donc, que le
numéro a été inscrit à la Liste nationale et la date à laquelle l'inscription a
été faite. Comme ça, ça permet
immédiatement de vérifier si la personne qui avait le numéro avant moi l'a
inscrit, si le numéro est inscrit à mon insu ou si on l'a retiré à mon insu
également. C'était une
proposition.
1183
LE PRÉSIDENT: C'est une idée
intéressante. Est‑ce que l'Union
des consommateurs serait en faveur d'une majoration du tarif des compagnies de
téléphone pour couvrir les coûts de l'ajustement? Ce n'est pas une blague hein! Je sais que c'est facile pour moi de
dire ça, mais c'est la première chose que les compagnies de téléphone vont
dire.
1184
Ils vont dire que l'ajustement dans leur système de facturation va coûter
excessivement cher et si on veut faire un ajout, parfait, mais ils vont venir
nous voir pour... est‑ce que les consommateurs devraient payer pour
ça?
1185
MME DUCHESNE: Oui, bien
c'est ça, on est conscient des coûts qui peuvent être associés à ça. Dans quelle mesure c'est si cher que de
faire ça, ça, je ne le sais pas. À
ce moment‑là, la discussion reste ouverte à savoir quel est l'équilibre, là, le
plus profitable pour le consommateur en terme de protection de sa vie privée;
c'est‑à‑dire qu'on veut essayer qu'il donne le moins possible de renseignements
personnels, mais en contre‑partie de ça, on veut quand même s'assurer que c'est
bien les bons joueurs qui inscrivent leur numéro et qui les
retirent.
1186
LE PRÉSIDENT: En tout cas,
on peut dire que vous avez soulevé une idée intéressante et puis on en prend
bonne note et puis on regardera ça parce que ma collègue, la Commissaire Cram
est très préoccupée par ce qu'on appelle en anglais "the method of
authentication" ce qui est tout à fait ce
dont on parle actuellement.
1187
Je ne voudrais pas partir des renseignements personnels tout à fait aussi
vite parce que je voudrais vous demander, j'essayais de voir depuis le début
quel est le "privacy value", quel est le danger, puis je ne veux pas m'en faire
l'avocat d'une grande diffusion de ces informations‑là, mais quel serait le
danger qu'un *hacker+ ou une troisième
partie ait accès à une liste de numéros de téléphone, date d'inscription, nom de
la personne inscrite.
1188
Il y a peut‑être deux ou trois... il y a juste cinq ou six champs dans
chaque facture américaine, chaque item de... je peux à peine le dire en anglais
donc j'ai bien de la misère à le dire en français, mais il y a juste cinq items
pour chaque enregistrement dans la base de données américaine. Donc, présumons que c'est des éléments
relativement évidents.
1189
Quelle est la privacy value et quel est le danger associé à la diffusion
plus généralisée de ces informations‑là?
1190
MME DUCHESNE: Nous, notre
principale préoccupation est relative aux adresses de courriel en fait,
c'est‑à‑dire que si, justement, on a une procédure qui implique que l'on
s'inscrive via internet et qu'on utilise la procédure de confirmation qui, à
prime abord, sous réserve de me faire convaincre du contraire, je trouve un peu
douteuse et non efficace.
1191
C'est‑à‑dire que... bien, c'est ça, donc l'exploiteur de la Liste va
avoir une série d'adresses de courriels et, à ce moment‑là, ça devient très
intéressant que de tenter que ces personnes‑là qui ne sont plus disponibles pour
recevoir des appels non sollicités de sollicitation par le biais du téléphone,
bien une autre voie pour essayer que d'atteindre ces clients potentiels‑là
serait justement par le biais de leur adresse de courriel via des spasmes, par
exemple.
1192
LE PRÉSIDENT: D'accord. Si on utilise l'adresse de courriel
comme mesure de vérification, par le fait même on l'associe au numéro de
téléphone, c'est dans une banque de données, c'est un élément de violation
potentielle de la vie privée de l'individu?
1193
MME DUCHESNE: Oui, c'est
ça.
1194
LE PRÉSIDENT: Merci. Vous gagnez le prix d'être les plus
exigeants sur la période de grâce.
1195
MME DUCHESNE: Je
sais.
1196
LE PRÉSIDENT: On en a
jusqu'à 90 jours. Là, vous faites
24 heures. Vous vous rendez compte
que ça veut dire que pour chaque entreprise de télé‑commercialisation, chaque
activités de télé‑commercialisation qui avait lieu le jour 135 de l'année,
chacun aurait accès nécessairement ou serait obligé d'accéder à la banque de
données et demain, la même chose pour toute la
gang.
1197
MME DUCHESNE: Oui, mais
c'est‑à‑dire que lorsqu'on a fait cette proposition‑là, on avait en tête un
système qui n'est pas celui que... en tout cas qui a partiellement celui proposé
aux États‑Unis; c'est‑à‑dire que... bien, comme je l'ai dit dans mon exposé,
nous ce qu'on propose, c'est un système dans lequel le télé‑vendeur soumet via,
par exemple, sur le site web, soumet sa liste de numéros de téléphone et active
une commande qui soustrait les numéros... donc qui soustrait ou, en tout cas,
dans lequel on indique quel numéro il ne doit pas appeler. Donc, on n'a pas accès à l'intégralité
de l'information de la liste et, en fait, ce serait très facile pour quelqu'un
qui a un accès continu à internet et ce qui est de plus en plus le cas, qu'il y
ait une mise à jour... qu'il y ait une mise à jour en temps réel des
informations. C'est‑à‑dire que dès
qu'il y a une inscription d'un numéro à la Liste nationale, bien immédiatement
ce numéro‑là est identifié dans la liste du télé‑vendeur comme étant un numéro
auquel il ne peut plus appeler.
1198
C'est sûr que le délai de grâce va être extrêmement tributaire du système
qui va être... qui va être arrêté, mais à notre avis, des délais de 90 jours ou
de 30 jours sont beaucoup trop longs puis ne correspondent pas à la technologie
actuelle en tout cas ou aux avantages que permettent d'avoir la technologie
actuelle.
1199
LE PRÉSIDENT: Bien, c'est
une belle question et je ne suis pas sûr que je comprends l'avantage de votre
méthode par rapport aux méthodes américaines, à la méthode américaine, mais une
chose est certaine, c'est qu'on touche des systèmes assez fragiles qui
manipulent des quantités de base de données énormes et j'enregistre et je
retiens l'avis de l'Union des consommateurs que la période de grâce doit être
minimisée et que, à votre avis, ça pourrait être un jour, deux jours. Je reste sceptique sur le plan
technologique mais, ça, on verra.
1200
MME DUCHESNE: Oui, bien
c'est ça. En fait, ce qu'on veut
c'est que la période de grâce soit la plus petite
possible.
1201
LE PRÉSIDENT:
Oui.
1202
MME DUCHESNE: Parce que,
comme je disais tout à l'heure, pendant la période de grâce, les consommateurs
risquent d'être particulièrement sollicités parce que c'est la seule
période...
1203
LE PRÉSIDENT: Bien, c'est
pour ça... c'est ça que je veux discuter avec vous puis je ne la comprends
pas. Expliquez‑moi ça en A, B, C,
parce que j'ai bien vu ça et dans votre soumission et dans vos commentaires,
mais je ne vois pas... je ne vos pas comment ça marche.
1204
Comment comme entreprise de télé‑commercialisation ai‑je accès, moi, à la
liste de personnes qui se sont enregistrées depuis le dernier échéancier de
période de grâce pour moi? Comment
est‑ce que j'ai accès particulièrement à ce groupe‑là de tous les millions de
Canadiens?
1205
MME DUCHESNE: Bien, c'est
certainement possible que de faire... je ne sais pas dans quelle mesure il y a
des télé‑vendeurs qui vont s'attarder à le faire, là, que de déterminer quels
sont les nouveaux noms.
1206
LE PRÉSIDENT: Mais supposons
qu'ils font ça, là, je ne vois pas comment ils vont réussir à le
faire?
1207
MME DUCHESNE: Comment ils
vont réussir à le faire?
1208
LE PRÉSIDENT: Oui, c'est ça,
mécaniquement, madame Duchesne, je vois...
1209
MME DUCHESNE: C'est‑à‑dire
que ça va dépendre... ça va dépendre du système qui va être utilisé;
c'est‑à‑dire que si le système est de n'octroyer que les nouveaux noms qui sont
apparus depuis la dernière fois où la personne est allée chercher sa
liste...
1210
LE PRÉSIDENT:
Oui.
1211
MME DUCHESNE: ... ça vient
immédiatement repérer... on peut repérer immédiatement que ces personnes‑là
viennent de s'ajouter.
1212
LE PRÉSIDENT: O.K. Mais...
1213
MME DUCHESNE: Donc, on les
appelle maintenant parce que c'est le moment où jamais de le
faire.
1214
LE PRÉSIDENT: Je comprends,
mais on ne serait pas aussi innocent si je peux vous assurer que de leur donner
l'occasion de faire un down‑loading sans demander à ce qu'ils observent les
conséquences. On n'est quand même
pas pour leur dire : on va vous donner les numéros qui se sont enregistrés, mais
bien sûr, vous avez 25 jours pour les appeler et ce n'est pas comme ça que ça va
marcher.
1215
MME DUCHESNE: Bien, j'espère
que non.
1216
LE PRÉSIDENT:
Pardon?
1217
MME DUCHESNE: C'est ce qu'on
souhaite, mais dans l'éventualité ou...
1218
LE PRÉSIDENT: Oui, je sais,
et c'est ce qu'on souhaite nous aussi, là.
Tout ce que j'essaie de vous dire, c'est que je comprends l'ingénuité de
la question, mais il n'y a pas grand danger qu'on va être aussi
innocents ‑‑ excusez‑moi le mot ‑‑ aussi naïfs que de permettre ce
genre d'abus d'avoir lieu. Ça,
c'est sûr.
1219
Pour ce qui est de la durée, votre avis c'est que la durée de
l'enregistrement d'un individu, c'est que ça dure jusqu'à ce que soit l'individu
termine son abonnement et la compagnie de téléphone va donc faire la
notification au L.N.T.E. ou bien c'est quand le consommateur décide
volontairement de se *désenregistrer+, mais de toute
façon pour vous, ce n'est pas un laps de temps en particulier qui devrait servir
comme fin de l'enregistrement?
1220
MME DUCHESNE: Non, il n'y
aura pas de date d'expiration.
1221
LE PRÉSIDENT: Si j'ai un
numéro de téléphone pour cinq ans on peut présumer que dans la quatrième année,
je suis aussi intéressé que dans la première année à ne pas me faire appeler par
les entreprises de télé‑commercialisation?
1222
MME DUCHESNE: Oui, c'est ça,
compte tenu que vous aviez tout ce temps‑là l'opportunité de le retirer
gratuitement.
1223
LE PRÉSIDENT: D'accord. Vous voulez qu'on précise la définition
de l'exemption en ce qui a trait la relation d'affaires. Vous voulez que l'exemption pour les
relations d'affaires ne s'appliquent pas à la compagnie avec laquelle le
consommateur fait affaires et non pas avec d'autres compagnies
affiliées?
1224
MME DUCHESNE:
Exact.
1225
LE PRÉSIDENT: La famille TD
ce n'est que la banque ou ce n'est que la compagnie d'assurance ou ce n'est que
la compagnie de gestion de portefeuille puis ce n'est pas bon pour toute la
famille TD?
1226
MME DUCHESNE:
Exactement.
1227
LE PRÉSIDENT: Et vous avez
également, même vous êtes allée aussi loin ou je ne sais pas si vous êtes encore
d'accord que de dire que si j'achète un four de Sears, il ne faudrait pas qu'il
me fasse de la télé‑commercialisation pour les équipements de
sports?
1228
MME DUCHESNE: Exactement,
donc l'exemption...
1229
LE PRÉSIDENT: Comment est‑ce
qu'on va administrer ça?
1230
MME DUCHESNE: C'est une
bonne question.
1231
LE PRÉSIDENT: C'est
malheureusement la question avec laquelle on est poigné.
1232
MME DUCHESNE: Oui, oui, mais
c'est ça. L'idée, c'est on se
disait, bon, quelle est l'attente raisonnable du consommateur qui s'inscrit,
c'est‑à‑dire qui s'inscrit à la liste et, bon, là, il y a une relation
d'affaires qui permet à une entreprise donnée que de pouvoir quand même
communiquer avec la personne en question, mais la relation d'affaires a port sur
un service donné ou un bien donné.
1233
Donc, on se demandait dans quelle mesure, compte tenu que c'est une
relation d'affaires qui porte sur un service ou un bien donné par rapport à
cette entreprise‑là, dans quelle mesure l'exemption permettrait à cette
entreprise‑là de faire du télémarketing sur un objet qui a absolument rien à
faire avec l'objet sur lequel portait ou le service portait la relation
d'affaires qui est à l'origine de l'exemption.
1234
Donc, est‑ce que parce qu'il y a une entreprise... moi, j'ai une relation
d'affaires parce que j'ai acheté une télé dans une compagnie donnée, est‑ce que
cette entité‑là peut ensuite faire du télémarketing auprès de moi pour me vendre
un meuble de bureau. C'est... en
tout cas, idéalement, c'est ce qu'on... c'est ce qu'on
voudrait.
1235
LE PRÉSIDENT: Mais vous
n'avez pas d'éclair de génie quant à comment on va le
faire?
1236
MME DUCHESNE: Non, mais on
va y réfléchir.
1237
LE PRÉSIDENT: Merci. Bon, on est d'accord que la Liste
nationale, il faut contrôler l'accès, il ne faut pas qu'il y ait de la revente,
il ne faut pas qu'il y ait de l'accès illégitime ou d'abus pour... il ne faut
pas, il y a évitement de frais, et caetera, on est tous d'accord
là‑dessus.
1238
Vous avez dit quelque chose au sujet des organismes de
charité.
1239
MME DUCHESNE:
Oui.
1240
LE PRÉSIDENT: Et je ne suis
pas sûr que j'ai saisi. Je vais
vous donner l'occasion de vous répéter
là‑dessus.
1241
MME DUCHESNE: Oui, oui, sans
problème. Alors, en fait, c'est
très simple. Ce qu'on dit, c'est
qu'il y a certaines entités qui sont tenues de respecter la règle. Alors, ce qu'on demande, c'est que ce
soit seulement eux qui aient accès aux informations relatives à la Liste. C'est tout.
1242
LE PRÉSIDENT: D'accord. Pour ce qui est du voice casting,
d'après vous, ça devrait être inclus dans la réglementation que nous créerons,
qui est créée et que nous créerons quant à d'autres façons de faire la
télé‑commercialisation?
1243
MME DUCHESNE: Ce qu'on dit,
c'est que dans la mesure... c'est‑à‑dire que les règles... c'est ça, les règles
relatives à la Liste nationale, moi, si j'ai inscrit mon numéro à la Liste
nationale, il ne devrait pas être permis que je reçoive les appels de voice
casting.
1244
LE PRÉSIDENT:
D'accord.
1245
MME DUCHESNE: Ça se limite à
ça.
1246
LE PRÉSIDENT: D'accord. Le voice casting, c'est une menace
potentielle à ma vie privée aux yeux de l'Union des consommateurs qui est aussi
sérieuse que n'importe quelle autre menace qu'une menace d'un appel téléphonique
live, en real time?
1247
MME DUCHESNE: Bien, un des
problèmes associé aux appels de voice casting, bien c'est en fait le fait que...
bien, premièrement, si le voice casting n'est pas assujetti à la Liste, y a‑t‑il
un risque que, justement on procède beaucoup par voice casting, d'une
part.
1248
D'autre part, bon, je sais que vous aviez un questionnement à l'effet que
les activités en direct du consommateur ne sont pas compromises. Alors, est‑ce qu'il y a lieu de faire
une distinction sur cette base‑là?
1249
Par contre, il y a d'autres problèmes qui sont associés au voice casting
qui consistent à la perte de temps à gérer ce genre de message‑là, le fait que
justement le répondeur puisse être complètement plein de ce genre de message‑là
et qui fasse que je pourrais potentiellement perdre d'autres problèmes... perdre
d'autres messages?
1250
Donc, un peu de la même façon que les télécopieurs ne sont pas... ne
posent pas problème en terme de dérangement de l'activité directe du
consommateur, mais ils posent d'autres problèmes, à notre avis, qui justifient
que, effectivement, la Liste nationale leur soit
applicable.
1251
LE PRÉSIDENT: D'accord. D'une part, on ne veut pas prétendre que
le voice casting est moins nuisible bien que différent ou légèrement différent,
mais on ne veut pas prétendre que le voice casting est moins nuisant
potentiellement qu'un appel en temps réel et, d'autre part, on craint que si on
ne réglemente que les appels en temps réels, on va finir par faire une espèce de
crowding puis les gens vont tous faire du voice casting?
1252
MME DUCHESNE:
Exact.
1253
LE PRÉSIDENT: Merci. On continue à appliquer d'après l'Union
des consommateurs 2004‑35 en général?
1254
MME DUCHESNE:
Pardon?
1255
LE PRÉSIDENT: Vous êtes
d'accord avec les règles existantes de 2004‑35?
1256
MME DUCHESNE:
Oui.
1257
LE PRÉSIDENT: Et vous voulez
ajouter d'autres règles puis je vous avoue que je ne suis pas sûr tout à
fait. Je vais vous inviter à
répéter.
1258
MME DUCHESNE: Oui, mais en
fait, l'autre règle qui était proposée, c'est qu'à la lecture de cette
décision‑là, j'ai constaté que, contrairement à ce qui se passait pour les
télécopieurs, il n'y a pas de restriction d'heures au niveau des appels
téléphoniques non sollicités.
1259
Alors, nous, c'est l'ajout qu'on demandait, c'est qu'il y ait des
restrictions d'heures pour les appels
téléphoniques.
1260
LE PRÉSIDENT: Alors, je
pense que... oui, je pense que votre lecture est incorrecte, mais en tout cas,
je retiens qu'il faut réglementer les heures non seulement pour les télécopieurs
mais, également, pour les appels en temps réels.
1261
MME DUCHESNE: Oui, mais en
tout cas, d'après ma lecture, les restrictions d'heures ne s'appliquent qu'aux
télécopieurs et non aux appels téléphoniques.
1262
LE PRÉSIDENT: Vous avez
peut‑être raison. En tout cas, on a
bien compris votre point de vue.
1263
MME DUCHESNE:
Voilà.
1264
LE PRÉSIDENT: Elle a
raison? Bon, parfait. Madame Duchesne, ça a été formidable,
j'apprécie énormément votre présence.
Je vais juste voir s'il y a d'autres questions.
1265
Vous remerciez l'Union des consommateurs pour leur contribution, c'était
des plus sérieux puis c'est apprécié.
1266
MME DUCHESNE: Merci à
vous.
1267
THE SECRETARY: We will now proceed with Canadian Jewish
Congress with Mr. Eric Vernon. Mr.
Vernon, please introduce your colleague.
PRESENTATION BY CANADIAN
JEWISH CONGRESS
1268
MR. VERNON: Mr. Chair,
Commissioners, Commission staff, I am Eric Vernon, I am the National Director of
Government Relations for Canadian Jewish Congress.
1269
With me today is Mr. Marc Goldberg, volunteer, Telecommunications
Consultant.
1270
We thank you very much for the opportunity to appear before you today and
without further ado, I am pleased to turn the mike over to Mark to make our
opening statement.
1271
MR. GOLDBERG: Thank you
Eric. While we are here
representing Canadian Jewish Congress which, by the way, does not fund raising
of its own, and the Jewish Federations of Communities across Canada, a glance of
the participant list suggests that we will be the voice of the volunteer
Canadian charitable and not for profit sector at large.
1272
We hope to do justice to this important element of Canadian society as we
articulate our concerns and perspectives with regard to the proposed Do Not Call
List.
1273
With some trepidation I have put my telecommunications expertise at the
disposal of Canadian Jewish Congress, the National Organizational voice of the
Jewish Community of Canada representing some 360,000
persons.
1274
Let me note in passing that CJC often reaches beyond the Jewish Community
and it has notably been at the forefront of the Green Ribbon Campaign to raise
awareness of the humanitarian crisis in Darfour as was reported in the front
page of this morning Globe & Mail.
1275
CJC often works cooperatively as in this case with Community Jewish
Federations, the nationally linked fund raising and planning organizations in
Jewish Communities across Canada.
Funds are raised to support critical efforts in education and maintenance
of identity, community building, assisting the vulnerable and less fortunate,
promotion of arts and culture, community security, and youth oriented
continuity.
1276
CJC understands the rationale behind the establishment of a National Do
Not Call List. Further, we greatly
acknowledge the specific exemption provided to registered charities pursuant to
the Amended Telecom Act. The
Legislators that amended the original bill to include this charitable exemption
clearly understood three essential elements.
1277
First, charities and other not for profit organizations are involved in a
wide variety of social service, humanitarian, religious and educational purposes
which collectively enhance the quality of life in Canada and, in some cases, are
indispensable to the well‑being of their constituents, especially in view of
ongoing cutbacks to social services.
1278
Secondly, charities rely on telephone fund raising. Annual telethons, occasion of appeals
and regular membership call‑outs, as the life blood of their operations and the
key to sustainable giving.
1279
Telephone fund raising is the method of choice by charitable
organizations of all sizes.
1280
As you've heard this morning, access to donors via telephone is critical
to putting a human face on the appeal for contributions and to providing
important educational information about the organizations activities and
contribution to important causes.
1281
And third, the Canadian public is able to make the distinction between
solicitation by unwanted commercial enterprises and requests for donations to
permit bonified charities to function and fulfil their critical
mandates.
1282
The Jewish Federations, for example, hold annual telethons to solicit
funds for their social service, educational, religious and social justice
activities while informing the community about those important efforts. The covers are volunteers who see this
as an important contribution of their time and energy to the
community.
1283
Community charities raise funds for and promote the importance of their
focused causes via telephone.
Similarly, individual schools, churches and synagogues also use such
opportunities to develop membership and voluntarism and to promote special
events.
1284
While building the trust necessary for charitable donation both in the
first instance and on a sustainable basis, charities also rely on telephone
conversations to facilitate other positive outcomes, including volunteer
recruitment, receiving community input and feedback and rekindling the interest
of past donors, setting up meetings for further discussions and invitations to
events.
1285
It is therefore our sincere hope and expectation that in implementing the
List and, thereby, eliminating undesired calls, the CRTC neither entails the
legitimate outrage for resources that have charities to do their good works, nor
creates dissent centres for charitable giving.
1286
In other words, what the Parliament of Canada gave us, especially in the
discretion in applying the rules and penalties, we respectfully ask that the
CRTC will not take away.
1287
Charitable not for profit and voluntary sector organizations focus on
areas such as social welfare and civic improvement. These agencies and bodies make an
enormous contribution to the betterment of Canadian society and should not have
administrative impediments placed in the way of their telephonic communication
for both fund raising and educational advertising purposes, especially since
such burdens could sign the death now of many valuable charitable
organizations.
1288
The operations of the CRTC telemarketing regime should permit and even be
seen to encourage and promote a healthy viable and active charitable sector
which recognizes the contribution that charities make to society as well as the
centrality of telephonic fund raising to these
institutions.
1289
While perhaps obvious because we are making the case for wide discretion
in applying the regulations to charities, it bears noting that a diminution of
charitable giving translates into less charitable activity in the public
interest.
1290
This would never be a positive development for the public good, but it is
particularly problematic at a time when the public regards the charitable sector
as a critical partner of governments in all levels of the provision of essential
social services.
1291
It is not clear how the slack would be picked up if charities are unable
to maintain, let alone enhance their contribution to the betterment of Canadian
society.
1292
It is also important to recognize in our constituency that charitable
institutions are in a very few cases large sophisticated organizations with
professional staffs and, yet, in most other cases the groups are small and
completely volunteer based.
1293
In many cases, charitable institutions are registered for tax purposes
while others associated with them, such as schools, clubs and auxiliary
associations are not registered charities within the meaning of the Income Tax
Act.
1294
While the church or synagogue may be a registered charity, a youth group
supported by the institution, which seeks to call community members about a fund
raising event, may well not be registered.
Some groups may have structured a charitable foundation that in turn
provides funding for other parts of the organization, but others may
not.
1295
It is the respectful submission of CJC that in its enforcements of the Do
Not Call List the CRTC should adopt a broad reading of the terminology "made by
or on behalf of a registered charity", such that organizations associated with
the charity would also qualify.
1296
At the very minimum, we urge that organizations associated with
registered charities be granted the same exemption to the Do Not Call List as
the registered entity.
1297
It is also our submission that most volunteer and small scale charitable
organizations with minimal financial or infrastructure resources will be unable
to access a National Do Not Call List.
1298
As a result, there is a risk that their fund raising telephone calls may
need to be out‑sourced to professional telemarketing firms because of the
required overhead imposed by the Do Not Call List.
This would be
unfortunate.
1299
Because of the nature of many charitable operations, we also support the
exemption permitting covers not to display the originating or contact telephone
number where not feasible. Many
amateurs in small scale charitable fund raisers rely on the donation of
telephone access by large offices or companies which may, for privacy reasons,
not wish to have their number identified.
1300
In some cases the donor companies may have systems programmed to display
their business numbers and would not want to incur a cost to implement a
short‑term change. In other cases
volunteers call from their homes.
1301
These generous gestures must also not be impeded by regulations that do
not exempt companies donating phone access because they may not have charitable
status under CRA rules.
1302
At the very least, sponsoring offices must enjoy the same immunity under
the Do Not Call regulations as the charitable organizations
themselves.
1303
We have no trouble with rules such as a requirement to identify on behalf
of which organization the calls are being made.
1304
In summary, the regime that is established pursuant to the public notice
must ensure the ability of volunteer‑based charitable institutions to continue
their essential work. It is our
concern that an improper set of rules could have a profoundly adverse effect on
charitable fund raising in Canada.
An expansive application of the charitable exemption must be put in place
to permit such bodies to access their constituents and to preclude their need to
outsource their telecommunications to professional telemarketing organizations,
a step well beyond the financial means of many worthwhile
organizations.
1305
We believe it is important to distinguish between calls made by unpaid
volunteers and professional or third party telemarketers making calls on behalf
of businesses or charities.
1306
All of the above is respectfully submitted in hopes of safeguarding the
important fund‑raising efforts of Canada's charities and associated
groups.
1307
THE CHAIRPERSON: Thank you
very much.
1308
Mr. Vernon, we have to begin by congratulating you in succeeding in
bringing Mr. Goldberg and all his expertise before us on an unremunerated
basis. It's not the normal context
when we see him.
1309
I think the core of your concern, your primordial concern, is worth
discussing just to see what the pros and cons or what the issues
are.
1310
First, you say that the Canadian public is able to make the distinction
between solicitation by unwanted commercial enterprises and requests for
donations to prevent charities to function and fulfil critical
mandates.
1311
I think that is probably right.
1312
But if it is true, why would you have this concern? The enforcement of this Act is going to
be a complaint‑based phenomenon.
1313
If the public knows the difference, and more to the point if members of
the synagogue know they are being called by someone from within the synagogue,
how much of a potential problem is there?
1314
Or, to put it conversely, if five members of the synagogue are angry
enough to complain that they have been called by the youth group or by some
other group in the synagogue, how will we refuse not to pay attention to those
complaints?
1315
Either there are complaints or there are not
complaints.
1316
MR. GOLDBERG: I think the
concern is trying to ensure that there is reasonableness on all
sides.
1317
If we go back to first principles, what is the purpose of the Do Not Call
List, it is trying to safeguard consumers from receiving unwanted
calls.
1318
If we go over the edge and go overboard in creating a rigid
regime ‑‑ take a look at zero tolerance for bullying in schools that allows
no discretion to a school principal in dealing with a
problem.
1319
In general, you would take a look and you would say we know when a
problem exists versus another type of problem, but if the rules are too rigid no
discretion would be permitted.
1320
We want to ensure that the Commission leaves itself with sufficient
discretion that if it happens that the synagogue youth group makes a call to
somebody who had a really bad day at the office, had a stone chip his windshield
on the drive home, gets home and the dog has just made a mess of the rug, and
then he gets a phone call from the synagogue youth group trying to sell him some
tickets to their basketball game, that he doesn't go over the edge because he
had registered for a Do Not Call List the day before.
1321
We would like you to be able to have all the parties cool
down.
1322
Obviously it is not in any charity's interest to be making calls to
people who don't want to receive those calls, but we want to ensure that you
have sufficient discretion in the application of those
rules.
1323
THE CHAIRPERSON: Well, we
agree, don't we, that we can't change the law?
1324
For your information, there was a debate. Parliamentarians did consider
non‑profits versus charitable, and they said the only way we can police this is
if it is charitable registration.
So that is the law we have.
1325
It is most unlikely that the Commission will say "and by the way, we are
going to ignore complaints about non‑profit solicitation". I don't think that is
feasible.
1326
On the other hand, it is equally unlikely that a single complaint is
going to generate a major investigation under any circumstances, whether it is
about a charity or about any other.
A single isolated complaint is not liable to trigger investigative action
and the invocation of the full weight of the Act.
1327
That is a matter of policy which my four colleagues may disagree with,
and they are free to do so.
1328
I am predicting that we may find ourselves in a situation where ‑‑
and I know for a fact that in the United States a single complaint does not
trigger an investigation.
1329
COMMISSIONER LANGFORD: And
he predicted a sunny day today too.
So be careful. His track
record is not perfect.
1330
THE CHAIRPERSON: No. The Commissioners on my right ‑‑ my
track record is very poor in this regard.
I am hoping the Commissioners on my left may support me when it comes
down to it.
1331
In any event, the real purpose, after all, is to create a sense of mutual
understanding, which Mr. Goldberg has evoked. And that sense of mutual understanding
would have to, I think, involve in some sort of ‑‑ and there was a very
fancy word used by someone who testified before the Parliamentary
Committee: a pyramid
of...
1332
They are all looking blank.
1333
Some kind of an enforcement regime which began with things like
mediation. Why don't you call the
Bankers Association and try to sort if out with the Royal
Bank?
1334
But if there is a pattern ‑‑ and this, after all, is the issue that
we really have to come to grips with.
1335
If there is a pattern of complaints about a telemarketing activity that
occurs within a condensed period of time, it is rather unlikely that we will be
able to completely ignore it, no matter how worthy we think the cause for which
these calls were made really was.
1336
MR. GOLDBERG: I agree with
you. But I think that in many cases
can be even outside of telemarketing regulations.
1337
I note that from the discussions in Parliamentary committee, there were
questions asked about whether these regulations would apply to small groups such
as school bands, whether it applies to a local car repair garage. And the response from Mr. Bhinder was he
believes this would not be deemed a telemarketing call.
1338
In other cases there were statements made that these would be left to the
CRTC's discretion in defining what makes it a telemarketing
call.
1339
So it is based on that dialogue that took place in Parliamentary
committee that we are asking you to extend broad discretion, especially where
the calls are being made by a volunteer
organization.
1340
I think that that may be one of the types of lines in the sand that I
know my lawyer friends are always looking for. How do you differentiate between various
types of calls?
1341
I think an unpaid volunteer making a call is a very different type of
solicitation than a professional organization, even in fact when they are made
for charities, for registered charities.
1342
A registered charity that outsources its telemarketing to a paid
professional organization, you can expect a different standard, let's say, from
those types of calls than you do from the school band.
1343
THE CHAIRPERSON: The first
thing to be said was that the testimony by Mr. Bhinder and his colleagues was
notable mostly for saying that the CRTC would solve all of his problems. So I hesitate to you to invoke his more
positive statements as of any long‑term probative value in this
debate.
1344
Beyond that, I think it is very clear that the school band is something
different from telemarketing and I think it is very clear that it would be
treated differently in terms of complaints.
1345
And I agree with you that unpaid voluntary telemarketing activity is
different from commercial telemarketing.
1346
I regret to say that the law doesn't really permit us to treat it in some
formal sense as different. That is
to say I doubt, if I tried to suggest various ways of containing or expressing
that concern in some sort of formal regulation or guideline, I'm not sure how
far I would get with my legal colleagues.
1347
I think really the question at hand is we agree on the fundamental
purpose of the law. We agree that
it is not intended to constrain the PeeWee Mothers of Corner Brook from doing a
solicitation of money so that the kids can go and play in a tournament in St.
John's. That is not the intention
of the Act.
1348
We agree, on the other hand, that it clearly is intended ultimately to
prevent annoyance on the part of people receiving unwanted calls, whatever the
source of those calls.
1349
So somewhere between those two extremes we have to find a way, a form of
expression or a definition of a defence that might help reduce your
concerns.
1350
But to the extent that the body of solicitees is constrained by the
membership of the synagogue, to the extent that the activity involved is not for
private gain but for charitable or non‑profit purposes, welfare purposes, if you
will, clearly that puts it in a different category and makes it less likely to
invoke the weight of the law than more commercially oriented
activities.
1351
If the CJC has specific suggestions that we could then test against the
Act and the forms of regulation that we are looking at, then we would be very
happy to have them.
1352
But we don't have a philosophical disagreement here. We are strictly talking about how in
practice we could bring the distinctions you make into the body of some sort of
semi‑formal guidelines or regulations.
1353
MR. GOLDBERG: I think one of
the specifics has to do with our comments on the calling line identification,
and it is where we are probably at odds with the submission of the telephone
companies that suggest that there is no technical reason in this day and age to
not have calling line display shown.
1354
As a technologist, I agree from a technical perspective there are means
to always show a correct calling line ID.
From a practical perspective, though, it won't make sense for charities
when we have a campaign that makes use of a law office on a Sunday because the
law office happens to have 500 extensions with 200 central office
accesses.
1355
It simply isn't reasonable to ask that law office to reprogram their
switch to either start to producing calling line ID when they have normally got
that function shut off ‑‑ because some of the Toronto law firms operate
that way ‑‑ or to have them reprogram it, instead of showing the name of
the law firm and their phone number, to have the name of the charity and their
contact phone number.
1356
So we think there has to be greater breadth in discretion of application
there.
1357
That is a specific where we disagree. Just because it is possible from a
technology perspective doesn't make it practical for a charity to invoke
that.
1358
THE CHAIRPERSON:
Noted.
1359
I am going to ask my colleagues, Commissioner Langford and then
Commissioner Cram.
1360
COMMISSIONER LANGFORD: I
want to see how many easy solutions there may be because I'm big on easy, if I
can find something easy.
1361
In your own ‑‑ I can't ask you to speak for the entire charitable
world, but for your own Congress, would you have any problem instructing people
doing fund raising for some arm of your organization to say "we are calling on
behalf of the Congress"?
1362
MR. GOLDBERG: Actually, I
made that comment as an insert to the prepared text: that I don't see that being
any problem whatsoever. Naturally
the type of organizations that are calling, it's always going to be: "Hi, my name is Mark and I'm calling on
behalf of the Beth Israel Synagogue" or on behalf of the United Jewish Appeal,
or whatever.
1363
I don't see that as being any ‑‑
1364
COMMISSIONER LANGFORD: And
today's subject is little league baseball or today's subject is our summer camp,
or something like that.
1365
MR. GOLDBERG: A hundred
percent.
1366
COMMISSIONER LANGFORD: So
would that cover most of your concerns if you could slip in under that defence,
if I can call it that?
1367
MR. GOLDBERG: If that
provides an adequate defence, then absolutely.
1368
I am having trouble imagining a telephone call that wouldn't naturally
start that way, with or without the rules saying that.
1369
COMMISSIONER LANGFORD: And
it may be that you would have to ‑‑ and I am just thinking aloud here, so
it's worth exactly what you are paying for it.
1370
It may be that you would have to have a form letter so that when some
little fund raising was going to start for a very small minor group, the After
School Program, whatever it might be, still you would give them that and
somewhere in their file they would have that. That would be
signed.
1371
Let's move from that. You
have obviously thought about this in a bigger perspective, but I don't expect
you are experts on the entire 161,000 non‑profit organizations in
Canada.
1372
Where could other people shelter?
If you were simply, as the Chairman said, calling on behalf of the Little
League of Corner Brook, Newfoundland, where could they
shelter?
1373
Is there a way to shelter or do you anticipate that there will be quite a
few people out there that are simply stand‑alone, once every five year
charities, or once every year to get some money for uniforms, or whatever it
is?
1374
MR. GOLDBERG: Unfortunately,
I think there are all sorts of special causes that come
up.
1375
Eric and I were discussing this morning cases such as the Green Ribbon
Campaign that was conceived of during the last couple of days of Passover and
implemented in time for last week's Yom Hashoah
commemoration.
1376
And that involved a small group of people very quickly making a number of
calls, completely unsolicited, both to individuals and in fact to
businesses ‑‑ to reflect on some of the conversations from this morning
about businesses perhaps being on a Do Not Call List ‑‑ trying to get
contributions of the green ribbons themselves, for example, contacting the
Members of Parliament so that they would all be wearing
them.
1377
These are emergency type campaigns that may come
up.
1378
So it applies not just to our constituency but, as you said, perhaps a
hockey team that gets invited to a special tournament and has to go out and make
a bunch of calls, not just to their parents but perhaps just pulling out the
White Pages and calling everybody whose phone number starts with the same three
digits.
1379
So that's why I think the distinction ‑‑ it is very hard to conceive
of another type of distinction other than saying are these people who are making
the calls being paid?
1380
I am fully cognizant of the fact that Parliament chose not to provide a
blanket not‑for‑profit exemption, for very understandable reasons, because some
of those not‑for‑profits, just like some of the folks who are registered
charities, can have problems.
1381
There are charities out there with such high overheads because they
engage professional, very sophisticated telemarketing
organizations.
1382
But those organizations, by virtue of the fact that they have gone out to
a professional telemarketing company, that telemarketing company has
infrastructure. They have computer
systems. They have predictive
diallers or they have all sorts of stuff on hand that allows them to hit on the
database versus the rest of the groups out there, whether they are an income tax
registered charity or a little league baseball team or a club running a car
wash. It's a bunch of folks who get
together and under a very strict reading of the definition of telemarketing,
yes, they are making an unsolicited telephone call to get some money or get
goods.
1383
But I think it is pretty easy to distinguish between them and the other
guys.
1384
COMMISSIONER LANGFORD: Your
Darfur Program, which is kind of interesting because you whipped this up very,
very recently, could that shelter under your Congress? Could they be calling on behalf or is it
too big a stretch?
1385
Is it just people who happened to be members of your Congress but also
are interested in this thing that is happening so far away and has no immediate
nexus at all, I would assume, with your organization?
1386
MR. GOLDBERG: I would need
help in understanding what you mean by could they shelter.
1387
COMMISSIONER LANGFORD: Could
they be calling on behalf of the Canadian Jewish Congress, or is that just too
big a stretch?
1388
MR. GOLDBERG: It depends.
In many cases the calls that were
made were from either volunteers within the Canadian Jewish Congress or some of
the professional staff who work for Canadian Jewish
Congress.
1389
In some cases they would naturally introduce themselves, saying: "Hi, I am so‑and‑so, calling on behalf
of Canadian Jewish Congress."
1390
In other cases they may say:
"Hi, my name is so‑and‑so and I want to talk to you about the crisis in
Darfur."
1391
In many cases that would depend on who they are calling. Are they known because they work with
Canadian Jewish Congress?
1392
For example, if I was calling one of you, I may call you because of the
relationship I have with you from the telecommunications
industry.
1393
COMMISSIONER LANGFORD: Does
the Congress itself ‑‑ it is a registered charity, obviously. Will it be able to comply with the Do
Not Call List situation as it appears to be developing?
1394
MR. GOLDBERG: In general,
our community federations range in size.
On the one hand, you have the Toronto Jewish Federation, which represents
a Jewish community in excess of 200,000 people. On the other hand, you have a community
federation in Sydney, Nova Scotia, representing a handful of
families.
1395
So there are very different levels of sophistication, quite similar to
small businesses that operate on handwritten lists, with no computers to
maintain.
1396
COMMISSIONER LANGFORD: So
what happens when we have this national list? Who is going to be able to afford to
access it and to keep their own lists up to date, or to start a list, if they
don't have a list?
1397
MR. GOLDBERG: That is one of
our concerns and one of the reasons we are here.
1398
COMMISSIONER LANGFORD: You
don't have any suggestions for us, specific suggestions as to how to facilitate
that for the folks in Sydney?
1399
I guess that Toronto is all right.
1400
Toronto is always all right.
I take that as a given, but what about the folks in
Sydney?
1401
MR. GOLDBERG: That's why we
are looking for the specific exemption for volunteer‑based
organizations.
1402
COMMISSIONER LANGFORD: You
are going to base it that way.
1403
MR. GOLDBERG:
Yes.
1404
COMMISSIONER LANGFORD: It
won't be on size or whatever, it will be solely on
volunteerism.
1405
MR. GOLDBERG:
Yes.
1406
COMMISSIONER LANGFORD: Those
are my questions.
1407
Thank you, Mr. Chair.
1408
THE CHAIRPERSON:
Commissioner Cram.
COMMISSIONER
CRAM: It really seems like I
am splitting a hair in terms of volunteer ‑‑
1409
When you were talking, Mr. Goldberg, about people phoning for the Green
Ribbon Campaign, some were staff and some were volunteers. What would we do in a situation like
that?
1410
I think it would be fairly difficult to find out which person made the
call, especially if you are calling a lot of people. How would we handle a situation like
that?
1411
MR. GOLDBERG: In that
particular instance ‑‑ and I will let Eric describe the size of the
Canadian Jewish Congress, a paid organization ‑‑ it would be on an
extremely small exception basis that paid staff would ever be involved in direct
calling. They would have a short
list of quite substantial donors that they have a personal relationship
with.
1412
COMMISSIONER CRAM: The
question isn't, "How often will it happen," the question is, "How effective is
your proposed carve‑out going to be?"
1413
What would we do in a situation like that?
1414
Say that we carved out volunteers.
If it is volunteers and one paid person, or if it is half‑and‑half, how
do we deal with it?
1415
MR. GOLDBERG: First off, I
think, if it is a charitable organization making the call, then it is captured
under that carve‑out.
1416
COMMISSIONER CRAM: Yes. That's fair.
1417
MR. GOLDBERG: And, I think,
if the call is made by a volunteer ‑‑
1418
You could even refer to: Did
the person get a T4 at the end of the year for the work they
did.
1419
COMMISSIONER CRAM: You are
saying, if the actual call ‑‑
1420
How many people did you phone in your Darfur
campaign?
1421
MR. GOLDBERG: For that
particular thing, it was perhaps a couple of dozen folks involved in getting the
actual production of the ribbons.
1422
COMMISSIONER CRAM: What if
10,000 people were called, and there was half‑and‑half professional and
volunteer, in a not‑for‑profit sector?
1423
How would we draw the line on that?
1424
Because the volunteer or the professional person couldn't remember who
they would call.
1425
MR. GOLDBERG: That is a
particular hypothetical that simply wouldn't apply to our constituency. It just wouldn't
happen.
1426
Again, thinking about the school basketball team, there is a paid coach
of the basketball team who, yes, might chip in and take half a page of phone
numbers, but I think we can have some discretion there and realize that there
are 20 basketball players, so the coach isn't making that many
calls.
1427
I think that reasonable people could make a differentiation
there.
1428
COMMISSIONER CRAM: The
problem I am having is that, under your thesis, it would mean that a synagogue
or a church youth group would be, essentially, granted an exemption, while the
Scouts wouldn't be.
1429
At the end of the day, I cannot see that as fair and reasonable, because,
ostensibly, they have pretty well the same function. Scouts are volunteers, and nobody would
say that Lord Baden wasn't a wonderful guy.
1430
Isn't the real issue that it is a matter of the quantum of the fine or
the penalty?
1431
I think everybody could agree that if it is a volunteer, are we going to
come down with the max, unless it is a pretty egregious
situation?
1432
Isn't that really the issue here?
1433
MR. GOLDBERG: I think that
raises quite a number of points.
1434
First off, I am not aware of whether the Scouts have a charity that they
may be associated with as part of some of their
fundraising ‑‑
1435
COMMISSIONER CRAM: Name
another youth group. I don't
care.
1436
MR. GOLDBERG: But I think
that is part of the question. "Is
there an associated charity" is one of the legs that we would stand
on.
1437
Another would be "Is it a volunteer‑based campaign", and that helps
define a charitable type of activity different from a professional campaign,
whether it is on behalf of a charity or not, because all of those are different
structures.
1438
Yes, I agree that the whole issue is the quantum of the penalty. If it is a simple slap on the wrist or
an admonishment or a notation in your school record, that is very different from
the types of zero tolerance policies that some school boards have implemented
for bullying, which provide a principal with absolutely no discretion. If a kid throws a snowball, the kid is
suspended from school.
1439
We would like to think that all of us can have some discretion in both
the definition of what is crossing the line, in terms of bad behaviour, and
then, the party that is crossing the line, how many times have they done it,
before any financial penalties come into play.
1440
I think you also need to recognize that even being called in front of a
CRTC tribunal requires expenditures and considerable overhead. So, to the extent that we can even
minimize the involvement of a small group, because some kids go a little bit
overboard in making their calls, that would also be
helpful.
1441
MR. VERNON: I guess the
other way of looking at it would be to sort of flip it around and suggest the
possibility that if there are these sanctions available to the CRTC, even if
they are calibrated, that, in itself, may be a disincentive to the kind of
associated group that we are talking about from doing their work in the first
place.
1442
I think what we are trying to do here is to suggest that there ought not
to be these kinds of administrative impediments placed in the way of
organizations that have an association with a charitable organization from
making the kinds of calls they need to make in the first place to raise their
funds.
1443
COMMISSIONER CRAM: Mr.
Goldberg, you added some words at page 3 of your verbal presentation. It is the last line in the third
paragraph, before "The General Case".
You said:
"In other words,
what the Parliament of Canada giveth, especially regarding rules and penalties,
we respectfully ask the CRTC to `will not taketh away'." (As read)
1444
Are you saying that, even though you are a charity, you wouldn't be
subject to the other telemarketing rules?
You shouldn't be?
1445
MR. GOLDBERG: I am
suggesting that you use the discretion that is available to you in applying
rules and penalties to charitable organizations, yes.
1446
COMMISSIONER CRAM: What
about hours of calling?
1447
Are you suggesting that you wouldn't be subject to a penalty if you
phoned me at midnight?
1448
MR. GOLDBERG: First off, I
think we need to be very careful with a number of rules, given the evolution of
telecommunications, and recognize that it is not always easy to apply hard rules
and times to telephone numbers any longer.
A 416 phone number may actually be in use in Vancouver or in Hong
Kong. So if five o'clock in the
afternoon is considered a reasonable time to call, that could very well attract
a complaint to the CRTC, because it was five o'clock in the morning in Hong Kong
and woke someone up.
1449
Would I want you to immediately charge that caller with a penalty for
making one call? I think you would
need to be very careful.
1450
That is speaking as a technologist, as opposed to a representative for
the Canadian Jewish Congress.
1451
I think that if we look at reasonableness, it is unreasonable to expect a
charitable group to be making calls that would be obviously annoying, regardless
of how arbitrary or not you set timetables.
1452
COMMISSIONER CRAM: But
that's not my question. My question
is, are you saying that you would not be subject to the other rules ‑‑ the
other telemarketing rules?
1453
MR. VERNON: If I may, I
think what we are suggesting here is ‑‑ we obviously acknowledge the fact
that the legislation has granted the charitable exemption, and that is not going
to change. I think what we are
trying to say here is, when you are establishing the administrative regime to
administer the list, that that not place so many impediments in the way of
charities from doing their work.
1454
I guess what that would mean is, we would ask, if you are going to be
looking at time parameters in which these calls can be made, that you do so with
an eye to having a reasonable timeframe.
Once that regime is set, then that's what it will
be.
1455
COMMISSIONER CRAM: And you
would be subject to those rules.
1456
MR. VERNON: Presumably,
yes.
1457
COMMISSIONER CRAM: You refer
to another problem on page 4, at the second‑last paragraph, about being unable
to access a national DNCL.
1458
It would seem to me that AFC and PIAC, amongst others, have suggested
that charities would get free access.
1459
Wouldn't that solve your problem?
1460
MR. GOLDBERG: Not all
charitable organizations that come under the umbrella of the Canadian Jewish
Congress even have computers.
1461
You are talking about seniors' homes. You are talking about old‑age
clubs. To expect computer literacy
from such an organization, and for them to scrub a list, is
unreasonable.
1462
COMMISSIONER CRAM: Thank
you.
1463
THE CHAIRPERSON: Mr.
Goldberg, I do take your point, but what I am trying to get a grip on is what
likelihood there is that organizations of the kind you have spoken of appear on
the radar of the national administration of a Do Not Call
List?
1464
There is a seniors' home.
Who do they call? They call
children. They call Friends of the
Social Welfare Committee of the synagogue.
Whatever.
1465
Are we going to see this? Is
it ever going to appear on our radar?
1466
I am just assuming that an enormous amount of very sensible, wholly
altruistic, worthwhile activity is going to continue to go on, and you hope, and
I hope, that this legislation doesn't touch it in any way, only you seem to be a
little more pessimistic and concerned about it than I am, and I am just trying
to understand why.
1467
I don't say that it is foolish, I am just trying to get a grip on
it.
1468
For example, it is my firm belief that if you don't phone anyone but the
members of your synagogues, you will never hear about any of the activity that
ever happens.
1469
We might get a complaint, we look at it once, we send a nice letter to
the person. It's not a
pattern. We forget about
it.
1470
MR. GOLDBERG: Gosh, I wish
it were so, and I am sure that the volunteer presidents of many of these
organizations wish they never took complaints from even their members. But, unfortunately, certainly within the
Jewish community, and as I have learned from some of the volunteer work that I
have done with the Canadian National Institute for the Blind, there seems to
always be some small group within every group that is disenfranchised, whether
they disagree with which rabbi got hired, or they didn't like the way the cantor
sang on the last sabbath, or there was something that annoyed them. All it may take is a news story on 680
News, reminding folks about this Do Not Call List, and they go, "Yeah, that's
the way I can go after this rival."
1471
I agree, I would sure like to think that this wouldn't show up on the
radar screen, but keeping in mind, as you said, that this is a complaint‑based
process, I want to try to pre‑empt on behalf of the umbrella organizations their
need to suddenly start to engage the professional telecommunications industry
lawyers to try to respond to an official letter from the CRTC that says, "Please
appear before us," or, "You have ten days to respond to this
complaint."
1472
To the extent that we can head off the small stuff and only focus on the
real problems out there, I think that would be helpful.
1473
MR. VERNON: I think all we
are saying is, as you are going about your work in setting up this regime, don't
foreclose the discretion that we hope will be available once the system is up
and running, so that we can deal with the precise kinds of situations that you
have raised in a way that is reasonable and measured.
1474
THE CHAIRPERSON:
Commissioner Duncan.
1475
COMMISSIONER DUNCAN: I think
this question is along the lines of my colleagues.
1476
Because the system, as the Chairman indicated, is going to be
complaint‑driven, as you have acknowledged, it is hard, really, to conceive that
there will be a lot of complaints.
1477
So perhaps because we have a three‑year review
period ‑‑
1478
Let me give you two options, actually.
1479
Because we are looking for specific guidelines for evaluating complaints
and assessing violations, maybe you would like to submit more specific wording,
given what you have heard here today and the kinds of questions, that would
narrow it down, so that when the operator goes to assess a complaint, he can
refer to them.
1480
That is, again, assuming that we get the number of complaints that would
be necessary to justify a further investigation.
1481
The other comment is, because it is subject to a three‑year review, what
we have decided we certainly will have a chance to evaluate, and if you are
right, or it is not as bad a problem as we are thinking, then we could address
it at that time. It is not
permanent.
1482
At any rate, I just wanted to mention those things to
you.
1483
MR. GOLDBERG: I appreciate
that.
1484
MR. VERNON: I don't think
there is that much daylight between our interpretations of how it is going to
work out. We are, I think,
similarly optimistic that a reasonable regime will work reasonably, and it is
comforting to know that the three‑year review is there, to make sure that it is
functioning properly and reasonably, and that you can tweak it, as necessary,
three years hence.
1485
But, again, just to reiterate, what we are hoping for is that there will
be enough latitude built into the system that it can handle whatever kind of
complaints come up in a reasonable fashion.
1486
THE CHAIRPERSON:
Counsel.
1487
MR. MILLINGTON: I don't have
any questions for these witnesses.
Thank you.
1488
THE CHAIRPERSON: Thank you
very much.
1489
MR. VERNON: Thank
you.
1490
THE CHAIRPERSON: I have been
informed that we are going to take a 15‑minute break, so we will be back at 25
minutes to four, please. Thank you
very much.
‑‑‑ Upon recessing at 1520 /
Suspension à 1520
‑‑‑ Upon resuming at 1535 /
Reprise à 1535
1491
THE CHAIRPERSON: Order,
please.
1492
Madam Secretary.
1493
THE SECRETARY: Yes, Mr.
Chairman. I would invite Primerica
Financial Services to make their presentation.
1494
THE CHAIRPERSON: Let me
first say that I am extremely disappointed that the gentleman who is with our
two witnesses is not coming to the floor, because he shares with Commissioner
Langford and I taste in the colour of suits, which we think is particularly
appropriate.
1495
I have been extremely depressed by the number of dark suits that are
here. We are trying to put a little
joy in the thing, and now he doesn't come up.
1496
Anyway, I am sure that he is behind this very important
presentation.
‑‑‑ Laughter /
Rires
1497
MS BILHAN: I hope you have
noticed that I share the same colour coordination, as
well.
1498
THE CHAIRPERSON: Yes, we
appreciate it very much.
PRESENTATION /
PRÉSENTATION
1499
MS BILHAN: I got the e‑mail,
so I was coordinated this morning.
1500
I don't know if Ms Bisson mentioned it, but we have offered to waive our
verbal presentation ‑‑ parts of it anyway. We can give you an abbreviated version,
in the interests of time.
1501
We would like it to be noted that our speaking points be noted as our
official record.
1502
THE CHAIRPERSON: The
speaking notes cannot be made part of the official record, but since they are,
on your account, entirely consistent with your submission, then the note points
are in the submission in any event.
1503
Am I correct?
1504
MR. MILLINGTON: I think if
they have been filed with us as part of this proceeding, they can form part of
the record.
1505
THE CHAIRPERSON: Great. That's fine.
1506
MS BILHAN: In that case, I
would like to take a minute to introduce myself. I am Hande Bilhan with Primerica
Financial Services of Canada, and my colleague, Suzanne Loomis, is joining us
from Atlanta. She has extensive
experience in working with the FCC on DNCL issues in the United States, and we
are happy to have her here on our behalf.
1507
Suzanne would like to say a few things about personal calls, based on
personal relationships.
1508
MS LOOMIS: Thank you, Mr.
Chairman and Commissioners.
1509
The U.S. national Do Not Call List is getting ready to celebrate its
third birthday later this year, and since I know that you are also anticipating
a three‑year review of your ultimate regulatory scheme, I thought it might be of
interest to look at a couple of aspects of the U.S. "no call"
experience.
1510
I know that you are very well versed in our law, and you know that it has
been a tremendous success. We have
over 100 million numbers listed. In
the 2005 report of the Commission to Congress, it was reported that 92 percent
of those registered had less calls, and 25 percent said that they had none at
all.
1511
So I think we can certainly say that that reflects a resounding
success.
1512
I would like to focus on one aspect of the "no call" experience of
particular importance and impact to our company, one that we were involved in,
both as an observer and as a participant, both in defining the issue and,
ultimately, in what the U.S. decided to do as a solution, and that is, in fact,
the personal relationship exception that has been talked around, and yet maybe I
would like to talk expressly to for a minute.
1513
I know that Commissioner Langford mentioned this morning that, of course,
he knew that he could call his brother‑in‑law, or his brother‑in‑law might call
him because he knew his sister. I
think this is the kind of thing that we are talking about, someone that you
intuitively expect could call you because you have a personal relationship. You have been talking with them by
phone. They drive your kid to car
pool. You drive their kid to car
pool. When they go out of town,
they call you to come over and look after their cat and pick up their
newspaper. Your typical way of
exchanging any communication has been by phone, and you know this
individual.
1514
I think it is a very intuitive understanding that we all have, and
certainly we are not asking you to extend that intuitive understanding beyond
the kinds of things we are talking about.
We are simply asking if you could please memorialize
it.
1515
I think that this is what the U.S. did when they looked at this
situation. They said: We recognize that there is this
intuitive understanding that we can place calls to people we know, and that this
is not a violation of their privacy.
We have been in a constant interchange of telephone conversation with
this person over a period of time on other issues, and it would make sense for
me to now pick up the telephone and call them, rather than walk out of my house,
walk next door, walk up to their house and knock on the
door.
1516
What we are asking is if you could look at what the U.S. did, which was
to talk in terms of a family, friend and acquaintance
exception.
1517
I am sure that one of the things you are thinking is: Why do we need it if it is
intuitive? It doesn't make any
sense to us.
1518
I think for companies such as ours, it is very important because we do
not have the latitude to use common sense.
When we tell our agents what they must do, we must tell them what the law
says.
1519
When the U.S. finished their rule‑making process, we were involved in
devising policies and procedures that went out to our field representatives,
where they were told, with specificity, what they could and could not do. If we did not have that family, friends
and acquaintance exception, we would be forced to say, "You can call no one,"
and then entertain the thought, "I can't call my mother." I can't, because we do not have the
latitude, working for a large company, where we have a lot of regulatory
oversight in order to do that. We
are forced to obey the letter of the law.
1520
So, for us, we would ask that you put in writing what we intuitively
expect.
1521
When we look at how did that fare in the United States three years
later ‑‑ what happened ‑‑ we can look at the overall report to
Congress and realize that there seem to be no
problems.
1522
Also, from our own experience, there were zero complaints from the
federal regulator, and we do use the family, friends and acquaintance
exception.
1523
The federal government in the United States deliberately did not define
that exception: who is family; who
is a friend; who is an acquaintance.
In fact, they left it, largely, to the determination of the person
called. They said that if it is in
doubt, then the person who is called could say, "This person is not my
friend." Or, "They used to be,
until they called me." And, "This
person is not my acquaintance."
1524
It is almost shifting the burden of proof, saying: This is the exception. For people who truly need it spelled
out, it is here, but it is not affording any latitude beyond what you
intuitively expect. If the
individual says, "This is not what I expect," then they can file the complaint
and say, "I did not feel that I was covered," and the United States regulators
say, "We are going to give that great, if not compelling
weight."
1525
With that said, I think we would welcome any questions that you have, and
I certainly appreciate your consideration of something that is important to big
businesses that have to put this stuff in
writing.
1526
THE CHAIRPERSON: Thank you
very much.
1527
Commissioner Langford.
1528
COMMISSIONER LANGFORD: It is
clear. I don't really have any
questions.
1529
As a comment, it just seems bizarre that that is what the world has come
to, that you have to have permission to call your mother. But you are the
experts.
‑‑‑ Laughter /
Rires
1530
COMMISSIONER LANGFORD:
Atlanta is burning. I guess
it is burning again.
1531
I just don't have a question.
But I hear you. Thank you
very much. We will take it under
consideration. We will certainly
discuss it.
1532
I have no questions, Mr. Chair.
1533
THE CHAIRPERSON:
Commissioner Cram.
1534
COMMISSIONER CRAM: In the
guidelines that you give your people in the U.S., if I met somebody from
Primerica today at a cocktail party or something, and the next day this person
from Primerica wanted to phone me to solicit, would you advise them that I would
be an acquaintance?
1535
MS LOOMIS: That is an
interesting question, and one we have had to wrestle with, because we have had
to put it in writing.
1536
What we say is that the family, friends and acquaintance exemption is one
that is determined by the person called; that you must use your best judgment;
that if you fail to use that judgment correctly, that person has the right to
report you; that its true intent is to protect calls that the other person knows
or expects they are going to get.
1537
We have had to put that in writing, yes.
1538
COMMISSIONER CRAM: Thank
you.
1539
THE CHAIRPERSON:
Commissioner Duncan.
1540
COMMISSIONER DUNCAN: Just to
clarify that point, I would actually have to file a
complaint?
1541
If I were Commissioner Cram and I got the call, and I didn't feel that I
fell into the category of acquaintance or friend, I would have to actually file
a complaint?
1542
MS LOOMIS: You would have as
much right to file a complaint as any other
individual.
1543
Obviously, we would hope that you would call us first, but that is not
required at all. If you chose to
file a complaint and said, "I met this person at a cocktail party. I told him to call, but I didn't mean
it," then you would have just as much right to call and report that conduct as
someone that, I assume, you had never met before.
1544
COMMISSIONER DUNCAN:
Probably, in reality, what happens is that Commissioner Cram would let
the caller know that she wasn't happy or interested, and that would be the end
of it.
1545
MS LOOMIS: That is probably
what would happen. Yes, that is
probably what would happen, precisely that.
1546
We think that by putting a personal relationship exception in there, it
is protecting what is intuitively obvious.
But if I do call you, and you are my neighbour, you are probably going to
let me know that you are not happy.
1547
COMMISSIONER DUNCAN:
Yes.
1548
MS LOOMIS: You are unhappy
with me as your neighbour, not as a representative of the
company.
1549
It seems to have worked out well, but we always know that Damocles' sword
is hanging over our head, and that it is not our determination, it is
yours.
1550
COMMISSIONER DUNCAN: In your
experience, you haven't received any complaints related to
this?
1551
MS LOOMIS: We have received
no complaints from the FCC. We have
received a few calls from given states, but we typically have dealt with those.
They don't involve this particular
issue at all.
1552
COMMISSIONER DUNCAN: And
your agents make no comment? You
don't find that?
1553
Obviously, they wouldn't do it if it got to be a problem for them. They would let you
know.
1554
MS LOOMIS: They
would.
1555
I think that our agents would obviously have preferred a much broader
exemption, and yet, really, the way we do our business, and the way we would
prefer them to do our business, is exactly that. So that is the nature of what we got,
and although I know it seems bizarre to have to put it in writing, I think that
for companies such as ours, it allows us the ability to say things that are
common sense.
1556
COMMISSIONER DUNCAN: It is a
benefit, obviously, to us, in setting up these new rules, to have that
experience and to hear of it. It is
really very helpful.
1557
I will turn to some of the other questions, if I can,
now.
1558
First of all, I am wondering if you are familiar with the definition that
the companies proposed for the key DNCL rule.
1559
MS BILHAN: Yes, we are
familiar with a number of the rules.
I am not sure which one ‑‑
1560
COMMISSIONER DUNCAN: The one
that defines what is the key rule.
1561
I will read it for you, if you like.
1562
We are interested to know whether you feel it needs any adjustment, or if
you are satisfied with it the way that it is.
1563
It says:
"No person or
organization shall initiate a telemarketing call to a person or organization who
is validly listed in the national Do Not Call database, unless the person or
organization from whom the telemarketing call originates is exempt, pursuant to
section 41.7(1) of the amended Telecommunications Act." (As
read)
1564
MS BILHAN: We are satisfied
with that, with the proviso that it is understood that this does not apply to
personal relationships ‑‑ calls based on personal
relationships.
1565
COMMISSIONER DUNCAN: We
certainly understand your point on the personal relationships. You have certainly made that well here
today. Thank
you.
1566
What about faxes? Do you
have an opinion on whether the Do Not Call List rules should apply to
unsolicited faxes?
1567
MS BILHAN: We do not have an
opinion, simply because our agents do not work that way, and we don't encourage
it.
1568
COMMISSIONER DUNCAN: With
respect to cleansing the list, I gather that the U.S. experience is 31 days, but
we have had quite a variety, including the 24 hours that we recently heard this
afternoon.
1569
PIAC has proposed 7 days.
Advocis, the companies, 30 days.
DMA, which I understand is an American group, 30 days. CMA and RCI, 60 days. And then we have three groups proposing
90 days.
1570
I am wondering what your position is. How many
days?
1571
MS BILHAN: Our position is
that we would strongly recommend 30 days, as well. Anything under that would add
significant cost to the companies, especially the larger companies, who would
have accumulated costs in complying with that; and smaller companies would have
difficulty keeping up, say, every 24 hours with a brand new
list.
1572
COMMISSIONER DUNCAN:
Obviously, with the benefit of the U.S. experience, 31 days does not
present a problem.
1573
Thirty or 31 days does not present a problem?
1574
MS LOOMIS: No, it has not
been a problem.
1575
COMMISSIONER DUNCAN: Any
thought in the States of reducing that?
1576
MS LOOMIS: I don't know if
there are thoughts of reducing that or not. I know that, probably, if they did
reduce it, the burden would be borne inequitably by smaller companies than
ours. They would feel the majority
of that burden.
1577
COMMISSIONER DUNCAN:
Consumer consent. We talked
about consumer consent with the earlier parties, and I am wondering how you feel
or what your approach is to having consumer consent documented, so that you
could use it as a defence in the case of an
investigation.
1578
What type of documentation do you require?
1579
MS LOOMIS: I can tell you
that, in the States right now, express written consent is required, and that is
problematic for the situation we just described at a cocktail
party.
1580
My recommendation ‑‑ and I am counsel in charge of enforcing
it ‑‑ is that, if you met someone at a cocktail party, they are not that
much of an acquaintance to you. To
me, acquaintance means significantly more than that.
1581
I think you need some sort of consent from them to call, and yet I can
understand that, if you meet someone socially, you could say, "Excuse
me" ‑‑ and we have developed these pads that they are supposed to whip
out ‑‑
‑‑‑ Laughter /
Rires
1582
COMMISSIONER DUNCAN: At the
cocktail party.
1583
MS LOOMIS: It's awful. And you can't even write it down, they
have to write it down.
1584
So you say, "Could you please write it down?" You can imagine how terribly awkward
that whole thing is.
1585
I would think that if you could avoid that in some fashion ‑‑ I
don't have a solution for you, but that is really pretty
awkward.
1586
COMMISSIONER DUNCAN: Is that
a company requirement or a U.S. law requirement?
1587
MS LOOMIS: The express
written consent is a U.S. law requirement.
We take it further and say that you have to get it down and keep
it.
1588
It has caused a lot of ‑‑ I can't even talk to someone at a ballgame
and say, "Can I call you," without seeing if they can write it down on the back
of a peanut bag or whatever.
1589
It is, sometimes, I think, not actually capturing the conduct that you
want to capture.
1590
And then: Who has to write
it down?
1591
In the U.S., the individual has to write it down. I can't write it down for you. So you have to sit there juggling your
bags, or whatever, while you write that information down.
1592
MS BILHAN: If I may, we
would suggest that the burden of proof would be on the caller. If the called party suggests that there
has been no consent to be contacted, I think it is pretty clear that there has
been a violation or a breach of the rule.
1593
If there is an accumulated number of breaches of that nature, it would
obviously be in the CRTC's mandate to take action against the party who is
calling and taking advantage of this exception.
1594
So we would suggest that consent should override the DNCL, and then the
burden of proof should be on the caller.
1595
And how they prove that there has been consent should be up to every
individual company, because there are different business models, different
sizes, et cetera, so one rule may not apply as well to everyone involved. Whereas, it would be very clear if a
person complains and says, "I certainly did not consent for this person to call
me." Then, I suppose, you have
breached a law.
1596
COMMISSIONER DUNCAN: What
you are saying, just to make sure I understand, is that the consumer is saying,
"I didn't give them permission," and that is sufficient. But what would really amount to an issue
is if we had a number of people doing that. An isolated case is
not ‑‑
1597
MS BILHAN: Right. I think there has been discussion about
threshold issues.
1598
COMMISSIONER DUNCAN:
Yes.
1599
MS BILHAN: So if there is a
pattern of abuse by an individual or by a certain company, certainly the
Commission could take action and call it a violation of the
rule.
1600
But I think that implementing a rigid system, where you would need a
certain document, would be difficult to enforce, and probably not as easy to
comply with.
1601
Again, the burden of proof should be on the caller.
1602
Obviously, there is the due diligence defence, et cetera. I am not suggesting that as soon as
someone says, "I did not provide my consent" ‑‑ if the caller can prove
that they have some sort of consent that they obtained, I guess that would be
their defence, but it is up to the caller.
1603
COMMISSIONER DUNCAN: We
heard this morning from CADRI and TD Meloche that they receive written requests
from people to be contacted. In
that way, they actually have a written consent.
1604
So some companies, in their way of doing business, may be more easily
able to comply with it than others.
That is, I gather, what I am hearing you say.
1605
Or, at least, in some ways.
Maybe not at the cocktail party.
1606
MS LOOMIS:
Exactly.
1607
COMMISSIONER DUNCAN: But
there would be other cards that you would have people complete and send into
your agents to indicate that they want to be called?
1608
MS BILHAN: Not really. The life insurance industry is mainly
driven by personal contacts and networking, and mostly agents work within their
own communities through their personal relationships.
1609
So it is not as conducive to doing it by a written consent
situation.
1610
COMMISSIONER DUNCAN: Thank
you.
1611
I don't believe you addressed the question about whether the rules from
stayed Decision 2004‑035 ‑‑ whether any or all of them should be
implemented.
1612
Could we go through them, or do you have an opinion on them
all?
1613
MS BILHAN: No, I don't have
an opinion on all of them. We
generally do not allow our agents to do cold calling in Canada. Therefore, we are not as intimately
familiar with the telemarketing rules.
Obviously, we comply with them, but the specific ones that we would
comment on would be a unique confirmation
number ‑‑
1614
My understanding is that this is a fairly complex and expensive
technology, and we would have a concern with that.
1615
A toll‑free telephone number is not a problem for our company whatsoever,
but there are a lot of individual life insurance agents who are sort of small
businesses, and it would be a concern for our industry.
1616
A live operator during working hours, again, that would not be a concern
for us as a big company, but it would be a concern for a small broker working in
a smaller community.
1617
COMMISSIONER DUNCAN: The
toll‑free number requirement for small operators may not be such a concern
because ‑‑ I don't know, maybe the small operator doesn't operate outside
his calling area, or his free zone.
1618
MS BILHAN: That may be the
case. I am just not sufficiently
familiar with that.
1619
That would be my comment, off the top of my head.
1620
COMMISSIONER DUNCAN: I
appreciate that. Thank
you.
1621
What about call display?
When your agents call, what kind of
display ‑‑
1622
Actually, I am asking, I guess, for the U.S. experience. What are you required
to ‑‑
1623
MS LOOMIS: Our agents are
not allowed to do anything that would at all impede the display of the number
they are calling from.
1624
We do insist on compliance with that.
1625
We have, in certain states, made certain arrangements, where the state
wants three or four agents all calling out of the same office. When they are calling from cellphones,
they want them to display one number, so that that number is associated with our
company and not the individual cellphone.
1626
We have honoured those requests, but, in general, we will not allow
anyone to do anything to impede caller ID.
1627
COMMISSIONER DUNCAN: The
caller ID in the U.S., does it also include the name?
1628
Would Primerica show up, as well?
1629
MS LOOMIS: I would think
that it might, depending on your equipment, but I simply don't know the answer
to that.
1630
We certainly wouldn't impede that showing up from our end. We wouldn't allow anyone to do so, but I
don't know about the technological aspects.
1631
MS BILHAN: It may be,
though ‑‑ and I am not sure, technologically, how this would work, but it
may be a problem for an individual agent to show their number as
Primerica ‑‑ have it show up as Primerica.
1632
Again, you know, we are not technical experts
whatsoever.
1633
COMMISSIONER DUNCAN: But
does it show up with their name?
1634
Probably not, if it is a common number.
1635
MS BILHAN: Their name and
phone number would show up, depending on whether your caller
ID ‑‑
1636
We would certainly not, as a company, endorse any situation where an
agent would be hiding their name or number. We would not tolerate
that.
1637
COMMISSIONER DUNCAN: You are
just not aware of the technical circumstances.
1638
MS BILHAN: Yes, that's
correct.
1639
COMMISSIONER DUNCAN: That's
fine, we can follow up on that.
1640
I don't know if you were silent on the need for internal Do Not Call
Lists, or did you indicate ‑‑
1641
MS BILHAN: In our original
submission, I think in our March submission, I suggested that there would not be
a need for an internal Do Not Call List for companies who don't have a specific
exemption, but we do currently keep an internal Do Not Call List. We have 200,000 life insurance
policyholders in Canada, and about, I believe, half a million mutual fund
accounts, and we only have 200 people on the list.
1642
So, by and large, it is not an issue for us. We can keep one, but, as a principle, I
just thought that duplicating lists may not be as good an
idea.
1643
COMMISSIONER DUNCAN: Hearing
some of the evidence, this morning I referred to the Registered Education
Savings Plan Dealers and their point that some consumers may not want to be on
Company A's list, but they still don't want to be removed from the whole
list. That is good for the
consumer, and it also makes business opportunities for other
companies.
1644
MS BILHAN: That's
right.
1645
COMMISSIONER DUNCAN: That
would seem reasonable to you?
1646
MS BILHAN: It seems
reasonable, and I am aware that a number of our ‑‑ we are a member of the
CLHA, and I am aware that a number of the member companies share that view. So we would not object to
that.
1647
COMMISSIONER DUNCAN: Thank
you.
1648
With respect to calling hours ‑‑ and I have the FCC rules. They say that they are 8:00 to 9:00, and
I assume that is seven days a week.
1649
We have had a number of different recommendations.
1650
The first thing I would like to ask you about is whether you feel that
time calling restrictions should apply to voice calls.
1651
Currently, in Canada, they only apply to fax calls.
1652
MS BILHAN: We do not have an
opinion on voice calls. Our calls
are live calls.
1653
Is that what you mean?
1654
COMMISSIONER DUNCAN: Yes,
that's what I mean, live calls.
1655
There are restrictions now on unsolicited faxes, and those are 9:00 a.m.
to 9:30 p.m., Monday to Friday, and 10:00 a.m. to 6:00 p.m., Saturdays and
Sundays.
1656
The first thing is, that is just for faxes. There are no restrictions on voice
calls.
1657
Should there be?
1658
MS BILHAN: I would think
that it would be reasonable to assume that there should be some limitations in
terms of call times, and we would not object to those.
1659
I believe that the CMA put forward fairly reasonable timelines. They seemed reasonable to us, anyhow,
and we would be happy to comply with those.
1660
COMMISSIONER DUNCAN: Do you
use faxes much at all?
1661
Probably not.
1662
MS BILHAN: No, we
don't.
1663
COMMISSIONER DUNCAN: Is
there some suggestion that, in the interests of symmetry ‑‑ because it is
difficult to follow the rules when they are differing from fax to voice. I don't suppose you see any issue with
making them the same.
1664
MS BILHAN: No, I am sure it
would be great to have harmonized rules.
I am just not sure what the hours are, but, if they are reasonable hours,
we would be happy to comply.
1665
COMMISSIONER DUNCAN: Monday
to Friday, 9:00 a.m. to 9:30 p.m., and then Saturdays and Sundays, 10:00 a.m. to
6:00 p.m. I am not quite sure what
the CMA reference is, but ‑‑
1666
MS BILHAN: Yes, that seems
fairly reasonable to us. We would
be happy to comply with that.
1667
COMMISSIONER DUNCAN: With
respect to predictive dialling devices, the FCC allows a 3 percent call abandon
rate, or insists on it, and the CMA and the companies state that a 5 percent
benchmark is appropriate.
1668
In Decision 2004‑035, that was what was recommended, as well. That is the stayed
decision.
1669
What is your experience in the States, or do you use predictive
dialling?
1670
MS BILHAN: We
don't.
1671
MS LOOMIS: We don't allow
it.
1672
COMMISSIONER DUNCAN: Do you
use ADADs, Automatic Dialling and Announcing Devices?
1673
MS BILHAN:
No.
1674
COMMISSIONER DUNCAN: Are
they allowed in the States? Do you
know?
1675
MS LOOMIS: I don't know if
they are allowed in the States. We
don't allow them as a company policy, so I simply don't know, I'm
sorry.
1676
COMMISSIONER DUNCAN: So it
is not something that you just didn't consider, you don't allow
it.
1677
MS LOOMIS: We don't allow
it.
1678
COMMISSIONER DUNCAN: Thank
you.
1679
Do you have a feel for how much it would cost for a new business or a
company that is, for the first time, going to have to comply with Do Not Call
List rules?
1680
Do you know how much it would cost them in terms of hardware and software
to set up to do that?
1681
MS LOOMIS: I really
don't. We were doing it on a very
broad scale, and it was expensive.
1682
COMMISSIONER DUNCAN: It was
expensive?
1683
MS LOOMIS:
Yes.
1684
COMMISSIONER DUNCAN: Do you
have an experience with third party providers, or do you do all of your things
yourself ‑‑ scrubbing the list and ‑‑
1685
MS LOOMIS: We scrub our
list. We have also purchased, to
provide for our agents, a service, and we purchased a certain number of PINs, if
you will, that allow this service, which is endorsed by the NASD and other
organizations, and they provide 24/7 real‑time scrubbing on a per call
basis.
1686
It is more expensive. We
provide our own 24/7 access via an internal computer network, but we have
availed ourselves of that, and we certainly can see the benefit of that; and
that company does not make calls, they screen calls. That's all they
do.
1687
So they do buy the list. We
buy it also, but they will actually screen calls for you. So they are in possession of those
lists.
1688
COMMISSIONER DUNCAN: And
they buy the list directly from the Do Not Call List
operator?
1689
MS LOOMIS: It is our
understanding that, yes, they do.
1690
We buy it also. We cannot
avail ourselves of the service unless we have independently purchased the list,
but they rely on a direct electronic transmission to update their own
list.
1691
COMMISSIONER DUNCAN: Thank
you.
1692
With respect to the fee structure ‑‑ and I don't know how much
opportunity you have had to give to the consideration of what the fee structure
would be, but I understand that in the U.S. the fees are charged based on the
number of area codes for which information is retrieved, and the first five are
provided at no charge.
1693
The companies suggested that the fees might be based on a per access
basis.
1694
In the U.K., they have a fee structure that is based on a number of
tiers, based on the type of licence you have.
1695
I am just wondering if you have a view on the rate structure, what it
should be like, and if you have a view on how smaller organizations could be
given special consideration in that structure.
1696
MS BILHAN: We have looked at
the U.S. model, and we feel that there is a pricing and registration ‑‑ and
by registration I mean company registration to the DNCL ‑‑ in place, which
seems to be working fairly well for most parties.
1697
As you mentioned, there are allowances made for smaller parties to access
the list for free.
1698
We feel, from a global compliance perspective, that it would be a very
beneficial thing for the CRTC to consider.
Obviously, the more people who can access the list, the more compliance
you will have with the list. So we
would support that.
1699
However, I don't think that five area codes for free would work in
Canada, simply because there is only a limited number of phone codes here to
begin with. So I think you would
drastically reduce the number of people who are actually paid users of the DNCL,
which would increase the costs for the larger users
significantly.
1700
I would think that it might be some sort of tiered approach, where you
would allow smaller users or occasional users to access on a per call basis, and
allow larger users to purchase the list as sort of a different licensing, I
guess, at a different cost, at a higher cost, understanding that those companies
may have compliance requirements that will necessitate that they purchase the
list and provide it to their sales force, such as in our
case.
1701
We would feel compelled to buy the list and scrub it for our sales
force. Although they are
independent contractors, they certainly are exclusive contractors of Primerica,
so we would have some sort of corporate responsibility to ensure that they are
using the correct list.
1702
So, in our case, we should not have to pay 7,000 times whatever the cost
is of accessing the list, we should be able to corporately purchase the list and
have our sales force avail themselves of the list.
1703
COMMISSIONER DUNCAN: Thank
you very much.
1704
Going back to your agents, do they maintain their own individual internal
call lists now?
1705
MS BILHAN: We maintain one
at head office, and we do have a 1‑800 number; not specifically for the Do Not
Call List, but we do have a 1‑800 number where they can call and list
themselves. Or, if they have told
one of our agents that they don't want to be contacted by them, then the agent
reports it to us, and, again, centrally, we place them on the
list.
1706
MS LOOMIS: If we take a
broad view of the internal lists, so that if all five of you were agents and
someone said, "Please don't call me again," we would consider it to be
applicable to all of our agents.
1707
MS BILHAN: All of
Primerica.
1708
In other words, we don't want one agent calling the person, and they say
"Don't call me again," and then, you know, Agent X calls them the next day, et
cetera.
1709
To prevent that, we keep the list centrally. It just makes more sense for our
business model.
1710
COMMISSIONER DUNCAN: With
respect to business‑to‑business calls, does the U.S. allow business‑to‑business
calls to register on the Do Not Call List?
1711
If I am a business, am I allowed to register on the Do Not Call
List?
1712
MS LOOMIS: It is my
understanding that you do not, but I don't want to state
that.
1713
Our company takes the position that if someone has registered a business
number, it can't be called.
However, it seems, once again, that business‑to‑business calls are more
in the nature of what you would anticipate. There is not as great an expectation of
privacy as you have in your home.
You have a commercial enterprise going, where anyone can call you off the
street at any point. Indeed, you
welcome those calls.
1714
So a business‑to‑business kind of call does not fall into the same kind
of protected category as something that would call into your
home.
1715
COMMISSIONER DUNCAN: Would
you answer differently with respect to home‑based
businesses?
1716
MS LOOMIS: I think that
home‑based businesses are difficult.
They are an anomaly.
1717
On the one hand, I don't know which would
prevail.
1718
You have your home‑based business listed, and you certainly are welcoming
calls of a commercial nature into your business every day, if they are
purchasing your product or service, and yet you would say, "I want to put my
number on the list."
1719
We honour those requests, but, philosophically, I don't know, that is a
difficult kind of issue.
1720
COMMISSIONER DUNCAN:
Technically, is there a way to distinguish those
calls?
1721
MS LOOMIS: I don't think
there is any way to distinguish the calls.
1722
COMMISSIONER DUNCAN: Thank
you. Those are my
questions.
1723
THE CHAIRPERSON:
Commissioner Cugini.
1724
COMMISSIONER CUGINI: Good
afternoon.
1725
I have one question. The
Direct Marketing Association in the U.S., in their written submission, strongly
urged, I would say, us to provide as much symmetry as possible, wherever
possible, between the Do Not Call List rules in the States and those that we
will be developing here in Canada.
1726
First of all, do you agree with that position? Do you think that it is important that
we provide as much symmetry as possible?
1727
MS LOOMIS: I think that
symmetry certainly would help companies such as ours, although I do understand
that there will be differences in sensitivities that you have that we might not
have.
1728
But, from a selfish point of view, yes, I know how to do it, so, for me,
it would be much greater. On the
other hand, there are certain things that the U.S. model is more constrictive on
that we would hope we would get greater latitude on in
Canada.
1729
COMMISSIONER CUGINI: You
mentioned, obviously, the personal relationship exemption, which, I am assuming,
given your presentation this afternoon, is probably your highest
priority.
1730
MS LOOMIS:
Yes.
1731
COMMISSIONER CUGINI: Are
there other areas of the rules that you think would be helpful, if there was
some symmetry?
1732
MS LOOMIS: I think that
symmetry and expectation in terms of time of call would make a lot of
sense.
1733
We have agents who are sitting on borders, and for them to know that if
they could call at a certain time here, they could call at a certain time
there.
1734
Because you are protecting Canadian residents. You may have people calling in the
States that are actually calling across those borders, just as you have Canadian
people who may be calling across borders into the U.S., and I think that the
more that that is consistent, it will eliminate unnecessary
compliance.
1735
So I think that would be one area, certainly, where we would see that
consistency would be helpful and important.
1736
COMMISSIONER CUGINI: Thank
you. That's
all.
1737
THE CHAIRPERSON: I would
like to go back to the personal exemption, just to make sure that I understand
it completely.
1738
You have an exclusive distribution network consisting of people who work
100 percent selling your products and servicing the clients thereof, and you
don't distribute your products by any other network than those 7,000 folks, but
they are not your employees.
1739
MS LOOMIS: That's
right.
1740
THE CHAIRPERSON: In order to
provide them with guidance, because there are 7,000 of them, you have to write
things down in a way that, to quote Ms Loomis, has no latitude for common
sense. I have a lot of sympathy
with that, because we do a lot of that kind of
thing.
‑‑‑ Laughter /
Rires
1741
THE CHAIRPERSON: Even Stuart
does that on occasion, against his better judgment.
1742
I mean, Commissioner Langford, excuse me. Commissioner Langford does that
occasionally.
1743
What I have been wrestling with is that the necessity for the exemption
is to legitimize your advice to your agents that they can call friends,
relatives and acquaintances, always with the caveat that the ultimate arbiter of
the legitimacy of that relationship is the called party.
1744
MS LOOMIS: Yes. And I think that it extends beyond our
company, although, certainly, I am asking on behalf of our
company.
1745
THE CHAIRPERSON: I
understand. You are not the only
person who raised it, it is just that you are a party with a little more
practical experience than some of the people we have raised it with, and I am
trying to understand it.
1746
Let's take a hypothetical case, so that I can understand
this.
1747
The exemption is not there.
An agent calls an acquaintance.
The acquaintance takes umbrage and says, "I am really not your
acquaintance for the purposes of purchasing Primerica products. My name is on the Do Not Call List. I am going to
complain."
1748
The problem then is that your agent has no defence.
1749
Is that correct, or am I missing a point?
1750
MS LOOMIS: That agent would
have no defence, in any event, because the person that was called said, "I am
not family, a friend or an acquaintance."
1751
THE CHAIRPERSON: That is
what I am getting to.
1752
MS LOOMIS: The issue that we
have is, when we go out and train, which we do ‑‑ we provide a lot of
training for our agents ‑‑ we go out, and I am faced, and would be faced,
with the uncomfortable position of saying, "You can't call your mother or your
brother," and he says, "But that's who my business is with." "I'm sorry, it doesn't matter, you can't
call them. That's what the law
says."
1753
Although, certainly, it has been said before that the law is an ass, I
don't think we want it to be in this context beyond what Dickens said. It is a very difficult thing to say with
a straight face: "You cannot make these calls. They are prohibited by
law."
1754
THE CHAIRPERSON: I think it
was Shakespeare.
1755
MS LOOMIS: Shakespeare, you
are right.
1756
MR. MILLINGTON: No, it was
Dickens.
1757
THE CHAIRPERSON: He is my
ultimate authority, Ms Loomis. We
all have to bow before his knowledge to be safe.
1758
MS LOOMIS: Shakespeare said,
"Let's shoot all the lawyers."
‑‑‑ Laughter /
Rires
1759
THE CHAIRPERSON: Without
this additional exemption, we do not equip you to advise your agents that such a
call would be legal. You might be
able to advise them that the likelihood of a complaint is no greater with or
without the explicit licence from us to give the advice,
however.
1760
MS LOOMIS: We could, and
that would be a struggle. But I
think that, obviously, what we would like is simply to memorialize what I think
we understand to be the parameters of the common sense.
1761
We would instruct our agents that the call is
prohibited.
1762
MS BILHAN: Mr. Chair, it is
kind of like having a three‑lane highway, or a six‑lane highway, where normally
you would be driving 100 kilometres an hour in Ontario. That is generally the law. And then, all of a sudden, you hit a
patch of highway and the law says, "Sixty kilometres." Chances are, people are not going to
comply. It is just common sense
that that highway was built for a speed of 100 kilometres.
1763
We should not be making laws or rules, or trying to enforce them, when
they go against people's intuition and their common sense.
1764
For a company such as ours ‑‑ as you mentioned, we have 7,000
contractors. We have to have some
sort of compliance structure. We
have to have a compliance structure that, at all times, is in sync with the
law. Whether it makes sense in our
case or not will not be a discussion that we will be having with our
agents. We cannot say, "Use your
imagination." Obviously, if it is
your mom, you should be able to call.
1765
We are, basically, going to be asking our sales staff to be breaking the
law, for all intents and purposes, because, whether we like it or not, they are
going to say, "That's ridiculous.
Of course I am going to call my brother‑in‑law. It is not up to my company to decide, it
is not up to the regulator to decide."
1766
We understand that those are not the types of calls that cause
concern.
1767
Earlier you mentioned the peewee hockey league. They call once a year in their community
because they are raising funds to send the kids off to some tournament. I understand that the CRTC would,
obviously, not be charging those moms with breaching C‑37, but, still, the fact
remains that we have created a situation where those mothers are breaching the
law.
1768
So for the integrity of the rules to be respected, we are suggesting that
they be clarified, and explicitly say that these are not the types of calls we
are trying to protect the public from.
1769
Again, we are not suggesting that you take away the public's right to
object to those calls. Certainly,
people should be able to complain and say, "You know what? You are certainly not related to
me. It was completely uncalled for
for you to be calling me on a Sunday night to sell me life insurance." That complaint would be legitimate. We would respect
that.
1770
THE CHAIRPERSON: I think we
have as much on the record as we are going to get.
1771
Commission Cram.
1772
COMMISSIONER CRAM: On the
personal relationship one, there is no defence if you are
family.
1773
If my ‑‑ and he isn't ‑‑ loser
brother ‑‑
1774
THE CHAIRPERSON: I hope he
is not looking after your dog, Barb.
1775
COMMISSIONER CRAM: No, he is
not looking after my dog.
‑‑‑ Laughter /
Rires
1776
COMMISSIONER CRAM: If my
loser brother, who had 900 different jobs, and I bought life insurance from him
from ten different places as he moved along, and had an unsatisfactory time with
them all, phoned me up, there is no way that I could ‑‑ I may have disowned
the guy, but there would still be no defence; right?
1777
MS LOOMIS: That is an
interesting question.
1778
When the FCC noted it in a rule and said that it would be up to the
person called to determine whether defence applies, you wonder if you would say,
"I don't think he is my brother."
1779
I'm not sure. It hasn't come
up yet, but it is kind of interesting to say, "My mother? What mother?"
‑‑‑ Laughter /
Rires
1780
MS LOOMIS: That hasn't
arisen yet, and yet you would assume, to take the common sense protection one
common step forward, that your mother is your mother and your brother is your
brother.
1781
COMMISSIONER CRAM:
Yes.
1782
MS LOOMIS: But it is not
clear.
1783
COMMISSIONER CRAM: The same
with if my cousin, removed four times, phones me. The same issue?
1784
MS LOOMIS: I think it is the
same issue. I think that to
preserve the integrity of this defence, which is to protect common sense
behaviour, so that it is not a technical violation ‑‑
1785
If your cousin says, "I am on the "no call list"," then they have the
right to complain.
1786
COMMISSIONER CRAM: But at
least there, as a consumer, you would have the ability to say, "Look, I am his
42nd cousin. This is a little
ridiculous."
1787
MS LOOMIS: Yes, I think
so.
1788
COMMISSIONER CRAM: We would
end up having these people making their family trees
and ‑‑
‑‑‑ Laughter /
Rires
1789
MS BILHAN: No, I don't think
we would be expecting that ‑‑
1790
MS LOOMIS: Especially down
south. You know, we have that issue
with all of the extended family trees.
‑‑‑ Laughter /
Rires
1791
COMMISSIONER CRAM:
Yes.
1792
MS BILHAN: I think that the
FCC makes it very clear that the burden of proof is on the caller to defend
themselves and explain why they have made the call, and it is up to the called
party to determine whether they have been comfortable with the
call.
1793
If they say, "No, I wasn't personally that well acquainted with this
person to be calling me on a Sunday evening," they certainly have the right to
complain. It doesn't take their
right to complain away.
1794
COMMISSIONER CRAM: Thank
you.
1795
Thank you, Mr. Chair.
1796
THE CHAIRPERSON:
Counsel.
1797
Me MILLINGTON:
Merci, monsieur le présidente.
1798
I also would like to spend a little bit of time on this personal
relationship exemption.
1799
This has been in place since the very beginning?
1800
MS LOOMIS: Yes, it has
been.
1801
MR. MILLINGTON: You
mentioned in your brief that you gave us today that it has garnered few
complaints.
1802
Is that for everybody or just in relation to your
company?
1803
MS LOOMIS: For everyone it
has garnered very few complaints.
In the 1995 Report to Congress, it was stated that less than 1 percent of
those on the list complained.
1804
In regard to our company, we have had zero
complaints.
1805
MR. MILLINGTON: Are the
complaints tracked with respect to this particular
exemption?
1806
MS LOOMIS:
No.
1807
MR. MILLINGTON: So we
couldn't get to the granularity of people actually invoking this exemption
wrongly, as an example.
1808
MS LOOMIS: No, we
couldn't. And I did go out to try
and do some research before I came to simply see if we would find articles that
said "found palatable" or "found outrageous", or whatever. And I could not find anything on my
Google search.
1809
MS BILHAN: If I may, we
would suggest strongly that there be certain things that be traced, such as what
types of complaints the operator is receiving, for the purposes of the
three‑year legislative review where certain findings can be put in
place.
1810
If I also may add, in the United States we have 100,000 independent life
insurance agents working for us. So
out of the 100,000 people who made calls, we have received zero complaints from
the FCC.
1811
So that is a fairly significant number.
1812
I understand that in the scheme of the overall market it doesn't provide
a great statistic, but 100,000 is not an insignificant number
either.
1813
MR. MILLINGTON: Under the
U.S. system, when a person complains are they required to give their name as the
complainant?
1814
For example, would one of your agents through the complaint process know
that it was actually their mother that complained, or would they know it was the
soccer mom from down the street?
1815
If the anonymity is not available to the friend's family and
acquaintances group, then I wonder if that vitiates that whole process? If you know you are going to get called
out at the next soccer practice, maybe you don't declare the
party.
1816
MS LOOMIS: I wish I could
comment, but we've never had a complaint.
So I don't know.
1817
MR. MILLINGTON: You don't
know, in terms of the U.S. system, whether the identity of the complainant is
revealed?
1818
MS LOOMIS: I do not. We have never had a complaint. We have had a few state complaints where
the state law is at variance with the federal law. Typically when we work them through, we
come to a resolution.
1819
In those complaints I know the identity of the
complainant.
1820
MR. MILLINGTON: So it is
reasonable to assume that had there been one of this type, you would have also
gotten the identity?
1821
MS LOOMIS: I don't
know.
1822
MR. MILLINGTON: Could you
find out?
1823
MS LOOMIS: I don't know at
first, but when we get a complaint immediately I call the
regulator.
1824
MR. MILLINGTON:
Right.
1825
MS LOOMIS: The regulator
will tell me the incidents so that I can investigate it, because we have our own
discipline process that we invoke even if they have technically gotten
off.
1826
So I do know the identity of the person calling so we can check and
confirm the details of it.
1827
MR. MILLINGTON: Could you
undertake to let me know whether in this particular instance the identity would
be revealed?
1828
MS LOOMIS:
Yes.
1829
MR. MILLINGTON: I was
interested in the ballgame scenario and writing on the back of the peanut
bag. Here we would probably be out
at the Scotia Bank Place writing on the back of a popcorn box, but the same fact
scenario pretty much, particularly at this time of the
year.
1830
I am wondering of the effect, the downstream effect, of the awkwardness
of this express written consent requirement. Has that, in your view, driven
non‑compliant behaviour as a possible result?
1831
MS LOOMIS: It has generated
a lot of complaining, I'll tell you that.
1832
MR. MILLINGTON: By your
agents.
1833
MS LOOMIS: Yes. I don't think it has probably generated
non‑compliant behaviour because if they were going to just go ahead and do it
anyway, they wouldn't be complaining about it and draw attention to the
issue.
1834
And it remains a problematic issue, which I think indicates that they
know that they must do it.
1835
MR. MILLINGTON: Again, I
think you said that the express written consent requirement comes out of the
U.S. rules of evidence essentially.
1836
MS LOOMIS:
Yes.
1837
MR. MILLINGTON: As opposed
to your own internal requirements.
1838
MS LOOMIS: That comes
directly out of the law. Express
written consent has to be in writing and then ‑‑ whether it has to be, I
think it is assigned writing. Then
we require that they also put down their telephone number and the date and the
time.
1839
I don't think that those are requirements of the federal law. I think the federal law is you could
have a pad of paper that says check yes, please call me about the new Ford car
and sign it.
1840
MR. MILLINGTON:
Right.
1841
MS LOOMIS: I think that
would probably be sufficient.
1842
MR. MILLINGTON: A little box
to check and say call me in 12 months and sign your name. That would be
fine.
1843
MS LOOMIS: I think you could
do that and be compliant. That is
not how we do it.
1844
MR. MILLINGTON: What about a
box or a window that opens up on a computer screen that would have the same kind
of information displayed and you put an X in the square that says "yes, please
call me" and you give some form of electronic signature of just the fact of
sending back a return e‑mail from your own e‑mail address.
1845
Would that satisfy?
1846
MS LOOMIS: I don't know
whether that would satisfy the federal law. We probably would not deem it
satisfying.
1847
MR. MILLINGTON: You would
not.
1848
MS LOOMIS: Because of
potential for abuse.
1849
MR. MILLINGTON:
Right.
1850
Thanks very much.
1851
LE PRÉSIDENT : Madame la
Secrétaire.
1852
LA SECRÉTAIRE : Oui,
monsieur le Président. J'ai une
undertaking to provide to Primerica.
1853
THE CHAIRPERSON: Thank you
very much. Much appreciated. Very helpful.
1854
MS BILHAN: If I may
ask ‑‑
1855
THE CHAIRPERSON: Please sit
down to get close to the microphone.
1856
MS BILHAN:
Sorry.
1857
In response to Commissioner Duncan earlier with regard to costs, we are
actually actively working with the two CISC groups as well. So we are raising a number of other
issues and concerns through those structures.
1858
COMMISSIONER DUNCAN: As you
know, it will all work its way through the process. So we appreciate that. Thank you.
1859
MS BILHAN: Thank you for
your time.
1860
THE CHAIRPERSON: Thank
you.
1861
THE SECRETARY: The next
participant is Canadian Marketing Association, Mr. Wally
Hill.
1862
THE CHAIRPERSON: While we
are at it, Madam Secretary, I don't suppose we are going to get to Contact New
Brunswick today.
1863
I am just thinking, as a matter of courtesy to those people, if they want
to stay ‑‑ and we hope they will ‑‑ it would probably be likely that
we will see them at 9 o'clock tomorrow.
1864
THE SECRETARY: All
right.
PRESENTATION /
PRÉSENTATION
1865
MR. HILL: Good afternoon,
Commissioners. Thank
you.
1866
I would like to introduce those with me here this
afternoon.
1867
Lorraine McLachlan, to my left, is our Vice‑President responsible for the
administration of our Canadian Marketing Association do not contact
program.
1868
To my right is Elizabeth Harvey from the Canadian Marketing Association
as well.
1869
The sale and service of goods and services by telephone is a big
business. It is not just a few
thousand companies. Almost every
business in Canada uses the telephone for marketing. It generates over $16 billion in sales
and employment for over a quarter million
Canadians.
1870
The Canadian Marketing Association is consistent proponent of responsible
marketing, self‑regulation and reasonable government regulation. As such, we have consistently supported
the establishment of a national Do Not Call service in principle. It is simply not good business to annoy
customers who may be better reached through other
channels.
1871
However, beyond our support in principle, we believe that certain
regulations are necessary to clarify the Commission's intent so as to not
inadvertently harm an over $16 billion industry and the hundreds of thousands of
jobs it generates.
1872
We have submitted an extensive and detailed written submission but today
we would like to focus on three issues.
1873
First, it is critical to clearly define the scope and application of the
national DNCL. All discussion of
the legislation that created the DNCL was framed by the general assumption that
it will protect Canadian consumers from the annoyance of unwanted telemarketing
calls.
1874
That being the case CMA believes that business‑to‑business, or B‑to‑B,
communications should not be affected by the new DNCL, as is the case in the
U.S.
1875
Comments from the Senate Committee which considered Bill C‑37 indicated
that it was not the intent of Parliamentarians to intervene in day‑to‑day
communication between businesses.
And certainly a key existing statute, PIPEDA, does not cover business in
relation to employee names, titles, address, phone numbers for purposes of
contact.
1876
The CMA believes that including B‑to‑B communication in the DNCL would
result in undue interference in the day‑to‑day commerce.
1877
B‑to‑B calls are a part of the fabric of daily business affairs and
including these calls in the DNCL could have significant economic consequences
for the business sector.
1878
B‑to‑B telemarketing sales campaigns are often based on rather small and
targeted contact lists as opposed to larger consumer
campaigns.
1879
For example, we don't think it is desirable or economically feasible for
the DNCL regulations to require that a sales person check his or her small
personal call list against the national list.
1880
Finally, unlike calls to consumers, there has been limited, if any,
demand for the DNCL to limit telemarketing to business. The CMA believes that a requirement for
business telemarketers to maintain internal Do Not Call Lists is more than
adequate to cover any concerns about this category.
1881
A second important issue the CMA would like to see the Commission address
in setting regulations relate to the issue of enforcement of the DNCL and other
telemarketing rules.
1882
Paragraph 19 of the Public Notice states that the Commission intends not
only its authority to administer the DNCL database to a third party, but also
its authority to investigate allegations of contraventions of the DNCL and other
telemarketing regulations.
1883
The CMA does not believe that the CRTC should delegate the powers to
handle telemarketing, complaints to issue notices of violation or to propose
administrative monetary penalties to the list operator or any separate
administrator.
1884
CMA believes that complaints handling related to enforcement of laws and
regulations are best conducted by the responsible government department or
agency.
1885
The confidence of consumers and business in the fairness and impartiality
of such quasi judicial investigative processes and findings can best be
maintained where these are handled by a public body.
1886
We are also concerned that it will not be possible to find a list
operator without a conflict of interest.
Potential list operators may include database companies, telcos or others
who would be forced to investigate, and possibly penalize, their own customers
or members.
1887
The third issue we would like to address today is that of costs relating
to the DNCL.
1888
The CMA's support of a national Do Not Call List has always been based on
the contention that any system must be accessible and affordable for
telemarketers. We remain supportive
of a DNCL model whereby consumers can register free of charge and telemarketers
pay a reasonable, non‑prohibitive access fee to offset database operations
costs.
1889
To ensure that the DNCL can be offered free to consumers while
maintaining affordable access fees for marketers, we believe that the government
must assume responsibility for the execution and costs beyond database
operation. Such additional costs
include list operator oversight, the consortium that has been talked about
earlier today, complaint investigation and enforcement.
1890
The CMA submits that to burden telemarketers with costs beyond fees to
cover database operations could have a negative impact on the decisions of many
Canadian businesses and not‑for‑profits to make use of telecommunications to
market their products and services.
1891
DNCL fees are not only going to be borne by large businesses and
telemarketing agents but also by small businesses, individual proprietors and
not‑for‑profits who rely on the telephone to market their goods and services or
raise money.
1892
Such a model would pose a significant threat to the over $16 billion
telemarketing industry.
1893
Affordable and accessible access fees will encourage compliance with the
DNCL, in turn reducing follow‑up complaint and investigation costs. We do not believe that Parliament
intended that telemarketers would pay for enforcement of the DNCL and other
telemarketing regulations in addition to the database
operation.
1894
In introducing C‑37 on December 13, 2004, the Minister of Industry stated
that funding for the operation of the list would be obtained on a cost recovery
basis from telemarketers.
1895
We would also note that during the Parliamentary hearings, CRTC
Vice‑Chair Richard French advised MPs that C‑37 did not specify that
telemarketers should pay for the implementation costs.
1896
We would strongly support the Commission in approaching Industry Canada
to clarify how the government will fund the CRTC in its new role to cover the
new DNCL and related telemarketing regulatory
responsibilities.
1897
Finally, with regard to other existing or potential telemarketing
regulations, CMA believes that it makes sense that these be consolidated with
the DNCL rules if the costs of the oversight and enforcement components are not
to be covered by the DNCL subscription fees.
1898
Our views on the related telemarketing rules have been set out in more
detail in our written submission, but they include:
1899
‑ a recommendation that internal Do Not Call Lists should be required for
all sellers who market by telephone, including those covered by the
DNCL;
1900
‑ a recommendation that universal telemarketing call hours be established
for all types of telemarketing;
1901
‑ a recommendation that a call abandonment ceiling be established for
automatic diallers, as was suggested in CRTC Decision 2004‑35, although we
remain of the view that the other elements of Decision 2004‑35 are unnecessary
costs now in light of the new national DNCL.
1902
In conclusion, I will summarize the three points the CMA has addressed
here today.
1903
First, we would like to avoid unintended economic costs and interference
in day‑to‑day commerce by clearly limiting the application of the DNCL to the
central issue of protecting consumers.
1904
Second, maintain consumer and business confidence in the fairness and
impartiality of the quasi judicial investigation and findings processes by
having the CRTC itself retain the enforcement function surrounding the DNCL and
other telemarketing rules.
1905
Third, the CMA's support of a national do not contact list has always
been predicated on the assumption that the service would be established in a way
that balances consumer interests with affordable access for
telemarketers.
1906
While CMA supports charging telemarketers reasonable access fees to
offset database operational costs, it is important that the CRTC secure
government funding for expenses beyond the database
operations.
1907
We would like to thank all Commissioners for the opportunity to appear
before you today.
1908
THE CHAIRPERSON: Thank you
very much, Mr. Hill.
1909
Just to be clear, on your left is Ms Harvey? Thank you.
1910
MR. HILL: On my
right ‑‑
1911
THE CHAIRPERSON: I'm sorry,
on my left and your right is Ms Harvey.
1912
And of course we have Ms McLachlan.
1913
Commissioner Cugini.
1914
COMMISSIONER CUGINI: Good
afternoon.
1915
I just have a couple of general questions about your organization to
begin with, just for my own edification.
1916
You say you represent over 800 corporate members. Does that include both telemarketers and
companies who would engage those telemarketers?
1917
MR. HILL: Yes, it does. It includes both the marketers and what
we would call the service providers or telemarketers in this
case.
1918
COMMISSIONER CUGINI: Does it
include also third party sellers?
1919
MR. HILL: I'm not
sure.
1920
COMMISSIONER CUGINI: So it
is the companies, telemarketers and perhaps even the telemarketers would then
engage third parties to actually conduct those further
calls?
1921
MR. HILL: Well, I was
actually referring to the third parties as the
telemarketers.
1922
COMMISSIONER CUGINI:
Okay.
1923
MR. HILL: Call centre
operations. The fact of the matter
is that the companies that you refer to in the first level are the marketers and
they use a host of service providers, database providers, call centre operators
and so on.
1924
COMMISSIONER CUGINI: Do you
have an estimate as to how many would be telemarketers and how many would be the
call centres of your membership?
1925
MR. HILL: That would be
hard. No, I don't have one here
today.
1926
I could provide you with some numbers.
1927
COMMISSIONER CUGINI:
Sure. That would be great,
if possible.
1928
MR. HILL:
Yes.
1929
COMMISSIONER CUGINI: You do
operate, as you said, your do not contact service. So maybe Ms Harvey would like to
answer these questions.
1930
How do consumers indicate their desire now to be placed on this do not
contact service?
1931
MS McLACHLAN: I will speak
to that. Lorraine
McLachlan.
1932
COMMISSIONER CUGINI: All
right.
1933
MS McLACHLAN: Consumers are
able to let us know that they would like to be on that service, either by
internet through our website, by mail or by fax.
1934
COMMISSIONER CUGINI: How do
you acknowledge receipt of this request, or do you acknowledge
receipt?
1935
MS McLACHLAN: We do not
acknowledge receipt.
1936
COMMISSIONER CUGINI: Is the
request then for all of your member companies, or can they specify which
companies they don't want to be contacted by?
1937
MS McLACHLAN: They cannot
specify. Our Code of Ethics and
Standards of Practice say that for prospecting calls or marketing campaigns, CMA
members must use the do not contact suppression service.
1938
COMMISSIONER CUGINI: So by
the same token, if a consumer wants to then be delisted, can they also do that
from your do not contact service?
1939
MS McLACHLAN:
Certainly.
1940
COMMISSIONER CUGINI: And the
same process would apply.
1941
MS McLACHLAN:
Exactly.
1942
COMMISSIONER CUGINI: Do you
have live answering staff?
1943
MS McLACHLAN: We do have a
receptionist, yes.
1944
COMMISSIONER CUGINI: Who
would take those calls from consumers?
1945
MS McLACHLAN: If somebody
calls into the office, yes, we do handle that.
1946
COMMISSIONER CUGINI: Do you
have a complaint process?
1947
MS McLACHLAN: Yes, we
do.
1948
COMMISSIONER CUGINI:
Formalized?
1949
That is, if a consumer wanted to know what the process would be that they
would have to follow in order to file a complaint with the CMA, is that
something that is readily available to them?
1950
MR. HILL: Yes, that is
covered in our Code of Ethics.
1951
They would raise the issue with the association. Our process would be that we would, in
turn, raise it with the member to have them investigate what had happened, and
either correct the problem or explain the
problem.
1952
If that was not done to our satisfaction in terms of there being further
problems, the ultimate sanction in the case of our organization, is to expel an
offending member from the organization.
1953
We have never arrived at that situation. Members are always pleased to correct
the situation and address any oversights.
1954
COMMISSIONER CUGINI: Does
one complaint equal an investigation or do you accumulate a number of complaints
before you would investigate the complaint?
1955
MR. HILL: Our system has
worked quite well and we have very few complaints. Invariably when a consumer raises an
issue with us, we pass that on and initiate that first step by passing it along
to the member.
1956
COMMISSIONER CUGINI: Maybe
you are anticipating this last question.
1957
Since you have this do not contact service in place, what are the lessons
that you have learned with the operation of it that we could perhaps implement
in the Do Not Call rules?
1958
MR. HILL: Keep it lean and
keep it simple. That will be the
formula that ensures a high level of
compliance.
1959
COMMISSIONER CUGINI: Do you
believe that there should be a complaint threshold before the DNCL operator
initiates a complaint?
1960
MR. HILL: I would suggest in
this case that would probably make sense.
You are going to be operating with a different standard here. We have a new law in place. In this instance, it may make sense to
establish a threshold of a certain number of complaints before resources are
expended on a more detailed investigation.
1961
COMMISSIONER CUGINI: Do you
have any suggestion as to what that number should be?
1962
MR. HILL: Not as yet. I think there is an Operations Committee
working with representatives from our organization and others, with the
Commission, to look at establishing some of those details, thresholds in this
case.
1963
COMMISSIONER CUGINI: In
terms of the severity of complaint, should there be a graduated scale of what
type of complaint would initiate an investigation?
1964
MR. HILL: I think in this
case the complaints are going to be pretty standard: I'm on the list and I was
called.
1965
In our earlier submission we suggested that there should be some safe
harbour provisions adopted in the regulations that indicate where an
organization is able to demonstrate that they have shown the due diligence and
taken all of the necessary steps and something untoward has happened to create
the problem and the ensuing complaint, then that should be a defence that can be
taken into account.
1966
I believe that that is something that is touched on in the law itself in
fact.
1967
COMMISSIONER CUGINI: You are
one of the organizations who support a 60‑day grace period when we are talking
about when consumers are on the list and they don't want to be called in
reference to what you think would constitute a complaint.
1968
Isn't 60 days a long time to receive calls that you have already said you
don't want to receive? What is the
issue with telemarketers being able to scrub the list in a shorter period of
time?
1969
We have heard everything from 70 to 90.
1970
MR. HILL:
Right.
1971
COMMISSIONER CUGINI: You
have fallen on 60.
1972
What is the issue?
1973
MR. HILL: Our program,
internal do not contact program, involves providing the suppression list every
30 days to members. So in our case
we advise consumers who ask to be placed on the list that it will be six to
eight weeks before all the calls will have stopped.
1974
In the case of the new do not call list, in consultation with a number of
members, especially larger organizations, they have indicated to us that when
they produce the list and check it with do not call suppression lists, either
their own internal one or ours, they then send it off and it can be difficult to
be sure that they will track it down and pull it back in order to update
it.
1975
So they felt that they needed approximately 60 days, and some actually
proposed a longer period of time.
But on balance it seemed that 60 days would work.
1976
COMMISSIONER CUGINI: When
you advise consumers that it may take six to eight weeks before they are removed
from the list, what is their reaction?
1977
MR. HILL: The reaction is
that they are fine with it; acceptance.
1978
I have not had a single consumer complaint on that
point.
1979
I won't say that there hasn't been ever, but certainly in my time with
the Association people are pleased to know that they are going to be getting on
the list and that in a fairly short period of time the calls will start going
down.
1980
COMMISSIONER CUGINI: So you
think the consumers, knowing that in six to eight weeks they will be removed
from the list, will tolerate calls during that period of
time?
1981
MR. HILL: Yes. I think it is a matter of expectations
and understanding that the solution may take a little bit of time to go into
effect.
1982
COMMISSIONER CUGINI: Are
your individual members required to maintain their own do not contact
list?
1983
MR. HILL: Yes. The Commission's own rules require that
organizations maintain internal do not contact lists, and our own Code of Ethics
mirrors that rule as well.
1984
COMMISSIONER CUGINI: Just so
that I understand, your members maintain their own. And then does the CMA have a master do
not contact list?
1985
MR. HILL: Yes, we
do.
1986
COMMISSIONER CUGINI: How do
you harmonize the two?
1987
MR. HILL: That's up to the
individual organizations. We simply
maintain a do not contact list for those people who have called in. Organizations look after their own
internal lists, predominantly consisting of existing customers of theirs who are
on those lists.
1988
COMMISSIONER CUGINI: All
right.
1989
Moving on to what both in your written submission and in your comments
today is obviously one of your priorities, and that is business‑to‑business and
the issues that arise out of that.
1990
I know that you have provided a revised definition for telemarketing
wherein you include the use of telecommunications facilities to make unsolicited
calls to residential consumers.
1991
You also state in your written submission that only 3 to 5 percent of
complaints that you have received so far are related to business‑to‑business
calls in support of your position.
1992
My first question there is:
As you have mentioned, our rules currently do apply to
business‑to‑business calls. So do
you think it appropriate that they continue to apply if we say that
business‑to‑business is excluded from the do not call
list?
1993
MR. HILL: We feel that the
existing rules in place, which have been in place for the past five or six
years, should continue to apply to business‑to‑business
calls.
1994
We believe that the do not call list framework should not apply to
business calls.
1995
COMMISSIONER CUGINI: What do
you see as the potential impediments to business if we do include
business‑to‑business in the do not call list rules?
1996
What are the obstacles that business‑to‑business marketing will face if
they are placed on the do not call list?
1997
MR. HILL: We believe that it
really comes down to the day‑to‑day operations of organizations. Frequently you are talking about sales
organizations following up on very small call lists. It just doesn't make sense to require an
individual sales person to be cross‑referencing a short call list of a couple of
dozen names to organizations to require that individual to cross‑reference the
list with a do not call list.
1998
COMMISSIONER CUGINI: Even
for those businesses who also engage in telemarketing to
consumers?
1999
MR. HILL: In that instance,
in terms of their telemarketing to consumers, we would expect that they would be
using the do not call list.
2000
COMMISSIONER CUGINI: Is
there a technical reason why a business number could not be registered on the do
not call and relating that to being able to cross‑reference
lists?
2001
MR. HILL: I don't think
there is a technical reason. I
think it makes life more complex, more difficult, more of a burden in terms of
day‑to‑day business activities.
2002
Quite frankly, I think this exercise has been about addressing a concern,
a growing concern, amongst Canadian consumers in their home life, and so on, of
being annoyed, interrupted, in some cases feeling they are being hassled by
telemarketers.
2003
I don't believe that the same situation applies to the
business‑to‑business environment.
2004
Certainly we have not been exposed to complaints, and believe me, we hear
from consumers. We know what
complaints are about telemarketing.
But we do not hear from businesses.
2005
COMMISSIONER CUGINI: Not
even from home‑based or small two‑line
businesses?
2006
Do you believe that they should be afforded the same opportunity to
receive business‑to‑business calls?
2007
MR. HILL: Well, to the
extent that smaller home‑based businesses might feel that they are being
intruded upon by businesses. That
is one of the reasons that we have suggested that internal do not call lists
should be retained.
2008
Not only is it a fallback in the case where individual consumers do not
want to hear from a business that they are dealing with, it also will cover that
B‑to‑B exemption. It will cover the
charities exemption.
2009
If you talk to people, there are individuals who will say to you: I'd prefer not to hear from both
businesses or charities. The fact
is the charitable exemption has been built into the law. But keeping internal do not call lists
allows for individual consumers to make that choice, contact the organization
and get on their list.
2010
So we feel it would deal with the small home businesses, charities and
the existing customer exemption, the existing customers that we had urged be
built into the law as well.
2011
COMMISSIONER CUGINI: You do
say in your written submission that contravention of both DNCL and other
telemarketing rules should constitute a violation in respect of which an
administrative monetary penalty may be imposed.
2012
So you do support that the DNCL operator can enforce the other
telemarketing rules.
2013
MR. HILL: We support the
notion of the Commission enforcing both the DNCL and the other telemarketing
rules. I think those are two issues
there.
2014
We believe it makes sense to have some teeth in these rules so that the
Commission can enforce the rules.
That, I think, has been a challenge under the old system for
organizations. We believe that the
administrative monetary penalties do make sense.
2015
COMMISSIONER CUGINI: Then
how else would you limit the role of the DNCL operator?
2016
MR. HILL: We believe that
the DNCL operator should be limited to the administration of the list itself,
the database, taking names, having them registered on the list and working with
the various subscribers to the list to ensure that they have access to it at an
affordable rate.
2017
We believe that the enforcement dimensions of this new regime, which we
have argued should include the other telemarketing rules that don't relate to
the list, should be the mandate of the CRTC and we believe should be covered by
a funding from other than the fees paid to access the list
itself.
2018
COMMISSIONER CUGINI: In
terms of investigation of violations, do you believe that should be the
Commission or the operator?
2019
MR. HILL: Only to the extent
that the operator can verify. It
would be a very cursory first level.
The person's name indeed was on the list and in fact the company is a
subscriber, for example, if the target of the complaint is a subscriber or
perhaps failed to subscribe or did not do a download, whatever the case
is.
2020
The first level passed along to the Commission to then follow up and find
out what has gone wrong.
2021
In that instance you would be getting into potentially a more detailed
process.
2022
COMMISSIONER CUGINI: Who do
you think should be required to pay the fees to access the DNCL
list?
2023
MR. HILL: To access the list
itself?
2024
COMMISSIONER CUGINI:
Yes.
2025
MR. HILL: We believe, we
anticipate that marketers should be able to cover the costs of the list itself
and accessing the list.
2026
COMMISSIONER CUGINI: And not
the call centres that would be engaged by the marketers?
2027
MR. HILL: Well, that gets
into an issue of structuring the program.
I think there is some discussion around should there be a service bureau
model.
2028
I will let Ms McLachlan speak to that.
2029
It is possible that in some instances there might be a master licence
where a service bureau would take up that licence and provide service to
others.
2030
MS McLACHLAN: Certainly it
would make sense to have a continuum of fees for accessing the service,
everything from a bull‑blown national subscription where you could download
daily and get updates, right the way down to simple small volume number
checking, and everything in between.
2031
So if you only need it a couple of times a year, you could get what you
need.
2032
We would also suggest that being able to get numbers on a regional basis
makes sense as well and that it should be scaled
accordingly.
2033
There may also be a role for third party providers ‑‑ we would
suggest through a licensing system ‑‑ that would enable companies that were
not themselves database savvy and couldn't handle the work in‑house to be able
to hire a company to do this.
2034
In that case most likely the marketer would be responsible for the
fee. But the call centre company or
the service provider would access the list on their
behalf.
2035
COMMISSIONER CUGINI: It also
addresses the issue of small business versus big business and the graduated fee
structure in that scenario that you just described.
2036
MS McLACHLAN: It absolutely
does. And it looks to the issue of
encouraging compliance.
2037
COMMISSIONER CUGINI: Thank
you, Mr. Chair. Those are all
my questions.
2038
THE CHAIRPERSON:
Commissioner Langdon.
2039
COMMISSIONER LANGFORD:
Langdon, Smith, Jones.
2040
THE CHAIRPERSON:
Langford.
2041
COMMISSIONER LANGFORD: Going
back to this B‑to‑B, I don't quite think you have convinced me yet that there is
a mischief to having them in.
2042
Parliament didn't put them in as an exemption. There are some existing business
relationships but that is not quite the same thing.
2043
So Parliament took a good hard look at this and didn't put them in. They put in charities. They put in surveyors and whatnot, but
they didn't put in business.
2044
What is the mischief? What
is the big harm?
2045
If you are only getting a small percentage of complaints a year,
shouldn't Joe's Pizza, who only has one line, be able to say I just don't want
any more of these calls?
2046
MR. HILL: I think the issue
is just: Is it a necessary
regulatory burden?
2047
I would submit that it is not; that the issue of any irritant on a
business‑to‑business basis can be taken care of with internal Do Not Call
Lists.
2048
So let's keep it simple.
Let's keep it focused on the issue that had preoccupied Parliamentarians,
which was the consumers.
2049
In terms of the exemptions, I mean, that was an interesting process. I think at the end of the day,
parliamentarians were finding that they were assailed by outside observers when
it came to the issue of exemptions and were simply reluctant, at the end of the
day, to consider more than a very, very few.
2050
COMMISSIONER LANGFORD: Well,
we are pretty reluctant to go against Parliament's wishes. I mean, it's something we try not to
do.
2051
I can't see the fear in it.
You are talking about simplicity.
What can be simpler than all consumers of services and goods having the
same protection from annoyance, which is what this is all about? And you are saying, "Well, you get one
level of protection if you are in a house and another level of protection if you
are in an office".
2052
But I put to you that particularly small offices, maybe even Primerica
has enough staff that, you know, somebody can be assigned and, you know, they
can absorb the cost, but if you are in a small accounting office, two or three
people, a mom and pop operation somewhere, I put to you that would be just
as
annoying to them, that they
are consumers ‑‑
2053
MR. HILL:
Yeah.
2054
COMMISSIONER LANGFORD: ‑‑ that the
y are consumers of products and
services.
2055
And if you are looking for administrative simplicity, what can be easier
than the 3 percent to 5 percent you are talking about, saying, "Hey, we're on
the list. Don't bother
us"?
2056
MR. HILL: I don't think it's
an issue of preventing businesses, in this case home businesses, from
registering on the list. The
question is: who will be required
to subscribe to the list and for what purpose?
2057
So I think it comes down to a situation where those home businesses that
you are perhaps thinking about can register and would be protected from calls
that relate to a consumer product that is being sold, but they would not
necessarily be protected, to use that term, from a call coming from another
business, because that business would not be required to use the Do Not Call
registry suppression list as a cross‑reference for their own call
list.
2058
COMMISSIONER LANGFORD: Why
wouldn't they be?
2059
MR. HILL: Well, under the
suggested regime that I'm speaking of, if business‑to‑business calls were not
covered, they would ‑‑
2060
COMMISSIONER LANGFORD: So
you are essentially trying to ‑‑ don't let me put words in your mouth, but
are you essentially trying to protect or trying to take the burden off of
telemarketers who only sell to businesses?
Because if they have even one residential customer, they got to buy the
list or they have got to get access to it somehow.
2061
MR. HILL: That's true. If they were approaching people with
some sort of a consumer product.
But if the purpose of their call campaign is strictly business to
business, they would not, under our proposal, be required to use the suppression
list.
2062
COMMISSIONER LANGFORD:
That's the group you are trying to protect: the person who sells the pizza boxes to
Joe Pizza ‑‑
2063
MR. HILL:
Correct.
2064
COMMISSIONER LANGFORD: ‑‑ but doesn't sell
them ‑‑
2065
MR. HILL:
Correct.
2066
COMMISSIONER LANGFORD: ‑‑ retail?
2067
MR. HILL: Or is perhaps
trying to build a brand new business and is wanting to call and speak to
businesses of potential interest.
2068
It may, on occasion, annoy one of those businesses, but we would submit
that it is not good for the Canadian economy and good for the kinds of
situations that I just described to intervene in these areas, and not necessary,
based on the driving force behind this particular initiative, which has been the
frustration of consumers with these kinds of calls.
2069
And to the extent that there is a frustration, again, I have to point to
the availability of internal Do Not Call Lists and maintaining those, as we have
suggested, as a fall‑back position for someone to utilize in a case where they
continue to be frustrated by calls they don't want to
receive.
2070
COMMISSIONER LANGFORD: Well,
I hear you.
2071
One other area, on this inclination you have that we can't find someone
to delegate the enforcement services to that isn't somehow conflicted, can you
give me a little more ‑‑ I mean, you have said that in your written brief,
you have said it again today, but no matter how I parse it, I don't quite see
that as such a huge problem.
2072
I mean, couldn't we find some, I don't know, accounting firm or
something ‑‑ right now, when we have our contribution scheme under telecom,
we use Welch's accounting firm as the central administrator. They seem to be, as far as I know, doing
fine job.
2073
MR. HILL: It's possible that
you will find someone, but we would argue that you are potentially limiting
those that would participate. And
even those that do may find themselves in a bit of a conflict of interest from
time to time in that they may be faced with passing judgement and
penalizing ‑‑ applying the law and penalizing customers of
theirs.
2074
I think that may have been one of the difficulties in the previous
regime.
2075
COMMISSIONER LANGFORD: If
you are going to leave the final decision to us, how much policing work could we
delegate? In other words, if you
look upon us as the court, and we want to set up a police force so that we are
not both the police and the court, how much could we delegate, and to whom, in
your view, might we be able to delegate?
Fact collecting, in other words.
2076
MR. HILL: We would argue
that, as I said a few moments ago, it should be quite restrictive and limited to
simply an initial check through the list operator as to whether an individual
complainant was registered or not and the situation of the target of the
complaint, assuming a company, and whether they are a subscriber to the
list.
2077
Beyond that, we believe that, as is the case, for example, with the
Competition Bureau, that these matters of investigation and the laying of
penalties are the jurisdiction of the public body and not a hired
administrator.
2078
COMMISSIONER LANGFORD: Yes,
Parliament has, you know, very clearly given us the power to delegate, they have
given us the green light.
2079
Let me try something else on you.
I don't want to prolong this unnecessarily, but this seems to be a pretty
key factor in the sense of keeping costs down, perhaps, which would impact on
your members.
2080
We wear another hat, the CRTC, we also wear a broadcasting hat, where we
award radio and television licences and we police the standard of broadcasting
and the content of broadcasting, much to the chagrin of many Canadians and much
to the joy of others, we are pleased to say.
2081
One of the things we have done is to set up an association‑run complaints
standards bureau, and so that members or television, broadcasting companies,
radio companies and whatnot, have delegates on this bureau and they can look
into some of the allegations of standards that have been violated, and only if
complainants aren't happy do they then come to us. So we are, in a sense, an appeal board
or a final voice, a final decision.
2082
Could you see something like that working?
2083
MR. HILL: Well, I think, as
a first step, potentially. I think
that the details need to be worked out.
But some previous witnesses suggested that when a complain is raised it
might make sense for there to be a protocol whereby, as a first step, the
administrator brings the situation to the attention of the alleged offender and
perhaps it can be sorted out very quickly.
At the end of the day, that might make a lot of sense, in terms of
keeping the system unburdened, the complaint investigation and enforcement
system unburdened, so....
2084
COMMISSIONER LANGFORD: So
not necessarily members, if I can call it that. It wouldn't be members of the
telemarketing community that would be sort of self‑policing at the first
level? This would be at the kind of
operator level. Is that the way you
see this?
2085
MR. HILL: Well, I think the
operator might be tasked with that kind of bringing it to the attention of a
company.
2086
COMMISSIONER LANGFORD: One
last question. Finally, you speak
in your written comments and submission, and again today, about some
thresholds. The sense I'm getting
from you and from a lot of witnesses today, and a lot of the written submission
is: well, surely, nobody's going to
go and penalized single‑point errors here?
Surely, there will be thresholds, there will be kind of a cumulative
situation where somehow people will magically know, okay, you have gone too far
now.
2087
The problem I have with that is that Parliament hasn't necessarily
directed us in that way. They have
given us discretion and they have talked about common‑law defences and whatnot,
but if you go into a threshold situation, then a violation isn't a violation any
more cause everybody knows, oh, well, you can get away with three or four or
five or ten or twenty or...so, you know, just do a little due diligence and you
can keep the hounds off your back.
2088
But is that satisfactory to consumers? I mean, isn't the whole point of this to
say to consumers, "You've got some rights here, you've got some privacy rights,
and if they're violated, we're going to see to it that somebody pays"? So how do we find that balance? You have had some experience with
this? How do we find the
balance?
2089
We don't want to say, "Huh, violations aren't really violations until
they stack up this high or this high".
At the same time, they are violations and we want to try to ensure that
there are no violations. That's the
ideal.
2090
So what do you really mean when you say "thresholds"? What are you pointing us at? What's your instinct on this
issue?
2091
MR. HILL: Well, we feel that
it's legitimate to establish some thresholds, in terms of the number of people
perhaps affected in an incident or the number of times that a complaint target
has been found to be breaking the rules.
And in the first instances, at an appropriate level, a warning in order
to allow an organization to get itself into compliance with the rules we believe
makes sense.
2092
I guess it's that's simple.
I don't know what those thresholds are here today. I know that those issues are under some
discussion. But we believe that it
would make sense that where the transgression has been minimal and is a first
time, I mean, that will be determined.
But repeated, clearly, is going to result in a more serious penalty, and
that's, I think, part of the awareness and education process that can go on, in
terms of building this new system and building strong compliance with
it.
2093
COMMISSIONER LANGFORD: Thank
you very much.
2094
Those are my questions, Mr. Chair.
2095
THE CHAIRPERSON: Commission
Duncan.
2096
COMMISSIONER DUNCAN: Just
two questions for you, Mr. Hill.
2097
I just wanted to understand, on the issue of the amount of time required
to cleanse the lists.
2098
Your individual members have their own internal lists and those are the
lists that will required to be cleansed, so does it take 60 days because they
are also cleansed against a list that you control? I just want to make sure I understand
that.
2099
MS McLACHLAN: I'm sorry, I
think I heard you say that it was their own internal lists that were being
cleansed. In fact, with our Do Not
Call List, it's a prospecting list because you are allowed to contact your
existing customers. So these are
externals lists that are then cleansed.
2100
COMMISSIONER DUNCAN: So the
requirement in the legislation, even as it is now, is that you have your own
internal Do Not Call Lists, but you do not have that, is that what you
are ‑‑
2101
MS McLACHLAN: No, that you
would have the internal Do Not Call List ‑‑
2102
COMMISSIONER DUNCAN:
Okay.
2103
MS McLACHLAN: ‑‑ and that would be applied against your own
customers, plus any external lists, but ‑‑
2104
COMMISSIONER DUNCAN: So for
the individual members, with their internal Do Not Call Lists, they would be
matched against the national Do Not Call.
And do you still think that would take 60
days ‑‑
2105
MS McLACHLAN: Their Do Not
Call List?
2106
COMMISSIONER DUNCAN:
Yes. I am misunderstanding
what you are saying, then.
2107
I'm understanding they would each have ‑‑ it's a separately
incorporated company, they would have their own internal Do Not Call
List?
2108
MS McLACHLAN: That's
correct, each company has their own.
2109
COMMISSIONER DUNCAN: And
then that list, under what's proposed, would be cleansed against the national Do
Not Call List?
2110
MR. HILL:
No ‑‑
2111
MS McLACHLAN:
No.
2112
MR. HILL: ‑‑ it would not.
The way it works, I mean, we are talking about three different
lists here.
2113
COMMISSIONER DUNCAN: Yes,
I'm trying to understand.
2114
MR. HILL: There is the
marketing list that a marketing organization may have rented from a list
broker. What we are talking about
here is that list must be checked against both their internal list, which may
include many of their own existing customers on that list, and, in our current
situation, that marketing list must be checked against the CMA Do Not Call List,
or, in the future, would be the national Do Not Call List.
2115
So it's a two‑step process that organizations are going to ‑‑ I
don't know the technicalities of it, and it probably can all be done quite
quickly together, but, I mean, at the end of the day, they are two discrete
processes.
2116
COMMISSIONER DUNCAN: So
because it is two steps, then, is that the reason you are suggesting it should
take 60 days, as opposed to the 30 days some parties have suggested or as
opposed to the U.S. requirement?
2117
MR. HILL: No. In terms of the 60 days, it really just
came down to if the organization is a larger organization and has had their
marketing list cleansed against the national Do Not Call List, that list may be
sort of out in their system, if you will, and difficult to retrieve, pull back,
track down, in terms of its various components and they suggested to us, our
larger members, that 60 days would probably be a reasonable period for them to
ensure that their lists, the lists that they were using, were up to
date.
2118
COMMISSIONER DUNCAN: Thank
you, Mr. Hill.
2119
My second question is with respect to costs, and your recommendation that
the CRTC should secure government funding.
If government funding wasn't available, then, where would you suggest
that we would turn for funding?
2120
MR. HILL: That's an
interesting question.
2121
I think that, at the end of the day, if government funding is not
available, in order to keep the list affordable, we should look at all
options. It might be ‑‑ and I
don't think this is desirable, it's not something we have suggested ‑‑ but
it might be that it is a small fee that consumers are paying. So that's one
possibility.
2122
COMMISSIONER DUNCAN: You are
not suggesting the telephone companies should absorb it as part of
their ‑‑
2123
MR. HILL: Well, I mean,
that's certainly another alternative that the Commission might look at. Certainly, you know, they are, and
continue to be, the owners of the channel, so it would be a sharing of the costs
in that instance.
2124
We believe that the costs that we are talking about, where I think the
enforcement component is probably the largest, we believe that those are
properly the domain of government, and in many other instances, certainly I know
not in the case of the Commission, the Commission is normally exercising
jurisdiction over regulated companies who benefit from that
regulation.
2125
In this case, that's not what we are talking about. We are talking about companies out there
competing quite aggressively, and, I would submit, that this is a situation
that's much more like the regulation that we see the Competition Bureau, for
example, discharging, and in those cases the taxpayers pay for the
investigation, enforcement, and so on.
2126
COMMISSIONER DUNCAN: Thank
you very much.
2127
THE CHAIRPERSON: Mr. Hill, I
would like to go through your three points, if I may, because you have given a
lot of thought to this and you have a lot of experience in
it.
2128
The business‑to‑business requirement, you are asking us to add an
exemption, and that exemption would be for business‑to‑business
telemarketing.
2129
MR. HILL: That's
correct. It might be done through
the definition. For example, the
definition proposed by the companies today has been read several times, with
some slight amendment to that. That
might cover it by focusing it on consumers.
2130
THE CHAIRPERSON: Well, we
would certainly like, assuming we could be convinced in principal, to find a way
not to have another exemption. I
mean, it's all very well to say the Senate wanted it, but if the Senate wanted
it, why didn't it recommend it? Two
senators made a comment, but there was no specific
recommendation.
2131
MR. HILL: Yeah. Well, I think they were anxious to get
the bill passed in the context, I think, of the
times.
2132
THE CHAIRPERSON: I know, but
we can't, you know, say, "Wally Hill told us you guys were anxious, so we've
added a few more exemptions". That,
I'm afraid, is just not going to do.
2133
I guess I'm trying to understand the practicality of it. We could say to you small business might
not want to be bothered. They
would, therefore, initiate action to put themselves on a list, and your
recommendation is we should tell them, no, and that you would say,
yes.
2134
But there's another public policy purpose, and the other public policy
purpose is reducing the regulatory burden on some relatively small businesses
that are starting out, that wish to contact certain specialized lines of
business, maybe across the country, maybe in every area code, and we think that
it would be a undue burden for them to have to scrub those lists against a
national Do Not Call List. Is that
a fair way of stating it?
2135
MR. HILL: Well, I don't
think we are suggesting that small businesses, any business for that matter, but
I think it would be some smaller businesses, home‑based businesses, should be
prevented from getting on the list.
That would protect their number from receiving calls related to a
marketing campaign that is a consumer‑oriented marketing
campaign.
2136
However, a business who might want to contact that small business, or any
other number of small businesses, that is clearly engaged in a
business‑to‑business marketing campaign, would be not, for that matter, using
the Do Not Call List, would be engaging in their phone calls on the basis of
doing a business‑to‑business marketing campaign, which we try to provide a
definition for.
2137
THE CHAIRPERSON: Yeah, that
would be the thing. I really think,
Mr. Hill ‑‑ because I can see your point, I hope you can see ours, but what
we really need from you is a form of words, preferably not in the form of an
exemption, that would ensure that the goods and services being offered had to be
consumer‑oriented, and, therefore, that if the goods and services being offered
were transparently intended for a business ‑‑ and I don't think this is a
trivial problem ‑‑ transparently intended for a business, they would not be
defined as "telemarketing", or something along those lines, or would not be
defined as "telemarketing", as the act applies enforcement measures to
it.
2138
MR. HILL: Well, we have
taken a stab at that, Commissioner, in our earlier submission, and suggested
definitions both for "consumer marketing" and "business‑to‑business
marketing". That's at paragraph 25
in our submission of March 27th.
2139
THE CHAIRPERSON: Well,
that's nice. That's what I just said.
What we need is to marry that to some part of
the ‑‑
2140
MR. HILL:
Yes.
2141
THE CHAIRPERSON: ‑‑ prospective structure of
regulation ‑‑
2142
MR. HILL:
Yes.
2143
THE CHAIRPERSON: ‑‑ so that it accomplishes the objectives you
want.
2144
MR. HILL: Yes, correct. And I
would ‑‑
2145
THE CHAIRPERSON: This is
nice, but, frankly ‑‑
2146
MR. HILL:
Yes.
2147
THE CHAIRPERSON: ‑‑ it's not what I'm looking
for.
2148
MR. HILL: And I was
suggesting that the definition that had been suggested by the companies in
relation to exemptions and so on might be a place where that could be built
in. It tends to use the word
"individual or organization", and I would suggest that we substitute "consumers"
for that.
2149
By the way, while I'm talking about that definition, would suggest that
we tack onto the end of it the exception relating to ‑‑ they have said only
the exceptions mentioned in the act.
I would suggest that's the spot, also, to put in "also accept where
consent has been provided by a consumer".
2150
THE CHAIRPERSON: Okay, we
will note that.
2151
I'm going to say it one more time, and you don't have to say the same
thing one more time either, but, you know ‑‑ and another exemption is going
to be very difficult, but the spirit of what you are trying to accomplish, I
don't think we are far away.
2152
So if we can find some way to permit someone who voluntarily wants to put
himself ‑‑ and, by the way, we don't have any way to police it
anyway ‑‑ on this list for mass consumer campaigns which work their way
through a predictive dialling program over thousands of people, we both share
the desire to prevent that sort of thing occurring even to a small
business.
2153
On the other hand, we both share the desire not to unduly burden a
specialized business‑to‑business marketing campaign, which will not be saved by
a tariff adjustment for a small draw, because it may well be a national
campaign, but it may only be five numbers in each area code or fifteen numbers
in each area code, so we have that real problem.
2154
So do we understand that we are both going to try to find a way, and you
are going to keep thinking and have even more inspiration in light of what I'm
suggesting to you, to marry this business‑to‑business in such a way ‑‑ and
if the company's definition is there, great, but we need that kind of
advice.
2155
MR. HILL: We will certainly
look at it more closely.
2156
THE CHAIRPERSON: Super. Thank you.
2157
Second point is enforcement.
You are, of course, not alone raising this issue, and there are some
important legal questions involved.
I guess the only point I would make is that the Commission is anxious,
and in fact has no choice but to take the ultimate responsibility for penalties
that are levied ‑‑ excuse me, not penalties. Not penalties. We are not allowed to levy
penalties ‑‑ administrative monetary penalties that are levied. So we have to take responsibility for
that and there has to be an appeal mechanism, or some form of adjudication at
our level, and we know that.
2158
So we are really arguing about where in the middle the transfer takes
place. I'm a little, you know,
worried about not finding a list to operate without conflict of interest. I don't know whether I want to die on
the hill of explaining, "Well, we've chosen this list, operator. Yeah, they've got a conflict of
interest, but we couldn't find anybody else".
2159
Anyway, it's a problem, I think.
But would you, please, just restate once and for all, for my benefit, is
this because you believe that adding these additional responsibilities to a
delegate or a list operation runs counter some fundamental juridical conception
you have about AMPS should be applied or whether it's a purely pragmatic
argument intended to expand the reservoir of potential
contractors?
2160
MR. HILL: I think it's a
purely pragmatic argument to avoid having marketers pay for what could be a
substantial exercise. We are very
concerned that this continue to be an affordable system for markets, and so we
believe that in this instance, as is the case in some other regulatory
activities, it is fair to argue that it should be undertaken and the costs
should be borne by general government, as opposed to the users, in this case, of
the program.
2161
THE CHAIRPERSON: Well, I
hear you, Mr. Hill, but if it's strictly a matter of cost, I suggest to you that
your version of fairness and others' version of fairness are pretty contestable
and that there will be a very lively debate over that one.
2162
Okay, well, that's clear about what you are trying to
do.
2163
The third issue you have raised is who ultimately pays for whatever costs
will not be paid for by your members, and others who are engaged in similar
activities. Thank you for your
advice with respect to Industry Canada.
I just suggest to you that if you are serious about it, I hope you will
take some steps to tell someone other than ourselves, because, frankly, you
know, the fact that you told us here doesn't cut much ice on the other side of
the river when we go to see them.
2164
So if you genuinely believe that there is a serious problem of financing,
and that serious problem of financing is most appropriately addressed by
government appropriations, I would urge you to make your views known to people
closer to the process of government appropriations than
ourselves.
2165
You realize that we never figure in the budgetary process, or only
marginally, because we raise the money we are funded by from the industries we
regulate. This is, indeed, another
case, as you have pointed out, and rightly so.
2166
But our absence from that process means that when we decide we want to
participate in it, we aren't taken very seriously. Now, I have to be frank with you and
say ‑‑
2167
MR. HILL:
Okay.
2168
THE CHAIRPERSON: ‑‑ that I hear you. I think there's a reasonable argument to
be made to go in the direction that you are going in, but just telling us, it
doesn't matter if it's champagne or 7Up, you are spitting into the wind. It's still going to come back in your
face.
2169
MR. HILL: We will certainly
pursue the issue ‑‑
2170
THE CHAIRPERSON: Thank
you.
2171
MR. HILL: ‑‑ with government and with Industry
Canada.
2172
THE CHAIRPERSON:
Great.
2173
Commissioner Cram, please.
2174
COMMISSIONER CRAM: On the 60
days, can you tell me why American businesses can do it in 31 and Canadian can't do it unless it's
60? You are going to have to really
give me a very good reason, because I have a hard time explaining to consumers
that it's because Canadian businesses are less efficient.
2175
MR. HILL: Commissioner, I
can only convey to you what our members have advised us, or at least some of
them, that being able to ensure that they could do it within the 30‑day period
was a problem and challenging.
2176
COMMISSIONER CRAM: Is the
process any different from what they would be doing in the
States?
2177
MR. HILL: I rather doubt
it.
2178
COMMISSIONER CRAM: Moving on
to business‑to‑business, right now businesses being marketed are entitled to
say, "Put me on your Do Not Call List".
You agree with me?
2179
MR. HILL: Their internal Do
Not Call Lists, yes.
2180
COMMISSIONER CRAM:
Yeah. And that has not
really been an impediment to your marketers, has it?
2181
MR. HILL:
No.
2182
COMMISSIONER CRAM: So why
would you anticipate that if businesses got on the Do Not Call List that would
be more of an impediment?
2183
MR. HILL: I'm not sure that
I follow the question.
2184
COMMISSIONER CRAM:
Okay. Right now I can be put
on an internal Do Not Call List if I'm a business. Right?
2185
MR. HILL:
Correct.
2186
COMMISSIONER CRAM: And that
has not been an impediment to your marketers?
2187
MR. HILL:
No.
2188
COMMISSIONER CRAM: Why would
the fact that it's a national Do Not Call List be any more of an
impediment?
2189
MR. HILL: Because the
national Do Not Call List is an across‑the‑board barrier to organizations
calling those that are registered on it.
Internal Do Not Call Lists, by their nature, are a very targeted vehicle
and, again, by their nature, require the individual who's decided that they want
to be on it and do not want to hear from the organization that maintains that
list, to take an action, pick up the phone, call them up and say, "Please add me
to your internal list".
2190
It's different, substantially,in terms of scope and both in terms of how,
ultimately, it happens.
2191
COMMISSIONER CRAM: And so
the onus is on a business, who is in the business of making money, to spend
their staff time and spend their efforts to get themselves being put on every
list? That's what you are
essentially saying? It's reversing
the onus and saying, "Okay, the businesses we are marketing are going to have
spend the time and energy to get off every single Do Not Call List". Is that what you are
saying?
2192
MR. HILL: That's correct, in
theory. The number of lists that
one's going to be talking about is going to be much shorter than the number of
lists that you are talking in the consumer campaign, where you are talking
about, you know, many non‑profit organizations, companies, and so
on.
2193
MS HARVEY: Another
considerable difference between an internal "do not contact" list and a national
"do not contact" list, particularly as it applies to business‑to‑business
application, is frequently internal "do not contact" lists are quite short and
they can apply a name, a specific name, to the telephone number, whereas, it's
my understanding, based on all of the discussions and of the CISC committee,
that we are looking at probably just having one single telephone
number.
2194
So whereas if I am calling your organization of five, I can put, "I'm not
going to call Barbara but I'm still allowed to call Richard", and you are all at
the same telephone number, and if Mr. French calls me and says, "Actually, we do
want to get numbers", and then I call you and you happen to answer the phone,
this is something that is certainly very easy to do in a small internal "do not
contact" list, but it's not possible with a national list.
2195
There's a massive complexity of applying DNCL regulations to B to B. Right off the bat, I can think of, if
one of these people over here is your receptionist and they decide that they're
going to put your number on the Do Not Call List, you are never going to get any
calls from me any more, despite the fact that you want to.
2196
Also, if your number is reassigned internally, there's no way for the
list operator to track that; whereas, when consumer numbers are reassigned,
there is a way for that to be tracked.
There's multiple complexities of business‑to‑business
marketing.
2197
COMMISSIONER CRAM: But you
are really talking about centrex systems, aren't you, in a lot of those, when
there's a lot of numbers in a single business?
2198
MS HARVEY: Yes. But internally, businesses tend to be
allocated a certain number of telephone numbers, so if I quit and my replacement
get that, now she or he is not getting any business‑to‑business calls, and
there's no way.
2199
MR. HILL: And, I mean, I
would remind, Commissioner, again, that we are talking about a very different
category. Just as in the PIPEDA
Act, in terms of protecting personal privacy, they have treated business contact
information differently for a reason.
It's a different issue and they have allowed businesses to use the
business contact information of individuals and exempted it and not treated it
as personal information that should be guarded by the provisions of that
act.
2200
COMMISSIONER CRAM: How
technically could we do this? Would
the Do Not Call operator say, "Are you a business, yes/no?", in which case you
can't register? Is that how we
would do...?
2201
MR. HILL: No. Businesses could be registered. I think it comes down
to ‑‑
2202
COMMISSIONER CRAM: The
type.
2203
MR. HILL: ‑‑ at the other of the process, who is using the
list? And if you are genuinely
engaged in a business‑to‑business campaign of calls, then you would not be using
the suppression list, which ‑‑
2204
COMMISSIONER CRAM: Okay,
so ‑‑
2205
MR. HILL: ‑‑ I think addresses many of the issues of the small
business, home‑based business, that is wanting to at least filter out those
calls that they are getting at home from many consumer marketing
organizations.
2206
COMMISSIONER CRAM: Okay, so
the Do Not Call List person then says, "Thank you very much for registering with
us", if you are a business, you should know that for items that would normally
be sold to a business, you can still be marketed. This is not very
effective.
2207
Now, these items that are normally marketed to a business can
include ‑‑ and I'm asking myself about what we have done to people's
expectations if we do something like that, and, secondly, how do you limit
it?
2208
I can see printers being able to be sold to consumers, as well as
businesses. Is it defined by the
kind of item that's being sold?
What's it defined by?
2209
MR. HILL: I think it would
be defined, in large measure, by the use, if it's a product or service that is
being used by another business.
2210
COMMISSIONER CRAM: So then
it's left to the individual business who has registered with the Do Not Call
List to complain if they are being marketed on a campaign that could be or could
not be only to businesses? Like,
what certainty do you provide if you do that kind of an
exception?
2211
MR. HILL: Well, it's
certainly an exemption that applies in the U.S. system. It's been a very successful program down
there and it does not seem to have raised a lot of issues. I would reference that experience as a
good example where accepting business‑to‑business from the whole process has not
been a great issue.
2212
COMMISSIONER CRAM: But only
for business‑to‑business campaigns?
2213
MR. HILL:
Correct.
2214
COMMISSIONER CRAM:
Okay.
2215
MR. HILL: There is no
barrier ‑‑ as I understand it, I do not believe there is a barrier from a
business registering their number in the U.S. list. I stand to be corrected on that, but I
believe that's the case.
2216
COMMISSIONER CRAM:
Okay. And then you are
saying that for charities and for marketers that are doing business‑to‑business
marketing, they will both have an internal Do Not Call
List?
2217
MR. HILL: Correct. We believe that maintaining the internal
Do Not Call List makes good sense ‑‑
2218
COMMISSIONER CRAM:
Yeah.
2219
MR. HILL: ‑‑ for a range of reasons.
2220
COMMISSIONER CRAM: And yet
at paragraph 92 of your initial presentation, you say there should be no unique
registration numbers. I'm sure, if
you were here today, you heard me asking:
how do I prove that ‑‑
2221
MR. HILL:
Yes.
2222
COMMISSIONER CRAM: ‑‑ I asked ABC Charity, or, as a business
person, I asked XYZ to put me on their Do Not Call List?
2223
MS McLACHLAN: I'm happy to
discuss that a little bit. Putting
unique registration numbers on the list does, as was referenced when you talked
about this earlier, make the list, itself, a much more complex
beast.
2224
I think that certainly our experience, and I believe the experience in
the U.S., is that you can, in the U.S., call and find out if your number is
registered or you can look it up on their website. So you can assure yourself that you
number is on the list by checking it.
2225
Certainly, in our experience with our list, consumers put their numbers
on the list and it's accepted. If
they are saying that their number has been on the list, then that's
accepted. If we can't find it, it
may have been that there was a processing error.
2226
I mentioned in the DOWG CISC subcommittee one of the problems is that we
receiving information for our list via mail and fax, and sometimes it's very
hard to read the handwriting, and so there are errors. So a number that has come in just
doesn't get onto the list, but it doesn't mean the consumer, in good faith,
doesn't believe that it was there.
2227
Invariably, my experience with our list has been that when we contact the
company that has called, they immediately put that consumer on their internal Do
Not Call List, and there has been no problem in addressing
it.
2228
I would suggest for the Commission's issue with tracking problems, I
think that does become one of frequency.
And if you find a trend where there's a marketer consistently saying,
"Oh, the number wasn't on the list or this consumer", then I think there's a
different problem has been exposed.
2229
COMMISSIONER CRAM: Well, I
mean, we have upped the anti, though, in the sense that if you are ABC Charity
and I get myself put on the Do Not Call List, you are subject to monetary
penalties. And would it be all
right if we did the reverse onus, if the consumer says ‑‑ the same as you
do with your list ‑‑ "I'm sure I was on the list" and ABC says, "Well, we
can't find it on the list", but we go with the presumption that the consumer
said they are on the list, then they are on the list? I mean, you see, we are getting into
bigger stakes.
2230
MS McLACHLAN: No, I
certainly understand that, and I would ask the corollary question: if a consumer says that they are on the
list and they have inadvertently misplaced their confirmed registration number,
are we not putting a burden on the consumer to have to guard yet one more piece
of paper on the chance that they may get calls that are bothersome to
them?
2231
COMMISSIONER CRAM: Now, I
don't know, Mr. Hill, if you are aware of what happened in the UK. If I understand it correctly, Ofcom had
to split up its rules because it was both policeman, prosecutor and judge, and
it was subjected to a legal challenge for doing that.
2232
So particularly as we have similar kinds of laws, I would suspect that
your proposal would be somewhat difficult to implement.
2233
MR. HILL: I'm not that
familiar with the UK model, but I would simply point to the example of the
Competition Bureau in this country, that has the authority to investigate and
levy administrative monetary penalties in the course of its
work.
2234
It doesn't seem that ‑‑ I am not a lawyer, so I am not well‑versed
in all of the arguments that one may deal with here, but I just would look to
that example as one that seems to indicate that having the investigation and the
penalizing power, at least where they are administrative monetary penalties, is
something that is allowed under Canadian law.
2235
COMMISSIONER CRAM: On the
Competition Bureau, doesn't the tribunal assess the amps and the bureau does the
investigation and the prosecution?
2236
MR. HILL: I believe the
competition tribunal would be the assessor of the penalties,
but...
2237
COMMISSIONER CRAM: So then
you have got the separation of duties, because they are separate entities, the
bureau itself, and then the tribunal.
2238
MR. HILL: Right. And I don't know whether that situation
would be possible in the case of the CRTC.
2239
COMMISSIONER CRAM: Yeah, we
will make ourselves into two and become schizophrenic more than
we are.
2240
Anyway, thank you very much.
2241
THE CHAIRMAN:
Counsel.
2242
MR. MILLINGTON: Thank you,
Mr. Chairman.
2243
I just wanted to go over, at the risk of belabouring a point, but I want
to go over and make sure I understand, Mr. Hill, your rationale with respect to
costs, because you have suggested your first choice would be the government,
taxpayers of Canada, second choice would be perhaps the companies ‑‑ I'm
not sure whether you have had an opportunity of testing how willing they would
be to absorbing those costs ‑‑ and the third possibility would be the
consumers paying a fee as a way of covering the
costs.
2244
Other than simply reducing ‑‑ and I don't want to put words in your
mouth ‑‑ other than simply reducing the cost to your membership, can you
provide us with any other rationale as to why the costs of this system should be
borne by either of those three parties or in lieu of the telemarketing industry
itself?
2245
MR. HILL: Yeah. I mean, first of all, what we have
suggested is that the government should bear the enforcement costs, and I have
noted the other as possibilities.
The main reason, beyond the issue of costs, is compliance. By keeping the list, the Do Not Call
List subscriptions affordable, we will encourage
compliance.
2246
MR. MILLINGTON: So you are
telling us, you are giving us a warning, that your membership would not comply
with the regime if they, in their own wisdom, determined that the fee structure
be too high?
2247
MR. HILL: Well, I mean, you
will encourage compliance with a reasonable fee structure and you will not
discourage the use of telemarketing.
And this is another issue that we haven't touched on, but that I think
some other, you know, witnesses will.
2248
I mean, this is an important industry, and if you drive up the costs to
marketers of using this particular channel, you are going to put people out of
work. It's as simple as
that.
2249
We are already putting in place a system that we think is warranted, that
will respect consumer choice, but let's not add to it by making the costs of
using this channel unduly high and burdensome.
2250
MR. MILLINGTON: If costs is
the issue, what evidence have you got for us today, or can you provide to us, as
to what the threshold of those costs should be in order to achieve the balance
between compliance and covering the expenses associated with such a
regime?
2251
I mean, I understand that we are all a little bit limited, in terms of
being able to speculate as to what the revenue that would flow from this scheme
would be, because we don't necessarily have available to us the number of
organizations that would access the list, and so on,
but ‑‑
2252
MR. HILL: Fine. It's difficult because of
the ‑‑
2253
MR. MILLINGTON: ‑‑ can you provide us any guidance in that respect
at all, or are you going to leave it entirely to us to sort of come up
with?
2254
MS McLACHLAN: As part of the
DOWG subcommittee, CMA has committed to work with Mr. Lylyk and the chair to try
and identify that number, because it's very difficult to quantify, as is
witnessed by the difficulty they had in the U.S. and the consistent revisions
that they have had there. So we are
doing our best to try to quantify that number.
2255
MS HARVEY: Further, I
believe that the DMA has some statistics as to how the size of the market before
the implementation of a national "do not contact" list in the United States and
the impact that it had on the industry at their level of funding originally, so
that might be an instructive resource for the Commission to
consider.
2256
I mean, what we are looking for here, we have always recognized that
there is a consumer interest that needs to be protected, but certainly there
needs to be a balance between protecting an industry and the jobs and protecting
consumer interests. So it's not an
easy question, I don't envy you, but there are some resources that you might be
able to harken to.
2257
THE CHAIRPERSON: Thank you
very much.
2258
I know that the Canadian Marketing Association has played a long and
honourable role, and I count on you to continue to do so. We appreciate your expertise and advice,
and I'm sure it won't be the last time we will call on it.
2259
Thank you.
2260
I don't think that we will proceed.
There's a member of the panel who has an obligation, which means that we
have to rise fairly shortly.
2261
THE SECRETARY: Mr.
Chairman ‑‑
2262
THE CHAIRPERSON:
Sorry.
2263
THE SECRETARY: ‑‑ we do have undertakings for
CMA.
2264
THE CHAIRPERSON:
Undertakings. You have
undertakings.
2265
MR. HILL: All right. Thank you.
2266
THE CHAIRPERSON: We will
rise and meet tomorrow at 9 o'clock, not nine thirty. We will begin with our friends from
PIAC. We appreciate their wait and
their patience and look forward to meeting them tomorrow morning. And if necessary tomorrow night, we will
go later than six o'clock.
2267
Thank you very much.
Anything further, madame le secrétaire?
2268
THE SECRETARY:
No.
2269
THE CHAIRPERSON: Thank you
very much.
‑‑‑ Whereupon the hearing
adjourned at 1750, to resume
on Wednesday, May 3, 2006 at
0900 / L'audience est
ajournée à 1750, pour
reprendre le mercredi
3 mai 2006 à
0900
REPORTERS
_____________________
_____________________
Marc Bolduc
Lynda Johansson
_____________________
_____________________
Jean Desaulniers
Sandy Kelloway
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Monique Mahoney