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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 3, 2006                           Le 3 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 3, 2006                       Le 3 mai 2006

 


           TABLE DES MATIÈRES / TABLE OF CONTENTS

 

 

                                                 PAGE / PARA

 

Presentation by Marketing Research and            342 / 2275

  Intelligence Association

    Questions by the Commission                   376 / 2507

 

Presentation by Contact NB                        376 / 2514

    Questions by the Commission                   382 / 2547

 

Presentation by the Consumers Association         424 / 2823

  of Canada (presented by PIAC)

    Questions by the Commission                   439 / 2903

 

Présentation par le Mouvement des                 476 / 3190

  caisses Desjardins

    Questions by the Commission                   486 / 3242

 

Presentation by RESP Dealers Association of Canada 514 / 3404

    Questions by the Commission                   520 / 3437

 

Presentation by the Canadian Life and Health      561 / 3756

  Insurance Association

    Questions by the Commission                   568 / 3794

 

Presentation by the Canadian Marketing Association 596 / 4002

    Questions by the Commission                   604 / 4034

 

 

Presentation by Mark Obermeyer                    661 / 4452

    Questions by the Commission                   669 / 4491

 

 


                  Ottawa, Ontario / Ottawa, (Ontario)

‑‑‑ Upon resuming on Wednesday, May 3, 2006 at 0900 /

    L'audience reprend le mercredi, 3 mai 2006 à 0900

2270             THE CHAIRMAN:  Order, please.  À l'ordre, s'il vous plaît.

2271             Welcome to this second day of hearing on the telemarketing issue.

2272             Madame la secrétaire.

2273             LA SECRÉTAIRE:  Merci, monsieur le président.

2274             Our first group today will be Marketing Research and Intelligence Association.  I would like to introduce Mr. Brendan Wycks who will introduce his colleagues.

PRESENTATION / PRÉSENTATION

2275             MR. WYCKS:  Thank you Commissioners and members of the CRTC for the opportunity to speak today at this public consultation and good morning, ladies and gentlemen.

2276             My name is Brendan Wycks and I am Executive Director or the Chief Staff Executive of the Marketing Research and Intelligence Association, MRIA, and I would now like to introduce to you my two colleagues.


2277             To my immediate left is Mr. Barry Watson who is the President Elect of our Association and to his left is Mr. Alain Choinière, the chair of our Government Relations Committee.

2278             M. CHOINIÈRE:  Bonjour.  Il me fait plaisir, au nom de l'Association de la recherche et de l'intelligence marketing, de prendre la parole aujourd'hui.

2279             Nous vous remercions beaucoup de l'opportunité de prendre la parole aujourd'hui et il nous fera plaisir de répondre à toutes vos questions tant en français qu'en anglais.

2280             MR. WYCKS:  The Marketing Research and Intelligence Association, the voice of the market and survey research industry in Canada is pleased to be a part of these proceedings.

2281             MRIA is a Canadian not for profit association representing all sectors of the survey research industry.  Among other initiatives, our organization is responsible for certifying both individual research practitioners and research companies in Canada.


2282             Our members include over 1,700 individual research professionals and over 200 corporate members, our corporate members being comprised of small to large research agencies and many buyers of research services such as financial institutions, major retailers, insurance companies, telecommunications firms and manufacturers.

2283             And with that as introduction, I would now call on Barry Watson, our President Elect, who will present our brief.

2284             MR. WATSON:  One of the major pillars of MRIA's mandate is to protect the good relationship that exists between survey researchers and the general public.

2285             For the most part, this revolves around ensuring that the activities of the research industry do not unreasonably infringe on an individual's right to privacy.  As such, MRIA applauds the government's efforts to create privacy and consumer rights in Canada.

2286             We believe the creation of a national do not call list will go a long way toward meeting that goal.


2287             MRIA was an active participant in the consultations that led to the passage of Bill C‑37.  Legislators agreed to exempt survey research calls because they acknowledged that there are two key characteristics that define survey research and differentiate our work from that of the telemarketing industry.

2288             First, legitimate survey researchers never attempt to sell anything.  In fact, solicitation violates the industry's rigorous code of conduct and ethical practices.

2289             And second, survey research gives Canadians an opportunity to voice their opinions and to have influence on important issues in public policy, products and services, overall serving a valuable societal role.

2290             Survey researchers currently enjoy a good relationship with the public because Canadians are keenly aware of the impact that their opinions could have when collected through survey research.  And they are willing to share their views with researchers because they trust the industry to respect privacy.

2291             Clearly, the inclusion of survey research calls within the scope of the do not call list framework would have severely impeded survey research.  Statistical reliability is essential to good research, which is in turn essential to good decision making.


2292             Any such limitations were deemed by Legislators as well as regulators in previous CRTC decisions to be a disservice to Canadians.  U.S. regulators had previously reached the same conclusion as Canadian Legislators where survey research is also excluded.

2293             In fact, a number of important lessons can be learned from the experience in implementing a do not call list in the U.S.  In the U.S. the National do not call registry has been plagued since it was introduced by problems related to poor communication specifically about what's covered and what's not.

2294             We understand that in many instances registrants to the do not call list did not clearly understand the scope of the calling restrictions and were not aware of exemptions.  This led to confusion and frustration when they continued to receive calls from exempted parties such as survey researchers.

2295             In this connection, the key point we would like to leave you with today is that a comprehensive communications plan is required to educate Canadians about the registry and to make clear just what is covered and what is not and in effect, to include messaging that explains the parameters of what should be more accurately called "The telemarketing do not call list".


2296             A robust communications and awareness program will be instrumental in the smooth implementation of the do not call list as well as in reducing unwarranted complaints of violations by exempted parties.

2297             The points that we are stressing through our participation in the CRTC's operations working group are as follows:

2298             First, a robust communications and awareness program will be critical to both managing public expectations with respect to the registry and to managing public inquiries and complaints once it is operational.

2299             The U.S. do not call registry receives over 90,000 complaints a month; 15,000 of these are deemed to be incomplete or unfounded and a full 15 per cent of the complaints are unfounded and many stem from consumer confusion about the system, particularly with respect to what types of calls are covered.

2300             New registrants with the Canadian Registry should be advised immediately, in our view, upon registration as to its scope, including the list of exempted calls.

2301             We would also like to speak briefly about two questions outlined in the Public Notice 2006‑4.


2302             With respect to paragraph 48 of the Public Notice, MRIA recommends that the do not call list rules be applied to telemarketers making the calls as well as to the companies on whose behalf telemarketers are engaged.

2303             MRIA also strongly recommends that the do not call list should apply to voice casting calls.

2304             These two simple actions would serve to create a stronger, more coherent telemarketing do not all list and go a long way towards limiting what has become an increasingly prominent irritant for consumers.

2305             In closing, we want to stress that the market survey and public opinion research industry regards Canadians who respond surveys as their partners.  We believe that if that partnership is to continue to thrive, our industry and our association will have to place increasing emphasis on the treatment and rights of respondents as we go forward.


2306             Therefore, as an important new initiative, we expect to introduce later this year a respondent Bill of Rights.  This will be a major addition to our self‑regulatory and professional standards program which includes the Canadian Survey Registration system which monitors member research projects being conducted across Canada.

2307             The system performs an important service by providing the public with a toll free number to confirm the legitimacy of a given research survey and to ensure that any personal information is being collected and used for legitimate purposes.

2308             MRIA looks forward to continuing to work with the CRTC to provide input and assistance towards a smooth implementation of the do not call list in Canada and, in this regard we intend to align our industries communications programs to support the CRTC in these efforts.

2309             Thank you again for the opportunity of speaking to you this morning and for considering our views on this topic, which is of great importance to our industry.

2310             THE CHAIRMAN:  Thank you very much, Mr. Watson for that very clear and concise presentation.

2311             Commissioner Cram.

2312             COMMISSIONER CRAM:  Thank you.  Mr. Wycks, Mr. Watson, Mr. Choinière, I wanted to talk initially about your organization.


2313             There are 1,600 members you say.  Are they all Canadian or operate in Canada and in the States?

2314             MR. WYCKS:  The vast vast majority are Canadians operating in Canada.  We do have a small handful of members that are outside the borders of our country.

2315             COMMISSIONER CRAM:  And when you are doing the surveys, do you conduct surveys on wire line only or do you phone wireless numbers when you do a survey?

2316             MR. WATSON:  I think by far the majority or almost all of the calls would be ‑‑ calls by telephone would be with wire line.

2317             There may be some special surveys where wireless would be used.  For example, possibly a customer satisfaction study with customers of cell phone services where there had been a pre‑arrangement to do that, but we would not routinely phone cell phone customers as part of our regular surveys, no.

2318             COMMISSIONER CRAM:  So, how would you know ‑‑ I guess you would know that they were wireless because they have different prefix numbers; is that it?

2319             MR. WATSON:  Yes.  Most of the dialling would be done based on data basis that would be assembled from land line phones.


2320             COMMISSIONER CRAM:  And I guess when the numbered portability comes in you are going to have a problem?

2321             MR. WATSON:  These are all challenges for our industry.  We are thinking about ways to deal with these as they emerge, yes.

2322             COMMISSIONER CRAM:  So, the point would be though that you actually avoid phoning wireless people, wireless subscribers?

2323             MR. WATSON:  As a general rule, yes.

2324             COMMISSIONER CRAM:  Uh‑huh!  And there has got to be the odd person who gets pretty ticked about being phoned about a survey.  Do your people normally have internal do not call lists?  I know it affects the validity that you are worried about ‑‑ I know that, but I am not sure I would like to be a surveyor, you know, phoning somebody who is fairly irritable about this?

2325             MR. WATSON:  We do occasionally get such a call and I think it is generally the practice among our members that when someone complains and asks that they not be called again, that indeed a note is made and that person is not called again.


2326             MR. CHOINIÈRE:  If I may add.  The land that we are looking at in that direction is that when people ask not to be called, each company has their do not call list, but on top of that we feel that once the telemarketing do not call list is in place, people will not be annoyed as much as they are right now.

2327             The number of calls will go down dramatically for those who choose not to be called and we feel this is going to be a plus for our industry where when we call, they see that we are serious in getting their opinion and no longer selling.  I think the participation rate will go up.

2328             COMMISSIONER CRAM:  And do you do surveys by e‑mails?

2329             MR. WATSON:  Yes, we do.

2330             COMMISSIONER CRAM:  And you find them statistically valid?

2331             MR. WATSON:  It depends on the purpose.  There are many sampling challenges when surveys are being done on the internet and then some situations it works better than others, but these are areas where we are developing standards to improve the quality as well.

2332             COMMISSIONER CRAM:  So you see that as increasing in the future?


2333             MR. WATSON:  Yes.  In our national surveys of our members we see that the proportion of work that's done on the internet is increasing each year.

2334             COMMISSIONER CRAM:  Uh‑huh!  What are you doing to educate your members about their obligations under telemarketing rules?

2335             MR. WATSON:  We have a very comprehensive set of standards and best practices.  These are practices which are included as part of our education program.

2336             So, for example, there is a program or a course on standards and privacy and ethics which all members who are looking to earn our individual certification must take that course.  And also, elements of that program are part of the audit and certification program that we have for our corporate members.

2337             MR. CHOINIÈRE:  May I add also that to be a member, to be accepted as a member, they have to sign that they will abide by the rules of conduct, all members?


2338             COMMISSIONER CRAM:  And you said you're self‑regulatory.  So, let's say your best practices said you can only survey between, I don't know, 0900 in the morning and 0900 at night and if there was a constant breech of that, do you have a continuum of punishments?

2339             MR. WATSON:  Yes.  We have a disciplinary process.  When a complaint is received, there is a ‑‑ it's investigated, a panel can be convened to review it and then, there are... there are a stage of disciplinary actions ultimately being excluded from the industry.

2340             M. CHOINIÈRE:  There are two types of members.  Membership is individuals and, as well companies.  Companies have to sign and abide by a set of rules and there are various regulatory procedures.

2341             For individual members it's the same thing.  There are as well under one of the committees that handles all complaints.

2342             COMMISSIONER CRAM:  So, you wouldn't object to us imposing limitations on time of day calling in the telemarketing rules, to which you would be subject?

2343             MR. CHOINIÈRE:  Well, we are not in the telemarketing business.  We are in the research business and, as such ‑‑

2344             COMMISSIONER CRAM:  So, your position would be that any rules we would make for telemarketing such as time of day, you would not be subject to them?


2345             MR. CHOINIÈRE:  I think we have been excluded in the Legislation.

2346             COMMISSIONER CRAM:  From the rules?

2347             MR. CHOINIÈRE:  Yes.

2348             THE CHAIRMAN:  It's not clear that that's the case.

2349             COMMISSIONER CRAM:  You have been excluded from being required to have a do not call list.

2350             MR. CHOINIÈRE:  Uh‑huh!

2351             MR. WYCKS:  But through several prior CRTC decisions, we have been excluded from the telemarketing framework.

2352             COMMISSIONER CRAM:  So, are you asking that that happen again?

2353             MR. WYCKS:  We believe that it is a legitimate exclusion based on the industries work and the societal value that we bring.

2354             COMMISSIONER CRAM:  So, you would object to us imposing restrictions on time of day when you could conduct a survey?  Like these are the kind of rules we are talking about, that you would not conduct a survey at midnight in Saskatchewan.

2355             THE CHAIRMAN:  Especially in Saskatchewan.


2356             COMMISSIONER CRAM:  Listen; I love surveys.  I answer everyone, but ‑‑ I'm outside the demographic, that's right.

2357             MR. CHOINIÈRE:  I think that the position we have had from the start is that if we are excluded from the do not call list and, by fact, in the past all decisions have been that we be excluded from telemarketing rules, if these are rules that are to apply to telemarketing, we would like to be excluded for sure.

2358             I am not talking specifically about time of day, but some of the rules are ‑‑ that would apply to telemarketing we don't feel that we should be included in those.

2359             COMMISSIONER CRAM:  Yes.  Time of day you wouldn't have a problem with?

2360             MR. CHOINIÈRE:  Not necessarily.  I mean, we do have best practice.

2361             COMMISSIONER CRAM:  And you wouldn't have a problem with the requirement that you provide identification at the first of the call, who is calling?


2362             MR. CHOINIÈRE:  No.  We do that already.  All of our members have a set of rules.  The time of day, as long as it's ‑‑ we have not had any problems in the past in terms of setting hours ourselves and it is ‑‑

2363             COMMISSIONER CRAM:  What are the hours that you set?

2364             MR. CHOINIÈRE:  We are reviewing it right now, but I think it's nine o'clock at night.

2365             MR. WATSON:  Both of these are recommended practices.  For example, that there be a clear identification of the member that is a required part of our standards.

2366             We have recommendations with respect to the length of the interview and recommendations with respect to calling times and from my familiarity with the practice of certainly the larger companies, these are quite rigidly followed.

2367             There are some ‑‑ there would be some problems with making it absolute because there would be some circumstances when it might be necessary or appropriate or not problematic to call late.  You know, we deal with all sorts of population and not all Canadians, you know, work nine to five jobs, for example, and so, you know, sometimes its necessary to reach them later and we might even have made a pre‑arrangement to reach them later.


2368             COMMISSIONER CRAM:  And you would probably get the 15, 16 year olds at two in the morning and there would be no problem.

2369             So ‑‑ and you, habitually, I would assume, and tell me if it's a requirement or a best practice, you would have the number.  You don't block the number, the phone number ID on your ‑‑‑ when you do the surveys?

2370             MR. WATSON:  We do not have a particular recommendation with respect to that.  I think the general practice though is that companies display their name, partly because you know, most of the companies have a certain level of brand recognition and if it says, you know, a certain research company, then the caller knows that this isn't a telemarketing call.

2371             I think in the experiments that we have done, showing the name actually elicits more co‑operation than if you block the name.

2372             COMMISSIONER CRAM:  Do you on request provide another number if I want to find out that you are legitimate?

2373             MR. WATSON:  Yes, absolutely.

2374             COMMISSIONER CRAM:  It seems like this, the 1‑800 number, is a common one in a normal call.


2375             MR. WATSON:  In practice I think there are two responses that are given.  Let's say, for example, an interviewer has phoned a household and the respondent is a little bit uneasy about whether this is legitimate.  I find the first response on the part of the respondent is to say:  "Can I speak to your supervisor."

2376             COMMISSIONER CRAM:  Yes.

2377             MR. WATSON:  So there is immediately a transfer.  This is usually a person who has more knowledge of the situation, is more experienced.  They explain the situation and the respondent is satisfied.

2378             If they are not satisfied with that, then the survey registration system is explained to them and they are given the 1‑800 number and they can make a call to that number to verify the survey.

2379             We provide them with the registration number for the particular survey that we were executing so that they can readily identify it when they call the survey registration centre.

2380             COMMISSIONER CRAM:  If you want to be exempted from the telemarketing rules, I guess I need to know what is the continuum of penalties that you give for a breach of your requirements ‑‑ not the best practices but your requirements.


2381             MR. WATSON:  Could I suggest that we provide you with the documentation on that, which would go through it in some detail?

2382             These are all processes which are under some review.  If it was appropriate to make some enhancement to that, I think we would certainly be quite willing to do that.

2383             In fact, this is something which is being reviewed right now, in that there are a number of initiatives.

2384             One initiative that is being proposed by the world association that deals with these issues wanting to have more visible policing and enforcement, that would involve a more public presentation when in fact someone violated one of the rules.

2385             So we are certainly open to looking at enhancements to that process.

2386             COMMISSIONER CRAM:  Inevitably I would ask that you would file both the requirements and the best practice, the recommendations.

2387             What are the consequences of breach of a best practice or suggestion?  Nothing.


2388             MR. WATSON:  There are two things that happen.  This is reviewed by a number of peers who are aware of some violation.  It is brought to the attention of the member and it is recommended that the process be corrected.

2389             This is also done when our auditor reviews the individual company's practices.  This is a process where our auditor, which is done by Deloitte, goes through files in detail within the research company, interviews the senior staff responsible for standards in lengthy questioning on how certain standards are met.

2390             COMMISSIONER CRAM:  So what are the consequences?

2391             MR. WATSON:  The consequences are a report which indicates what needs to be improved.  There is no particular penalty or exclusion for best practice issues, though.

2392             COMMISSIONER CRAM:  Do any of your members use predictive dialling devices?

2393             MR. WATSON:  I expect they do.  I think what is more common is power diallers rather than predictive diallers.  But I am not sure of the statistics on that.

2394             COMMISSIONER CRAM:  So all I am worried about is dead air, abandonment.

2395             Do you have any standards for those who do use predictive dialling on an abandonment rate?


2396             MR. WATSON:  We don't have one but it would certainly be something that we would be happy to include in our standards.

2397             COMMISSIONER CRAM:  Do you have any position on ADADs?  You don't use them, ADADs ‑‑ automated dialling announcement devices?

2398             MR. WATSON:  No.  I don't think that is commonly used by our members.

2399             COMMISSIONER CRAM:  I take it, as you do not have to access the "do not call" issue, you wouldn't have a position on fee structures.

2400             Both times, in your written submission initially and in this submission, you use the word "strongly" recommend that the "do not call" lists apply to voicecasting calls.

2401             Why "strongly"?

2402             MR. WYCKS:  I think it's just an adjective for emphasis.

2403             COMMISSIONER CRAM:  Okay.  So it's not that it is annoying to you guys or there is something that really is ‑‑ now you have a young gentleman there.

2404             Maybe you can tell us why it is "strongly".


2405             MR. JODOIN:  We feel that any calls that are considered an intrusion or a nuisance to the general public tend to affect our industry.

2406             The calls that are considered a nuisance tend to impact our industry.  We have been found not be considered a nuisance, either in the complaints that we receive or in CRTC proceedings.  But the general public sometimes doesn't necessarily differentiate calls to the home.

2407             So any type of nuisance calls tends to add up and it becomes a respondent fatigue for us.

2408             So if we see a coherent telemarketing  "do not call" list, we are strongly in favour of that.

2409             COMMISSIONER CRAM:  Mr. Wycks?

2410             MR. WYCKS:  Allow me to introduce Greg Jodoin, who is MRIA's government relations consultant.

2411             COMMISSIONER CRAM:  Thank you.

2412             I know you are involved in CISC‑2, the second CISC working group.

2413             I guess my question is ‑‑ and I understand, and I think it is certainly to your advantage, that we would have a robust communication plan.


2414             The question in my mind, though, comes down to who is going to pay for it.  How much would your members be willing to contribute to the cause?  It is certainly going to help you.

2415             That is going to be an issue, isn't it?

2416             Mr. Jodoin, do you want to say something?  You can say something, you know.  You don't have to whisper.

2417             MR. WATSON:  Brendan is going to answer.

2418             MR. WYCKS:  It was our sort of understanding and belief that a robust communications program would be a necessary element in what the CRTC would roll out, so be there by necessity.

2419             We just wanted to emphasize how critical we felt it was and also the fact that we will support it and sort of dovetail with it in our own communications programs.

2420             That is the approach that we had in mind.

2421             COMMISSIONER CRAM:  So you are planning on your members contributing by having a communications plan sort of individually, I guess.

2422             MR. WYCKS:  As an association, which our members would be kind of the grassroots roll‑out component of it.


2423             MR. WATSON:  Our organization is not one which has a large ‑‑

2424             COMMISSIONER CRAM:  I know the organization doesn't have any, but my question, though, is:  It is clearly to your advantage to have this.

2425             One of these days it is going to come down to money and how much the CRTC can or will afford.

2426             What do you think about the idea from PIAC that we would go back to the 2004‑35 decision and have notes in the bills?  I think it was something like that.  We would require that the telephone companies put inserts in their bills.

2427             MR. CHOINIÈRE:  This will be part of our communication program.  We do have a plan that is being presently rolled out and in the coming year we will have a specific communication program which will include various utilities putting information in there so the public understands how important their opinion is and why the research industry is so important to them.

2428             COMMISSIONER CRAM:  Thank you.  I'm glad you value my opinion.

2429             Thank you, Mr. Chair.

2430             THE CHAIRPERSON:  Thank you, Commissioner Cram.


2431             Commissioner Langford.

2432             COMMISSIONER LANGFORD:  Thank you, Mr. Chair.  I won't try to drag this out.  You have been very kind and very generous with your time.

2433             I do have a question really of just straight information.

2434             You are exempt.  There is no question about that.  But I am a bit curious about the desire for an exemption in the sense of what you do.

2435             I'm not trying to roll back time here.  It is done.  But there is an aspect to it that I just don't quite understand, and it's probably because I'm just not a surveyor.

2436             If you are doing a survey ‑‑ we get a lot of surveys here, particularly on the broadcasting side.  People who are applying for radio licences, television licences, they survey the communities and they try to find out what people want and what formats in radio they are particularly attracted to.  Then they bring these surveys to us as empirical data that they are onto the right kind of service here.

2437             Of course, normally we get something like 300 or 500 people surveyed in an average size city.  They may choose a demographic to survey.


2438             I have seen of the normal breakdown, "strongly agrees", "agrees", "disagrees", "strongly disagrees", "no opinion".  But I have never seen a "hang‑up" column or a "do not call me" column or an "I don't want to talk to you" column in any of these surveys.

2439             So what do you do when you are calling?  You pick your 300 random numbers or your 500 random numbers and someone says: Put me on a "do not call" list.  I don't care whether you have one or not.  Or they are just annoyed.

2440             How do you quantify those in a survey?

2441             MR. WATSON:  Actually, we have quite a comprehensive set of specifications for how our members need to classify every response they get on the telephone.

2442             So for every number dialled, they need to account for an outcome.


2443             When you think of your 300 or 400 completed interviews that come to you as some evidence, that is the number of completed interviews.  But behind that there may be many numbers that were out of service, numbers where the interview could not be completed because there was a language barrier and this might have only been interviewed in English and French and maybe one other language and it couldn't be completed.  There would be some where you only reached an answering machine and were never able to reach the person.  And some, of course, where people say no, I don't agree to complete the survey and I don't want to be called again.

2444             So all of these are accounted for and in fact are used to calculate various statistics that we used to reflect on how representative that particular survey is.

2445             COMMISSIONER LANGFORD:  That part interests me.

2446             So there is some value to any of these outcomes, whether they are a hang‑up, an answering machine, a never call me again, I hate you, whatever, in polite or rude terms.

2447             What is the value?  How do you weigh the value of those sorts of responses?

2448             MR. WATSON:  We use them for two general purposes.

2449             One is to assess the statistical reliability of the interviews that we got.  So we will want to know of those people that we did not reach, is there reason to believe that they are different in character than the people that we did interview?


2450             For example, were they more in one part of the country than the other?  Are they individuals more of one age category than the other?

2451             We will look at those sorts of things.

2452             The other reason that we look at that information is that we want to maximize the level of co‑operation.  So if we are not reaching a household successfully, we want to know why not and whether there is something that we might do that would improve that situation.

2453             I gave the example of the language barrier.  If we carry out a survey in a particular area and a very large proportion of the interviews could not be completed because of a language barrier, then there would be a good reason to speak with that client and say perhaps we should translate it into additional languages and complete it.

2454             It is also an indication of some technological interviews.

2455             For example, if we are reaching answering machines or something of that sort, in many cases where we get no response at all, sometimes that is dialling into dead exchanges.  And we need to look at that.


2456             COMMISSIONER LANGFORD:  So if I may ‑‑ and we are not going back in time.  Parliament has spoken.  I don't want to alarm anyone here.

2457             But if I may, could I focus just on people who say "never call me; I don't want to be called; leave me alone" ‑‑ for whatever reason.  We don't know.  They might have been scared by a survey when they were children or something.  Who knows?

2458             What value are they to your companies?

2459             I can understand the language example you gave or perhaps a timing element in some exchange or whatever value of some of the lists you are getting.

2460             But what value is it to you to take the chance of keeping on getting these sorts of responses?

2461             MR. WATSON:  Statistically, it is critical.

2462             COMMISSIONER LANGFORD:  It is.

2463             MR. WATSON:  You can't tell in advance which phone number is going to be someone who may not be willing to participate in this particular study.


2464             What we also know is that there are many reasons for not agreeing to participate.  It might be that "I just don't want to be bothered at all for any reason whatsoever".  I think that is quite a minority of situations.

2465             The most frequent one is "this just isn't a convenient time".  So we find that if we can have a couple of seconds with the person and find out is there a better time to call, what can we do to make it more co‑operative for you, then we can arrange the call at another time.

2466             MR. CHOINIÈRE:  May I answer this?

2467             COMMISSIONER LANGFORD:  Absolutely.

2468             MR. CHOINIÈRE:  One of the points that we have been looking at very strongly is that when there is a "do not call" requirement, one person chooses for the whole household.  Subjects may be very different.

2469             If I need to speak to a 16‑year‑old or a 25‑year‑old, it is going to be very different.  One person in the household may decide that they don't want to answer surveys, but when they take that decision it should not imply that everybody else in the household will not be called and will not give their opinion.

2470             The second element is I just want to step one step back on the reporting.


2471             In most instances ‑‑ and in all instances very soon ‑‑ companies will give the administrative report with a calculation of the response rate at the beginning of a report or in an appendix.  So we do know if the response rate is higher or lower.

2472             Our feeling is with the "do not call" list, our response rates will go up and hence give a better quality survey.

2473             COMMISSIONER LANGFORD:  This is what got me started because either you or one of your colleagues made this comment earlier this morning.

2474             Wouldn't it be to your advantage to have your own internal "do not call" lists so that you simply ‑‑ I know you don't want to be on the national one because of all these reasons: you might be able to talk people around and specify.  You have been very clear on that.

2475             In the sense of that small but determined group who never wish to speak to you ever, as long as they live, wouldn't it be to your advantage simply not to have these numbers and not to be burdened with having to keep these statistics over and over?

2476             Wouldn't it be to your advantage just to get rid of them?


2477             I can't see any advantage to you phoning them.  And that's why I am missing it.  If there is an advantage, let me know.

2478             MR. CHOINIÈRE:  There are a few.

2479             Financially, it would be an advantage; statistically, it would not be.

2480             As I mentioned, we are excluding everybody in that household because one person has chosen not to be called.

2481             Most companies ‑‑ and I would say probably all companies who are members in the MRIA ‑‑ do have their own "do not call" list.  But it is not the interviewer that decides.

2482             In my company it is my vice‑president, one of my vice‑presidents, that decides yes, he is going to go on the "do not call" list.  Sometimes it is the subject.  They don't want to answer a survey for something that is not interesting to them.

2483             When it comes to health, for instance, when we conduct work for Health Canada and we say at the beginning that it is for Health Canada, the participation rate is much higher, and very, very few people ask not to be called.

2484             So the subject is an item.


2485             I think it is a very wide problematic, really.

2486             COMMISSIONER LANGFORD:  So you are doing everything from sort of brands of instant coffee right through to fundamental health issues, and you feel people should be able to choose.

2487             MR. CHOINIÈRE:  Yes.  And people should also be told that their opinion is very important, both in general public policy and in approving products.

2488             If they don't give their personal opinion on it, their neighbour, which does not necessarily have the same opinion, will give his opinion.  Therefore, it is a statement of choice really.

2489             COMMISSIONER LANGFORD:  Yes.

2490             I just want to narrow it down once last time, if you don't mind.

2491             I live alone ‑‑ I don't but this is hypothetical.

2492             I live alone.  There is no one else in my household.  One of your members phones and I say:  "Look, I live alone.  I don't ever want to be bothered by any of your questions ever again as long as I live."

2493             And this goes to your vice‑president. What is your betting?


2494             MR. CHOINIERE:  You will have put them on the "do not call" list.

2495             COMMISSIONER LANGFORD:  So it would be an advantage not to call this curmudgeonly old character one more time.

2496             MR. CHOINIERE:  Well, maybe we will call two years down the road.

2497             COMMISSIONER LANGFORD:  To see whether I have come around.

2498             MR. CHOINIERE:  Yes.  Or if you have read an article on how important it is to have your ‑‑

2499             COMMISSIONER LANGFORD:  It's gone.  Why didn't you push me harder?

2500             That helps me very much.

2501             So you probably will keep ‑‑ am I safe in assuming that all of your members probably will keep some form of "do not call" list, but that they will be judiciously culled by the pros, the experts, before names are put on it?

2502             MR. CHOINIERE:  I can't say for sure, but that is certainly the practice right now.

2503             COMMISSIONER LANGFORD:  Thank you very much.

2504             Those are my questions, Mr. Chair.


2505             THE CHAIRPERSON:  Thank you, Commissioner Langford.

2506             Commissioner Cram.

2507             COMMISSIONER CRAM:  You would be filing those best practices and recommendations, say, within ten days or so?

2508             MR. WATSON:  Yes.

2509             COMMISSIONER CRAM:  Thank you.

2510             THE CHAIRPERSON:  Thank you very much for your presence and advice.  We are aware of the importance of your industry.  We appreciate your collaboration with our various working groups, and we look forward to continuing that collaboration.

2511             MR. CHOINIERE:  Thank you.

2512             THE CHAIRPERSON:  Madam Secretary.

2513             THE SECRETARY:  Thank you, Mr. Chair.  We will now proceed with a presentation from Contact NB, Mr. Rick DesBrisay.

PRESENTATION / PRÉSENTATION

2514             THE CHAIRPERSON:  Please proceed, Mr. DesBrisay.


2515             MR. DesBRISAY:  Thank you very much, Mr. Chairman and Commissioners.  My name is Rick DesBrisay, and I am a member of the Executive Committee of the Board of Directors of Contact NB.  Contact NB is the trade association for the contact centre industry in New Brunswick.

2516             We have submitted a written presentation this morning, but I think, in the interests of time, I will simply highlight the main points of it.

2517             Contact NB represents about 45 companies, who employ about 16,000 New Brunswickers in the inbound and outbound call centre industry.

2518             The industry in New Brunswick is, in fact, the second largest industry sector in New Brunswick, and it continues to grow.  The largest is the tourism and hospitality industry, but it is larger than forestry, larger than the fishery.  It has become a huge industry.

2519             The principal focus of the association is to promote the industry as a good place to work, a place to establish a career, which enables us to attract quality employees.

2520             The industry had some kind of perception of being a place where there were sweatshops and low‑paying, dead‑end jobs, but that is not the case.  People do make very important careers in the industry, and we wish to continue to play a role in that business.


2521             The public image of the industry is vitally important to us as an association.

2522             I should also declare that I have a business, which is called RainMaker Call Centres.  We are an outbound telemarketing firm.

2523             We have four call centres, two in New Brunswick and two in British Columbia.  We employ about 150 employees.  We call mainly into the United States, on behalf of a client in the U.S., although we do some calling in Canada.  In fact, we are DNC compliant and have systems in place to manage that.

2524             I will be talking this morning about Contact NB's position, but I will certainly entertain any questions that you may have regarding my business during the question‑and‑answer period.

2525             The association has five main issues.  The first of those, and not necessarily in order of importance, is calling business‑to‑business.

2526             We believe, fundamentally, that allowing businesses to put their numbers on the "do not call" list will be a restraint of trade and will make it especially difficult for emerging businesses who don't have existing clients.  Using the telephone is a very powerful way to develop new clients.


2527             Having businesses put their numbers on the list tends to be an impediment to the development, particularly of emerging businesses, but certainly the development of any business.

2528             There is a danger with business numbers, in particular, that someone may put the business number on the "do not call" list unbeknownst to the company.  I suspect that there will be numerous ways of putting those numbers on the list, and there could be numbers put on the list that the company would not be aware of.

2529             Could you imagine IBM, for example, having their number on the list, put there by a receptionist who didn't want to take as many calls, or by a disgruntled employee, or by a hacker, or by a tele‑terrorist ‑‑ that is someone who really hates telemarketing.

2530             If another company that had a "do not call" blocking system tried to dial IBM's number, it just wouldn't let them call IBM because the number would be on the list.

2531             Business‑to‑business is a very important concern.


2532             The second concern is the cost to telemarketers to set up compliance systems.  I know from our experience at RainMaker that it costs about $25,000, at a minimum, to establish the hardware and software to allow you to mesh the CRM database, your customer database, with the "do not call" list, and it costs several thousand dollars per year to maintain it ‑‑ to keep it updated and maintain it.

2533             If there are, maybe, 2 million companies in Canada who call their customers, that means that about 2 million companies will have to spend $25,000 each ‑‑ $5 billion, maybe ‑‑ to make Canadian businesses compliant with the DNC list, to manage it, and also to manage their own internal "do not call" list.

2534             The third issue is:  How long will the number remain on the list.

2535             I don't know where I got this number, but I am led to believe that about 14 percent of Canadians move during the year, and numbers are moved.  So, over a period of time, if a number is left on the list in perpetuity, for five years or ten years, or whatever it may be, there will be a whole lot of numbers that will be on the list that should not necessarily be on the list.

2536             We need to think about how we go about doing that.


2537             Furthermore, the process of putting numbers on the list needs to be managed so that only the rightful owner of that number can add that number to the list.  There needs to be some mechanism to make sure that happens.

2538             Fourthly, with regard to the cost of operating the system, we believe that it should be spread amongst all users of the list, the 2 million or so businesses across Canada that make calls to their customers.

2539             Similarly, as was mentioned yesterday, we should consider charging the consumers some fee for putting their number on the list.

2540             For example, people now pay their telco a monthly fee to have a non‑published number ‑‑ an unlisted number.  Why couldn't we do the same thing with the "do not call".  If you wanted to be on the "do not call" list, you would pay $2 a month, or whatever the fee might be.


2541             Most importantly, and our last point, is that the public image of the industry may be damaged by this.  We believe, based on some of the testimony to the Senate committee that studied the bill, and by anecdotal evidence that we have, that 80 percent or 85 percent of the calls that are currently being received by consumers will be exempt from these regulations.  So consumers, in particular, who expect their telemarketing calls to go to zero because they are on the list are going to be shocked, perhaps angry ‑‑ "I added my name to the list and you are still calling me.  Why are you still calling me?  I don't want to be called.  I am on the list."

2542             We think that there will be a public backlash about this, because people who put their name on the list will expect the calls to stop, and they are not going to stop.

2543             There needs to be, which has been mentioned before, and which we fully support, a broad, strong education campaign to let people know that they are still going to receive calls from all of the parties that are exempt, and to expect that.

2544             Granted, there will be some reduction in the calls, but maybe 80 percent or 85 percent of them will continue to be passed.

2545             That is my presentation.

2546             THE CHAIRPERSON:  Commissioner Cugini.

2547             COMMISSIONER CUGINI:  Good morning, Mr. DesBrisay, and thank you very much for being here.  I think you have made some very interesting points this morning, coupled with your written submission.


2548             I am going to ask you some general questions about Contact NB, and then we will get into the specifics on both what you said this morning and what you filed in your written submission.

2549             Just so I understand it better, Contact NB, you say, represents over 65 inbound and outbound customer contact centres.  These are strictly call centres, or do you do your own telemarketing?

2550             MR. DesBRISAY:  They are strictly call centres.

2551             COMMISSIONER CUGINI:  What is an inbound call centre?

2552             MR. DesBRISAY:  When you call your bank to inquire about an account, you are calling into the bank, and an agent receives your call and handles your inquiry.  That is an inbound centre.

2553             An outbound centre is where the agent calls you to initiate the contact.

2554             COMMISSIONER CUGINI:  So telemarketers will contract Contact NB to place the telemarketing calls for them, through your outbound centres.

2555             MR. DesBRISAY:  Contact NB is primarily represented by inbound ‑‑ the membership is primarily inbound, not outbound.  But they still call our customers.


2556             Under the definition of a telemarketer, anyone that calls a customer is a telemarketer.

2557             COMMISSIONER CUGINI:  You said this morning that you maintain a "do not call" list.

2558             MR. DesBRISAY:  Yes.

2559             COMMISSIONER CUGINI:  Or your members maintain a "do not call" list.

2560             MR. DesBRISAY:  I said that RainMaker maintains a "do not call" list.

2561             I can't speak for the Royal Bank, for instance, or Delta Hotels, or all of the other companies, as well as Air Canada, which are members of the association.  I presume they do, but I can't speak for them.

2562             COMMISSIONER CUGINI:  So RainMaker's "do not call" list currently ‑‑ consumers that you phone, how do they register their name on your "do not call" list?

2563             MR. DesBRISAY:  They say so to our agent, and on the computer screen our agent clicks a button, "Do not call", and it gets registered in the computer database immediately.


2564             COMMISSIONER CUGINI:  Do you have a way of acknowledging for the consumer that you have placed them on your "do not call" list?

2565             MR. DesBRISAY:  No.

2566             COMMISSIONER CUGINI:  What happens when a consumer changes his mind and wants to be de‑listed?

2567             Is it the reverse process?

2568             MR. DesBRISAY:  Yes, only it requires a senior manager to remove a number from the "do not call" list.  An agent can't do that.

2569             COMMISSIONER CUGINI:  An agent cannot do it.

2570             Is it always through a live person answering the phone or placing the call that receives the request to either be listed or de‑listed?

2571             MR. DesBRISAY:  No, it can come in by fax or by e‑mail.  Mainly by phone.  We have an 800 toll‑free number that they can call.

2572             COMMISSIONER CUGINI:  Have you received any complaints from consumers who have said, "Hey, I have been placed on your "do not call" list and I am still getting calls from you"?

2573             MR. DesBRISAY:  No.

2574             COMMISSIONER CUGINI:  How soon after the request comes in are you able to remove them from the list?


2575             Is it immediately?

2576             MR. DesBRISAY:  Yes, immediately.  The computer system will not dial a number that is flagged "Do not call".

2577             COMMISSIONER CUGINI:  Do you currently place a time limit on how long a consumer can be on your list?

2578             MR. DesBRISAY:  No, it is in perpetuity.

2579             COMMISSIONER CUGINI:  What is your suggestion for how long consumers should keep their name on the "do not call" list?

2580             MR. DesBRISAY:  The association doesn't have an opinion on that.

2581             Personally, I think it should be one year, because numbers change all the time.  If you want to be on the list, you will be obliged to re‑register every year.

2582             COMMISSIONER CUGINI:  What if we were able to build in provisions that ensured that numbers that either were reassigned or disconnected would be automatically scrubbed from the list?

2583             MR. DesBRISAY:  That would be good.

2584             COMMISSIONER CUGINI:  Would you still maintain that a one‑year limit would be appropriate?


2585             MR. DesBRISAY:  No, it could be longer in that case.

2586             COMMISSIONER CUGINI:  Would you have any objection to it being in perpetuity?

2587             MR. DesBRISAY:  No.

2588             COMMISSIONER CUGINI:  The point is, if we were to impose a shorter time period than perpetuity, we would get into the complications of:  How does a consumer know that their registration on the "do not call" list is about to expire.  Whose responsibility would it be to remind that consumer that, "Hey, your three‑year limit is up and you have to re‑register."  And what would be the costs involved with implementing that type of renewal system.

2589             MR. DesBRISAY:  I see the problem, but I just don't think ‑‑

2590             I am going to retract my earlier comment.  I don't think that numbers should be on there in perpetuity.  There should be some deadline that allows people to change their mind.  If they forget that they are on the list ‑‑

2591             Maybe people would like to receive survey ‑‑ not survey calls, but other calls from telemarketers with whom they have not had an existing business relationship in 18 months.


2592             Forever is ‑‑

2593             COMMISSIONER CRAM:  A long time.

2594             MR. DesBRISAY:  ‑‑ a bit too long.

2595             COMMISSIONER CRAM:  Business‑to‑business.  Do you currently do any telemarketing?

2596             MR. DesBRISAY:  Yes, we do.

2597             COMMISSIONER CRAM:  Business‑to‑business.

2598             MR. DesBRISAY:  Yes.

2599             COMMISSIONER CRAM:  The current telemarketing rules, do you agree that they should continue to apply?

2600             MR. DesBRISAY:  Yes.

2601             COMMISSIONER CRAM:  What do you see as the major impediment to including business‑to‑business calls on the "do not call" list?

2602             I take your point about emerging businesses.  You made it very strongly.  They need the opportunity to build a client base.  But do you have any other examples of what would be a major impediment?


2603             MR. DesBRISAY:  Sure.  A lot of companies, big and small, rely upon using the telephone to contact prospective customers, former customers, existing customers, and using the telephone to do that is a very powerful marketing and sales tool.  Very powerful.  It is the most cost‑effective method of marketing.

2604             Businesses placing their numbers on the "do not call" list, and people using automated blocking devices, such as we do ‑‑ and I think that everyone will have to go that way, in some way ‑‑ we will just not be able to call IBM any more if their number is on the list.  You won't be able to reach them.

2605             It opens up a huge problem for companies that want to contact other companies whose number is on the list.

2606             COMMISSIONER CRAM:  What do you foresee being a new rule on the "do not call" list that is not currently in the telemarketing rules that would directly impact business‑to‑business?

2607             In other words, what would change for businesses?

2608             MR. DesBRISAY:  There will be a lot of businesses that we won't be able to call.

2609             COMMISSIONER CRAM:  If businesses are currently doing telemarketing to consumers, they would have to oblige by the rules.

2610             MR. DesBRISAY:  Yes.


2611             COMMISSIONER CRAM:  They would have to access the "do not call" list.

2612             How much further a step is it for those businesses who do business‑to‑business telemarketing to access that same list?

2613             MR. DesBRISAY:  It isn't difficult.  The problem is ‑‑

2614             Let me back up a bit.  I don't think there is any hue and cry by the business community to have their numbers on the "do not call" list.  It is residential consumers who have been driving this.  It is not the business community saying, "We need to be able to put our numbers on the list."

2615             I don't think that's happening and, frankly, I think it's a mistake that businesses were not given an exclusion and I would ‑‑ I would recommend ‑‑ I know the chairman has said otherwise, that CRTC go back to the House of Commons and ask to have businesses added to the exclusion.

2616             COMMISSIONER CUGINI:  I don't know if you were here yesterday for the proceedings, but there was quite a bit of discussion about family relationship exemption and I was just wondering if you had an opinion on whether that should be included or not.


2617             MR. DESBRISAY:  The association doesn't have any view on that.  We didn't consider it.

2618             COMMISSIONER CUGINI:  Okay.  One of the things that struck me in your written submission was the existing business relationship:

"Many businesses who have not previously considered themselves to be telemarketers will be forced to install DNC blocking systems."

2619             What type of businesses were you referring to in that?

2620             MR. DESBRISAY:  Let me give you an example.  If you ‑‑ say you buy a car from an automobile dealer and in six months time the automobile dealer will call you to say, oh, it's time for you to come in and have the car serviced, oil changed.  That is a telemarketing call.

2621             And so if the consumer does not do business with the dealer for eighteen months and one day, they will no longer be excluded and the automobile dealer that's calling you, the consumer, to have you come in and have the oil changed will be in violation because they will be ‑‑ if you are ‑‑ if your number is on the list.


2622             So that automobile dealer is going to have to have some method of checking their database to make sure that they have an existing business relationship with that customer within the eighteen months and secondly, to see whether or not they are on the do not call list.

2623             So that company is going to have to have some system, and it will be a telemarketer and it's going to have to comply.

2624             COMMISSIONER CUGINI:  Do you think it's the responsibility of that car dealership or the car maker to maintain a do not call list and to, you know, be responsible for the scrubbing and so on, or should it be both?

2625             MR. DESBRISAY:  I'm not sure it's ‑‑ it's whoever is originating the call.  If the car maker of General Motors is making the calls, then perhaps they should be required to comply also or be responsible, but I don't think that ‑‑ I think it's the party making the call or making the call on behalf of the party.

2626             COMMISSIONER CUGINI:  Because that ‑‑

2627             MR. DESBRISAY:  For instance, a car dealer might hire my firm, for instance.

2628             COMMISSIONER CUGINI:  Right.


2629             MR. DESBRISAY:  Or someone else to make calls for them.  Call our 5,000 customers and tell them we have a special on summer reconditioning for your whatever.  And so our telemarketing firm would be responsible to comply and so would the car dealer, the customer.

2630             COMMISSIONER CUGINI:  Well, taking your example further then, do you ‑‑ should it be the car maker, car dealer and your firm who should be responsible for maintaining the list, therefore accessing the list, therefore paying the fees to access the list?

2631             MR. DESBRISAY:  I don't know.  I'd have to give some thought to that.

2632             COMMISSIONER CUGINI:  Okay.  You make a strong point this morning as well as in your written submission that a strong public awareness program should be initiated so that consumers are well aware of what is included and excluded from the do not call list rules.

2633             Do you have any suggestions for us as to what form that educational process should take and who should be responsible for it?


2634             MR. DESBRISAY:  I believe it's got to be much more than just putting in a little flyer in the telephone bills.  And by the way, let's not forget that not everyone is going to get a telephone bill from their telco anymore because there is a huge wave coming, starting right now, for voice over internet phones.

2635             As a matter of fact, our company, Rainmaker, is a hundred percent voice over internet.  And so that's not going to reach everybody.  I never read those little things that are in the envelope anyway and so it needs to be a big campaign on television and newspapers and what have you and it should be paid by the government.

2636             It is the government that has put this law into effect and it is the government that has created all the exclusions and it is the government ‑‑ some branch of it is going to have to pay.

2637             COMMISSIONER CUGINI:  You are giving our Chairman more tasks.  Do you use voice casting?

2638             MR. DESBRISAY:  No.

2639             COMMISSIONER CUGINI:  Do you use ADADs?

2640             MR. DESBRISAY:  No.

2641             COMMISSIONER CUGINI:  Thank you.  Those are all my questions.  Thank you, Mr. Chairman.


2642             THE CHAIRPERSON:  Mr. Debrisay, I have a couple of questions and I'm going to exercise my prerogative just to pursue them with you.

2643             Anyone who calls a customer is a slight overstatement as to what the bill applies to, but you have given us some interesting illustrations of the problems that could arise in a practical matter.

2644             Do you seriously ‑‑ are you seriously telling us today that based on your experience, two million Canadian businesses are going to have to invest $25,000 each to link their CRM software, which they may or may not have in the first place, to the DNCL list or is it possible that's somewhat overstated?

2645             MR. DESBRISAY:  Well, let's look at the definition of a telemarketer.  It's any party or company or individual that solicits, uses a telephone to solicit business.  So if a company makes telephone calls to solicit business, they are a telemarketer.

2646             THE CHAIRPERSON:  To solicit business.  Yes.

2647             MR. DESBRISAY:  Right.

2648             THE CHAIRPERSON:  And in your view, what would a prudent government have done or do to reduce that burden?

2649             MR. DESBRISAY:  The burden ‑‑


2650             THE CHAIRPERSON:  The cost that you claim is going to fall on Canadian business as a result of the legislation?

2651             MR. DESBRISAY:  Frankly, I don't think the government gave it that much thought, how much it was going to cost.  How is this going to be implemented by each and every telemarketer?  It's not difficult for the Royal Bank, who is calling their customers because they've got a whole battery of IT people, so they can do this.

2652             But the small business, the little car dealers, the hundreds of thousands of small businesses across Canada who call their customers are going to have to have an internal do not call list and be compliant with the national list, and I don't know how that's going to be done.

2653             I do know that it cost us to buy a blocker ‑‑ it's a server basically that allows you to download the list off the internet ‑‑ through the internet download the list.  It costs us $15,000 for the box, the switches.  All telephones in our offices have to be routed through the switch.


2654             So you have got to go through the process of collecting all the telephone lines in your business ‑‑ that car dealer as an example, you have to take all their phone lines and put them through that blocker so they'll check against their customer database and the do not call list to make sure they're not making calls that are not compliant.

2655             THE CHAIRPERSON:  And this is because you are, in fact, already in compliance with the US DNC?

2656             MR. DESBRISAY:  Well, Rainmaker is, yes.

2657             THE CHAIRPERSON:  Yes.  That is extremely valuable information from us in a practical sense, however, if indeed it's still your contention that all of that apparatus will be required for every one of the Canadian businesses which you estimate at two million who will be calling customers and therefore become "Telemarketers", but there's ‑‑ you don't see any obvious thing that the Commission could do or that the government should have done?

2658             MR. DESBRISAY:  Well, perhaps we could order the telcos to modify their switches to block numbers, but that doesn't ‑‑ still doesn't deal with internal do not call lists.  So the telco is not going to be able to monitor the internal list.  They might be able to monitor the national list, but not the internal list.

2659             THE CHAIRPERSON:  The switch would be ‑‑


2660             MR. DESBRISAY:  There was no ‑‑

2661             THE CHAIRPERSON:  Excuse me.  The switch would have to be ‑‑ excuse me, sorry, please go ahead.

2662             MR. DESBRISAY:  Go ahead.

2663             THE CHAIRPERSON:  The switch would have to ‑‑ the teleswitch would have to recognize the source of the call and the call party?

2664             MR. DESBRISAY:  That's right.

2665             THE CHAIRPERSON:  It would say these two combinations, no go.

2666             MR. DESBRISAY:  Right.  Now, that could be made to work.  I mean, I'm not a telecom.  It could be made to work, I don't know at what cost.  But, A, it doesn't deal with the internal do not call list, and, B, it doesn't deal with companies and individuals that are using voice over internet protocol telephone systems because those calls do not go through the routers.

2667             And there's more and more companies and businesses moving daily to voice over internet systems.


2668             THE CHAIRPERSON:  So, in effect, you have given us some very valuable specific information about your business, the cost to which are ‑‑ after all, costs inherent in the very nature of your business and therefore they are a burden which you don't particularly enjoy, as no businessman does, to incremental costs, but one which comes to the territory, it seems to me.

2669             Whereas ‑‑ whereas ‑‑ and as for the auto maker who phones 5,000 people, well, he's put himself basically in the same area.  But the auto maker who is calling back customers and making single calls or twelve calls or a dozen calls a day by someone whose primary job is elsewhere, your point to us today, and it seems to be an important one, is that there is a potential incremental cost which is quite large and which the Commission ought, at a minimum, to be cognizant of as it goes forward and makes its rules.

2670             MR. DESBRISAY:  Certainly.  If there's some inexpensive way for all businesses who call our customers to scrub their outbound calls against the list and their internal list, let's not forget that.

2671             THE CHAIRPERSON:  Well, for example ‑‑

2672             MR. DESBRISAY:  Then let's do it.


2673             THE CHAIRPERSON:  Yes, okay.  I mean that's a very important and interesting piece of advise and we appreciate it.

2674             On business to business, I think you were here yesterday, and I had a discussion with ‑‑ I'm very embarrassed to say I don't remember the witness, but it was a discussion, the burden of which was, instead of an exclusion for business to business, which is really what you are asking us here for, and I am not going to get into ‑‑ I don't think I am going to get into the question of whether that is justified in principle, but as a matter of ‑‑ as a matter of practice one thing we could do would be to define ‑‑ to find a way of inputting in the definition of telemarketing, the definition of a violation, the notion that telemarketing for purposes of selling other than consumer goods, other than goods destined to be bought in quantities of ones and twos for use in a residence by a family or a person in his residence, other than that, that kind of telemarketing would be allowed.  I don't know if I am making any sense to you.


2675             It would achieve, it seems to me, what you say you are looking for, without getting us into the question of telling ‑‑ I guess it was Mr. Hill and the CMA.  Thank you, I am sorry that ‑‑ that would allow us to ‑‑ not to get into the question of distinguishing businesses from residences when people phone up and say I want to put my number on the list.

2676             It seems to me it is a lot to ask us, and I am not sure how you intend for us to do it, to say you are a business, you can't go on the list.  How would we do that?  I mean how could we do that or, more to the point, would you be more sympathetic to the notion that we try by defining what a telemarketing violation is, i.e., consumer goods only, to solving your problem in that way?

2677             MR. DESBRISAY:  The logistics of checking every company, the two million, whatever number of companies that there are in Canada to see whether or not they're telling consumer goods and whether exempt or not exempt is humungous.  Being flippant, maybe we could get the gun registry people to do that for us.

2678             THE CHAIRPERSON:  We're not allowed to talk about gun registry here.  I am ruling it out of order right away.

‑‑‑ Laughter.

2679             MR. DESBRISAY:  I am from New Brunswick, so I have to put a plug in there for them.  But I just see it as a horrendous problem.


2680             If businesses want to have their number listed, then why don't we have a special form that they have to fill out signed by an officer of the company and sent in and say that's the only way you can have your number on the ‑‑‑

2681             THE CHAIRPERSON:  But how would the list operator know it was a business?

2682             MR. DESBRISAY:  Well, because in my perfect world a residential customer is going to have to prove that they own that number.

2683             THE CHAIRPERSON:  And how would they do that?

2684             MR. DESBRISAY:  Send a copy of the phone bill in.  If you're doing it over e‑mail ‑‑ I mean if you have a disgruntled employee or, my term, teleterrorist, that just hates all telemarketing, there's nothing to prevent someone from going on and putting hundreds ‑‑ thousands of numbers.

2685             You can even download them off the internet from whitepages.ca or yellowpages.ca, and someone could post thousands of numbers on the list without any control and who is going to stop that?

2686             So only the owner, the rightful owner of the number should be allowed to put that number on the list.


2687             THE CHAIRPERSON:  Technically the phone company owns the number, but anyway, we get the point.

2688             MR. DESBRISAY:  Yes.

2689             THE CHAIRPERSON:  And so in your mind it would be reasonable to expect the list operator to police the eligibility of the numbers which we're seeking to be placed on the do not call list?

2690             MR. DESBRISAY:  Absolutely.

2691             THE CHAIRPERSON:  Whereas in the United States after three or four years of functioning there is no, as I understand it, absolute demonstration that there aren't hundreds of thousands of small business numbers on that database without any obvious harm it seems to me in the industry in the United States or am I wrong?  Do you have ‑‑

2692             MR. DESBRISAY:  Yes, I have anecdotal evidence from another telemarketing firm in the United States that I had some discussion with, and they tell me that they've had the case where people have put thousands of numbers on the list, and as a matter of fact, put his own number on the list, and he certainly didn't put it on the list.  Someone else did.

2693             And so they believe that thousands and thousands of numbers were added unbeknownst to the owner of the number.


2694             THE CHAIRPERSON:  And these were business numbers or residential numbers?

2695             MR. DESBRISAY:  Residential numbers.  And I believe that businesses are not permitted to put ‑‑ in the U.S. not permitted to put their number on the list.  I don't know how they police that.

2696             THE CHAIRPERSON:  No, I mean I think you are right because they need to be exempt, so in theory they can't go on the list.  But the question which I am asking you, which quite reasonably you can't necessarily answer definitively is I've been told that there are lots of business numbers on the list, but that no obvious damage to anyone has occurred as a result.

2697             Well, thank you very much for that.  Commissioner Cram and then Commissioner Langford.

2698             COMMISSIONER CRAM:  Thank you, Mr. Debrisay.  I wanted to talk about ‑‑ is it rain ‑‑ Rainmaker?

2699             MR. DESBRISAY:  Rainmaker.

2700             COMMISSIONER CRAM:  Yes.  You operate out of Canada, but you phone into the States.  And is it the position of the FCC that you are subject to their rules?

2701             MR. DESBRISAY:  Yes, because our client is an American company.


2702             COMMISSIONER CRAM:  Ah, okay, okay.  So they would get ‑‑ if there was a breach, they would get to the client, not necessarily yourself.

2703             MR. DESBRISAY:  Yes.

2704             COMMISSIONER CRAM:  And that is the only reason, because the transporter issue is one that I would worry about in terms of people phoning from the States up to Canada.  So the only sort of jurisdiction we would have would be over the client and where it would be.

2705             MR. DESBRISAY:  That's right.

2706             COMMISSIONER CRAM:  Okay.  I wanted to talk to you about business to business.  First there was the CMA distinction that said that business could register with the ‑‑ with the list, but on business to business type ‑‑ which would be sort of, I guess, bulk selling, that they would not be immune from telemarketing calls.  What do you think of that distinction?

2707             MR. DESBRISAY:  Who is going to be the judge of that?  I just think it is impossible to police and ‑‑

2708             COMMISSIONER CRAM:  Yes.


2709             MR. DESBRISAY:  ‑‑ make judgment calls and this company's okay and this company isn't.  Who is going to say so?  Who has that wisdom?

2710             COMMISSIONER CRAM:  Yes.  And I am famous for taking notes.  They say we don't even need the person taking the transcript.

2711             You said if there is no business to business there will be a lot of customers you couldn't call.  That's what you said, if there was no business to business exemption ‑‑

2712             MR. DESBRISAY:  Okay.

2713             COMMISSIONER CRAM:  ‑‑ there would be a lot of customers we couldn't call.

2714             MR. DESBRISAY:  Sure.

2715             COMMISSIONER CRAM:  So you are saying presumably ‑‑ I mean, that's based on the fact that if there were not a business to business exemption a lot of businesses would put themselves on the do not call list.

2716             MR. DESBRISAY:  Or they could be put there unbeknownst to them.  The disgruntled employee, my teleterrorist, the receptionist.

2717             COMMISSIONER CRAM:  Okay.


2718             MR. DESBRISAY:  All kinds of ways that a business number could be put on the list, unbeknownst to the business.  Then my call blocker ‑‑ when I try to call that business, my call blocker will not process the call.

2719             COMMISSIONER CRAM:  Okay.  So that is how that fits with ‑‑ the business community is not concerned.

2720             MR. DESBRISAY:  Yes, we don't think there's any demand by the business community to have business numbers on the do not call list.

2721             COMMISSIONER CRAM:  Okay.  And then you talked about charging consumers for the do not call list, and I am going to read you the opposite view by Mr. Gahan:

"Because the consumer pays for telephone service, no marketer has the right to misuse this service.  Any unauthorized contact intended to make a profit directly or indirectly must be considered misuse."

2722             I guess the argument then comes down to, if Mr. Gahan is correct, he pays for the service, he pays a pretty penny for having a phone and he should be able to decide who phones him because he's paying for the service.

2723             If he didn't have the telephone service, Rainmaker couldn't call him.


2724             MR. DESBRISAY:  He also has the ability to arrange with his telco to have his number  listed as a non‑published number and it is not in the directory.  He does pay for that.  It is an additional service over and above the standard service offered by the telco.

2725             COMMISSIONER CRAM:  But that wouldn't ‑‑

2726             MR. DESBRISAY:  So why wouldn't the do not call be another additional service similar to a non‑published number.

2727             COMMISSIONER CRAM:  Does a non‑published number get him out of being telemarketed?

2728             MR. DESBRISAY:  Not completely because his number may somehow end up on someone's list, but you are not going to see it in the white pages.

2729             COMMISSIONER CRAM:  Okay, thank you very much.

2730             THE CHAIRPERSON:  Mr. Langford.


2731             COMMISSIONER LANGFORD:  Thank you, Mr. Chairman.  I just want to pursue last point.  And you have been very patient with us and I am sorry to drag it out, but we don't like to let a witness go if we think there's still a little information we can squeeze out of you.

2732             MR. DESBRISAY:  Plus I am a telemarketer.

2733             COMMISSIONER LANGFORD:  That's right.  Get ones brave enough to come in here, you know, we like to see what we can do.

2734             MR. DESBRISAY:  Sheep amongst the lions.

2735             COMMISSIONER LANGFORD:  I am just trying to figure out why it would out why it would ‑‑ we've mentioned the word done registries.  I'll just say those two words again and say no more.  They say it all.  Nobody's happy with it, nobody's proud of it, and let's assume everybody went into it with the best intentions in the world, but somehow these things ‑‑ to me they stand at least for the proposition that these things can get out of control and they're very, very difficult to project into the future in terms of costs and ongoing expense.


2736             I think it is an important lesson, because if you start to charge consumers and they have to send in a phone bill and they have to prove their number and it is getting pretty close to sending in, you know, what model of gun you own and where you live and a picture of yourself and you end up getting the gun registered and then you get registered as well.  It all seems like a great idea in theory, and then you look at the costs and it is out of sight.

2737             I just wonder why you wouldn't take a chance on something simpler.  I take the point about the terrorist, but perhaps you wouldn't have to charge consumers if you didn't make it so complicated.  In other words, you put in your number and that is it, there's got to be a way to test it, I suppose.

2738             I mean if people find out they're not getting calls, I guess theoretically they could explain and say what's happened.  I haven't heard from anybody.

2739             MR. DESBRISAY:  It is not going to happen.

2740             COMMISSIONER LANGFORD:  No, you are right, which tells us a lot.  It just seems excessive.  I mean have you ‑‑ you are experienced in dealing with a reasonably large industry and a membership in a really large industry, can you actually see the feasibility of keeping a cap on those kinds of expenses if you require so much from each registered person?

2741             MR. DESBRISAY:  Well, let me just address the whole concept of costs.  To my knowledge, no one has tried to really estimate how much this is going to cost to operate the DNC list, to implement it.


2742             I haven't ‑‑ I am on one of the working committees and I don't think it is been ‑‑ unless I have missed it, I don't think it is been discussed.

2743             I don't think anyone has really put pencil to paper and say it is going to cost a million dollars or a hundred million dollars, no one knows.  So how much are we going to have to charge?  How many people are going to be buying this list, what are we going to charge them?  I don't think that arithmetic has been done.

2744             So no one knows how much it is going to cost, and just the principle that we are coming at is saying, yes, all users of the list should pay and that we need to consider having consumers pay their share, a share of it by paying as they would for a non‑published number.

2745             COMMISSIONER LANGFORD:  But you folks are already going to have to pay for this automatic dialing or blocking device that you have put in at a cost of 15 to 25,000 in your own firm.  I heard two figures so I wasn't quite sure which it is.  Fifteen for the server and then an extra ten for software and things like that?

2746             MR. DESBRISAY:  Yes.


2747             COMMISSIONER LANGFORD:  So 25 all told.  You've got to put it in anyway.  You could write it off as an expense.  I know that is the old song and dance, but you can at least write it off over time as a business expense.

2748             Since you have to have it in anyway, since you are calling people and they say please push the DNC button, they are already in a sense registered.  What's the point then of going back to them and saying pay $2 a month for what's been done already?  It is over, it is done.

2749             MR. DESBRISAY:  I see your point.  It is a valid point.  It is done, it is just the initial cost of setting that up.  Maybe there's a $10 fee.  I really don't know.  I just feel that there's some obligation on behalf of the consumer to pay a share for implementing this what will be a costly system, not just to install, but to operate.

2750             It costs us thousands of dollars a month to continue to keep our list updated and to solve problems, because it is technology and they are not trouble free.  They do break down and you have to fix them.  So there's a huge cost to keep it operating.

2751             COMMISSIONER LANGFORD:  Yes.


2752             MR. DESBRISAY:  And plus, the car dealership that we were talking about, the hypothetical car dealership, not only they, but all the other businesses that call our customers are going to have to put some kind of a system in.

2753             COMMISSIONER LANGFORD:  So are you suggesting this $2 a month or $10 flat fee would go to subsidizing the machinery you have to buy?

2754             MR. DESBRISAY:  No, no.

2755             COMMISSIONER LANGFORD:  Just the ongoing costs once you are in it, the list operator and that sort of thing, violation enforcement and what not.

2756             MR. DESBRISAY:  Keep in mind, it is only a suggestion.  I mean we are looking for alternatives here and I think that it is a reasonable thing to expect the users to pay.  It is a principle that is established in Canada, user pay.  User ‑‑

2757             COMMISSIONER LANGFORD:  Oh, that is for sure.  That is for sure.  It is a principle with which I am familiar.


2758             I once ‑‑ I shouldn't indulge in anecdotes, but I actually once received, having filed my income taxes back in the years ‑‑ some years ago when I was running my own business, a bill demanding a 41 cent payment with a thick computer print‑out as to how my accountant, the fool, had failed to realize that it was 41 more cents owed than he had put down.

2759             And perhaps because I am slightly contrary in my views, I let it run just to see what would happen.  And every once in a while after that I'd get another one in a big thick envelope, 41 cents.  I figured the government must have spent close to a hundred dollars before I finally took pity on them and wrote them a cheque for the 41 cents.  It was so small I don't even think it went up with interest costs or anything.  Just stayed there at 41 cents.  Month after month I'd get these thick computer print‑outs.

2760             And I sort of think of trying to collect that $10 fee from somebody and I just wonder whether it won't get out of control.

2761             But I take your point that it is a view, it is a position, it is ‑‑ what you are giving us here is something to consider and I am grateful for it.

2762             MR. DESBRISAY:  It could be collected by the telco.

2763             COMMISSIONER LANGFORD:  Ah, yes.  I saw ‑‑

2764             MR. DESBRISAY:  A source of revenue for the telco.  They will take a chunk of it.


2765             COMMISSIONER LANGFORD:  Well, we will run that by Ted Woodhead when he gets up here with the companies later.  Thank you very much.  Those are my questions.

2766             THE CHAIRPERSON:  Counsel.

2767             MR. MILLINGTON:  Mr. Debrisay, I just have a couple of questions.  Yesterday we were talking to the insurance company about consents.  I am wondering whether in the context of your car dealership scenario if at the time of purchase or whenever the relationship was established, if the car dealership obtained the consent to continue to have a relationship with respect to servicing the automobile, as an example, if that mechanism was available.

2768             It doesn't remove the list scrubbing, but those ‑‑ I am just making it up as I go along here.  So those customers could be kept internal to the car dealership and could be contacted because they have agreed to being marketed for the purposes of the services of that company.

2769             Is that kind of mechanism feasible for a broad number of companies that you see being encumbered with the costs of managing a do not call list participating in the regime?  Does that go any distance at all in helping out?


2770             MR. DESBRISAY:  The company ‑‑ all telemarketers will have to have technology, computer‑based system of some kind to manage this, and they will be able to ‑‑ once they get written consent, I think it needs to be written consent by e‑mail or fax or some other way, letter, then the company will be able to go into their own system and remove a number from the do not call blocker.  It is possible and we do it.

2771             MR. MILLINGTON:  Because, I mean, I am ‑‑ you know, emboldened by the recent anecdote to recount one of my own.

2772             I get my car serviced, and following every service I get a call from the dealership asking me how it was.  You know, whether it was good for me.

‑‑‑ Laughter.

2773             MR. DESBRISAY:  Was it good for you too?

2774             MR. MILLINGTON:  And they obviously keep me in a database of some kind that exists today.  They call me regularly, and so I am just wondering if this is really a huge financial impediment because they have obviously got a system there already.  All they have to do is simply delete me if I say I don't want to participate or just maintain my name in the current system that they have and continue to call me anD call me about next updates.


2775             MR. DESBRISAY:  Well, they need some technology to do that, because if your number is on the file, they need to be able to tell whoever is calling next week or next month that, hey, don't call that person or it is okay to call that person.

2776             There's training that goes on.  You would have to train every employee, every new hire, what is the ‑‑ how do we continue to comply with the do not call legislation.  So there's a training component of it.

2777             It has to be done.  Everyone who works at every company will have to be trained on management of the do not call system.  So, yeah, it can be done.

2778             MR. MILLINGTON:  Okay.  The other question I have has to ‑‑ goes to, again, the business to business telemarketing.


2779             I am ‑‑ you know, I heard the discussions and I am wondering about this exemption.  The problem I have with it is that if ‑‑ people other than the ‑‑ these teleterrorists and the disgruntled employees, presumably a company who values services being provided by other businesses would not put themselves on the list and certainly companies that are familiar with how difficult it is to get started wouldn't put themselves on the list because they might have some empathy for what it is to start a new business.

2780             They are in an entirely different class of ‑‑ than the residential consumer, who is sort of captive of their phone calls and they want to be excused from the nuisance.

2781             So I take your point that there has not been any ‑‑ there doesn't seem to be a ground swell, in your view, a ground swell of public opinion within the business community that is driving them forward to get themselves on the do not call list.

2782             So wouldn't that logically say at the end of the day that if they aren't unhappy with it, they won't put themselves on it.

2783             You know, we don't have ‑‑ the Chairman indicated we don't have a lot of evidence coming out of the States that would indicate that it has been a problem there, although their regime is different.  So I am wondering why it is, in your view, that this is such a problem for businesses when they don't have to participate if they don't want to and they can just not put themselves on if they value being telemarketed by other businesses.


2784             MR. DESBRISAY:  Well, the problem is that if you have a curmudgeon running the business, he may have a bad day and say, "I don't want any more calls" and put my number on the list.  Or the curmudgeon's secretary can do it.

2785             I mean there could be a whole lot of ways that that company's number could get on the list and maybe in hindsight it wasn't the right thing.

2786             I just think that it is a restraint of trade that we don't ‑‑ just don't have to deal with it.  It is tough being in business already for all business people.  Nothing's easy, and this just adds another impediment.

2787             MR. MILLINGTON:  Would you feel any better if there were some ‑‑ there was some sort of verification process that it would take out of ‑‑ the registration out of the hands of disgruntled employees, as an example, the ability to register a company on behalf of a company?  That the steps were a little bit more onerous because it is not ‑‑ you know, a company is not a single person that owns a phone number like a residential customer, but there was a little bit more in terms of process associated with putting a company on the list?  Would that deal with your concern?


2788             MR. DESBRISAY:  Yes, I would think if the ‑‑ if it was some way of having an officer of the company sign that they wanted the number on the list, then it creates sober second thought of putting the number there.

2789             If someone ‑‑ a business owner really doesn't want their number on the list or really does want their number to be on the list, then I guess I wouldn't have any objection.

2790             MR. MILLINGTON:  And would you ‑‑

2791             MR. DESBRISAY:  But just to open it up carte blanche for all businesses I think is a serious mistake.

2792             MR. MILLINGTON:  So if it took more to put on, would you also see the need to have different kind of other rules, for example, how long you stay on the list as being different from residential?  Would this enchain a whole different sort of sub‑regime to deal with businesses as opposed to residential?  Would that kind of address your constituency's concerns?

2793             MR. DESBRISAY:  I hadn't really thought about that, but first thought, yes, perhaps that might be a solution.  Maybe the number ‑‑ a business number would only be ‑‑ if it's put on by an officer of the company, maybe it is on there for a year and it has to be removed or is removed automatically.


2794             MR. MILLINGTON:  Thanks very much.

2795             THE CHAIRPERSON:  Commissioner Duncan.

2796             COMMISSIONER DUNCAN:  Yesterday we heard from the Primemerica people that ‑‑ in the U.S. that they have a line, a toll free line, as I understood it, where consumers or companies could call and verify, find out if their number was on the list.  So would that satisfy your concern if such a facility was in place in Canada?

2797             In other words, you could do it periodically or if you were suspicious or ‑‑

2798             MR. DESBRISAY:  It is possible to go on the FTC website and enter the number and see whether or not it is on the list or you can call the FTC 800 number and ask if the number is on the list.  I presume that the operator here will have the same capabilities.

2799             COMMISSIONER DUNCAN:  But do you think that that would go a long way to addressing your concern about ‑‑ what did you call it, tele‑‑

2800             MR. DESBRISAY:  Teleterrorist?

2801             MS. DEWAL:  Teleterrorists, yes.

2802             MR. DESBRISAY:  That's my own.

2803             COMMISSIONER DUNCAN:  I get that.  Would it go a long way to addressing that concern?


2804             MR. DESBRISAY:  No, because most people are not going to think to do that.

2805             COMMISSIONER DUNCAN:  Well, I guess maybe that might be a function if it is published.  Over time people would become aware of it.

2806             MR. DESBRISAY:  It is probably ‑‑ probably not adequate, but it will help.

2807             COMMISSIONER DUNCAN:  And do you think after the three year review period we might be in a better position to assess the impact on business to business?  As it is today it is exempt, as you know ‑‑ it is not exempt.

2808             MR. DESBRISAY:  Not exempt.  Three years in business is a long time and I know if I wanted to call IBM and their number was blocked I would be pretty upset.

2809             COMMISSIONER DUNCAN:  Thank you.

2810             MR. DESBRISAY:  Because I am dialing through my call blocker, and all businesses will have to if they are going to be compliant.

2811             COMMISSIONER DUNCAN:  Just on your call blocker, then, does that ‑‑ it works obviously with your internal call list?

2812             MR. DESBRISAY:  Yes, and the national list.


2813             COMMISSIONER DUNCAN:  It will.

2814             MR. DESBRISAY:  Both.

2815             COMMISSIONER DUNCAN:  Yes, because you are ‑‑ all right, great.  Thank you.

2816             THE CHAIRPERSON:  Mr. Debrisay, thank you very much.  It has been extremely valuable to hear what you have to say.  You bring us information from the front lines and you create employment.  Those are important things and they are considerations the Commission cannot afford to just dismiss.  So we appreciate very much your coming.

2817             We're going to take a break.  we'll start again at five minutes to eleven and, then, I promised the Public Interest Advocacy Centre that they will be first.

‑‑‑ Upon recessing at 1040 / Suspension à 1040

‑‑‑ Upon resuming at 1055 / Reprise à 1055

2818             THE CHAIRPERSON:  Order, please.

2819             Madam Secretary.

2820             THE SECRETARY:  Thank you, Mr. Chair.

2821             The next participant is the Consumers' Association of Canada, represented by PIAC.

2822             Mr. John Lawford, would you please present your panel.

PRESENTATION / PRÉSENTATION


2823             MR. LAWFORD:  Thank you, Madam Secretary.

2824             With me today is Joy Mauthe, who is a student volunteering at PIAC, and Hasini Palihapitiya, who is our articling student for this year.

2825             I am here to talk about the devil; that is, the devil that is in the detail of this "do not call" list.

2826             The "do not call" list is a very promising development for consumers, and the CAC fully supports it.  However, the seemingly pleasing shape of this development hides certain consumer pitfalls which would make it, if not quite hellish, then certainly not consumer nirvana.

2827             Although the Commission has been handed new powers in relation to telemarketing by Bill C‑37, the underlying framework regarding unsolicited telecommunications still exists.  This must be borne in mind during the Commission's deliberations on this Public Notice.


2828             Section 7(i) of the Telecommunications Act has, as one of its policy objectives, to contribute to the protection of the privacy of persons.  Most importantly, however, section 41 gives the Commission the power to, by order, prohibit or regulate the use by any person of the telecommunications facilities of a Canadian carrier for the provision of unsolicited telecommunications, to the extent the Commission considers it necessary to prevent undue inconvenience or nuisance, giving due regard to freedom of expression.

2829             These policy objectives and powers of the Commission are, therefore, to be supplemented and not supplanted by the creation of a "do not call" list.

2830             The cardinal principles that should guide the Commission's consideration of all the rule‑making in this proceeding, therefore, are the protection of privacy, the prevention of undue inconvenience or nuisance, and freedom of expression.

2831             Note that the powers to regulate telemarketing under the Act, even as amended by Bill C‑37, do not have as their goals either the health of the telemarketing industry or the creation of jobs in general.  Such considerations are irrelevant to creating a "do not call" list.


2832             There are several exceptions to the "do not call" list, as laid out in Bill C‑37, and we submit that it will actually come as a very large surprise to most Canadians that these exceptions even exist.  After all, the "do not call" list, in people's minds, will mean "do not call".

2833             However, these exceptions have the potential to become the rule.  This proceeding, therefore, is the Commission's chance to set limits on these exceptions and, in so doing, preserve the greatest utility of the "do not call" list for telephone customers.

2834             The Commission can do this, firstly, by narrowly and clearly defining the undefined terms in these exceptions in the telemarketing rules.

2835             First I will deal with existing business relationships.

2836             The Commission can exorcise quite a few of DNCL's demons with a detailed definition of "organization" under the existing business relationship exception, as it is applied in subsections 41.7(1)(b)(i) and (ii).

2837             "Organization" should be defined strictly.  It should mean that the legal entity with which I do business is the only one that may rely on the exception to call me.


2838             For example, my local telephone account at Bell would not let Bell ExpressVu, Bell Mobility and Sympatico all call me.  It is of no importance that all four of these entities are, in turn, controlled by BCE Inc.

2839             We submit that it is within telephone users' expectations that their business relationship with one business will not automatically make them customers of the affiliates for any purpose of being called under the DNCL customer exception.

2840             This is not quite the practice in the United States.  Actually, you won't find the answer in the telemarketing final rule.  However, if you go to their information guide, called "Complying With the Telemarketing Sales Rule", on page 43 of the hard copy it says that an existing business relationship, or established business relationship, as it is referred to in the final rule, is between the seller and the customer, and not necessarily between the seller's subsidiaries or affiliates and that customer.

2841             I quote:

"The test as to whether a subsidiary or affiliate can claim an established business relationship with a sister company's customer is:


   Would the customer expect to receive a call from such an entity, or would the customer feel that such a call is inconsistent with having placed his or her number on the National Do‑Not‑Call Registry..."

2842             It goes on from there to give more factors to consider, and I have appended a copy of those two pages to the end of our submission.

2843             The CAC submits that we here in Canada can do better than that.  The Commission can instead adopt a clear, bright line, legal entity test, which we have proposed, and avoid a very large number of existing business relationships, which all businesses will contend fall under these exceptions.

2844             Many large businesses can actually control entities within an entire economic sector.  Obvious examples are banking, insurance, telecommunications and broadcasting, as you can see from the list of intervenors.

2845             We are concerned that they will all try to use the exception in a very broad manner without this narrower definition.  This may have the effect of eating the entire "do not call" list.


2846             Secondly, the charity exception.  The Commission can keep devilishly minded people out there from putting hayloads over their horns by clearly defining a telecommunication made by or on behalf of a registered charity as a sole‑purpose call; that is, any other type of solicitation may not be made in connection with the charitable call in order for it to shelter under this exception.

2847             While this tactic could be used with all of the other exceptions, it is most likely to be used with charitable calls.

2848             I will address briefly the newspaper of general circulation exception.  We feel it is ripe for use, also, by little devils.  The Commission, therefore, should make a clear and cogent definition of that term.

2849             The CAC suggests that the Commission define "general circulation" as requiring the existence of an independent editorial board, a reasonably large circulation, perhaps 100,000, as an example, except where the newspaper is the only one in a small town of, say, 10,000 or more persons.

2850             Finally, the newspaper would have to have general or local news content and not specialist information, such as a specialist magazine.

2851             I will turn now to the existing telemarketing rules.


2852             We believe that the Commission can do most for consumers, as I said, in preserving the present regime and adding to it with a "do not call" list.  That would include all of the telemarketing rules thus far, and the ADAD restrictions.

2853             However, what we would really like to speak about are the Decision 2004‑035 requirements.

2854             Very briefly, the CAC would support all of the restrictions in 2004‑035, with the exception only of those which have been rendered unnecessary or not compatible with a "do not call" list.

2855             However, one of those, which is quite contentious, has been the tracking of individual "do not call" list registrations, as required by Decision 2004‑035 at paragraph 93.

2856             We feel that actually could be suspended, if there were other safeguards, and I will get to those.

2857             The CAC also expects that the "do not call" list operator will continue to collect the type of information that the Commission had ordered telecommunications service providers to collect and report semi‑annually under Decision 2004‑035.

2858             However, the "do not call" list operator should also ‑‑


2859             This is the safeguard to do with removing the requirement to give a reporting number.

2860             The "do not call" list operator should also track complaints related to compliance with company‑specific "do not call" lists, and if there continues to be a problem, we will have adequate evidence when the review comes, within three years, to decide whether that should again be added.

2861             There are a number of other unnecessary elements, which I will skip over.

2862             Regarding the consumer awareness aspects of Decision 2004‑035, we believe that they are appropriate for the general awareness of a "do not call" list in Canada, and that would be a full page in the ILECs' white pages directory describing the rules under the "do not call" list, and also in every telecommunications service provider's billings, one bill insert for the next three years describing the "do not call" list.


2863             This could be justified on the basis that the telecommunications service providers and ILECs are logical sources of information about "do not call" lists for consumers, where they can expect to see it.  In addition, hopefully, there will be some other consumer awareness materials created by the Commission, but that is a logical place for people to look.

2864             Other requirements of Decision 2004‑035, such as predictive dialler and abandonment rates, we would like to have continue.  Therefore, the CAC respectfully submits that the review of applications filed by the Canadian Marketing Association and others in connection with Decision 2004‑035 be dismissed.

2865             Finally, the CAC would ask the Commission to make time‑of‑day restrictions on voice calls.  As stated in our initial comments, calls could be made between 9:00 a.m. and 9:00 p.m. on weekdays, and 10:00 a.m. and 6:00 p.m. on Saturdays and Sundays, and there should be restrictions roughly the same as those for fax calls.

2866             The last points have to do with enforcement.  With respect to enforcement, we have a number of concerns.


2867             First, the Commission asked whether the "do not call" regime should apply to telemarketers or to sellers, or both.  We believe that this is an enforcement question.  The CAC supports the liability of both the seller and the telemarketer for violations.  If it is not done, rogue telemarketers will move from client to client.  On the other hand, if telemarketers only are made liable, companies that wish to perform illegal or sloppy telemarketing will have a ready subset of fly‑by‑night telemarketers to take the rap for the violation.  Only by making both liable will greater compliance with the "do not call" rules be achieved.

2868             Secondly, we wish to underline that the list operator choice is a difficult question, but it is of crucial importance, given the wide scope of investigation and enforcement powers that Public Notice 2004‑035 implies will be given to the "do not call" list operator.

2869             The CAC is participating in the CISC committee on choosing the operator.  However, the CAC would caution the Commission that the choice of a marketer or a marketer‑controlled group to run the DNC list is clearly inappropriate.  There is a clear conflict of interest in disciplining one's own industry.

2870             If the Commission wishes, however, to trust the devil you know, then we would ask the Commission to ensure that the composition of whatever body oversees the eventual list operator will not, in turn, be controlled by marketers.  Here we are thinking of the consortium.


2871             There are a couple of points under investigation and enforcement.

2872             Firstly, the Commission should set some clear guidelines for both functions, that is, investigation and enforcement, so that the list operator will be made to meet an acceptable service standard and account for shortfalls in either area.

2873             Both functions are time consuming and expensive, and the list operator will be tempted to cut either function to improve the bottom line, which will undermine the effectiveness of a "do not call" list.

2874             Some specific guidelines we have for investigation are that all investigations should be undertaken with a reasonable delay, and, if requested, both the telemarketer and seller should be kept aware of the status of the investigation ‑‑ both sides.

2875             In particular, consumers should be permitted to make representations.

2876             The reason I am getting into this is, if the initial complaint goes up a level in the mechanism ‑‑ for example, if there is an initial cut where an operator decides whether or not the number is on the list ‑‑ that probably wouldn't be a stage where representations could be made, but further up the line.


2877             As well, both parties should be informed of the decision, if requested, in writing, and be provided with information regarding any appeal process.

2878             I also want to note that the reporting and investigation of complaints should not be left to business or industry.

2879             I think both the banking and the newspaper associations have mentioned in their comments that they already have complaint investigation mechanisms in place and that they could handle telemarketing complaints.  This cannot be allowed if the CRTC or "do not call" list operator is to trap repeat offenders, fraud, the effectiveness of the rules, et cetera.

2880             It is, in effect, making two tiers of complaints:  those who are banking customers, for example, and those who are customers of other kinds of organizations.

2881             Guidelines for enforcement:  Violations are not a numbers game.  It can be a violation to have one single call.

2882             However, there are other factors which could be aggravating or not, and we have suggested some of those in our initial comments, and I would be happy to take questions on them.


2883             Enforcement, therefore, should match the gravity of the offence, rather than sheer frequency, although high frequency and repeat offenders should tend to produce progressive discipline.

2884             I will turn now to voicecasting.

2885             It is the CAC's submission that consumers find voicecasting just as annoying as ringing telephone calls, but in a different fashion.  It is time consuming and disturbing, because it is stealthy, and we believe that it is against the spirit of a "do not call" list.

2886             Most importantly, it is against the expectations of consumers as to the level of protection they will receive from a "do not call" list that voicecasting would be permitted, while entirely similar live calls would be stopped.

2887             Primus, I believe, has suggested that finding and deleting voicecast messages is not a consumer nuisance, and we beg to differ.

2888             We would point out that even Infolink is supporting a "do not call" list, including voicecasting, as well as a number of other parties here today.


2889             There is a somewhat cutesy legal argument that I have made about whether the existing business relationship even covers voicecasting.  I think it has to be to a real person, not to your voice mailbox, but I will leave that to counsel to probe.

2890             Quite apart from the legal gymnastics, pruning one's voicemail can be costly for consumers.  Such voicemails may be placed on wireless numbers, where retrieving them incurs airtime costs.

2891             Perhaps more importantly, whether on wireline or wireless accounts, it is an incredible waste of consumers' time.  It is basically voicemail spam.  It can be expected to increase exponentially with VoIP systems.

2892             The Commission has an opportunity to ensure that voicemail linked to a number on the "do not call" list is not plagued with voicemail spam and should seize it.


2893             Finally ‑‑ and I had hoped this wouldn't have to be such a big issue, but it appears to be starting to rear its head ‑‑ let it never be forgotten that residential ratepayers paid for the building of networks over which telemarketers now exercise their trade.  Calls, therefore, to fund the "do not call" list from subscribers constitute double taking from ratepayers and are unjustified.  The "do not call" list should never be costing the residential subscriber a penny.

2894             However, from the proceedings in the CISC committee and other information, it seems that there are dark clouds of costs on the horizon.

2895             The U.S. "do not call" list received seed money from Congress to set it up, and we have received no such guarantees here.

2896             The U.S. registry operator has indicated that there was a shortfall in the early years and that part of the problem was that there was a lower number of telemarketers than they had expected to sign up to the list.

2897             However, we recall that in the Public Notice the Commission had initially taken the position that the Commission was considering that the delegate would charge telemarketers who access the "do not call" list and did not mention anything about consumers.

2898             We are now calling on the Commission to remove any temptation of the list operator to recoup cost overruns and start‑up or other costs.  This could be done by having the Commission explicitly mandate, under section 45.1, that neither those who sign up for the "do not call" list nor residential telephone subscribers be made to pay for it.


2899             If you set this out as a rule now, then we won't be revisited with a shortfall upon the backs of residential subscribers, or even, indeed, business subscribers.

2900             The "do not call" list has come not to destroy the existing telemarketing regime, but to fulfill it.  The Commission, therefore, would greatly aid consumers in setting clear rules, defining key terms, and sending an enforcement direction that is consumer focused.

2901             I thank the Commission for hearing us on behalf of the CAC, and I would welcome any questions you may have.

2902             THE CHAIRPERSON:  Commissioner Cram.

2903             COMMISSIONER CRAM:  Thank you, Mr. Lawford and colleagues.

2904             First I want to talk about what types of calls telemarketing would include.  In other words, the ones that we would exclude from telemarketing totally.

2905             Number one is wireless.  Do you have a position on that, whether it should be excluded or simply be allowed to be on the list?


2906             MR. LAWFORD:  Our position is that consumers should be able to put wireless numbers on the "do not call" list.  If that results in certain additional costs, then we would have to look at it, but that is our position at the moment.

2907             COMMISSIONER CRAM:  I was somewhat surprised that you didn't push for e‑mails, for us to look at spam.  Was there a reason for that?

2908             MR. LAWFORD:  In terms of making it a "do not e‑mail" list as well?

2909             I guess we were expecting a slightly more coordinated response from the government after the Spam Task Force Report.

2910             Quite honestly, being realists, we wanted to hammer down the telephone exceptions first.

2911             COMMISSIONER CRAM:  Is there any concern by the CAC about IP faxing?

2912             MR. LAWFORD:  It is a problem, and I am anticipating that you might ask about whether we should include fax numbers on this list.

2913             Yes, in the same way that telemarketing ‑‑

2914             Voicecasting will be easy with IP, and it would be the same thing with faxing.  It could be quite distressingly large.

2915             I am assuming that IP‑based fax numbers would still be recognized as numbers under the North American numbering plan.


2916             Is that not correct?

2917             COMMISSIONER CRAM:  No, we just have the Internet address.

2918             MR. LAWFORD:  Just IP.

2919             Well, then we will have to consider whether that could be something we could control from the originating phone number, in which case we would have to go back and given all of the parties a reasonable chance to consider that.

2920             COMMISSIONER CRAM:  Paragraph 64(8) of your brief, the March brief, says that it is a violation for a party to pass on the cost of subscription to the list to its contacts or those with whom it has an existing business relationship.

2921             Number one, what do you mean by contacts?

2922             MR. LAWFORD:  We were thinking of customers or clients, in the sense that, if you want to do business with us, there will be a fee, because we are running the "do not call" list and we are trying to recoup 2 cents from you and everybody else.

2923             It is trying to download costs directly.

2924             I suppose that you could hike prices, in the sense that ‑‑


2925             COMMISSIONER CRAM:  I was going to say that, at the end of the day, all they do is do it indirectly.

2926             MR. LAWFORD:  Yes, indirectly.

2927             MS MAUTHE:  I think that part of the concern, as well, was to eliminate fraud in that respect; people purporting to provide a "do not call" service or charging for that additional service.

2928             The value‑added aspect.

2929             COMMISSIONER CRAM:  All right.

2930             I think it was Primerica yesterday who was talking about an exception for family, friends and acquaintances.

2931             Do you have a position on that?

2932             MR. LAWFORD:  Yes.  That is not in the legislation and we don't feel that it is necessary for the Commission to add that exception.

2933             COMMISSIONER CRAM:  I have to say that they made a pretty persuasive presentation with the reverse onus, because the risk has been higher to the telemarketer.

2934             If I don't think the person who phoned me is a friend or an acquaintance, I can complain, and they are almost presumed to be in violation.


2935             Do you not think that that would be a sufficient protection?

2936             MR. LAWFORD:  In the sense that that is a defence to the ‑‑

2937             COMMISSIONER CRAM:  It is not a defence.  In fact, it's almost ‑‑ if I don't think that that friend that phoned me is a friend, I complain and it's almost prima facie a breach of the rules.

2938             MR. LAWFORD:  Right.

2939             COMMISSIONER CRAM:  Yes, go ahead.

2940             MS MAUTHE:  I think our position is that it was something that could be considered as part of a defence.  A true referral from a close friend or neighbour, if it is genuinely invited, would not even lead to a complaint.  But by setting out a limit of what can be referred by a family or friend, you invite people that abuse that by soliciting referrals.  They are rewarding customers for providing those names.

2941             So by setting in stone a limit, you invite people to stretch it rather than just considering it a defence in the true case.


2942             COMMISSIONER CRAM:  I see two steps here.  I see the exception being family, friends and acquaintances, in which case there is the reverse onus.  But then the next step is referrals, where family, friends and acquaintances give referrals to third parties yet again.

2943             So the first step though, an exception of family, friends and acquaintances, you think that that would be a defence.

2944             MR. LAWFORD:  Yes.

2945             COMMISSIONER CRAM:  Okay.  So what about referrals?

2946             MR. LAWFORD:  That's a good question.

2947             Referrals as a business model cause us some pause.

2948             Go ahead.

2949             MS MAUTHE:  I'm not sure if I understand the distinction.

2950             If you make a referral to your acquaintance, is that an acquaintance exception or a referral exception?  I'm not sure under what case you would refer someone who you didn't have that relationship acquaintance with.

2951             COMMISSIONER CRAM:  That's a good point.

2952             MS MAUTHE:  A blank referral to a strange third party falls under an affiliate or the stretching of the existing business relationship exceptions.


2953             COMMISSIONER CRAM:  Thank you.

2954             Voicecasting, you say in paragraph 77 that it is annoyance.  There is a cost.  There is an inconvenience.

2955             Has CAC compiled complaints data on this at all?

2956             MR. LAWFORD:  No.  It is our intention to do that, though.  We don't have those studies done yet.

2957             COMMISSIONER CRAM:  All right.

2958             You have answered the one question about continuance of the rules.

2959             You have said nothing about ADADs except today you said you supported ‑‑

2960             MR. LAWFORD:  The existing.

2961             COMMISSIONER CRAM:  And that's 5 percent.

2962             MR. LAWFORD:  We called for 3 percent, I believe, in our submissions.

2963             Oh, sorry.  Are you talking abandonment or ‑‑

2964             COMMISSIONER CRAM:  No.  I am talking about ADADs.

2965             MR. LAWFORD:  ADADs, excuse me.


2966             COMMISSIONER CRAM:  Yes, you are right.

2967             MR. LAWFORD:  Are you referring to the CMA proposal about allowing ‑‑

2968             COMMISSIONER CRAM:  Let's start at ADADs.

2969             MR. LAWFORD:  Okay.

2970             COMMISSIONER CRAM:  Your position today said that it should just continue.  Our present rules should continue.

2971             MR. LAWFORD:  They shouldn't be reduced in the sense of the Canadian Marketing Association request to allow ADADs with existing business relationship, yes.

2972             COMMISSIONER CRAM:  Okay.  So don't ‑‑

2973             MR. LAWFORD:  They shouldn't be relaxed.

2974             COMMISSIONER CRAM:  They should be relaxed.

2975             MR. LAWFORD:  Shouldn't be relaxed.

2976             COMMISSIONER CRAM:  Should not be relaxed.

2977             MR. LAWFORD:  Right.

2978             COMMISSIONER CRAM:  Okay; good.


2979             Then on predictive diallers, what percentage of abandonment are you talking about?

2980             MR. LAWFORD:  We asked for 3 percent in our initial comments because that is the rate that seems to be achievable in the United States, and we don't see a lot of difference in the technology here.

2981             COMMISSIONER CRAM:  You are saying no to guidelines but not no to principles.

2982             Is that the concept?

2983             MR. LAWFORD:  It is so difficult at the moment to know what shape the enforcement regime will be in, because the list operator isn't chosen.  We don't know whether there is going to be a consortium on top and whether there will be a telemarketing review board at your level or not.

2984             I am assuming that whether you call them guidelines or general principles ‑‑ that's a hard one at this stage.

2985             We really think that in our submissions today we wanted to give you a sense of general principles.  But as these questions are dealt with, for example, in finer grain in the CISC committees, there may emerge in the reports there guidelines which could be recommended out of that.

2986             But at this stage, it is difficult to say what those guidelines should be.


2987             If you have a particular example, I would be happy to try to give you our viewpoint.  But at this point in general, I can't say that you have to have a 30‑page guideline set out.

2988             The United States guidelines are a product of a lot of work, but I do recommend that the Commission look at them closely and see whether the list operator or the Commission couldn't use as a basis for a lot of the work.

2989             COMMISSIONER CRAM:  So dependent on our structure of enforcement, if we do it, as somebody suggested yesterday, or if the list operator does it, or if a third party does it, the stringency of the guidelines or principles, or the fineness of detail, would be dependent upon that structure.

2990             MR. LAWFORD:  In part.  If you are going to err on any side, it would be setting more rules from top down than not, is our viewpoint, so that the list operator doesn't have extreme discretion in how they operate the list and investigate and do enforcement.

2991             COMMISSIONER CRAM:  You say there should be no threshold but there is clearly a de minimis defence.


2992             Could you, within ten days, sort of give us examples of what you would think would consist of a de minimis defence?

2993             MR. LAWFORD:  Of what would be a very low level one?  Can we give examples also of ones which we think would be perfectly justified in one call, this is a bad call and should be punished anyway?

2994             COMMISSIONER CRAM:  M'hmm.

2995             MR. LAWFORD:  Okay.  Then we will do that, absolutely.

2996             COMMISSIONER CRAM:  In other words, what is the maximum of de minimis?

2997             MR. LAWFORD:  Okay, I understand.

2998             COMMISSIONER CRAM:  I like that question.

‑‑‑ Laughter / Rires

2999             COMMISSIONER CRAM:  I am going to go to your brief now, the March brief.

3000             At paragraph 15 you say:

"The Commission should clarify that the rules apply to parties within Canada and any parties outside Canada who place calls to Canadian telephone numbers."

3001             How can we enforce that?


3002             MR. LAWFORD:  This is the same difficulty which the Privacy Commissioner of Canada faces when Canadians have personal information abused by companies outside of the country.

3003             We foresee the same difficulty arising here in being telemarketed from anywhere, by perhaps the United States.  And sure, it's a problem.

3004             Is there no utility at all in saying that that is a violation?

3005             The result of the complaint which was in the Privacy Commissioner's hopper lately about abeeka.com from Pacific, the Privacy Commissioner threw up her hands and said, "Whoa, it's out of our jurisdiction."  They did not even answer the question of whether that had been a privacy violation.

3006             We would like the Commission to at least be able to say yes, there is this company in the United States that is doing X, Y, Z and look at all the technical violations it has done.  Sure, we can't punish them.


3007             But the other thing to consider is as well as the United States has a "do not call" regime, England has a "do not call" regime.  The Commissioner of Competition has been working with those countries to mutually assist each other.  Perhaps a treaty could be drafted or a mutual assistance to prosecute each other's offenders.

3008             That is what we are looking at down the road.

3009             So we don't want the Commission to just give up on those cross‑border situations.

3010             COMMISSIONER CRAM:  Perhaps in the sense of the three‑year review it would make sense, because we would then have compiled data of whether or not it is a problem.

3011             MR. LAWFORD:  That's right.  Actually, in all of our submissions today we are hoping the Commission will lean very heavily to record‑keeping by the list operator of all sorts of violations so that again we will have some evidence to work with in three years, because it's always the evidence that is lacking when we come to discuss telemarketing.

3012             COMMISSIONER CRAM:  At paragraph 16 you talk about exempt organizations should receive free access to the national "do not call" list.

3013             That would be in the case that they could not or chose not to run their own "do not call" list?

3014             MR. LAWFORD:  Exempt organizations would be charities ‑‑


3015             COMMISSIONER CRAM:  And political parties.

3016             MR. LAWFORD:  And political parties.

3017             The thinking at the time I believe was that in order to encourage those parties to keep very tight specific "do not call" lists for their own organization, that they could devote resources which they would otherwise be paying as telemarketing fees to shoring up their own lists.

3018             It is difficult for the Commission to order that as quid pro quo, but that was the thinking at the time.

3019             Since being in the CISC committees I am a little dismayed to hear that perhaps there might not be enough telemarketers to shake out of the tree to pay for all this.  And we are reconsidering that completely free access would be for all people holding exceptions.

3020             But at the moment that was the thinking behind that statement.

3021             COMMISSIONER CRAM:  I need a clarification of 19(1):

"Calls made by a for profit organization where part of the proceeds of a sale would benefit a registered charity."


3022             I think that is what you were also talking about today.

3023             MR. LAWFORD:  Yes, that's right.

3024             COMMISSIONER CRAM:  I am selling you Encyclopedia Britannica and in exchange, if you buy ‑‑ maybe that's not the thing to sell.

3025             If you buy that, I'll give $20 to SOS.

3026             MR. LAWFORD:  Absolutely.

3027             COMMISSIONER CRAM:  That's what you mean.

3028             MR. LAWFORD:  That's what I mean.  And if survey people were also not covered, I would say ones that said "by the way, we will donate $20 to charity if you take this survey" also would have been covered.  But they have an exception.

3029             So that is the thinking.

3030             COMMISSIONER CRAM:  All right.

3031             Now we are at the single legal entity issue.

3032             It is fair to say that if you had a Bell account, when you signed up with Bell, Bell could very easily get you to give them consent to market you for Mobility and Sympatico and that sort of thing?


3033             MR. LAWFORD:  Yes, they can at the moment ask that they be able to share personal information, and that's the way the clauses are worded at the moment.  They inform you that they will be marketing for those other corporations.

3034             The Act to amend the Telecommunications Act, C‑37, doesn't discuss consent.  So I am glad the Commission is trying to sort it out now, because we urged the Commons to consider and the Senate and they didn't.  So now we are stuck.

3035             If there is going to be a consent exception, we are very concerned that again we will see the same pattern developing as we do with privacy and personal information sharing, and that is that those clauses exist and no one ever sees them.  They are often buried.  They are far away in the bottom of a legal document.  Consumers are really not aware of what they are giving permission for the companies to do.

3036             With the "do not call" list in the United States you have to get explicit acknowledgement.  We think that is a sensible requirement that you could impose here as well.


3037             It is more than PIPEDA would require because that allows implicit consent.  In the past the Commission has asked, for example with customer confidential information, that a higher standard, that explicit consent be required.

3038             You could do the same thing here.

3039             If you want to go around the telemarketing regime with consent, you have to make it very clear to the consumer that you are going around the telemarketing regime.

3040             If you will just bear with me, on the very last page of our submission today I have cut out the U.S. rule on that as well.

3041             The very first line about written permission to call exceptions says the rule allows sellers and telemarketers to call any consumer who gives his or her express agreement to receive calls.

3042             So the kind of language that is being proposed, I believe, by the Bankers Association earlier on was that if you have a clause in there that says we may offer you products and services which might be of interest to you, blah, blah, blah, that that is good enough.  We don't think so.

3043             We think it has to be an explicit acknowledgement of consent to be called, even though your name may or may not be on the "do not call" list.


3044             That would provide at least some boundaries to the consent exception, which otherwise would be printed on every contract with a pre‑checked box saying "yes, I agree to give my consent to avoid the do not call list".  That would be on every piece of paper from now on in every consumer transaction.

3045             COMMISSIONER CRAM:  What you are suggesting is that it says "yes, I agree to receive calls about markets, about products available from this company and its affiliates", namely, so‑and‑so, so‑and‑so, so‑and‑so?

3046             MR. LAWFORD:  Well, ideally I would like it if the Commission were able to prohibit them from including all of their affiliates.  I don't think that you can quite go that far if you give people free will.

3047             But yes, it has to say explicitly we are going to call you, despite the "do not call" list, and you are giving permission now to all of these other related entities.

3048             One last point I will just make about that before I finish my answer is that keep in mind PIPEDA ‑‑ I think it is Principle 4.3.3 in Schedule 1, which says that you cannot as a condition of offering a product or service require someone to give extra personal information beyond that necessary for the transaction.


3049             We would like to have a similar requirement where you can't require someone to give consent to go around the "do not call" list in order to get that product or service; that you can stay on the "do not call" list and not give your permission to that but still get the product or service.

3050             COMMISSIONER CRAM:  Thank you.

3051             On existing business relationships ‑‑ and let's just say we are talking about Bell itself ‑‑ I take it that if Bell were working with ExpressVu on a joint marketing plan, you would say that is not an existing business relationship and they couldn't phone you unless you consented.

3052             MR. LAWFORD:  That's right.  That is not my expectation.

3053             COMMISSIONER CRAM:  So the issue is your reasonable expectation.

3054             MR. LAWFORD:  In effect, our view is that consumers have that as their reasonable expectation just that they will get that entity calling them and not every other affiliate.

3055             COMMISSIONER CRAM:  Yes.


3056             In the due diligence defence, starting at paragraph 66, what I noticed here ‑‑ and it is contrary to what Rogers said ‑‑ is that you have not referred to monitoring compliance and auditing it by the telemarketer.

3057             Do you think that that is necessary required efficacious?

3058             MR. LAWFORD:  If that type of audit function is not going to be given to the list operator, then yes, in the sense that you are saying that it is all very well to say that you have trained your employees but there is no audit of whether it has actually been done.

3059             COMMISSIONER CRAM:  Then the auditing would be about compliance.  They would do their own internal audits.

3060             MR. LAWFORD:  I believe that is useful feature which should be considered.  It is not in our submissions.

3061             COMMISSIONER CRAM:  Okay.

3062             On page 6 today of your presentation, on charities, what is the mischief that you are worried about here?

3063             MR. LAWFORD:  I believe we may have touched on it earlier.

3064             COMMISSIONER CRAM:  That is the same, the Encyclopedia Britannica and $20?

3065             MR. LAWFORD:  Yes, that is the same example.


3066             COMMISSIONER CRAM:  Okay; good.

3067             Thank you.  I have no further questions.

3068             Thank you, Mr. Chair.

3069             THE CHAIRPERSON:  Commissioner Langford.

3070             COMMISSIONER LANGFORD:  I have one question but it might grow.  You know how these things start and sort of turn into broccolis with many branches ‑‑ but perhaps not.

3071             My question is:  I wonder if you are familiar with The Companies' submission, the written submission by The Companies, which lays out in incredible detail their notion of defences and common law defences that are mentioned, and how expanded a view any enforcement body might have to take of that.

3072             Could you give me your comment on that.

3073             MR. LAWFORD:  It is provided for in the legislation that you have that defence, the common law defences.

3074             COMMISSIONER LANGFORD:  Could you speak a little louder.


3075             MR. LAWFORD:  Sorry.  It is provided in the legislation, is it not, that you have all those common law defences?

3076             COMMISSIONER LANGFORD:  It says common law defences, and I just wonder how many of those you recognize.

3077             It was a trip down memory lane for me, I must say.

3078             MR. LAWFORD:  I guess I had to think that there would be a rare case where you would need to have duress and such, for example, in making the calls.

3079             I don't think that those common law defences would necessarily eviscerate the enforcement of the list.  I am not concerned.

3080             COMMISSIONER LANGFORD:  You are not concerned.

3081             MR. LAWFORD:  I am not concerned.

3082             Is there a particular one which seemed to be larger than the other, in your view?

3083             COMMISSIONER LANGFORD:  Not necessarily.  I noticed drunkenness wasn't there, but I looked for it.

3084             That may only go to mitigation of sentence.  It was always popular back in law school.  I remember sleep walking was another one that we followed with great enthusiasm.

‑‑‑ Laughter / Rires


3085             COMMISSIONER LANGFORD:  But to be a bit serious, I think what got me wondering ‑‑ and I don't want to direct you as a witness too much.  But what it might mean to process in the sense of I suddenly, as I read that, began to see sort of stretching out in front of me some very, very, long adjudications with openings to kind of routes to appeals, all of which, as a believer in due process of course, one side of my brain is glad to see.

3086             But in the sense of looking for kind of the sense of an expedited and reasonably quick, though fair, process it seemed that these raise their heads more as hurdles than as helps.

3087             I just wondered how you felt about it in that sense.

3088             MR. LAWFORD:  Okay.  Well, it has never been phone companies' style to let defences drop.

3089             It would seem to me again that the situations where that would be seriously argued would likely be larger corporations who had been nonetheless charged and were not happy about that.  In that case I would expect they would fight it to the death in any way they could.


3090             What you might be able to do is have again at some level within the Commission or perhaps a body above the list administrator that would deal with those sorts of defences in a slightly more protracted process but still administratively streamlined, as compared to a court.

3091             Then there is always judicial review and so on and so forth.

3092             But the initial enforcement perhaps by the list operator, the first level enforcement:  Yes, the list contained the number.  Yes, you called it.  Now you are talking common law defences.  That's nice; violation.

3093             Then the person gets to go up to the next level and try to explain it in two pages.  They try their drunkenness defence and they say no.  Now we have an avenue of appeal again, to federal court or wherever.

3094             But if it is not really raisable at the very first level, then I think that would cut out ‑‑ it has to cut out an awful lot of them.  I just can't imagine there are a lot of common law defences going to be raised.  It will likely be in those situations.


3095             COMMISSIONER LANGFORD:  Moving on to their sort of pyramid model approach which they seem to have adopted from the Competition Bureau of everything from non‑punitive to punitive mechanisms for bringing people sort of around to seeing the light, I see at least five different levels, moving from kind of a letter to mediation to final kind of rulings.

3096             And then there is the whole sort of notion that you can build up a reputation as having maintained the rules, and that kind of gives you some sort of credit in the bank.

3097             How do you react to that, again from a process point of view, from a sense of ever getting around to making the point that at a certain point a violation is a violation?

3098             MR. LAWFORD:  I believe there should be a definite tendency on the part of the list operator, whoever is enforcing at first level, to give a fine.  It says up to $1,500 for an individual and up to $15,000 for a business.  So give a fine.  The fine can be low at the first stage.

3099             There may be some utility in a warning.  I can't see where mediation would be of assistance in all these other elaborate processes.  It's supposed to be quick, bang, bang, bang.  There could be a hundred violations and you might be fined $1.00 for each.  But at least you got a fine.  It was a violation.


3100             And what is also important about that is when we get to three years from now, well look, we've got a list of 4,000 companies that had on average 17.5 violations.

3101             That's of some utility as well.

3102             If it goes to mediation, it goes off the books.  It's gone forever.  This happens in the Privacy Commissioner all the time.

3103             COMMISSIONER LANGFORD:  Right.

3104             Do you have a sense ‑‑ you mentioned sort of fines for individuals and fines for businesses.

3105             Do you have a sense that there should be some way to parse the business one in the sense of small businesses versus large?  Or do you just use the fining power and give them a $1.00 fine or something and do it that way?

3106             MR. LAWFORD:  The issue was raised a little bit before the Senate committee by carpet cleaners, and that sort of thing.  I think any reasonable enforcement regime will look at the source of the complaint and the type of violation that it was, whether it is repeated or not.


3107             It is not to say that a particular telemarketer in a small market, which as a business can't be annoying and can't be annoying on a level where they are thumbing their nose at the rules, that doesn't in certain situations require a slightly higher fine in order to make the point, because pure reliance on size of business, for example, might lead those types of businesses who rely on telemarketing very heavily to just take it as a business cost.

3108             COMMISSIONER LANGFORD:  Thank you very much.

3109             Those are my questions, Mr. Chair.

3110             THE CHAIRPERSON:  Commissioner Duncan.

3111             COMMISSIONER DUNCAN:  Mr. Lawford, I just have one question for you.

3112             Following up on the Marketing Research Association that was in earlier, I am wondering do consumers consider research calls to be an undue convenience or nuisance?

3113             MR. LAWFORD:  I think I would have to go to look at the Environics poll.

3114             I know that in that one, they certainly didn't make a lot of distinction between telemarketing for charities and other ones.  I can't remember offhand if it also included statistics on whether they found studies, polls, to be also an annoyance.


3115             If not, that would be wonderful research to have.

3116             Just anecdotal, I am of the same view as Commissioner Langford, that there is a certain portion of people that are annoyed by it, by any call at all.

3117             Unfortunately, that particular person doesn't really have much they can do at the moment under the exception for surveys, is there.  There has been no undertaking or guarantee by the survey or polling groups that they will keep specific "do not call" lists.

3118             What I would like to stress is perhaps that you might consider asking a list operator to keep complaints about specific "do not call" lists even in relation to exempt organizations, so I can call and say a survey person called me.  I was on the "do not call" list.  I know they are exempt, but it still bugged me.

3119             Then in three years time you will have 50 of those complaints or 5,000.  I don't know.

3120             COMMISSIONER DUNCAN:  That's a good suggestion with respect to gathering data.


3121             So I can take it, then, that you would agree, if it were possible, that they should be subject at least to the other telemarketing rules.

3122             MR. LAWFORD:  Yes.

3123             COMMISSIONER DUNCAN:  Thank you.

3124             That was my question.

3125             THE CHAIRPERSON:  Mr. Lawford, you have raised the issue of privacy and I would like to go a little further with you on it, if I may.

3126             More particularly, the issue of privacy that interests me is the issue of the privacy value inherent in the list, the "do not call" list itself.

3127             MR. LAWFORD:  Yes.

3128             THE CHAIRPERSON:  I make a hypothesis that a given record, a record equivalent to one phone number, would have the phone number.  It would have perhaps the name of the person who requested the listing.  It might have the address.  It might have the e‑mail address.  It might have a unique number administered by the operator, and there might be one or two other fields.  But there wouldn't be much more than that, I don't suppose.

3129             MR. LAWFORD:  Right.


3130             THE CHAIRPERSON:  I am asking this in the context of what would the danger be of someone hacking into or otherwise accessing that list in the minds of your organization?

3131             MR. LAWFORD:  If that list has all of the other information that you are saying it will be populated with ‑‑ name or e‑mail ‑‑ well, that's the Holy Grail for rogue telemarketers or anyone in fact who would like to do identity theft or any of these nefarious activities because it is completely accurate.  It can then be cross‑referenced with any other information they have gathered on that person, and they can do it for millions of people all at once.

3132             So protecting the list, the list operator will have to have it bullet‑proof.

3133             What we would like to see ‑‑ I believe the U.S. model is this way: that they just keep the phone number.  They don't even have your name.

3134             This is why they get into is it a business that got registered or a fax number, a wireless number?  We don't know because they don't want to keep the name.  You've just created name plus phone number, leading to this sort of problem.

3135             It's a huge problem.  To my knowledge, it did arise in Australia.  It was perhaps the number portability database.  It got in the hands of telemarketers.  It was being sold around.


3136             And it will be something which could be a target.

3137             I believe that the way the U.S. confirms e‑mail ‑‑ because you can register via the Web and you get an e‑mail back and you confirm.  The operator on the calls in the CISC committee has said that they hatch the e‑mail so that even the list operator, there is some sort of algorithm that it is unrecognizable; it is unusable to them.

3138             So they just keep the phone number.  That's how they get around it.

3139             THE CHAIRPERSON:  This is going to be a very subtle question, but I might as well ask you because I don't know who else to ask.

3140             How upset would you be if another national state had, by virtue of its domestic legislation, potential access to a "do not call" list in Canada, by virtue of the nationality of the company that operated the database?

3141             MR. LAWFORD:  That would be something which we should avoid from the start.  It is something that may have already occurred with the local number portability database.


3142             It is a consideration that I think you should bear in mind when you are choosing your list operator.  It is something that has been recommended against by the Privacy Commissioner of B.C. and I think again has come out in the guidelines from the federal government as to protection of personal information in government databases.

3143             I believe it was also mentioned that where you can choose a Canadian list operator, just choose Canadian list operator.  You don't get into these problems.

3144             It would be very upsetting for us to have that information available to other countries which might be using it for whatever purposes they wish to use it for once it is in their hands.

3145             So avoid that problem, if you can at all.

3146             THE CHAIRPERSON:  Counsel.

3147             MR. MILLINGTON:  I have no questions.

3148             THE CHAIRPERSON:  I apologize.

3149             COMMISSIONER LANGFORD:  No, there is no apology needed.  I actually just thought of this when you got on the subject of lists.

3150             My apologies to you, counsel, for butting in.


3151             One question that I had wanted to ask you and it just slipped my mind, was your notion that the grace period should be seven days, bringing it into lines with the grace period on faxes.  It has a nice symmetry to it, and I appreciate that.

3152             I am looking not only from you but from ‑‑ and unsuccessfully, I must say so far from many witnesses.

3153             I am looking for a real kind of, I don't know, what would I call it, practical, pragmatic functional reason why seven is more realistic than 30, or 60 is more realistic than 30.

3154             I am still having trouble trying to understand just how much of a burden the difference between 90 and seven days is.

3155             Can you help me with that, or did you just ‑‑ and it's fine if you did.  Did you just pick the seven because it's symmetrical with the fax rule, or do you have some sense of technologically what these people have to go through to collect lists, scrub lists, bring them up to date?

3156             MR. LAWFORD:  I can speak as one learning this myself, especially through the CISC committees and reading people's submissions.


3157             Partly we recommended seven days because it was in line with the fax rules.  We would also like whatever period was chosen to be as short as possible.  So here we are echoing the Union's submission.

3158             People put their name on the list.  They want calls to stop.  What's the problem?  This is the modern world.  Why can't we have it right now?

3159             I believe you will hear later from a consumer rep that will say there is a way to do this.  You can do it by a Web querying thing where if I'm a telemarketer and I want to telemarket to a list, I've got the list, right, my own list.  I'm just about to call that list of numbers.  Well, why don't I send it to the operator, who checks it against the national "do not call" list and says, "Okay, 93 percent of your numbers are valid.  You can call those. But the other 7 percent, no."  And that can be done in real time.

3160             Now people on the CISC committee are saying that is hugely expensive, could never be done.  The AT&T operator in the United States is saying they do it for really huge clients down there.  So perhaps in the future we could have that no delay and we would support that.

3161             Maybe that is something that will develop in the next three years.


3162             On the other hand, we do know that there are some marketing campaigns that go out there and are done, generally speaking, in a timeframe of 30 days, 45 days.  This will just fit into the way they are doing business so they can work it in.  And practically speaking, they will then do it.

3163             If you make it extremely impossible for them to do, or very expensive, they will be pushed back and there will be delays in actually getting the "do not call" list to work.

3164             If we get it to work and it's 31 days, well, you have 30 more days of calls but then it starts working.  And that is really what we are after, is eventually that it starts working.

3165             COMMISSIONER LANGFORD:  So do you see a benefit to say starting at 31 days with a review, at the same time as the stated review, that at that time we would expect more databased evidence for wanting to move it one way or the other?

3166             MR. LAWFORD:  Yes.  We would really hope that the only trend it could be would be downwards and that the technological aspects by then would have been investigated.

3167             Doing the "do not call" list so quickly now, I don't have every confidence that even in the CISC committee that we can come up with that information.

3168             COMMISSIONER LANGFORD:  Right.


3169             MR. LAWFORD:  So hopefully by then we would have some.

3170             COMMISSIONER LANGFORD:  So you have flexibility there in the sense that seven is an ideal at this point but 31 is realistic perhaps.

3171             Do you have sympathy?  You must have sympathy for the sort of small business people, the sort of people that the gentleman from New Brunswick was talking about earlier, who are going to have a major kind of learning curve here?

3172             MR. LAWFORD:  Do you really think they will?

3173             If you have say ‑‑ I don't know ‑‑ 250 customers, if the list coming from the "do not call" list operator is an XML spreadsheet, how hard is it to cross‑reference 250 numbers?

3174             It doesn't seem like the end of the world difficult to me.

3175             Perhaps there are things that I'm missing.  If it is going to be encrypted and you need a special program, who knows.  Right?

3176             And do you have to keep track of when people were put on?  Maybe it is more difficult than that.


3177             I just think we don't have evidence of whether it's difficult or not difficult.  We have statements from people saying that there may or may not be difficulties for small business.  But until the list is set up, we don't know.

3178             COMMISSIONER LANGFORD:  Thanks for that.

3179             That is my last question.

3180             THE CHAIRPERSON:  Thank you, Commissioner Langford.

3181             Counsel?  No.

3182             Thank you very much.  Again, I thank you for your flexibility with respect to your ‑‑

3183             MR. LAWFORD:  Thank you.

3184             LA SECRÉTAIRE:  Monsieur le Président, I do have some undertakings for PIAC.  Thank you.

3185             THE CHAIRPERSON:  We will take a five‑minute break.

3186             I'm told it has been reduced to 30 seconds; sorry.

‑‑‑ Upon recessing at 1158 / Suspension à 1158

‑‑‑ Upon resuming at 1200 / Reprise à 1200

3187             THE CHAIRMAN:  Order, please.  À l'ordre, s'il vous plaît.

3188             Madame la Secrétaire.


3189             LA SECRÉTAIRE:  Merci, monsieur le président.  Nous allons maintenant enchaîner avec le Mouvement des Caisses Desjardins.  Je demanderais à monsieur Grimard de présenter son groupe.

PRÉSENTATION / PRESENTATION

3190             M. GRIMARD:  Alors, bonjour, monsieur le président, bonjour mesdames les Commissaires et monsieur le Commissaire.  Alors, je vais laisser mes collègues se présenter eux‑mêmes, si vous êtes d'accord.

3191             MME BOMBARDIER:  Sylvie Bombardier pour Desjardins...

3192             LE PRÉSIDENT:  On m'informe que la traduction ne fonctionne pas, alors on va attendre, avec votre permission.

3193             M. GRIMARD:  D'accord.  J'attends votre signal.

3194             LE PRÉSIDENT:  Alors, ça va, on marche.  Est‑ce qu'on peut recommencer?  Je m'excuse, mais paraît‑il que mes collègues n'ont pas eu bénéfice même de la présentation jusqu'à ce moment.


3195             M. GRIMARD:  Alors, bonjour, monsieur le président, bonjours mesdames les Commissaires et monsieur le Commissaire.  Alors, je me présente; mon nom, c'est Yvan Pierre Grimard.  Je suis Conseiller à la vice‑présidence Relations gouvernementales du Mouvement des Caisses Desjardins et si vous êtes d'accord, je vais laisser mes collègues se présenter elles‑mêmes.

3196             MME BOMBARDIER:  Sylvie Bombardier pour Desjardins, groupe d'assurances générales.

3197             MME CIMON:  Kathie Cimon, Chef de service pour la vice‑présidence service d'Accès au niveau de télécommercialisation.

3198             M. GRIMARD:

3199             M. GRIMARD:  Alors, bonjour et merci de nous donner l'occasion de vous faire part du point de vue du Mouvement des Caisses Desjardins dans le cadre des audiences publiques sur l'Avis de Telecom‑CRTC 2006‑4.

3200             Alors, Desjardins Groupe Financier intégré de nature coopérative le plus important au Canada et il est la plus grande institution financière au Québec avec plus de 5.5 millions de membres et un actif global de plus de 118 milliards de dollars.

3201             Il regroupe un réseau de caisses et une vingtaine de sociétés filiales dont plusieurs sont actives à l'échelle du Canada.


3202             Desjardins met à la disposition de ses membres et clients des services conseils et un éventail complet de produits et services financiers.

3203             Pour assurer une qualité de services optimale en télécommercialisation, rien n'est laissé au hasard.  Nos ressources humaines sont formées aux meilleures pratiques de l'industrie et bénéficient d'un support constant de la part de leurs supérieurs et de l'organisation.  Les taux de satisfaction à l'endroit de nos services avoisinent les 90 pour cent.

3204             À cela s'ajoute une vigilance constante à l'égard du respect des différentes lois et règlement et ce, partout où Desjardins est présent, qu'il s'agisse du réseau des caisses ou des sociétés filiales, chaque entité s'assure d'être conforme aux obligations légales auxquelles elle est assujettie.

3205             Par ailleurs, il importe de souligner que nous avons déjà pris des mesures pour nous préparer à nous conformer aux exigences de la Loi C‑37 et à l'implantation de la liste nationale de numéros exclus.

3206             En ce qui concerne plus directement la Loi C‑37 et l'Avis Public 2006‑4 maintenant, d'entrée de jeu il importe de spécifier que la principale caractéristique de Desjardins est son statut de coopérative de services financiers.


3207             Concrètement, il en découle que notre organisation appartient à ces 5.5 millions de membres qui, au fil du temps et de l'évolution de leurs besoins, se sont donné des services qu'ils ont eux‑mêmes choisis, tels les services de télécommercialisation.

3208             Ainsi, il apparaît essentiel que le Conseil élabore sur sa vision de ce que représente une relation d'affaires existante au sein d'un groupe financier réglementé et ce, notamment lorsque les membres ont donné leur consentement à l'offre de produits et services financiers.

3209             Un autre élément important en lien avec la notion de relation d'affaires existante que le Conseil devra clarifier concerne les questions relatives au consentement.  Cette notion a été peu abordée et il serait intéressant de connaître le point de vue du Conseil sur ce qu'il considère comme un consentement et sur les effets d'un tel consentement sur les activités des entreprises assujetties.

3210             L'opinion du Conseil devrait aussi aborder cette question sous l'angle de la possibilité d'invoquer le consentement lors d'une instance traitant d'une violation à la Loi.


3211             Pour illustrer l'importance de cette notion, il est de pratique courante en assurance de dommages notamment de demander à un consommateur l'autorisation de communiquer avec lui peu de temps avant le renouvellement de son contrat d'assurance maison ou automobile afin de lui soumettre un devis.

3212             Dans le contexte de la nouvelle loi, il est probable que le délai de six mois précédant la date de la télécommunication soit insuffisant puisque ce type de contrat couvre toujours au moins une année entière.

3213             Alors, comment interpréter le fait que le client potentiel accepte de donner la date de renouvellement de son assurance?  Selon nous, ceci devrait être considéré comme une demande formelle de soumission à laquelle il faut obligatoirement donner suite et ce, même si l'individu s'inscrit sur la liste entre l'appel initial et l'offre de service en bonne et due forme.

3214             C'est dans ce contexte que la notion de consentement prend toute son importance et ce n'est pas en contradiction avec la Loi.  En dedans de six mois il n'y a pas de problème, il n'y aurait pas de problème, mais au‑delà, nous aurions besoin que le CRTC reconnaisse le consentement ou alors, nous allons nous mettre dans une situation propice à insatisfaire nos clients.


3215             Toujours en lien avec cette notion, le *référencement+ constitue également une activité importante dans tout le secteur financier.  Effectivement, il est possible que dans le cadre d'une offre de service effectuée par téléphone un agent, avec le consentement de la personne bien sûr, réfère le nom de celle‑ci à une autre entité du Groupe financier afin que cette dernière puisse lui faire une proposition sur un produit correspondant à ses besoins.

3216             Comme il s'agit d'une procédure courante et appréciée de nos membres, nous souhaiterions que le Conseil exprime son point de vue sur cette façon de faire.

3217             Selon nous, ce genre d'appel ne devrait pas être considéré comme une communication non sollicitée puisque le destinataire aura préalablement donné son accord pour être référé à une autre entité du Groupe financier.

3218             Vu sous un autre angle, on pourrait dire que le client s'attend à recevoir un appel, donc il ne s'agit pas d'une communication non sollicitée que la Loi cherche à encadrer.


3219             Une autre des pratiques qui caractérisent le secteur de l'assurance concerne le marketing en partenariat.  En fait, il arrive que des entreprises comme Desjardins et des associations conviennent de partenariat d'affaires incluant des activités de marketing.

3220             Par exemple, des assureurs, des associations de diplômés pourraient s'associer et dans le cadre de ce partenariat le membre de l'association en question serait éligible à des rabais que l'assureur présente parfois par téléphone.  Au moment de l'appel, le destinataire est informé que c'est à titre de membre de l'association X qu'il est sollicité.

3221             Puis il importe aussi de souligner que dans ce genre de partenariat, les associations permettent toujours à leurs membres de ne pas être sollicités.  En fait, les associations permettent aux membres de s'exclure de leur liste.  Ainsi, nous aimerions obtenir le point de vue du Conseil sur cette pratique.

3222             Dans l'Avis, le Conseil sollicite également des commentaires sur l'établissement d'un délai de grâce au cours duquel les appels destinés à des personnes figurant sur la liste ne constitueraient pas une violation.


3223             Nous croyons nécessaire d'obtenir un tel type de délai et pour ce faire, il serait intéressant de s'inspirer de l'expérience américaine puisque cette dernière semble donner des résultats probants.

3224             Si les États‑Unis présentées par le Conseil comme étant à l'avant‑garde en cette matière ont octroyé un délai de 30 jours, alors il faudrait moduler le délai canadien en fonction des capacités technologiques de la liste.  Ainsi, selon ses capacités, le délai de grâce pourrait être plus ou moins long.

3225             En fait, ce qu'il faudrait faire, c'est de trouver l'équilibre entre la capacité technologique de la liste, les capacités techniques des entreprises et l'intérêt des consommateurs également.

3226             En ce qui concerne l'obligation d'identification qui est abordée à l'article 41.7 de la Loi, il s'agit d'un élément important en ce qui nous concerne.  Il s'agit d'un élément important, pardon.

3227             Nous croyons que la procédure d'identification devrait être exécutée sur la base du destinataire de l'appel et non sur celle de la première personne qui répond.  S'il fallait que ça soit sur la base du premier répondant, il y a des risques que certaines personnes soient privées d'obtenir les services auxquels elle s'attendait.  Dans notre secteur d'activités, cela pourrait avoir des conséquences néfastes.


3228             En ce qui concerne l'obligation des télé‑vendeurs de tenir leurs propres listes de numéros exclus, Desjardins estime qu'il faudrait qu'elles soient maintenues.

3229             Si les entreprises exemptées en raison de relation d'affaires existantes doivent le faire pour des raisons de respect du consommateur, la même obligation devrait être prévue pour les télé‑vendeurs puisqu'il est possible qu'un consommateur puisse vouloir recevoir des offres de tous les télé‑vendeurs, tout en ayant la possibilité de rayer le nom de ceux dont il n'est pas satisfait.

3230             Selon nous, cela permettrait d'ajouter de la souplesse et de permettre au consommateur de conserver la liberté de choisir avec qui il souhaite faire des affaires et recevoir des offres.

3231             En ce qui concerne la possibilité de choisir les entreprises à exclure, ce que l'on craint c'est qu'involontairement, un consommateur, en s'inscrivant sur la liste, pourrait se priver de connaître l'existence de produits dont il pourrait vouloir bénéficier.


3232             Pour éviter que des membres et clients de Desjardins ou d'autres organisations se retrouvent privés d'information qu'ils auraient voulu obtenir, le Conseil pourrait prévoir la possibilité pour un individu de s'inscrire sur la liste et de procéder ensuite à ses propres exemptions en fonction de ses besoins.

3233             Concrètement, cela voudrait dire qu'une personne pourrait s'inscrire sur la liste pour ne plus recevoir d'appels non sollicités, sauf lorsqu'il s'agit des produits et services financiers offerts par Desjardins ou d'autres entreprises qu'il aurait lui‑même ciblé.

3234             Il s'agirait encore une fois d'une formule ajoutant de la souplesse et ce, tout en permettant au consommateur de contrôler personnellement les communications qu'il souhaite recevoir.

3235             Dans le cadre des travaux actuels sur l'Avis 2006‑4, certains groupes se sont prononcés en faveur du maintien pour trois ans de l'inscription à la liste.  Après cette période, le consommateur devra s'inscrire à nouveau s'il ne souhaite toujours pas recevoir d'appel sollicité.  Il serait intéressant d'entendre le Conseil à ce sujet.


3236             En ce qui concerne le télémarketing business to business, le Conseil devrait se pencher sur cette question.  Selon notre compréhension, ce type d'activité ne semble pas être révisé.  À ce sujet, nous aimerions entendre l'Avis du Conseil.

3237             Nos travaux nous indiquent qu'il n'était pas de l'intention du Législateur d'inclure ce type d'appel.

3238             En terminant, en ce qui concerne les règles qui prévalaient avant 2004, avant la Décision 2004‑35, nous pensons que celle‑ci était suffisante.

3239             Alors, pour conclure, il importe de souligner que dans notre secteur d'activité, le marketing direct représente pour certains segments de clientèle souvent moins bien nantie, le seul moyen par lequel ils ont accès à des renseignements sur des produits et services financiers.

3240             C'est dans ce contexte que les notions de relations d'affaires existantes de consentement et de référencement prennent toute leur importance.

3241             Je vous remercie de votre attention.

3242             LE PRÉSIDENT:  Merci beaucoup, monsieur Grimard.


3243             On pourrait commencer peut‑être avec la question de consentement que vous trouvez aussi importante.  Je ne sais pas si vous étiez ici hier lors de la comparution de CADRI.  Vous étiez là, ce sont vos concurrents d'ailleurs, je pense?

3244             M. GRIMARD:  Nous sommes membres de CADRI.

3245             LE PRÉSIDENT:  Bon.  Alors, à ce moment‑là, on a discuté en quoi consiste un consentement, si j'ai bien compris.

3246             Un consentement pourrait consister à une conversation téléphonique avec un préposé, un de vos préposés qui est enregistré de façon digitale, de telle façon à ce que ça constituait une défense dans le cas où le consommateur oublie ou par la suite s'inscrive et se plaigne.

3247             Deuxièmement; que le consentement pourrait consister à un record de message courriel que vous auriez eu de bonne foi, les bonnes raisons de penser vient réellement de la personne en question, et caetera, qui est conservé, et qui pourrait démontrer ou montrer dans le cas d'une défense par rapport à une plainte.

3248             Et, troisièmement; évidemment la signature du client ou du plaignant sur un document qui, entre autres choses, constitue un consentement à un contact subséquent pour les fins en question.

3249             Est‑ce qu'on a raison que c'est à peu près ça?


3250             M. GRIMARD:  C'est à peu près ça.  Vous oubliez le consentement oral, si j'ai bien... si j'ai bien compris.  Il peut arriver qu'une personne donne son consentement aussi au téléphone pour certains types.

3251             LE PRÉSIDENT:  Mais j'avais compris que le record était gardé, la conversation a été enregistrée de façon digitale.

3252             M. GRIMARD:  Oui, oui, oui, tout à fait, c'est exact.  Excusez‑moi.

3253             LE PRÉSIDENT:  Oui.  Vient la question suivante : c'est que dans le complexe formulaire qui est rempli par un client potentiel, date X qui devient... fait partie de votre famille et donc, devient un client, il y a quelque part une ligne qui dit : nous pouvons utiliser les renseignements personnels qui vous concernent pour vous présenter d'autres produits et services de temps en temps qu'on juge appropriés pour vous.

3254             C'est la question que ma collègue a abordée avec le groupe précédent : dans quelle mesure est‑ce qu'un tel aspect de la formule, du formulaire est perceptible pour le signataire au moment de la signature?  Qu'est‑ce que vous avez actuellement par ailleurs à cet égard?


3255             M. GRIMARD:  Ce genre de document signé là, ça se produit toujours de la même façon.  C'est lorsqu'un membre d'une Caisse Desjardins se pointe à sa caisse pour s'ouvrir un compte.  Alors, à ce moment‑là, il se fait expliquer par la personne qui est devant lui de quoi il est question dans ce formulaire‑là.

3256             Donc, selon nos pratiques, le membre est informé qu'il serait possible qu'il soit sollicité pour obtenir d'autres produits offerts par notre entreprise.  Est‑ce que vous voulez ajouter quelque chose?

3257             MME BOMBARDIER:  L'autre point que je pourrais ajouter, c'est toute la notion de consentement, que ce soit à travers l'ensemble de nos activités, elles sont toujours régies par la Loi sur la protection des renseignements personnels dans le secteur privé et il y a la Loi fédérale aussi, PEPIDA Act qui a été discuté aussi.

3258             Donc, toute cette façon d'obtenir un consentement, on estime que c'est suffisamment légiféré et qu'il y a des lois pour mettre les balises qui s'imposent pour obtenir les consentements suffisants auprès des consommateurs et on s'engage, nous, à respecter ces lois‑là depuis déjà plusieurs années.


3259             LE PRÉSIDENT:  Je pense même que j'ai été responsable alors que j'étais Ministre des communications du Québec, le passage de la Loi sur la protection des renseignements personnels.

3260             Donc, vous avez déjà un régime en place.

3261             MME BOMBARDIER:  Tout à fait.

3262             LE PRÉSIDENT:  Votre régime permet à l'individu de se soustraire de cet aspect‑là de l'entente.  Il peut devenir client sans vouloir être sollicité pour d'autres choses ou par d'autres réseaux, il peut indiquer ça sur le formulaire.  Il est donc sur votre liste de numéros de ne pas appeler.

3263             MME BOMBARDIER:  Effectivement, ça pourrait être comme ça ou tout dépend des activités.

3264             Il y a d'autres secteurs aussi où est‑ce que l'individu peut appeler puis dire : écoutez, je ne veux plus que vous communiquiez avec moi et, là, chaque entité se tient des listes à l'interne aussi de ne pas appeler.


3265             LE PRÉSIDENT:  Alors, dans le fond, ce que vous nous recommanderez dans une telle situation, ce serait de regarder bien les pratiques des compagnies telles vous autres, tels les membres de CADRI ou d'autres compagnies qui endossent et utilisent les meilleures pratiques dans la matière pour être certain que nous permettons à ce que les règlements comprennent et sont réconciliés avec ces pratiques‑là.

3266             MME BOMBARDIER:  Tout à fait et que le CRTC reconnaisse qu'il y a déjà des balises de mises en place pour obtenir des consentements jugés raisonnables dans l'industrie pour que ce soit l'information personnelle dont les numéros de téléphone et tout ça, donc, pour obtenir les moyens de communiquer avec le client.

3267             Une fois que ça c'est déjà légiféré et que le CRTC reconnaisse que c'est déjà légiféré et qu'il dise : bon bien, ça va.  Quand les consentements sont jugés raisonnables et suffisants en fonction des Lois provinciales et de la Loi fédérale, nous reconnaissons que le consentement est valide et ça pourra être une défense pour l'entreprise qui croit raisonnablement elle a le consentement... elle croit que le consommateur ne sera pas offusqué, mais qu'il s'attend à avoir une telle communication.

3268             Et on croit fortement que lorsque le consommateur s'attend d'avoir des nouvelles d'une entreprise, il va de soi que l'entreprise, pour continuer son bon service, elle devra faire le suivi requis.


3269             Et il va de soi aussi qu'il y a des clients qui pourraient se mettre sur la do not call list et, par la suite, faire affaires avec une entreprise hormis le fait qu'ils se sont déjà mis sur la do not call list, ce qui ne changera rien au fait qu'ils s'attendent d'avoir des communications de cette nouvelle entreprise‑là.

3270             M. GRIMARD:  En fait, monsieur le président, il ne faut pas que les effets de la Loi fassent en sorte qu'un membre Desjardins ou un client Desjardins qui ait... qui veut obtenir des services de notre part soit pénalisé.

3271             LE PRÉSIDENT:  C'est très peu probable que lui serait pénalisé; c'est plutôt la question si vous seriez pénalisé si, entre‑temps, ils se mettent sur une liste nationale et il se plaint après, suite à l'appel de votre part.

3272             N'êtes‑vous pas dans le fond en train de nous dire : une défense devrait consister... un consentement légitime devrait constituer une défense face à une plainte d'un de vos clients que lui‑même a oublié qu'il vous a déjà donné son consentement et parce qu'entre‑temps, il s'est mis sur la liste nationale?

3273             M. GRIMARD:  Tout à fait.


3274             MME BOMBARDIER:  Tout à fait.

3275             LE PRÉSIDENT:  Oui.  Écoutez, il me semble que vous avez un problème avec la question des délais qui sont un peu moindres que certaines autres compagnies, avec vos consoeurs, des banques?

3276             Vous avez... le client a toujours dans la mesure où son argent reste avec vous, il a toujours une relation d'affaires avec vous.

3277             Alors, à moins que vous fassiez beaucoup d'assurance aux clients qui n'ont pas de compte avec vous autres, à moins que vous fassiez beaucoup d'autres activités de gestion de portefeuille, je ne sais pas si vous faites encore ça?

3278             M. GRIMARD:  Hum‑hum!  Oui, bien sûr.

3279             LE PRÉSIDENT:  Bon.  Avec les gens qui n'ont pas de compte de coopérative, de caisse pop. avec vous, vous n'avez pas de problème parce que le client est par définition, il a toujours une relation d'affaires avec vous jusqu'à aussi longtemps que le compte existe.


3280             MME BOMBARDIER:  L'exemple qu'on a donné aussi et que Yvan‑Pierre a soulevé et qui a probablement été soulevé dans CADRI aussi ‑‑ je n'étais pas là ‑‑ c'est dans le cas où un client qui n'est pas nécessairement membre d'une caisse et tout ça voudrait avoir une assurance, il nous fait une demande : pouvez‑vous communiquer avec moi pour me faire un prix lors de mon renouvellement?

3281             Les renouvellements se font aux années, donc parfait ça va dépasser six mois.  Donc, c'est le problème qu'on vit, mais qui est assez important dans le cadre des activités d'assurance.

3282             On considère, encore une fois, que le client, il s'attend à ce qu'on communique avec lui et c'est un consentement.

3283             Il est possible que ce client‑là ait déjà... se sont mis sur une liste do not call list, pour ne pas recevoir d'autres communications non sollicités, mais nous considérons que suite à son autorisation ou à sa demande à ce qu'on lui fasse un prix l'année prochaine, nous considérons que c'est un consentement, que le client va s'attendre à ce qu'on communique avec lui et on ne voudrait pas que ce soit vu comme une entrave.

3284             On veut que nos pratiques soient... dans le fond que le CRTC clarifie la situation afin qu'on dise : bon, bien, écoutez, c'est clair, il n'y a pas d'entrave à ce moment‑là.


3285             LE PRÉSIDENT:  Je pense que dans une telle clarification, on hésiterait beaucoup à faire référence aux lois provinciales ou d'autres lois fédérales d'application générale.

3286             On serait plutôt susceptibles, je pense, d'énumérer quelques cas de consentement sans limitation du genre que je vous ai fait au début puis avec lequel vous êtes d'accord et s'il y en a d'autres suggestions, on pourrait les ajouter et de dire, donc, une légitime défense pourrait constituer un consentement du genre tatata!, essentiellement indiquant que, à un moment donné, de bonne foi, l'institution a reçu d'un consommateur averti, une invitation ou une permission qui pourrait subséquemment être évoquée par l'institution en question, lors d'une plainte de ce consommateur‑là qui aurait oublié ou qui, bon...

3287             C'est essentiellement ça que vous cherchez, essentiellement ça qui est possible pour nous autres?

3288             MME BOMBARDIER:  Effectivement.

3289             M. GRIMARD:  C'est exactement ça, monsieur le président.


3290             LE PRÉSIDENT:  Pour ce qui est des associations, du marketing au partenariat, est‑ce que vous êtes en train de nous dire un membre d'une association qui est simultanément... qui s'est simultanément inscrit sur la liste nationale, ne pourrait pas se plaindre et avoir sa plainte reçue et appuyée parce qu'il est membre d'une association qui a fait un partenariat avec les Caisses pop ou une autre entreprise de vente par télémarketing?

3291             M. GRIMARD:  C'est ce qu'on vous dit.

3292             LE PRÉSIDENT:  So, un membership dans l'association efface en quelque sorte, en ce qui a trait au partenariat de marketing de cette association, son inscription à la liste nationale?

3293             MME BOMBARDIER:  Si je peux me permettre une précision, ce qui va arriver dans un contexte de partenariat de marketing, souvent un membre d'une association, son association peut communiquer avec lui et lui demander : est‑ce que vous acceptez... est‑ce que vous consentez à ce qu'on transfère vos coordonnées à un assureur, par exemple, qui pourra communiquer avec lui pour vous faire part des bonnes offres, compte tenu du fait que vous faites partie...

3294             LE PRÉSIDENT:  Que vous êtes membre de l'association?


3295             MME BOMBARDIER:  Effectivement.  Donc, la personne consent, effectivement, oui, je suis d'accord; ou si vous ne voulez pas, écoutez, faites‑nous le savoir, on vous met sur des listes et tout ça.

3296             Donc l'entreprise qui reçoit une liste de numéros de téléphones qui est déjà épurée des membres qui ont dit : non, je ne veux pas être sollicité par l'assureur même s'il va m'offrir des bons prix parce que je suis membre de votre association, je ne veux pas.

3297             Sauf que si la personne... si on a une liste des gens qu'on peut s'attendre... qui s'attendent à obtenir des communications de l'assureur, l'assureur va communiquer avec eux au titre du fait qu'ils sont membres de l'Association et qu'ils ont déjà été informés.

3298             Donc, les gens s'attendent... les membres de l'association sont informés que dans les prochains mois ils seront... ils auront des communications par l'assureur pour leur faire part des offres, donc, là, ils seront au courant et pourront accepter ou refuser.

3299             Au départ, ces gens‑là ont toujours la possibilité de consentir, donc d'où l'importance de reconnaître le consentement.  À cet effet‑là, il n'y a pas une relation directe entre l'assureur et le membre de l'association, mais il y a une forme de consentement.


3300             Le client s'attend à recevoir de l'information par un assureur qui va communiquer avec lui.  La communication n'est pas non sollicitée.  Il pourrait arriver qu'une personne, membre d'une association, accepte et veut recevoir les prix de l'assureur parce qu'il entend parler partout ses pairs que c'est effectivement des très bons prix, il est intéressé.

3301             Sauf qu'il est possible que cette personne‑là se soit mise sur la liste de téléphone nationale exclus parce qu'il ne veut pas recevoir d'autres communications non sollicitées.

3302             LE PRÉSIDENT:  Alors, ce que vous nous demandez, c'est de se prononcer sur la question suivante :  est‑ce que nous sommes obligés, nous, Desjardins, nous sommes obligés de tamiser notre liste par rapport à la liste nationale dans le cas où une association qui a déjà eu des consentements spécifiques à cet égard fasse de nous un partenariat de marketing par lequel on voudrait solliciter l'ensemble, la totalité de leurs membres.


3303             MME BOMBARDIER:  Tout à fait.  Nous, ce qu'on dit, c'est qu'on fait déjà une première épuration, on considère que ces gens‑là s'attendent à ce qu'on communique avec eux.  Donc, compte tenu qu'on a ce consentement‑là, on ne voudrais pas avoir à re‑vérifier auprès de la do not call list puis ça pourrait causer des problèmes du fait que quand une personne dit : oui, je veux avoir... je consens à ce que vous transfériez mes coordonnées pour recevoir la promotion de l'assureur, à cause qu'il est sur la do not call list, nous on ne l'appelle pas.

3304             Donc, il y a comme un vide ou un problème où est‑ce qu'on se dit : bon, qu'est‑ce qu'on fait?  Il s'attend à ce qu'on l'appelle, il est sur la do not call list, en principe, by the book, on ne peut pas l'appeler, mais il s'attend à ce qu'on l'appelle.

3305             M. GRIMARD:  Et puis aussi, il faut ajouter à ça qu'il y a certains membres d'associations qui sont membres des associations justement parce qu'ils savent qu'ils peuvent bénéficier de certains rabais sur certains produits.

3306             LE PRÉSIDENT:   Alors, dans le fond, la question est assez précise : est‑ce que par une entente de mise en marché en partenariat, une association pourrait transférer le consentement à une compagnie de marketing de vente comme... ou une coopérative de vente comme vous autres?


3307             MME BOMBARDIER:  Tout à fait.  L'important, c'est d'obtenir un consentement pour que le consommateur, lui, ait l'occasion de consentir.

3308             LE PRÉSIDENT:  Je répète, c'est : est‑ce que le consentement que le consommateur a donné à son association enlève la nécessité de mettre en application la liste nationale à un partenariat dûment constitué entre l'association originale et la Caisse pop.?

3309             M. GRIMARD:  C'est bien ça.

3310             LE PRÉSIDENT:  Bon, c'est clair, en tout cas, ce qui est devant nous et puis je vous remercie de votre aide.

3311             Je ne suis pas sûr que j'ai compris la question de l'obligation d'identification.  Pourriez‑vous passer à travers ça parce que ça a passé vite puis je suis loin d'être certain que j'ai compris.

3312             M. GRIMARD:  Je vous réfère à l'article... l'article 41.73 de la Loi dit que :

* Une entreprise exemptée lorsqu'elle appelle en vertu de son exemption une personne inscrite à la do not call list doit se présenter et dire pourquoi la communication est effectuée. +


3313             Alors, nous, ce qu'on demande, c'est que cette obligation d'identification‑là soit mentionnée au destinataire de l'appel, c'est‑à‑dire que vous, par exemple, si Desjardins...

3314             LE PRÉSIDENT:  Je comprends.  Alors, supposons que je suis le premier répondant, mais je ne suis pas la personne, c'est à ma femme que vous voulez vraiment parler?

3315             M. GRIMARD:  Oui.

3316             LE PRÉSIDENT:  Alors, quelle est l'implication?  Vous n'êtes pas obligé de vous identifier à moi?

3317             M. GRIMARD:  L'implication, c'est que je puisse pouvoir appeler puis dire : est‑ce que je pourrais parler à votre femme?

3318             LE PRÉSIDENT:  Oui.

3319             M. GRIMARD:  Et lorsque votre femme prend le téléphone, je lui dirais : bonjour, je suis Yvan‑Pierre Grimard de chez Desjardins, je vous appelle pour vous offrir le produit...

3320             LE PRÉSIDENT:  Non, mais monsieur Grimard, ça, ça va jusque là, pourvu que le premier répondant dise, d'accord, je vais appeler ma femme.

3321             M. GRIMARD:  Bien sûr, bien sûr.


3322             LE PRÉSIDENT:  Le problème surgit lorsque le premier répondant qui n'est pas la cible de votre effort de marketing dit : qui êtes‑vous puis qui est‑ce que je peux dire appelle.

3323             M. GRIMARD:  Tout à fait puis, on portait cet aspect‑là à votre attention parce que dans la décision 2004‑35, il était question en quelque part que dès que quelqu'un répondait au téléphone, il fallait enclencher un processus de présentation puis d'explication de la nature de l'appel.

3324             Alors, on voulait seulement vous préciser qu'il faudrait que... qu'on est d'accord pour se soumettre à cette procédure‑là, mais au destinataire de l'appel, pas à la première personne qui répond au téléphone.

3325             LE PRÉSIDENT:  Donc, vous voulez qu'on sanctionne votre refus de vous identifier au premier répondant?  Non?

3326             M. GRIMARD:  Non.  En fait, si j'appelle chez vous et que je veux parler à votre femme, c'est un bon exemple, ça, et que vous répondez, je voudrais que le CRTC nous confirme que l'obligation de dire bonjour, je suis Desjardins, blablabla!...

3327             LE PRÉSIDENT:  Vous ne voulez pas engendrer...


3328             M. GRIMARD:  ... que je le fasse à votre épouse et non à vous lorsque vous allez prendre le téléphone puisque c'est à votre épouse que je veux offrir mon produit.

3329             LE PRÉSIDENT:  Vous ne voulez pas enclencher le script formel, total, qu'à la personne que vous cherchez?

3330             M. GRIMARD:  C'est ça.  On veut faire... on veut faire notre laïus à la personne à qui on veut parler.

3331             LE PRÉSIDENT:  Je comprends.  Par contre, ce n'est pas là où j'en suis.  Quelle est votre obligation envers le premier répondant?  Comment est‑ce que vous gérez ça?  Qu'est‑ce que vous allez dire à vos préposés?

3332             M. GRIMARD:  On va dire : bonjour, est‑ce que je pourrais parler à monsieur...

3333             LE PRÉSIDENT:  Oui, je sais que vous allez dire ça d'abord.  Ce n'est pas ça la question.  Quand la personne répond puis dit : mais qui appelle?  Pourquoi voulez‑vous lui parler, qu'est‑ce que vous dites?  Qu'est‑ce que vous voulez qu'on vous conseille de dire?

3334             M. GRIMARD:  Bien, nous allons nous soumettre à ce que l'article de Loi dit.  L'article de Loi dit qu'il faut se présenter, dire quel est l'objet de notre appel.


3335             MME CIMON:  Monsieur le président, si je peux me permettre.  Je suis en charge d'un des centres d'appels sortant et puis en ce moment, on se présente immédiatement, que ça soit la personne, monsieur French ou madame French qui répond.

3336             Toutefois, par le passé, on ne le faisait pas.  On demandait : bonjour, pourrais‑je parler avec madame French puis si monsieur French était au téléphone et nous demandait : qui êtes‑vous?  On s'identifiait automatiquement : bonjour, mon nom est Kathie Cimon de Desjardins.

3337             Alors, on n'avait pas... on ne s'empêchait pas de le donner parce que, de toute façon, on ne voulait pas qu'il y ait de mauvaise communication avec la personne, que ça soit la personne destinée à l'appel ou non, mais on le fait déjà.

3338             LE PRÉSIDENT:  En tout cas, sache qu'on n'a pas l'intention... sachez, qu'on n'a pas l'intention de compliquer votre vie indûment ça, c'est sûr.  On n'a pas l'intention non plus de sanctionner une espèce d'approche qui dit que je ne m'identifie pas, sauf qu'à madame French parce que je ne pense pas que ça... ce n'est pas dans votre intérêt, ça, et certainement pas dans le nôtre.


3339             Alors, on va essayer de trouver un moyen à la lumière des questions pratiques que vous soulevez, que je comprends comme étant il y a une série d'exigences assez serrées et on ne veut pas les enclencher dans leur totalité, à la première personne, à moins que cette première personne est la cible de notre effort de marketing.

3340             M. GRIMARD:  Exactement.

3341             LE PRÉSIDENT:  Bon.  Je vous remercie.

3342             M. GRIMARD:  Puis on va le faire comme ma collègue vient de vous mentionner, on le fait, on ne se cache pas.  On ne se cache pas, mais on voulait juste clarifier.

3343             LE PRÉSIDENT:  Non.  Je le savais, mais je voulais juste voir exactement quel était le problème.

3344             Dans le fond, vous êtes en train peut‑être de nous dire que l'exigence telle qu'elle est actuellement, qui est suspendue là, est assez élaborée et peut‑être trop élaborée?

3345             M. GRIMARD:  Dans 2004‑35, c'était effectivement trop élaboré.

3346             LE PRÉSIDENT:  C'était mon impression.


3347             M. GRIMARD:  On est plus à l'aise avec ce qui se trouve dans C‑37 là.

3348             LE PRÉSIDENT:  O.k.  Oui, mais on a le pouvoir d'ajouter d'autres choses là, vous savez.

3349             M. GRIMARD:  Je sais.

3350             LE PRÉSIDENT:  D'accord.  Alors, je retiens qu'on soit raisonnable dans nos exigences.

3351             M. GRIMARD:  Exactement.

3352             LE PRÉSIDENT:  Merci.  Ah! oui, l'exclusion des entreprises de la liste nationale.

3353             En principe, on ne peut pas s'objecter, mais en pratique, comment voulez‑vous qu'on fasse ça?  Il y a tellement d'exceptions possible, on vient de doubler ou tripler la taille de notre record pour chaque individu.

3354             M. GRIMARD:  Bien, nous, notre point, monsieur le président, c'est que pour avoir suivi les travaux du Sénat et de la Chambre, c'est que l'intention du Législateur était réellement de limiter l'intrusion dans les foyers des individus.

3355             Alors, il n'était pas question de limiter le télémarketing entre entreprises et on pense que ça ne serait pas nécessaire.  On pense que ce n'est pas nécessaire d'inclure ça puisqu'on...


3356             LE PRÉSIDENT:  Excusez‑moi; on n'est pas sur la même longueur d'onde là.  Vous parlez de B. to B. là?

3357             M. GRIMARD:  Oui.

3358             LE PRÉSIDENT:  Non, ce n'est pas ça que j'évoque.  J'évoque que le client peut s'inscrire au registre national, mais il peut dire, par contre, quand la Caisse pop. m'appelle c'est O.k.  Est‑ce que vous n'avez pas demandé ça ou vous avez demandé ça d'après moi?

3359             M. GRIMARD:  Oui, oui, nous avons demandé ça.

3360             LE PRÉSIDENT:  Alors, philosophiquement, mettons d'accord que ce serait idéal.

3361             M. GRIMARD:  Oui.

3362             LE PRÉSIDENT:  Il n'y a pas de question de principe là‑dedans.  C'est strictement une question problématique comment est‑ce qu'on va réussir à * manager + ça pour un potentiel de 12 millions de numéros de téléphone et deux millions à trois millions de business.

3363             M. GRIMARD:  Écoutez; c'est vrai que ça peut être compliqué.  Par contre, l'informatique est capable de réaliser de grandes choses.


3364             On est membre du sous‑comité du CDCI sur l'exploitation de cette liste‑là et puis c'est une chose qu'on suit de près puis on pense que ce serait vraiment... ce serait idéal de procéder comme ça pour que le consommateur soit, comme je l'ai mentionné, soit maître des communications qui rentrent chez lui.

3365             Je comprends qu'au niveau technique ça peut poser certains défis, mais c'est peut‑être pas insurmontable, mais si c'est faisable, bien on souhaiterait que le Conseil donne son consentement à ce que ça soit... ça soit réalisé par l'exploitant de la liste.

3366             LE PRÉSIDENT:  Bien alors, mettons d'accord pour le fait que c'est un défi technique...

3367             M. GRIMARD:  Oui, j'en conviens.

3368             LE PRÉSIDENT:  ... avec lequel au point de vue de principe et de philosophie il est difficile de s'objecter, mais sur le plan pratique, il pourrait surgir un certain nombre de problèmes.

3369             Sur le B. to B., je ne sais pas si vous avez d'autre chose à dire.  Je ne pense pas qu'on a déjà assez discuté ça.  La seule phrase dans votre présentation qui me fait arrêter un peu :

* Nos travaux nous indiquent que ce n'était pas l'intention du Législateur d'inclure ce type d'appel. +


3370             Mais c'est vrai qu'il y a deux sénateurs qui ont dit qu'ils n'étaient pas d'accord, mais de là à dire que tous les parlementaires n'ont pas voulu couvrir notre business c'est un peu un stretch, à moins que vous ayez d'autres renseignements que je n'ai pas?

3371             M. GRIMARD:  Bien, écoutez, moi, j'ai beaucoup suivi les travaux autant du Sénat que les travaux de la Chambre des Communes et puis ce n'est pas une préoccupation qui est ressortie de la part ni des sénateurs ni des députés de la Chambre.

3372             Ce que j'ai toujours compris puis ce qui me semblait assez clair à la lumière des travaux que j'ai pu faire là‑dessus, c'est que le Législateur, c'est le consommateur chez lui qu'il veut protéger.  Ce n'est pas l'entrepreneur au bureau le mardi après‑midi.

C'est vraiment notre perception de la situation.

3373             LE PRÉSIDENT:  Oui et je ne la contesterai pas, mais sauf que vous demandez un peu plus que ça.  Vous nous demandez à ce que... à dire à l'entrepreneur le mardi après‑midi, non, vous n'avez pas le droit même si vous voulez, de vous inscrire.


3374             M. GRIMARD:  Bien, écoutez, j'ai compris hier que vous aviez des préoccupations et puis vous vous demandez comment est‑ce qu'on va faire pour faire ça.

3375             Ce qui pourrait être une solution, ce serait que le Conseil édicte que lorsque le télé‑vendeur est capable de démontrer qu'il y a eu une plainte sur un numéro d'entreprise, bien que la plainte soit rejetée et ne puisse pas être entendue.

3376             LE PRÉSIDENT:  O.k.  Je ne pense pas que j'aie d'autres questions.  Je ne sais pas si mes collègues ont des questions?

3377             Commissioner Cram.

3378             COMMISSIONER CRAM:  Merci.  Vous savez qu'il y aura peut‑être les problèmes avec l'écoute du DNCL, the do not call list, parce qu'il n'y a pas beaucoup de telemarketers au Canada.

3379             Vous avez dit ici que la liste, l'inscription pour les consommateurs doit finir après trois ans, mais il y aura les... ça va augmenter les coûts peut‑être trop pour la comptabilité de la liste.

3380             Est‑ce que les coûts, s'ils sont trop élevés, est‑ce que ça va changer vos idées des trois ans parce que ça va vous coûter plus?


3381             M. GRIMARD:  Effectivement, c'est probable que ça nous coûte  plus cher.  Par contre, l'esprit de notre demande, c'est qu'on a... on a l'impression que les lois, les règlements actuels conjugués à la mise en place de la liste vont faire en sorte de réconcilier les consommateurs avec la pratique du télémarketing.

3382             On pense que dans trois ans, si les résultats sont positifs, si, effectivement, les intrusions ont été limitées, mieux encadrées, on pense qu'après trois ans il y a un bon nombre de personnes qui décideraient de ne pas se réinscrire sur la liste puis ça, ça nous apparaît important dans la mesure où on a lu dans les documents préparés par Canadian Marketing Association que le télémarketing, c'est plus de 200 000 emplois et c'est autour de 15 milliards de chiffres d'affaires au Canada.  Donc, c'est dans cet esprit‑là qu'on fait la recommandation.

3383             COMMISSIONER CRAM:  Puis ça vaut le coût, peu importe combien?


3384             M. GRIMARD:  Non, quand même, pas à n'importe quel prix.  C'est certain qu'on ne pourrait pas faire ça à n'importe quel prix, mais on pense que l'idée est bonne, l'idée mérite d'être analysée et puis, bien sûr, comme je le mentionnais tout à l'heure, on travaille sur le sous‑comité du CDCI sur l'exploitation, on devrait être en mesure d'avoir une meilleure idée de ce que ça pourrait représenter comme coût au fil des ans puis on pourrait... on vous reviendrait là‑dessus.

3385             Mais l'esprit, c'est qu'on pense que la liste, les règlements vont réconcilier le consommateur avec le télémarketing puis qu'en bout de piste ça va être bon pour tout le monde.

3386             COMMISSIONER CRAM:  Merci.

3387             THE CHAIRMAN:  Counsel.

3388             M. MILLINGTON:  Merci, monsieur le président.  J'aurais une petite question.

3389             Monsieur Grimard, pouvez‑vous nous fournir des documents que vous auriez utilisés pour obtenir le consentement de vos clients?  J'imagine qu'il y a plusieurs types de documents qui sont utilisés?

3390             M. GRIMARD:  Nous allons vous fournir les documents utilisés dans les Caisses et nous allons vous expliciter les autres façons dont nous obtenons le consentement de nos membres et clients, certainement.

3391             M. MILLINGTON:  O.k.  Parfait.  Merci.

3392             LE PRÉSIDENT:  Madame la Secrétaire a des demandes à faire?  Non?  Pas d'undertaking?  Non.

3393             Alors, monsieur Grimard, madame Cimon, maître Bombardier, merci beaucoup.  Vous avez été fort utiles et votre présence est très appréciée.


3394             Nous allons prendre une pause pour le lunch.

3395             We'll see one other again after lunch at two o'clock sharp, please.

3396             LA SECRÉTAIRE:  Monsieur le président?

3397             LE PRÉSIDENT:  Madame la Secrétaire; excusez‑moi.

3398             THE SECRETARY:  Canadian Life and Health Insurance agreed to change its place in the order of appearance in order to accommodate RESP Dealers Association of Canada and Investment Dealers Association of Canada.  So, thank you very much, Mr. Goldthorpe.

3399             LE PRÉSIDENT:  Merci.  À 2 h 00.  Thank you; at two o'clock.

‑‑‑ Upon recessing at 1242 / Suspension à 1242

‑‑‑ Upon resuming at 1400 / Reprise à 1400

3400             THE CHAIRPERSON:  Order, please.  À l'ordre, s'il vous plaît.  Welcome.

3401             Madame la Secrétaire.

3402             LA SECRÉTAIRE:  Merci, monsieur le Président.

3403             Nous allons commencer avec RESP Dealers Association of Canada, Ms Robin Morrissey.


PRESENTATION / PRÉSENTATION

3404             MS MORRISSEY:  Thank you.

3405             My name is Robin Morrissey.  I am the Director of ‑‑

3406             THE CHAIRPERSON:  You must press the button.

3407             MS MORRISSEY:  Thank you very much.  There we go.  I can hear me now.

3408             Once again, my name is Robin Morrissey.  I am the Director of Corporate Affairs for USC Education Savings Plans Inc., and I am here representing the RESP Dealers Association of Canada.

3409             The following comments are submitted on behalf of the Association in response to your notice.

3410             The RESP Dealers Association represents four of Canada's established registered education savings plans providers, and we do appreciate this opportunity to consult with you today.

3411             The members of our Association which have participated in the development of this submission include CST Consultants Inc., Children's Education Funds Inc., Heritage Education Funds Inc. and USC Education Savings Plans Inc.


3412             RESP members obtain telephone numbers of prospective purchasers by means of various lead generation programs.  The vast majority of these programs include a specific opt‑in consent.

3413             I would like to be specific here that this is an explicit opt‑in, not an implicit one.  They do have to specifically tick a box that says "please have someone contact me".

3414             Others, most notably referrals from family members and friends, do not involve a specific opt‑in request from the individual and could be considered as unsolicited telecommunications, which is why we are here.

3415             We understand the intent of the legislation is to permit the CRTC to administer a national "do not call" list to regulate or prohibit unsolicited telecommunications.  For the purposes of our comments with respect to this list, we include under the term "unsolicited telecommunications" only those communications that are done by telephone.


3416             While the RESP Dealers Association is quite supportive of the intent of the "do not call" list, it wishes to ensure that the operation of the list is properly established to permit member firms to simply and cost‑effectively comply with the rules and that the rules pursuant to which the list operates are clear and unambiguous.

3417             With respect to timely compliance of the regulations, it is the view of the RESP Dealers Association that the most effective process to ensure timely compliance with the requirements of your DNCL rules is to have the DNCL operator make the list available to users, both persons and organizations, to enable them to determine whether an individual may be contacted or not, and this as opposed to an alternate which was put forth where we would submit lists to the operator who would scrub them and then return it back to us.

3418             It is our opinion that the only information from the DNCL that need be made available to persons or companies accessing the list is the telephone number.

3419             RESP Dealer Association member firms distribute information to numerous individuals within our respective organizations across Canada.  We have a distribution structure that involves a few levels.


3420             From our head offices information is sent to our branch offices across Canada.  From there there are sales representatives that operate out of that branch office, that may be remote from that branch office as well, that need to have this list in their hands.  And in fact those people may indeed have appointment makers or telemarketers who will need to have that list as well.

3421             So there is a few people that it needs to get to from our respective head offices and across Canada, in all provinces and all areas and territories.

3422             These individuals may in turn send it to other people operating on their behalf.

3423             Given this, the RESP Dealers Association is recommending a 60‑day grace period be applied from the date that the individual registers to be included on the list, during which calls to the individual would not be deemed to be in violation.

3424             This would ensure that there is sufficient time to allow the list to be disseminated to all levels of the organization in all regions of the country.

3425             We would further like to recommend that should an individual on the list cease to have a particular telephone number assigned to them that this number be removed from the list.  Since the individual no longer owns or perhaps rents the number from the telephone company, they shouldn't be issuing instructions with respect to it.


3426             Following from this recommendation, if an individual who is on the list moves or otherwise changes their telephone number, should they call to register to put their new number on, the old number should be automatically removed from the list as well, because it is not assigned to them any longer.

3427             RESP Dealers Association is of the view that it is reasonable to require all telemarketers to continue to maintain their own "do not call" lists and companies to continue to maintain their "do not call" lists following the establishment of a national "do not call" list.

3428             This is reflective of the fact that some consumers may not want to be on a national list but would like to prevent contact from specific organizations if they have made that request to that specific organization.

3429             The RESP Dealers Association is of the view that it is reasonable to charge a fee to those firms that make use of the list.  However, we are concerned that the fee be structured to reflect both the scale of the organization and the actual usage of the organization or the individual.


3430             We note that an exemption exists for existing business relationships, which includes a relationship formed by a voluntary two‑way communication between the person making the telecommunication and the person to whom that telecommunication is being raised.

3431             We would like to see some clarity around the extent of the existing business relationship.  It is our view that an individual who has provided express consent to be contacted through an opt‑in method within the past six months should be deemed to fall within an existing business relationship.

3432             We are supportive of the creation of a compliance continuum whereby organizations will need to display a pattern of contravening the DNCL rules before being subject to a full investigation.  This will the CRTC to focus investigations on those firms who have demonstrated a pattern of non‑compliance with the rules as opposed to investigating every single incident that occurs.

3433             These are the comments from the RESP Dealers Association at this point in time.  As further details on the DNCL rules are established, we would like to perhaps make further comments at that time.

3434             Again, thank you very much for the opportunity to submit.


3435             THE CHAIRPERSON:  Thank you, Ms Morrissey.  Admirably concise and clear.

3436             Commissioner Duncan.

3437             COMMISSIONER DUNCAN:  Good afternoon.

3438             MS MORRISSEY:  Good afternoon.

3439             COMMISSIONER DUNCAN:  With respect to the referrals by family, friends and acquaintances, because we have had a lot of discussion around that issue over these two days, I am wondering if it can't be ‑‑ we have obviously a reluctance to amend what Parliament has given us with respect to the exemptions.

3440             I am wondering how you think that might work if we were to just apply it in the rules, the guidelines.

3441             MS MORRISSEY:  The current guidelines, from our read, do not exempt referrals, regardless if it is a family member.  Distinct from calling a family member, when you refer a third person, is what I am specifically speaking of.

3442             It is not our opinion that it should be exempted.

3443             Is that your question?

3444             COMMISSIONER DUNCAN:  I'm just concerned.  I thought you wanted to have exempt family members, friends and acquaintances.


3445             MS MORRISSEY:  No.  Our current position is that we are ‑‑ certainly we would like to ‑‑ I'm speaking on behalf of the Association.

3446             No, we don't necessarily need to see that exemption.  We do believe that a referral in that case is unsolicited by the party who you are calling.

3447             COMMISSIONER DUNCAN:  All right.  I appreciate that.

3448             I think you would probably agree with me that if they are actually from families, friends and acquaintances they are likely to result in a complaint, in any event.  Since the process is complaint‑driven, it is probably not that big a deal.

3449             With regard to small telemarketers ‑‑ and I don't consider that the companies you are representing would be considered small, the four companies you said.

3450             MS MORRISSEY:  Four companies ‑‑

3451             COMMISSIONER DUNCAN:  Or dealers.

3452             MS MORRISSEY:  Yes.

3453             COMMISSIONER DUNCAN:  But with respect to smaller‑sized operators, do you think they should be given special consideration in the rate structure, for example, to accommodate them and ensure their viability?


3454             MS MORRISSEY:  Yes, I do.  Specifically, we as four organizations, each organization is not a small organization but the representatives who are contracted by those organizations, as sales representatives for example, are small organizations.

3455             For instance, if they live in a remote area, they may not have access to infrastructure for e‑mail, Web access, may not even have a computer, in some cases working out of a home office.

3456             So within the design of the guidelines we have to take into account that they are small organizations and they might be in very remote locations.

3457             COMMISSIONER DUNCAN:  In that instance, then, would those individual operators be paying the fee or would you as a group?  Or would the four companies they represent, the savings plans?

3458             MS MORRISSEY:  We would be purchasing the list as the organization and disseminating that through our affiliates.

3459             COMMISSIONER DUNCAN:  So in that respect you would probably be paying based on a larger number then, if it ends up being paid on a per‑access basis.


3460             MS MORRISSEY:  Yes.  We would be purchasing it at that level and then disseminating it and collecting as we would.

3461             COMMISSIONER DUNCAN:  That's all right.  I think we have covered that.

3462             With respect to the grace period and your suggestion of the 60 days, as you know, the U.S. seemed to be satisfied with their 31‑day turnaround.

3463             MS MORRISSEY:  M'hmm.

3464             COMMISSIONER DUNCAN:  I am wondering if you have considered transmitting your updated lists via e‑mail to people and allowing them to have access on line to your lists, if that wouldn't expedite the process and cut down that time.

3465             MS MORRISSEY:  It absolutely would and in many cases we would be able to accommodate that.  And certainly in the majority of cases that would be the method that we would be disseminating the list.

3466             There are people who don't have that access who we do have to consider in the process.


3467             We had 60 days from the date that the person registers onto the list, assuming that there would be a period of time between that date and when we were actually getting the list from the operator, which is going to be a function of how the fee structure is set up and what the expectations are in terms of how frequently one would purchase that list.

3468             So the 60 days was built in with an assumption on a worst case scenario, if one obtained the list on a monthly basis, we would need a 30‑day period to get that to the farthest corner of the countries.

3469             So it was 60 days from the date that you went on the list.

3470             I think 31 days from the day that we get the list is not unreasonable.

3471             COMMISSIONER DUNCAN:  All right.

3472             That probably would be the U.S. scenario then, would it, the 31 days?  That would probably be in compliance with the U.S. situation?

3473             MS MORRISSEY:  It might be that, yes, it might be.  That wasn't a consideration in our coming up with the timeframe, but it might well.

3474             COMMISSIONER DUNCAN:  So actually the grace period you are recommending is 60 days from the date you get the list ‑‑ 31 days; sorry.

3475             MS MORRISSEY:  Yes.  The other month is really built in depending on how frequently one would access the list.


3476             COMMISSIONER DUNCAN:  Just to make sure I understand it, then, if I am a consumer and I want to be registered on the list, how long is it going to take?

3477             MS MORRISSEY:  In a worst case scenario, which is what we built in in our submission, you would put your name on the list.  If the promoter was obtaining the list on, let's say a worst case scenario, a monthly basis, you could be on the list for a month before the company actually purchased the list from the operator, and then getting it out to all of the representatives.

3478             From there it would probably really only take a week in most circumstances because it is electronic and we can do it quickly.

3479             But we have to build in for these other constituents in our organization who aren't on line.

3480             COMMISSIONER DUNCAN:  So two parts to my next question.

3481             If you were to do your updates every 20 days, that would allow you ten days to disseminate it throughout your organization.

3482             For the people that are on line, that would definitely not be an issue.


3483             So what percentage of your dealers would be not on line?

3484             MS MORRISSEY:  Oh, a very small percent.  Less than 5 percent of the dealers would be not on line.

3485             COMMISSIONER DUNCAN:  So then that probably could be managed as well through exceptions, just assessing complaints on a case by case basis, because first there would have to be a complaint.

3486             MS MORRISSEY:  Absolutely.

3487             Our intent is really just so those people don't get caught betwixt and between while they are waiting for their lists.  We know that they are going to be operating in good faith.  It is just a matter of making sure that they aren't getting caught, fined and not realizing that they are in violation.

3488             COMMISSIONER DUNCAN:  Thank you.

3489             There has also been a lot of discussion of this too, with respect to consumer consent.  You mentioned that yours was an explicit opt‑in; that they would tick a box.

3490             MS MORRISSEY:  Yes.

3491             COMMISSIONER DUNCAN:  Are they actually signing and dating or how ‑‑


3492             MS MORRISSEY:  It varies by campaign.  The majority of them, they tick a box.  There are others where they sign.  There are still others where it is a verbal consent to a hostess or someone who is standing in front of them, and they say:  "Would you like this company to call you?  Yes.  Okay, give me your name and telephone number."

3493             And without them giving the name and telephone number, you wouldn't have that information to contact them.

3494             COMMISSIONER DUNCAN:  Thank you.

3495             So in your view that would be satisfactory if there was an investigation?

3496             MS MORRISSEY:  It is our position that that type of two‑way communication falls under an existing business relationship category where that person is making an explicit request to be contacted.

3497             COMMISSIONER DUNCAN:  Automatic dialling and announcing devices, I assume you are not involved with those.

3498             At this point do you expect to be using a third party provider or do you expect to be dealing directly with the DNCL operator yourselves?

3499             MS MORRISSEY:  We expect to be dealing directly with the DNCL operator ourselves, the four companies.


3500             COMMISSIONER DUNCAN:  Do you think that third party providers should be allowed to access the list?

3501             MS MORRISSEY:  I think my answer to that question depends on what information is going to be contained in the list and how it is going to be maintained and what kind of security there is going to be around that.

3502             Without really being able to vision that, it is very difficult to answer that question.

3503             But the proper safeguards.

3504             COMMISSIONER DUNCAN:  Following along on that, I would expect, because everybody else is paying, you would expect them to pay, if they were granted access?

3505             MS MORRISSEY:  Yes.  I think yes, if you are granted access to it, you should be expected to pay for it.

3506             COMMISSIONER DUNCAN:  That's fine, Mr. Chairman; thank you.

3507             THE CHAIRPERSON:  Commissioner Langford.

3508             COMMISSIONER LANGFORD:  I will be brief.


3509             As of this point, we do not have a national "do not call" list, but how are your members dealing with requests that people they are contacting don't want to be called any more?

3510             MS MORRISSEY:  We maintain an internal "do not call" list.  If someone calls to indicate their preference not to be contacted by us, we put them on that list and that list is disseminated to our representatives as well on a regular basis.

3511             COMMISSIONER LANGFORD:  Take me through what the pronoun "we" means.

3512             Does each member, each sales person have their own list or do you have one list for all your members and share it?

3513             Or how do you work it?

3514             MS MORRISSEY:  We have one list for all members and share it.

3515             COMMISSIONER LANGFORD:  Can you give me any idea, just in general terms, how many names or numbers might be on that list ‑‑ numbers, I suppose?

3516             MS MORRISSEY:  No, I can't, to be honest with you, Mr. Langford.  I haven't looked at it for quite some time.  So I couldn't answer that.

3517             COMMISSIONER LANGFORD:  How do you break it up?  By area code to your members?

3518             MS MORRISSEY:  That's correct, yes.


3519             COMMISSIONER LANGFORD:  To your recollection, have you had any complaints of people violating these things up to now?

3520             MS MORRISSEY:  Not as yet.

3521             COMMISSIONER LANGFORD:  Has anybody complained and said:  "What's wrong?  I wanted my number on the list."

3522             MS MORRISSEY:  No, not as of yet.  We haven't had any complaints of that nature.

3523             Once your name is on the list, from the perspective of a representative, there is not really a lot of value in calling you.  You don't want to hear from us.  We don't want to spend time irritating you.  There is really no value to it.

3524             COMMISSIONER LANGFORD:  No.  But I have heard from other witnesses that mistakes are sometimes made.

3525             MS MORRISSEY:  Indeed.

3526             COMMISSIONER LANGFORD:  You can put the wrong number so someone's number doesn't come on the list.  Then they get bothered and they say, "Why are you bothering me?"

3527             MS MORRISSEY:  Yes, I'm sure that could occur.  I haven't heard any complaints of that sort yet.


3528             COMMISSIONER LANGFORD:  I see.  And do you have rules and regulations for your members to follow?  Guidelines?

3529             MS MORRISSEY:  Yes, we do.

3530             COMMISSIONER LANGFORD:  And you, I assume, have read some of the comments on the concept of due diligence in here?

3531             MS MORRISSEY:  Yes, I did.

3532             COMMISSIONER LANGFORD:  Do you think the sort of rules and regulations you have are more or less in the spirit of those sort of comments now?

3533             MS MORRISSEY:  Absolutely, yes.  We do regular audits with our ‑‑ our branch managers do regular audits and our provincial compliance officers do regular audits.  And, in fact, we have provincial auditors that do regular audits for ensuring compliance with conduct.

3534             COMMISSIONER LANGFORD:  When a new dealers comes into your group, how do you kind of vet them, train them or what do you do?  What are your processes for that?


3535             MS MORRISSEY:  There is a recruiting process.  They have to go through a series of interviews to establish suitability, both from their perspective and from ours.  There is also credit checks, RCMP checks that are done as a result of having to get a securities license.  You need to have a securities license to be a sales representative within our organization.

3536             So once we've established that you are worthy, then we move forward into the training process.  There is an industry exam that has to be passed with an 80 percent mark and then your license goes in for consideration to the provincial securities regulator.

3537             COMMISSIONER LANGFORD:  Thank goodness we didn't have to go through all that, right, folks?  None of us would be sitting here.  Well, that's good though, that is a good thing.

3538             Well, thank you.  Those are my questions.  I am taking note of your notion on how, you know, there should be a compliance continuum and I think that is probably, from the perspective of what you've described here today, probably a pretty appropriate approach for the type of organization you have got, so I don't think I have any questions on that.  Thank you very much.

3539             MS MORRISSEY:  Thank you.  My pleasure.

3540             THE CHAIRPERSON:  Commissioner Cram.


3541             COMMISSIONER CRAM:  These less than five percent of people who are not on line ‑‑

3542             MS MORRISSEY:  Um‑hum.

3543             COMMISSIONER CRAM:  Can you tell me, sort of, where they are?

3544             MS MORRISSEY:  More recently I spoke to someone who is in a remote area of Alberta and we spoke about him being on line and I talked to him a little bit about why not and he said, well, I just don't have the infrastructure up there.  The wireless is not very reliable, so it is very difficult.

3545             I imagine there are ‑‑ I know that there are other representatives who are not on line, not because of a physical geographical location, but they just simply don't have a computer and aren't computer savvy and haven't gotten there yet.  They might.

3546             We hadn't mandated it in our organization as of yet.  So there is a combination between people who just aren't there yet, who may have a computer but don't have it on line yet, or who are in a physical location where it is difficult for them to get access.

3547             COMMISSIONER CRAM:  Okay, thank you.

3548             THE CHAIRPERSON:  Commissioner Duncan.


3549             COMMISSIONER DUNCAN:  Just one more quick question.

3550             MS MORRISSEY:  Yes.

3551             COMMISSIONER DUNCAN:  How long do you think that the name should stay on the list?

3552             MS MORRISSEY:  Interesting question.  I was considering that when you were asking it earlier today.  Forever seems a long time, I do agree with you.  But it should be meaningful enough.

3553             I think a year is short.  I would go ‑‑ and it becomes very arbitrary, but really I think from a consumer's standpoint I would like to see it perhaps two or three years and then maybe want to consider a re‑registration at that time.

3554             COMMISSIONER DUNCAN:  Just to give the consumer a chance for a second thought?

3555             MS MORRISSEY:  Yeah.  I mean they can at all times get their name off of it, but are you really thinking about that?  And maybe there are opportunities that you are not getting that you might like to because you have forgotten.

3556             COMMISSIONER DUNCAN:  Thank you very much.  That is great.

3557             THE CHAIRPERSON:  Commissioner Cugini.


3558             COMMISSIONER CUGINI:  Just a quick question.

3559             MS MORRISSEY:  Sure.

3560             COMMISSIONER CUGINI:  Based on your discussion earlier that you would access the ‑‑ your association would access the list on behalf of your members.  That's what you were ‑‑ that is your position, right?

3561             MS MORRISSEY:  The individual companies within our association would access the list on behalf of their representatives.  There are a few companies that are part of our RESB dealers association umbrella group.

3562             COMMISSIONER CUGINI:  And how many companies would that be?

3563             MS MORRISSEY:  Four right now.

3564             COMMISSIONER CUGINI:  So those four companies would access the list on behalf of their members?

3565             MS MORRISSEY:  Correct.

3566             COMMISSIONER CUGINI:  And how many members would each of those companies have?

3567             MS MORRISSEY:  Hmm.  Somewhere between five and 1500.


3568             COMMISSIONER CUGINI:  Would you see that each of those companies would pay the same fee for accessing the list, given the different sizes of membership?

3569             MS MORRISSEY:  Yeah, I think fee ‑‑ that is an interesting discussion as well.  I think fee should really be a function of usage and scale.

3570             I think, you know, companies that are going to be making phone calls on the order of 5,000 calls a month versus somebody who is going to be making 500 calls a month should perhaps have a different fee structure.

3571             I believe also that how frequently one accesses the list, is there going to be an expectation that the list be accessed by individual companies or individuals on a weekly basis, bi‑weekly, monthly?  Is there going to be a cost for how frequently one gets it?

3572             So I think the answer to your question is yes, I think it should vary by the scale of the organization and frequency of access and usage.

3573             COMMISSIONER CUGINI:  On average, how many telemarketing campaigns would those four companies run on a yearly basis?


3574             MS MORRISSEY:  That don't involve an explicit opt in?  On a monthly basis we might as an organization across all four companies make 500 such phone calls, check about 500 such telephone numbers to verify that they were not on the list.

3575             COMMISSIONER CUGINI:  To verify that they are not on the list?

3576             MS MORRISSEY:  Yes, maybe 500 that fall under the referral category.

3577             COMMISSIONER CUGINI:  Right.

3578             MS MORRISSEY:  That would be what we would consider not explicit consent.

3579             COMMISSIONER CUGINI:  Thank you very much.  Thank you.

3580             THE CHAIRPERSON:  Commissioner Duncan.

3581             COMMISSIONER DUNCAN:  Sorry.  Just to make sure that I have got this clear.  I understood that the association would be scrubbing the list, not each individual company.

3582             MS MORRISSEY:  No, the association would not scrub the list.

3583             MS. DEWAL:  Each individual ‑‑

3584             MS MORRISSEY:  Individual companies would be accessing the list, yes.

3585             COMMISSIONER DUNCAN:  Okay, thank you.


3586             THE CHAIRPERSON:  Could you provide us with the document that you use for the opt in to be contacted?

3587             MS MORRISSEY:  Yes.

3588             THE CHAIRPERSON:  Because you explicitly pointed out to us that it was some kind of a voluntary act on the part of the consumer.  So if you could just deposit that with us we would appreciate it.  Counsel?

3589             MR. MILLINGTON:  No, I have nothing for this witness.

3590             THE CHAIRPERSON:  Ms Morrissey, thank you very much for your presence.  It was concise, it was clear and much appreciated.

3591             MS MORRISSEY:  Thank you for allowing us to be here.

3592             THE CHAIRPERSON:  Madam la secretaire.

3593             THE SECRETARY:  We are calling Ms. Susan Copeland, Investment Dealers Association of Canada.

‑‑‑ Off‑the‑record discussion.


3594             MS. COPELAND:  Good afternoon, my name is Susan Copeland and I am a director at the Investment Dealers Association of Canada, the industry association.  And we want to thank you for giving us the opportunity to speak to the committee about the potential effects of Bill C37 on the Canadian investment sector.

3595             The IDA supports the intent of the bill and is pleased to make recommendations to help implement a cost efficient and clear, transparent and fair sets of regulations.  Effective management of the implementation process is critical in order not to disrupt service to the public or undermine the efficiency of the Canadian capital markets.

3596             Before I begin my submissions I would just like to inform the committee that the Investment Dealers Association has recently undertaken a change in its structure since we made our written submissions.

3597             We've separated our dual mandate into two entities.  There is now a securities regulator and an industry association, an independent industry association.  And I am speaking to you on behalf of the industry association, not the regulator.


3598             The industry association represents the securities industry in Canada in respect of regulatory and public policy matters relating to the savings and investment process.  One of our primary objectives is to assist policy makers to create well ‑‑ efficient and well functioning markets with a high standard of integrity, and that is why I am here today.

3599             Our members include more than 200 investment dealers, who play an essential role in the Canadian economy.  They help raise capital for governments and businesses and help individual Canadians and institutions invest with confident in open and fair capital markets.  Our member firms employ more than 37,000 people, in all provinces and abroad, and play a key role in our national and provincial economies.

3600             The IDA's interest in Bill C37 stems from the fact that telephone communication between investment advisors and their clients is a critical component of the savings and investment process.  And as you are aware, during its consideration of Bill C37, Parliament was careful to establish the balance between preventing undue inconvenience and nuisance to Canadians from telemarketing and protecting the responsible use of the telephone for business purposes.


3601             As a result it read the existing business relationship.  And that is primarily ‑‑ that is very important to the IDA members because that is where the primary telephone, telecommunication takes place because the advisors have to advise their existing clients of developments that affect their current or potential investments.

3602             So rather than being inconvenienced by these calls, these individuals really rely on and expect such calls from their advisors and, in fact, there is a duty on the advisors to inform their clients and make such calls.

3603             So having said that and having recognized that Parliament has put in that exemption that is so very important, we just want to ensure that that balance is maintained through the implementation of the rules that govern as the legislation and that ‑‑ in the public notice it says the do not call rules will not apply to those persons identified in the amended Act as being exempt.

3604             The importance of that to us is that the member firms that are exempt from the do not calls rules shouldn't be burdened to pay their required fees to maintain the do not call registry or otherwise be made subject to burdensome compliance or reporting rules because that would undermine the existing business relationship exemption and be impractical and undermine Parliament's clear intent.


3605             However, we do recognize that some of our members will ‑‑ may rely on telephone calls to build new client relationships and, of course, they should support the costs of the registry and pay fees proportionate to their use.

3606             In terms of setting up due diligence processes, et cetera, those who are exempt from the do not call rules, the Act requires them to maintain their own internal do not call list to ensure that no telecommunication is made to a person that has requested not to be called.  Since the statutory definition of existing business relationships are who time limited, the act also implicitly requires business to keep track of the expiration of these business relationships with their customers.

3607             The IDA is submitting that the enforcement of such requirements should be done on a complaints basis rather than a resource intensive mandatory reporting or filing obligation.

3608             Under the complaints driven approach, a business would be responsible for implementing internal measures to ensure that it doesn't violate the act and the company would be free to choose measures that are effective and practical in its particular circumstances.


3609             We think the due diligence defence contained in the legislation is fair and it is an effective compliance tool.  It provides incentive for organizations to create systems that enable them to demonstrate the exercise of appropriate diligence to prevent violations.

3610             If the systems are effective there will be few violations and the Commission can then focus its efforts on businesses that don't have adequate systems in place and are generating complaints as a result.  It shouldn't, therefore, be necessary for the Commission to develop specific rules that proscribe precise procedures for maintenance of internal do not call lists.

3611             It is impractical to implement rigid, uniform rules across all sorts of different sectors of the industry, since the nature of business relationships between clients and businesses varies according to different sectors.

3612             If, however, the Commission decides there is some need for broad directions, which it may do to help out businesses ascertain whether they will be complying or not, we recommend that they take the form of non‑binding guidelines and best practises and, again, they should recognize the differences in business practises and client relationships across sectors.


3613             Turning to the issue of personal and family relationships and referrals and calls between businesses, we support those exemptions to be added.  We believe that the intent of the legislation is to prevent Canadians from being subject to the inconvenience or nuisance of telemarketing, but not intended to prohibit or regulate communication between family members, friends and acquaintances or similarly from individuals who have been referred by clients that have an existing business relationship.

3614             The U.S. rules which have been discussed over the past couple of days do exempt calls from personal relationship ‑‑ people with personal relationships, members, friends, acquaintances and business to business calls are exempted as they ‑‑ it is defined as ‑‑ it only applies to residential subscribers.


3615             In summary, we urge that the Commission recognize the balance that Parliament has struck between undue inconvenience and nuisance to Canadians and protecting the responsible use of telecommunications for legitimate business purposes.  And we hope that this exemption isn't frustrated by burdensome and costly implementation rules that may disrupt services to the public and undermine the efficiency of the capital markets.

3616             So we thank you for allowing us to participate in this proceeding and assist you in developing a practical balance model for the do not call regulatory framework.  We won't be making a closing statement and, as such, the contents of this presentation and our written submission will stand as our position on this issue.

3617             THE CHAIRPERSON:  Thank you very much, Ms. Copeland.  Commissioner Duncan?

3618             COMMISSIONER DUNCAN:  I understand from your brief and also from your comments today that you are representing 200 investment dealers?

3619             MS MORRISSEY:  Um‑hum.

3620             COMMISSIONER DUNCAN:  And in brief and again today you indicate that fees should reflect and be proportionate to the actual use of the list.  In paragraph 9 you indicate, as you did here in your presentation too, that advisors and firms that are exempt by virtue of their statutory exemption from existing business relationships should not be required to pay the fees, not unreasonable in either instance.  But I am just wondering what percent of the 200 members would be exempt?


3621             MS. COPELAND:  Well, for the most part, in the investment ‑‑ in that process the businesses generated by ‑‑ or the way that they would get into the act at all is the business relationship.  So most of them would be exempt just by virtue of the fact that they have existing business relationships.

3622             Some of the business is generated by referral, so to the extent that that is ‑‑ is created by a new exemption, that might pull them out too, but there may be some fences around it so you may need to have the ‑‑ they may need to pay into it, depending on how that is resolved.

3623             Again, there are a few brokers that start out that may be cold calling or using the phone.  It's not a huge amount.  I don't have figures for you, but it is generally not the way that business is done.

3624             But to the extent that brokers and investment dealers would be calling, not on the basis of a business ‑‑ an existing business relationship, we believe, of course, that is a cost of doing business, and they should be supporting the system by paying fees.


3625             COMMISSIONER DUNCAN:  I guess I am not ‑‑ is it ‑‑ it seems to be going to be a bit of a problem, a little ambiguous, because sometimes you'll be making cold calls and sometimes you won't and many may never.  So those ones would never be accessing the list.

3626             MS. COPELAND:  There will be some that would never access the list, and they would maintain their compliance with the legislation by monitoring their existing business relationships very closely by, you know, making sure that after 18 months of no communication that, you know ‑‑ then if they do communicate then they will have to access the list again.  Access the list.

3627             MS. DEWAL:  So if business is slow and you decide in this particular month to do some cold calling, then ‑‑

3628             MS. COPELAND:  Then they would definitely have to access the list and pay the fees accordingly, yes.

3629             COMMISSIONER DUNCAN:  Just in that particular month, and then the next month there may not be any.

3630             MS. COPELAND:  Yes.

3631             COMMISSIONER DUNCAN:  That is what you are envisioning.  I just wanted to be clear on that.  What is the form of consumer consent that you take, that you get from people?


3632             MS. COPELAND:  At this point I don't believe that there is a consent.

3633             COMMISSIONER DUNCAN:  It's not necessary ‑‑

3634             MS. COPELAND:  No.

3635             COMMISSIONER DUNCAN:  ‑‑ in that nature of the business.  And on your do not call lists, how long do you leave them on the list now?

3636             MS. COPELAND:  On the ‑‑

3637             COMMISSIONER DUNCAN:  Internal lists.  Do you take them off?

3638             MS. COPELAND:  Well, again, it is based on existing business relationships, so to the extent that someone is still your client, you have a responsibility and a duty to continue to call them.  So ...

3639             COMMISSIONER DUNCAN:  Do you have an internal do not call list, did you say?

3640             MS. COPELAND:  As the association ‑‑ I don't believe many ‑‑ I have ‑‑ I honestly don't know.  I can't speak for all of the investment dealers and whether they maintain that.  That's sort of cold calling that would generate complaints that people don't want to be called.

3641             COMMISSIONER DUNCAN:  So the rest of it is really ‑‑


3642             MS COPELAND:  My expectation is that it doesn't generate complaints that would require a "do not call" list, but I would have to check that specifically.

3643             COMMISSIONER DUNCAN:  Because of the existing business relationship exemption, almost everybody will be exempted from it.

3644             MS COPELAND:  Except for the referral situation.

3645             COMMISSIONER DUNCAN:  With respect to the other telemarketing rules, are your members required to comply with those at this point?

3646             MS COPELAND:  In terms of the timing, et cetera?

3647             COMMISSIONER DUNCAN:  Yes.

3648             MS COPELAND:  Yes, they would be complying with that.

3649             COMMISSIONER DUNCAN:  Those rules also require an internal list, but maybe it is not that significant, so ‑‑

3650             MS COPELAND:  Again, that cold calling situation just doesn't happen very much.

3651             COMMISSIONER DUNCAN:  All right.

3652             Those are my questions for now, Mr. Chairman.


3653             THE CHAIRPERSON:  Thank you, Commissioner Duncan.

3654             Commissioner Langford.

3655             COMMISSIONER LANGFORD:  I am hoping that you will be able to help me with something that came up here yesterday, which I simply didn't have a high enough IQ to get around.  I couldn't figure it out.

3656             MS COPELAND:  I hope that I can help you.

3657             COMMISSIONER LANGFORD:  I need help.

3658             I don't understand ‑‑ though the lady from Atlanta was very patient, and she did her best yesterday, and she tried to explain it to me, I went home and I thought about it long and hard, and I don't understand why you would need an exemption for friends, family and acquaintances.  I can't get my head around it.

3659             I mean, your mother is not going to rat you out for trying to sell her some investments, is she?

3660             MS COPELAND:  To the extent that is true, I agree.


3661             I guess we were looking at the U.S. legislation, and it was put in there.  It was deemed necessary.

3662             Sometimes these things don't become apparent until you test drive them.

3663             COMMISSIONER LANGFORD:  We questioned her and I couldn't ‑‑

3664             She just seemed to think she needed it, that it was necessary.

3665             Is it something to do ‑‑ and I am fishing here ‑‑ with due diligence, that you want to give one course to everybody and it will cover everything?

3666             Either you know that your brother‑in‑law hates you or you don't.  If he hates you, you are probably better not to call him, because ‑‑

3667             MS COPELAND:  From a practical perspective, it may not be necessary perhaps.  It is just a means of covering the waterfront.

3668             COMMISSIONER LANGFORD:  Do you think you could live without it?

3669             MS COPELAND:  The only time, I think, that it may come into effect is as we are getting back to the referral situation.

3670             For instance, if your brother refers someone to call you.


3671             COMMISSIONER LANGFORD:  Yes, but we are moving to a second level here.

3672             MS COPELAND:  Yes.  He tells his broker, "Phone my brother‑in‑law ‑‑ "

3673             COMMISSIONER LANGFORD:  Let's leave that one aside for a moment.  What about just phoning family?

3674             Any problem there?

3675             MS COPELAND:  I tend to agree.

3676             COMMISSIONER LANGFORD:  All right.

3677             Now friends.  Either they are a friend, or you are pushing the envelope and you deserve a slap on the wrist.

3678             That is my approach.  I know who my friends are.

3679             I don't have as many as most people, but with a job like this they are hard to hang onto.

‑‑‑ Laughter / Rires

3680             MS COPELAND:  Well, maybe I can't get my head around it either, but ‑‑

3681             Personally, I am not certain, but the bigger brains in the U.S. have deemed it ‑‑ they thought that there were circumstances where it was necessary to put it in their legislation, and their legislation seems to be successful, so...


3682             COMMISSIONER LANGFORD:  Bigger brains in the U.S. thought they had found weapons of mass destruction in Iraq, too, so, you know...

‑‑‑ Laughter / Rires

3683             COMMISSIONER LANGFORD:  We don't necessarily want to be guided by that size here.

3684             MS COPELAND:  Fair enough.

3685             COMMISSIONER LANGFORD:  All right.

3686             Now we get to referrals.  Explain to me why a referral ‑‑

3687             You are going to have to help me here.  Why is a referral for the person being referred any different from a cold call?

3688             I guess you say, "Your friend Harry thought I should call you."

3689             Is that the only difference?

3690             MS COPELAND:  There is a nexus between the person who is being called and someone with whom they have a relationship.  It is not somebody just picking your name out of the phone book.  Somebody has given some thought that you might like to purchase a service, or that this broker, in my industry, could be of assistance to you.


3691             It is not somebody random who you don't know picking your name out; there has been some thought that you might benefit from the service, from someone who knows you either through a business relationship or a personal relationship.

3692             COMMISSIONER LANGFORD:  Let's say that you and I are at an art gallery opening, or something like that.  We are all sitting around with the de rigueur glass of bad plonk, and we are looking at the de rigueur bad abstracts, and we are chatting.  We talk, and you are an investment dealer, and I'm not, but I have a brother.  Somehow you elicit from me that I have a brother, my good old brother John.  That's all you elicit from me.

3693             The next day you call my brother John and say, "Gee, I was talking to Stuart at the opening.  He was saying how much he needs some professional advice, and I thought that you might too."

3694             In other words, you colour the conversation somewhat.

3695             I am using you only as an abstract notion here.

3696             My brother John makes a complaint.  What is your defence?


3697             MS COPELAND:  I agree that that type of situation could be a concern.  To that extent, I spoke earlier about how you may want to build fences around the referral exemption for those types of situations, perhaps a consent mechanism where the person referring needs to get express consent.

3698             So you would have to get consent from your brother in order to refer.

3699             COMMISSIONER LANGFORD:  Wouldn't it be better, rather than us trying to build this narrow exemption and build fences around it and build safeguards into it ‑‑ wouldn't it be better if your dealer simply found a different route to initiate that sort of contact?

3700             Send a letter to the person referred and say, "You have been referred to us.  People thought you might enjoy us.  Call us.  Here is my name.  Here is my number."

3701             Why would the onus be on us to try to tweak this system for something that is quite nebulous?

3702             You may feel that what I have said to you ‑‑ you may honestly feel that what I have said is a genuine invitation to call someone.  The next person may not feel that at all.  It is so open to individual interpretation that I see it leading to a lot of problems.


3703             MS COPELAND:  I don't believe it does lead to a lot of problems.  That's how business is done, to a large degree, right now, through referrals.  I don't suspect that brokers just get your brother's first name and go poring through the phone book to call him without a bit more of a ‑‑ "Oh, you should call my brother," or something more direct in the way of a referral.

3704             It hasn't arisen as an abuse in our industry.

3705             COMMISSIONER LANGFORD:  You haven't had any complaints.

3706             MS COPELAND:  No, not for referral‑type calls.

3707             COMMISSIONER LANGFORD:  Has anyone ever phoned and said, "Look, I am on your personal "do not call" list and one of your brokers called and said that my brother gave him the information"?

3708             MS COPELAND:  I couldn't say that we have never ‑‑ I am not aware, but I couldn't say that we have never, or that our member firms have not.

3709             It would probably be directed more at the member firms in the IDA.

3710             COMMISSIONER LANGFORD:  Yes, that's true.

3711             All right.  Those are my questions.

3712             Thank you, Mr. Chair.


3713             THE CHAIRPERSON:  Thank you, Commissioner Langford.

3714             Commissioner Cram.

3715             COMMISSIONER CRAM:  Doesn't this concept of family, friends and acquaintances really come down to what the called party would reasonably expect in the circumstances?

3716             MS COPELAND:  I agree, yes.

3717             COMMISSIONER CRAM:  In the sense that, if I am looking at the terrible art and somebody comes up to me and talks to me and I give away the name of my brother, I find it very hard that my brother would reasonably expect that somebody would phone him out of the blue.

3718             MS COPELAND:  To the extent that you feel justified in giving your brother's name, that is where we rely on the relationship between the callee and the personal ‑‑ whether it is a personal or a client relationship that you have with them.  That is what the nexus would be.

3719             COMMISSIONER CRAM:  If I had set it up with my brother, and I told my brother that you were going to call, and that sort of thing, he would reasonably expect it and wouldn't have a problem.


3720             MS COPELAND:  Right.  That's what we would expect.  We wouldn't expect that you would be giving your brother's name out if you knew that he wouldn't enjoy being called.

3721             COMMISSIONER CRAM:  So then he wouldn't make a complaint, would he?

3722             MS COPELAND:  That's right.

3723             COMMISSIONER CRAM:  So then there doesn't really seem to be a necessity to have this in.  Because if it is complaint‑driven ‑‑

3724             MS COPELAND:  To a degree.  But, if it is complaint‑driven, why have any of the processes there?  Why not just deal with the complaints?  You don't need the legislation.

3725             COMMISSIONER CRAM:  Yes, I would be happy without the legislation, because then there would be no existing business relationship.

3726             MS COPELAND:  Yes.  But that is sort of the road ‑‑ if you want to use that argument.

3727             COMMISSIONER CRAM:  It sounds to me like you are asking for comfort, but it is really a question of fact, in the sense of what would be reasonably expected.


3728             MS COPELAND:  That is true, but it also involves costs.  If you are exempt, then you don't have to jump through as many due diligence procedures as you would if you weren't exempt.  Then you would have to make sure that you had all of the procedures in place so that you wouldn't violate the list.

3729             But if you know that you are operating either through an existing business relationship, and you are tracking the time expiry, or you are operating on a referral exemption, and you are operating within the bounds of that, then ‑‑

3730             COMMISSIONER CRAM:  So then you mean to say that you think that family, friends and acquaintances doesn't have the implicit qualifier on the basis that family, friends and acquaintances would reasonably expect, given your relationship, that you would call me?

3731             I mean that you could phone any family, friend or acquaintance?

3732             You meet somebody in the street and you can phone them tomorrow?

3733             MS COPELAND:  You mean based on a referral?

3734             COMMISSIONER CRAM:  Yes.


3735             MS COPELAND:  Yes.  You are not posting your brother's phone number randomly or giving it out to strangers, you are only doing that if you think that the service of the person you are speaking with is going to be of use.

3736             COMMISSIONER CRAM:  All right.  So you think that the U.S. exemption defining family member, friend or acquaintance ‑‑ the acquaintance includes referrals.

3737             MS COPELAND:  No, I don't know that that includes referrals.  I am saying that that exemption is helpful if referrals are added as an exemption.

3738             I am not trying to use that category for the referrals.

3739             COMMISSIONER CRAM:  Oh.  So we don't have to have a family member, friend or acquaintance, we just have to use the word "referrals".

3740             MS COPELAND:  But in order to have that operate effectively, you need a referral from someone who has a relationship, like a family member, friend, acquaintance, or an existing business relationship.

3741             It is the platform through which the referral can come.

3742             COMMISSIONER CRAM:  Have you looked at the way the U.S. deals with that exemption?

3743             MS COPELAND:  They don't have a referral exemption.


3744             COMMISSIONER CRAM:  No, but the exemption of family, friends and acquaintances?

3745             MS COPELAND:  Only to the extent that I know it is family, friends and acquaintances.  I don't know the details around the specifics of it.

3746             COMMISSIONER CRAM:  In your "do not call" list, the one you keep internally, do you allow businesses to register?

3747             MS COPELAND:  We don't have a "do not call" ‑‑ as the IDA.

3748             COMMISSIONER CRAM:  All right.  So you don't know what your member organizations do.

3749             MS COPELAND:  No.

3750             COMMISSIONER CRAM:  Thank you.

3751             THE CHAIRPERSON:  Ms Copeland, thank you very much.  It has been a pleasure.

3752             MS COPELAND:  Thank you.

3753             THE CHAIRPERSON:  Madam Secretary.

3754             THE SECRETARY:  Thank you, Mr. Chair.

3755             The next participant is the Canadian Life and Health Insurance Association, Mr. Peter Goldthorpe.

PRESENTATION / PRÉSENTATION


3756             MR. GOLDTHORPE:  Good afternoon.  I am Peter Goldthorpe, director of marketplace regulation issues for the Canadian Life and Health Insurance Association.

3757             CLHIA is a trade association representing life and health insurance companies in Canada.

3758             Earlier today I circulated prepared remarks.  In the interests of the lateness of the hour and those of you who have been sitting through this entire hearing, I think I will dispense with those prepared remarks.

3759             I do, however, want to make a couple of brief comments ‑‑

3760             THE CHAIRPERSON:  Mr. Goldthorpe, I am not aware that those remarks have been distributed to us.

3761             It doesn't matter whether you choose to recapitulate them in their totality or in partiality, but the fact is, as far as I know, we don't have them.

3762             I'm sorry, we don't have them.

3763             In any event, I just want you to be clear that the remarks from which you are extracting are not, in full, available to us.

3764             MR. GOLDTHORPE:  You are not reading along on anything that I am not following, so...


‑‑‑ Laughter / Rires

3765             THE CHAIRPERSON:  Please feel free to give all or part.

3766             MR. GOLDTHORPE:  I will be very brief, because I think there has been a lot of good discussion and I don't have a great deal to add to a lot of the points.  However, I want to make a couple of specific points.

3767             We are very pleased to be participating both in this hearing and in the subcommittee process that the CRTC has that is looking at operational issues associated with a "do not call" list.

3768             Primerica, one of CLHIA's member companies, was here yesterday and spoke to you, and there was considerable discussion yesterday, which continued today, in the area of personal relationships.  This is a very important issue for our industry, and there is little that I can add to what my colleagues at Primerica said yesterday.


3769             Commissioner Cram noted yesterday that there is a considerable grey area related to the matter of personal relationships and that it would be very difficult to define what constitutes a personal relationship.  We agree.  I think the best approach is the approach that my colleague from Primerica suggested yesterday, which is the approach of reverse onus.  If a person who has been called has a complaint about the call, that individual can say, "There was no personal relationship," and then the burden of proof would be on the caller to demonstrate why there was a personal relationship.

3770             If there is a complaint threshold ‑‑ and we believe strongly that there should be a complaint threshold ‑‑ I think that it would not take very long to uncover any evidence of a telemarketer abusing the personal relationship status to conduct telemarketing calls, and that telemarketer could be dealt with, I think, very quickly, once the evidence was apparent that the personal relationship provision was being abused.

3771             In response to some of the discussion with the previous party on the need for clarification of this, I think that the need does not so much lie with the individuals who are doing the telemarketing.  In our case, that would be the advisors.  Rather, the need lies with the companies.


3772             Companies are increasingly concerned about reputational risk.  They maintain detailed employee policy manuals, and they maintain detailed supervisory and compliance systems.  They are forced to respect the letter of the law, not the spirit of the law.

3773             Absent any clarification about what the intent of these provisions is, companies would have no choice but to, as my colleague from Primerica said yesterday, tell their advisors that they are not entitled to call their mother or their brother or their best friends.

3774             That is the reason for having to have some clarification on what, between you and me, is obviously a common sense sort of situation.

3775             The CRTC has asked parties to comment on the need for guidelines, and the rest of my comments today will focus on some of those guidelines and some of the issues that could be addressed through guidelines.

3776             As I mentioned, we believe that it is important to have a complaint threshold.  It is necessary because it is simply not cost effective to chase down each and every isolated infringement.  Rather, we should be looking for what, I believe, has been called a pattern of abuse, and that is where there is a trend of obvious evidence that a telemarketer is infringing on an individual's privacy interests.


3777             That threshold should be established over a relatively short period of time.  It is interesting that in the United States the FCC does not define the threshold.

3778             There are two reasons for setting a fairly brief threshold.  The first is from a consumer perspective.  They obviously want to have abuses ended as quickly as possible, so the shorter the threshold the better from that perspective.

3779             From the telemarketer's perspective, it is very difficult to defend against complaints that may have occurred six to eight months ago, or even two years ago.  So the quicker you are aware of complaints and called upon to defend, the better your records will be.  The better your recollection will be and more likely that you can accurately defend against the complaint.

3780             So the threshold, whatever it is, should be fairly brief.

3781             When the threshold is exceeded and there is a Notice of Violation issued, we would respectfully submit that that notice should not be publicly posted until the telemarketer has had a chance to make a defence.


3782             The reason for that is there are a number of bona fide defences that are not immediately transparent.  Existing business relationship defence is a good example of that.

3783             So while the complaint may be valid insofar as the number was on the "do not call" list and the grace period had expired, the telemarketer may have been completely justified in making the call.

3784             Again, it would be exposing the telemarketer to significant reputational risk if Notices of Violation for complaints that weren't technically violations were made public knowledge.

3785             With respect to penalties, I suppose it is to state the obvious.  But we do believe they should be incremental.

3786             With respect to telemarketer records, the CRTC did ask a question about this.  We submit that there should not be any mandatory requirements for telemarketers to maintain records.  As a matter of fact, any prudent telemarketer will understand that the only way they can defend themselves is to keep records.

3787             So I think that in most instances telemarketers will, out of self‑instincts of self‑preservation, keep records.  They don't need to have it mandated.


3788             We certainly don't want the absence of records to be yet another violation.

3789             Finally, with respect to the 2004‑35 rules, yesterday you heard my colleague from Primerica outline the rules that create a problem for small businesses that are engaged in telemarketing.  That is the unique confirmation number, the requirement to have a live operator and the requirement to have a toll free number.

3790             Those are the rules that we believe while they may have had an appropriateness two years ago before there was a national "do not call" list, I believe the objectives of the CRTC are going to be met and satisfied with the establishment of a national "do not call" list, and those additional enhancements to the internal "do not call" lists are not necessary at this point in time.

3791             That concludes my remarks.  I would be happy to try to clarify any of those or any other issues that you may want to ask questions about.

3792             THE CHAIRPERSON:  Thank you very much, Mr. Goldthorpe.

3793             Commissioner Duncan.

3794             COMMISSIONER DUNCAN:  Good afternoon.

3795             We did get your remarks, just a little late, that's all.


3796             MR. GOLDTHORPE:  Better late than never.

3797             COMMISSIONER DUNCAN:  You got our attention.  We were focused on what you were saying.

3798             MR. GOLDTHORPE:  Yes.

3799             COMMISSIONER DUNCAN:  With regard to the registration period, The Companies, as you did yourself, suggest that the number should remain on the list for three years.

3800             Actually, I think your recommendation is no more than three years.

3801             MR. GOLDTHORPE:  That's right.

3802             COMMISSIONER DUNCAN:  Given the cost involved in maintaining it and the suggestion that consumers might be annoyed or inconvenienced, confused, at having to re‑register, do you think there is some merit in the U.K. approach where the numbers are registered indefinitely?

3803             It is my understanding that the carriers will be able to automatically delete disconnected and re‑assigned numbers.


3804             MR. GOLDTHORPE:  I think the provision for the carriers automatically deleting numbers provides substantial mitigation to the concern that we have, but I don't think it entirely mitigates that concern.

3805             In an earlier career I had some experience managing databases, and my experience is that regardless of how straightforward the management of the database appears, in practice it is incredibly complex and subject to all sorts of errors.

3806             I quite frankly don't believe you can maintain a database for a long period of time, extending decades, without having inevitable inaccuracies creep in.

3807             I think the period of time ‑‑ and we did recommend no more than three years.  And that was based on average tenure in households.  It may be as an empirical matter and cost‑benefit analysis you might be able to justify a longer period, particularly in light of carriers automatically removing numbers.

3808             I would submit that perhaps with the RFP process for the third party administrator, that could be an issue that we could get some advice from the people that are submitting proposals.

3809             COMMISSIONER DUNCAN:  Thank you.

3810             You recommend a 60‑day grace period.


3811             Given the discussion even yesterday with Primerica where apparently the 31‑day grace period in the U.S. is working fine, are you receptive to changing your suggestion?

3812             MR. GOLDTHORPE:  Yes, I am.

3813             COMMISSIONER DUNCAN:  Thank you.

3814             With respect to consumer consent ‑‑ first of all, can I just back up a bit and ask you something.

3815             On your 66 licensed life agents ‑‑

3816             MR. GOLDTHORPE:  Pardon me?

3817             COMMISSIONER DUNCAN:  Sorry.  You have 66,000 licensed agents.  Is that correct?

3818             MR. GOLDTHORPE:  Yes, approximately.

3819             COMMISSIONER DUNCAN:  Many of them operate as small businesses and some as individual agents.

3820             MR. GOLDTHORPE:  That is correct.

3821             COMMISSIONER DUNCAN:  So they would be all commission based.  Is that the idea?

3822             They would have their own little businesses?

3823             MR. GOLDTHORPE:  I wouldn't want to say all of them, but probably 99.9 percent.

3824             COMMISSIONER DUNCAN:  Are commission based?

3825             MR. GOLDTHORPE:  Yes.


3826             COMMISSIONER DUNCAN:  You indicate many of them employ manual processes.

3827             Are you going to scrub the list for these people, or how is that going to work?

3828             MR. GOLDTHORPE:  I assume by me, you mean CLHIA.

3829             COMMISSIONER DUNCAN:  Your association, yes.

3830             MR. GOLDTHORPE:  No, we would not do that.  Our membership is the life insurance companies and different life insurance companies have different business models.

3831             A number of the life insurance companies maintain their own call centres, and they would be having access to the list and scrubbing it for those employees in their call centres.

3832             Other companies have what we call a career agency system.  Primerica is an example of a company with a career agency system.

3833             And by career agency, I mean the agents are exclusive agents for that company.

3834             Those companies with career agents would likely scrub the lists and circulate marketing telephone lists for their agents.


3835             Other companies ‑‑ and I suspect.  I don't suspect, I know it's the majority of life agents are independent.

3836             Some of them work through what we call managing general agents, which is sort of an entity that manages a bunch of independent agents.  And others operate basically on their own out of their houses.

3837             Some of the managing general agencies are very large and they might have that facility.  In other cases, these independent agents would be initiating the telemarketing on the calls that they are doing on their own and would be responsible for accessing the "do not call" lists and making sure the numbers they were calling were okay to call.

3838             COMMISSIONER DUNCAN:  So some of those people would then be making the investment, for example, that Contact New Brunswick was talking to this morning.

3839             MR. GOLDTHORPE:  That is correct.

3840             COMMISSIONER DUNCAN:  I suppose it is a hardship.  It is a cost but it is a cost of doing business.


3841             MR. GOLDTHORPE:  Yes.  I think part of the concern ‑‑ and we have certainly had this discussion with the Operations Subcommittee ‑‑ is that there is a great deal of uncertainty right now.  I am very pleased with some of the work that is being undertaken now to understand the universe better and how many telemarketers there are and how those potential costs will be shared, how many people are likely to go on to the "do not call" list.

3842             So we have a better idea of what sort of costs are going to be out there and how many people there are out there to share those costs.

3843             In the absence of that kind of information, we are really sort of speculating.  And I guess human nature is to speculate on worst case scenarios.

3844             COMMISSIONER DUNCAN:  When you are referring to costs in that light, you are thinking of the whole operation, are you?

3845             MR. GOLDTHORPE:  Yes.

3846             COMMISSIONER DUNCAN:  I am also thinking, because the Contact New Brunswick representative was talking about an individual agency; that his own personal experience ‑‑ because he had a telemarketing firm himself, although he was here representing an agency ‑‑ was that the capital investment was in the area of $25,000.


3847             MR. GOLDTHORPE:  That is the first time I have heard that number.  I have no reason to believe or disbelieve it.

3848             I am going to try to turn this down because it is distracting me.  Thank you.

3849             COMMISSIONER DUNCAN:  I will get closer to the microphone.

3850             I am just wondering, $25,000 for an individual, I thought that would be steep.  And you haven't considered the cost from that end.

3851             MR. GOLDTHORPE:  Well, certainly $25,000 for an independent life agent would be extremely steep.  I would submit that if that is the price, it would put them out of business.

3852             COMMISSIONER DUNCAN:  Yes.  This gentleman was a telemarketing company.  That was his job, so his scenario might be different.

3853             Do you have some idea what it might cost your ‑‑ you said you haven't given it any thought yet.

3854             MR. GOLDTHORPE:  No, we don't.

3855             COMMISSIONER DUNCAN:  Do you have any idea what the call blocker hardware costs?

3856             MR. GOLDTHORPE:  No, I don't.


3857             COMMISSIONER DUNCAN:  On the issue of consumer consent, can you explain to us how your members would record consumer consent, document it in the event that there was an investigation at some point.

3858             MR. GOLDTHORPE:  Generally speaking, the life insurance companies encourage agents to maintain a client file and provide written documentation.

3859             I know that yesterday Advocis made a presentation.  Advocis has a best practices manual and that is certainly one of the components of their best practices, is to maintain written documentation of all of the discussion that goes on during the transaction.

3860             I would think that there would be documentation in the client files.

3861             I think one of the concerns is that in the area of consent, and particularly for referrals, we don't have a concern with explicit consent.  To go the next step and suggest that it should be explicit written consent is where it becomes problematic.

3862             I think the example that Commissioner Cram indicated yesterday about the cocktail party, it is kind of awkward to obtain written consent during the course of a casual conversation at a cocktail party, although it may be very clear that the individual is quite prepared to entertain a telephone call from the advisor within the next couple of days.


3863             So in that case the advisor might simply make a note in the file:  "Met at a cocktail party; discussed X, Y and Z and plan to call in the next two days", or something like that.

3864             COMMISSIONER DUNCAN:  Does your Association provide rules and guidelines, best practices, for the members?  Or would that fall to the career agents?

3865             MR. GOLDTHORPE:  Our members are life insurance companies, so we do have guidelines for life insurance companies.

3866             It is up to the life insurance companies to establish contractual relationships with their advisors and write the policy manuals that I was talking about for their advisors.  We are not directly involved with the advisors that would be doing the telemarketing.

3867             COMMISSIONER DUNCAN:  Thank you.

3868             That's it for my questions, right now at any rate; thank you.

3869             THE CHAIRPERSON:  Mr. Langford.

3870             COMMISSIONER LANGFORD:  Thank you.

3871             THE CHAIRPERSON:  I'm sure you are going to hit gold this time.


3872             COMMISSIONER LANGFORD:  I'm going to try it one more time.  This could be my moment to say Eureka!  But I doubt it.

3873             I am looking for another way to assess why I tend to think this is being made out ‑‑ it feels like it is being made out that the whole sense of friends, acquaintances, family, it sounds to me like it is a bigger problem; that it is being made to be a bigger problem than it could possibly be.

3874             I want to call on you again ‑‑ third time lucky, I hope ‑‑

3875             MR. GOLDTHORPE:  Could I, just before you ask your question?

3876             COMMISSIONER LANGFORD:  Sure.

3877             MR. GOLDTHORPE:  I am entirely sympathetic with your sentiments.

3878             COMMISSIONER LANGFORD:  Thank you.  That puts you at odds with the rest of the people on this Panel.

‑‑‑ Laughter / Rires

3879             MR. GOLDTHORPE:  Maybe I will retract that then ‑‑

3880             COMMISSIONER LANGFORD:  If you want to go with the majority ‑‑

3881             MR. GOLDTHORPE:  ‑‑ if things are going on a vote.


3882             COMMISSIONER LANGFORD:  It seems almost as though in dealing with your telephone relationships it's as though there are no other possible relationships; that somehow we are so focused on the telephone it's as though nothing else exists.

3883             I am trying to think of a simple scenario here.

3884             One of your agents calls a brother‑in‑law and he puts in a complaint because he is on the "do not call" list and you don't want this to happen.

3885             MR. GOLDTHORPE:  That's right.

3886             COMMISSIONER LANGFORD:  Or you don't want to run into some rules, practical rules in your business that are so strict they wouldn't even allow you to call the brother‑in‑law.

3887             But it seems to me that, first of all, the simple way around this would be to just run your brother‑in‑law's phone number across your list.  If he is not on the "do not call" list, anyone can call him.

3888             So in that way, you're in.  Right?

3889             MR. GOLDTHORPE:  That is correct.


3890             COMMISSIONER LANGFORD:  If he is on the "do not call" list, you go visit him or you pick up the phone and say, "Hey, I notice you are on the do not call list.  I was thinking of flogging you some insurance.  If you are interested, call me."

3891             Or you phone your sister and say, "What's Joe thinking about insurance?"

3892             I mean, it seems there have to be other ways around this other than to create a new exemption.

3893             MR. GOLDTHORPE:  I'm not sure that you could make a telephone call saying you intend to call to solicit tomorrow.  That telephone call that you have just made would, I think, be reasonably interpreted as a solicitation call.

3894             I agree.  And certainly in a complaint‑based system that we are envisioning, the likelihood that we are going ‑‑ I mean, if you are a telemarketer and you are calling your best friend and they are complaining, you have more problems than the "do not call" list.

3895             That's why I said I agree with your sentiment.

3896             The problem, as I said ‑‑ and I think that my colleague from Primerica talked about this yesterday when she used the example of the artificially low speed limits.


3897             If you set a standard that no one perceives as making sense, then you either invite disregard for the whole system and certainly ill will, and that sort of thing.

3898             The problem that life insurance companies face, it is a very strong, heavily regulated.  The marketing and distribution of life insurance is very strongly regulated.  Companies are required to maintain policies and procedures to provide adequate supervision and adequate training in the area of the marketing and distribution of insurance.

3899             They are required to maintain compliance systems.

3900             If you have a rule out there which says if the person is on the "do not call" list you can't call them, then that is the rule that the companies have to communicate to their advisors through their employee training programs and policy manuals.

3901             In some urban centres there are probably ways to get around using the telephone.

3902             If you are in a rural area in Saskatchewan and it's a 20 or 30 kilometre drive to your circle of friends, the telephone becomes a much more important means of cost‑effective communication.


3903             COMMISSIONER LANGFORD:  Let's take the person at the cocktail party, and your note to file, "Met at cocktail party, okay to call."

3904             Surely you would be given a number to call or at least enough information to get the number and once again you could run that by your list and see whether it was on or off.  If it is not on you are fine.

3905             MR. GOLDTHORPE:  Yes.

3906             COMMISSIONER LANGFORD:  If it is on, it seems to me still an inventive agent, an imaginative agent could find a way to get around that, particularly, as you said, in an urban setting.  You could arrange to meet at this person's office.  You could do it personally or wherever, but it seems to me that is not insurmountable.

3907             As for rural Saskatchewan, well, we've got the expert on that sitting right beside me here so she could guide you, but it seems to me that if you had a number of friends in one place and they were on the do not call list, it might be worth making a drive up there.  You know, twenty or thirty kilometres is not the end of the world, even at today's gas prices.


3908             I just ‑‑ the problem is you are talking about being a heavily regulated industry, and though we are regulators, we are fairly heavily regulated by Parliament, and Parliament has just freshly spoken here and it seems that if there are alternatives, and not terribly difficult alternatives, to try to change what's before us or to try to somehow massage it so that we can extend it, you know, it is something we at least have to explore before we go back to Parliament and say, you know what, we can't do this.  We need a change.  We haven't even started and we need a change.  It is a difficult hill to climb.

3909             Parliament has its own agenda and there is no knowing when that change might come through.  And on the other hand, if we try to massage some other procedural element of the enabling legislation to sort of squeak in some sort of referral thing, you know, that may fail as well.

3910             MR. GOLDTHORPE:  Well, with respect though, the senate did indicates in the commentary that they hoped that we would be able to find a way of dealing with the situation that ‑‑ of personal relationships that we did raise with the senate.

3911             So I agree that Parliament has spoken.  We do have the letter of the law, but we also have the commentary from the senate suggesting that we try to figure out a way to handle this.


3912             As I said, the concern of the insurance companies is technical in nature and admittedly narrow in nature, but I believe that it is a legitimate concern.

3913             COMMISSIONER LANGFORD:  If we didn't think it was legitimate, we wouldn't be spending this amount of time on it.

3914             MR. GOLDTHORPE:  I understand that.

3915             COMMISSIONER LANGFORD:  We'd just simply say Parliament has spoken, go away.

3916             MR. GOLDTHORPE:  I understand that.

3917             COMMISSIONER LANGFORD:  So we are trying our best.

3918             MR. GOLDTHORPE:  I appreciate that.

3919             COMMISSIONER LANGFORD:  But also looking at other ways.  Those are my questions, thank you, Mr. Chair.  And thank you, sir.

3920             THE CHAIRPERSON:  Commissioner Cram.

3921             COMMISSIONER CRAM:  Thank you.  I think I heard you say don't make telemarketers keep records.  They would be stupid not to, but don't tell them to.  And don't make ‑‑‑

3922             MR. GOLDTHORPE:  I think I said imprudent.  I hope I said imprudent.


3923             COMMISSIONER CRAM:  Yes.  Yes, you probably did.  I am paraphrasing.

3924             MR. GOLDTHORPE:  That's okay.

3925             COMMISSIONER CRAM:  There is NO such thing as a stupid telemarketer.

3926             MR. GOLDTHORPE:  Or anyone.

3927             COMMISSIONER CRAM:  Anyone, yes, strike that totally from the record.  Anyway, I thought I heard you say don't make them keep records and don't make it a violation.  And it's the second part that I'm wondering about.  Why do you say not to make it a violation?

3928             MR. GOLDTHORPE:  Don't make the failure to keep a record a violation.

3929             COMMISSIONER CRAM:  And why would you think that?

3930             MR. GOLDTHORPE:  In other words, don't make record keeping mandatory.  See, if record keeping is mandatory and they don't have the records, then they have committed a violation.

3931             COMMISSIONER CRAM:  Yes.

3932             MR. GOLDTHORPE:  But if the record keeping is not mandatory, then there is no violation.

3933             COMMISSIONER CRAM:  But it would seem to me that ‑‑


3934             MR. GOLDTHORPE:  A violation of common sense, perhaps, but...

3935             COMMISSIONER CRAM:  Yes.  There would be ‑‑ but certainly not stupidity.  There would be other uses to have those calling logs, and of course, you see, I am ‑‑ on the broadcast side we log every scintilla of ‑‑ it would seem to me that if on a particular day there were five complaints and we said let me see your logs, it would be very easy for us to confirm or deny, but it would also be very easy for us to see that those may not have been isolated incidents and we are looking at a bigger incidents than ‑‑ and I know this is going to get into complaints driven by, my lord, if my sister‑in‑law didn't complain and yet still was telemarketed, you are going to say that is not a breach of the rules.

3936             Is that where you are coming from?  I know I am putting words in your mouth.  I am sorry.

3937             MR. GOLDTHORPE:  Yes.  So let me take those words out of my mouth and try some other words.  What I am suggesting is if there were five complaints in one day, the do not call list operator would have a record of those five complaints coming in.


3938             So they would already have the evidence of a pattern of abuse.  They don't need the telemarketer's records to substantiate that.  They have had the complaints come in on that day, so they have got the record that they need to establish that telephone calls are being made that are creating problems for consumers.

3939             Whether or not the telemarketer keeps records of those calls is not a problem for the consumer.  It is a problem for the telemarketer because the telemarketer is not going to be able to defend him or herself if those complaints come in.

3940             The fact that the telemarketer has not kept any records, because that doesn't create a problem for the consumer, it shouldn't be treated as a violation.

3941             COMMISSIONER CRAM:  And so then the powers of the delegate to require any records, et cetera, if we didn't require the keeping of a log we couldn't look at it at any time.

3942             MR. GOLDTHORPE:  That's correct.

3943             COMMISSIONER CRAM:  Because, again it is complaint based ‑‑

3944             MR. GOLDTHORPE:  There would be nothing to look at.


3945             COMMISSIONER CRAM:  And if we saw a serious problem by looking at the logs ‑‑ so in other words, ignorance is bliss, is that really where you are at?

3946             MR. GOLDTHORPE:  With respect, I don't understand that comment.  If the ‑‑ it seems to me that the CRTC's concern and the do not call list operator's concern is whether complaints are coming from consumers about a telemarketer.

3947             The complaints will be based on a call being placed and if there is a complaint, the telemarketer ‑‑ or the do not call list operator and the CRTC know that there is a complaint, they know that there is a cause of concern.  Whether or not the telemarketer has a log seems to me totally irrelevant to whether consumers are being bothered by the telemarketers.

3948             That should be the concern of the CRTC and the do not call list operator.

3949             COMMISSIONER CRAM:  Okay.  So the idea is that the onus is totally on the consumer to complain?

3950             MR. GOLDTHORPE:  Right.

3951             COMMISSIONER CRAM:  And that the DNCL operator or us have no duty beyond dealing with the complaints themselves?


3952             MR. GOLDTHORPE:  I certainly don't envision a system where the do not call list operator would be going out and auditing telemarketers if there was never any complaints from the consumers about telemarketers.  I don't see any need to do spot audits of telemarketers to see if they are maintaining do not call lists.

3953             It would seem if you've got limited resources, your limited resources should be dedicated to investigating the complaints that are coming from consumers about calls that are reaching their houses, not auditing telemarketers that are not generating any complaints from consumers.

3954             COMMISSIONER CRAM:  And how would a lack of logs impact on any due diligence?  That would be the end of it?  There would be no due diligence, I guess, eh?

3955             MR. GOLDTHORPE:  Well, there'd certainly be very limited evidence of due diligence.

3956             COMMISSIONER CRAM:  Um‑hum.

3957             MR. GOLDTHORPE:  On the telemarketer's part.

3958             COMMISSIONER CRAM:  Yes, thank you.  Thank you, Mr. Chair.


3959             THE CHAIRPERSON:  Before I let you go, I want to talk about this record keeping business as well.  I've got the message on the prudent telemarketer.  I understand that.

3960             In effect you are saying, you know, don't police common sense on the part of the actors when you have ‑‑ when you are seized of a complaint and have to deal with it.  If the telemarketer hasn't maintained its records, you just do what you have to do.  He's failed to provide a defence for himself.

3961             MR. GOLDTHORPE:  Right.

3962             THE CHAIRPERSON:  Do your member companies or member agents operate company or agent specific do not call lists?

3963             MR. GOLDTHORPE:  I haven't surveyed all of the member companies to know whether all of them do.  Some of them are not involved in telemarketing, so obviously they don't.

3964             We heard from one of my member companies yesterday, Primerica maintains one.  I know that the ‑‑ a number of the companies with call centres have indicated and talked about their experiences maintaining do not call lists, so I think it is a widespread practice, but I couldn't vouch for ‑‑ as I said, I haven't surveyed my members on that issue.


3965             THE CHAIRPERSON:  On the hypothesis that the Commission were to retain the position expressed by the number of parties, though not all parties, that it is appropriate that company specific do not call lists should be maintained ‑‑

3966             MR. GOLDTHORPE:  Um‑hum.

3967             THE CHAIRPERSON:  Would you agree that it would be logical for the Commission to not only require that they be maintained, but require that they be maintained in certain forms and certain availability because this, after all, is a circumstance in which the company has an incentive not to find its do not call list when someone complains about that kind of a violation.

3968             MR. GOLDTHORPE:  I'm not sure I follow your question.

3969             THE CHAIRPERSON:  Well, if a customer says, "I registered with Primerica."

3970             MR. GOLDTHORPE:  Right.

3971             THE CHAIRPERSON:  Because we know they are good citizens and have a list.  And Primerica ‑‑ so we follow up with the complaint and say, gee, we don't have a list or we thought we had a list, we don't have a list, we can't find the list, the customer's name's not on the list.


3972             Wouldn't it ‑‑ and under your scenario if we had made no particular requirements except a general one to have a do not call list, how would we police that?  You understand that in this case it is not in the interest of the telemarketer to maintain lists in a systematic and effective way.

3973             Wouldn't it be reasonable for us to make specific requirements of what that list would be and how it would be accessible and how rapidly it should be produced, et cetera, et cetera, in case of ‑‑ due to the complaints of that nature?

3974             MR. GOLDTHORPE:  I see.  And I think perhaps in the guidelines on defence you could outline the sort of documentation that you would expect to see that would be used to address ‑‑ address complaints and be used in an investigation.

3975             All I am suggesting is that we don't go the extra step and make the failure to keep that documentation ‑‑

3976             THE CHAIRPERSON:  Ipso facto ‑‑‑

3977             MR. GOLDTHORPE:  Yes, another defence, that's correct.

3978             THE CHAIRPERSON:  Understood.  Just exactly on that question of ‑‑ I am sorry.  You just evoked a circumstance where ‑‑ sorry, tell me again what you just said to me.

‑‑‑ Laughter.


3979             THE CHAIRPERSON:  My colleagues are really enjoying this.

3980             MR. GOLDTHORPE:  You know, it is three‑thirty in the afternoon.

3981             THE CHAIRPERSON:  Well, it is for both of us, I agree.  But try to help me.

3982             MR. GOLDTHORPE:  Yes.  I think I said that if the Commission ‑‑ if the CRTC wanted to prepare a guidelines on defences.

3983             THE CHAIRPERSON:  Oh, thank you.

3984             MR. GOLDTHORPE:  It would.  That was easy.

3985             THE CHAIRPERSON:  Would a specification of a defence that said the caller had reasonable and appropriate grounds to think that he was getting ‑‑ he was calling a reference ‑‑ making ‑‑ he was calling a party to whom he had been referred by a friend or family member, would that constitute the kind of reassurance that your lawyers would need to instruct your people to train intelligently as opposed to against all common sense in the framework ‑‑ and I don't mean it is just yours, it is all large companies operating that way.

3986             MR. GOLDTHORPE:  I am sorry, could you run that past me again?


3987             THE CHAIRPERSON:  Yes.  You have, in effect ‑‑ one option is that we could say to Parliament, well, you missed two or three things so we are going to exempt B to B, and we are going to exempt personal relationships.

3988             MR. GOLDTHORPE:  Okay.

3989             THE CHAIRPERSON:  That is one way of doing it, which would make the requirements that a number of people have asked us.  Another ‑‑ in the case of personal relationships, because of the sort of ambiguity that we've all been struggling with, and I think you can perceive us as honestly struggling with it, as many of you are, would it ‑‑ would a solution be that it would be a defence or part of a defence that the calling party had, on the basis of ‑‑ had a reasonable expectation on the basis of ascertainable fact that he was, in fact, calling a friend or family member of a person who had provided the reference?

3990             MR. GOLDTHORPE:  Absolutely.  And I would ‑‑ there would be a guideline on ‑‑ I think that this whole matter could be addressed through the guideline on defence.

3991             THE CHAIRPERSON:  That would capture for me ‑‑


3992             MR. GOLDTHORPE:  Or the guideline on notices of violation, one or the other, but either of the ‑‑ either of those guidelines.

3993             THE CHAIRPERSON:  Somewhere in the set of guidelines would provide a sufficient list ‑‑ because after all, the real issue we have here is not that there is going to be thousands of complaints, we all admit there won't be thousands of complaints.

3994             The real issue we have is to convince the lawyers, who are advising the trainers, to do something sensible in relation to guidance to your agents.  That is fundamentally what we are talking about.

3995             MR. GOLDTHORPE:  Absolutely.

3996             THE CHAIRPERSON:  Thank you.  Counsel?

3997             MR. MILLINGTON:  I have nothing.

3998             THE CHAIRPERSON:  Thank you very much, Mr. Goldthorpe.

3999             MR. GOLDTHORPE:  My pleasure.

4000             THE CHAIRPERSON:  Much appreciated.  We will rise and see you again at ten minutes to four please.

‑‑‑ Upon recessing at 1535 / Suspension à 1535

‑‑‑ Upon resuming at 1550 / Reprise à 1550


4001             THE CHAIRPERSON:  Order please.  Alors, sil vous plait.  Well, Mr. Watt, you are here and we are here and I am sure my CRTC staff will be available to us at some point, but we will start without them.  Please begin.

PRESENTATION / PRÉSENTATION

4002             MR. WATT:  I will.  Mr. Chairman, Commissioners, CRTC staff and interested parties, my name is David Watt and I am vice‑president, regulatory economics with Rogers Communications, a large national telemarketer.

4003             I am pleased to have with me today on my right, Mike Redalaar, senior director of national direct sales for Rogers.  Mike has eighteen years of telemarketing industry experience and has been actively involved in the telemarketing evolution from the pre‑computer infancy to the current high tech maturity.

4004             On my left I have Howard Slawner, director of regulatory.  Howard is also serving as the chair of the CISC DNCL operations working group.  And to Howard's left is Tiffany Shell, manager of economics.


4005             I am going to deviate from the written text that is before you.  I am going to shorten up the first half quite substantially.  Given the discussion of the last two days, it seems to us that we could be of most use if we were to go through in some detail how telemarketing operates within Rogers.  To that end we have Michael here to go through that.

4006             So I will quickly zip through parts of the first and then we will move on to the heart of the matter.

4007             Dealing first with costs.  The telemarketer or Rogers should assume its fair portion of the costs of a do not call list, however we do not believe that we should assume additional costs by virtue of being a telecommunications carrier.

4008             Implementation of a do not call list is a telemarketing consumer affairs issue, it is not a telecommunications carrier issue.  If the costs of the DNCL were to be recovered through an increase in CRTC telecom fees or through an increase, as some parties have suggested, to telecommunications service rates charged to the customers, carriers and customers would be subsidizing the activities of telemarketers.  In our view this would be wrong.


4009             With regard to a mandatory consumer opt‑in requirement, we believe it must be mandatory for the consumer to register themselves directly on the do not call list.  There must be safeguards in place to ensure the phone number being registered does belong to the consumer or is one associated with the consumer.  I take your point the telephone companies own the numbers.

4010             An example of this type of safeguard might be when a consumer calls a toll free number to register.  They must place the call from the phone number to be registered.  Similar safeguards could be put in place for internet registrations.  It is imperative that the onus resides on the consumer to register and not on the telemarketer placing the call.

4011             With regard to voice casting, retrieving deposit of voice casting messages from wireless voice mail accounts results in economic consequences to the subscribers that don't exist for wire line customers.

4012             When they retrieve these messages they incur costs, sometimes substantial costs in terms of roaming and long distance charges, so aside from being a nuisance, there is an economic penalty.  Rogers is applying to the Commission for a prohibition of cellular voice casting in hopes the Commission will agree.  However, Rogers believes that including wireless phone numbers on the DNCL list would be an additional level of protection available to Canadian wireless customers.


4013             Now, turning to telemarketing, we heard some discussion this morning about a button, a DNCL button that could be pushed to have subscribers immediately eliminated from calling lists.  We want to quite slowly go through our operations today to clearly explain that such a button doesn't currently exist at Rogers and that in the context of our complex marketing operations to implement that type of arrangement for both our internal do not call list and an external do not call list would be a very complex, expensive and time consuming proposition.

4014             We have ‑‑ we have currently been constructing a CRM, customer relationship management system now for slightly over five years and we think we are approaching the implementation of that on an integrated basis across our subscriber base.  That is an indication as to how complex some of these systems are.

4015             Rogers is one of Canada's largest telemarketers and has a very complex operation.  In any given month, we will have approximately 40 cold calling lists in the field being handled by ten different suppliers, one of them being our own internal operations, operating in 14 physical locations spread across eight different locations in Canada.


4016             We fine tune our resources to this allocation to the extent that we eliminate people in seats to the tune of one per day, it is that finely tuned.  If we don't have the calls for that person for a day, they are not in the seat that day.  Do I minimize this so that people have steady employment over the time frame, but it is a very tightly tuned operation.

4017             With that I am going to turn you over to Mike now.  In preparation for that, you might want to detach the last page from our written remarks to see if ‑‑ sort of a graphical time scale as to what Mike is talking about.

4018             MR. REDELAAR:  Thank you.  As David indicated, today Rogers operates one of Canada's largest and most complex telemarketing operations.  As you are very aware, the key operational activity relating to implementing a do not call list is the scrubbing of this list against our monthly lead allocation.

4019             So as I said, the key operational activity relating to implementing a do not call list is the scrubbing of the list against our monthly lead allocation.  This ensures that a consumer is not contacted.


4020             Currently we contract a third party company to compete in many components of our list processing.  This includes, but is not limited to, scrubbing against our do not call list from Rogers Wireless, Rogers Cable, Rogers Telecom and Fido, as well as the CMA do not call list.

4021             We then distribute these lists to both our internal and third party contracted call centres to the extent that David indicated, several locations and several lists throughout the country.  The reason Rogers has requested a 60 day grace period is based on the following processes we adhere to today and that is detailed on the list to make it a little easier this late in the day.

4022             I will illustrate these processes using August as the calling month, and keep in mind that day one of this four stage process begins mid month of the month prior to calling, as you'll see a July date on the list in front of you.

4023             Stage 1 from July 15th to July 26th, our contracted supplier ‑‑ by the way, we use a company called Cornerstone to take all of this off our hands so I have one point of contact to do all our scrubbing, less room for error, much easier process.


4024             Our contracted supplier will obtain a list from brokers and scrub them against the multiple do not call lists previously mentioned.  From stage 2, from July 27th to July 31st, lists are divided and sent to our internal and external telemarketing suppliers.  Stage 3 the lists become active, so on August 1st to August 31st these lists  are active and then pulled from production at the end of the month.  Stage 4, from September 1st to September 7th, scheduled callbacks may continue.

4025             Based on the operational model I have just described, please note the time line to respect a do not call request can range from a minimum of one day, so if it was actually received on the 14th, the day before we do the scrub, we've caught it, it is out of the August list, to literally if the request comes just afterwards, we are now right up September 7th because it has made it into the August call list.  So our range would be anywhere from 1 to 56 days to respect it in our current operating model.

4026             It is common practice for telemarketers, as in the case for Rogers, to initiate monthly calling based on calling campaigns starting on the first of the month.  So there are lots of players out there who stick to this model.


4027             Keep in mind, however, that we require up to 17 days prior to the start of the campaign to prepare and up to seven days following a campaign to allow for callbacks.  In order to maintain the telemarketing industry practice of utilizing monthly cycles, Rogers believes that you need to land on a thirty day or sixty day grace period.

4028             We've shown that a thirty day grace period is not possible from the perspective of a large national telemarketer, a sixty day grace period is the only viable alternative.

4029             The Canadian Marketing Association has shown support for this position in their comments, and I also believe the Bankers' Association yesterday is under the same model, although I missed the session.

4030             To force a thirty day period would force telemarketers into bi‑monthly operating cycles rather than the existing monthly cycles, which would substantially increase supplier costs.  These costs will be in excess of what telemarketers are already expected to bear to implement the government's do not call initiative.


4031             To place excessive turnaround times on the multiple parties involved in Rogers telemarketing operations will increase the risk for error.  This is why Roger believes the sixty day grace period should be implemented from the start.  It is the most balanced decision for all parties involved that results in an efficient and cost effective method of respecting do not call requests from consumers.

4032             Mr. Chairman, Commissioners, CRTC staff and interested parties, I would like to thank you for your time today on behalf of the team and we are happy to answer any questions.

4033             THE CHAIRPERSON:  Thank you, Mr. Redelaar, thank you, Mr. Watt.  Commissioner Cugini, please.

4034             COMMISSIONER CUGINI:  Good afternoon and thank you for this chart, because I do have to say that it has helped to answer quite a few of the questions that I had on the issue of the grace period.  So we will definitely take it under advisement.

4035             It is quite clear as to why you believed the 60 day grace period is necessary.  And just to that, I see your mike is on, if you have any final comments that you would like to make with regard to the 60 days please.

4036             MR. REDELAAR:  It may be in anticipation of the question coming elsewhere.  I think the question is going to be, what would be the impact of doing it in a less time or a more restrictive time restraint.


4037             I think the best way to answer that, it is very clear that I would have to find some way to scrub the lists while they are active.  Once they are active I now have to involve numerous companies, numerous junior programmers.  The cost would be exorbitant and, quite frankly, the room for error would be very much there.

4038             A perfect example I use is you have a junior programmer who is working on list 9, decides to go for a coffee.  Now where was I, list nine or list 11?  That is exactly how this will be implemented once it is out in the field.

4039             So for me it is absolutely critical that I get all that done in one point of control.  So I hope I made that clear in the initiative we put forward.

4040             COMMISSIONER CUGINI:  The third party call centres that you refer to, are all they all in Canada?

4041             MR. REDELAAR:  They are.

4042             COMMISSIONER CUGINI:  I am sorry, did you say you use just one?

4043             MR. REDELAAR:  I use numerous.

4044             COMMISSIONER CUGINI:  Numerous, and they are all in Canada?


4045             MR. REDELAAR:  I use actually my existing infrastructure at Rogers and I use several Canadian‑based organizations for now.

4046             COMMISSIONER CUGINI:  For now.  So do you anticipate that some of them might be in the United States?

4047             MR. REDELAAR:  I would suggest the current stress or the current financial model is pushing it to a more ‑‑ to a further destination.  As an example, I get calls constantly to bring in overseas.

4048             COMMISSIONER CUGINI:  Okay.  So therefore you don't find it necessary to have symmetry with the current U.S. do not call list rules with regard to the grace period?

4049             MR. REDELAAR:  Correct.  Out of ‑‑ out of our internal preference of being Canadian based, I don't have any international ties at this point in time.

4050             COMMISSIONER CUGINI:  Do your thirty party call centres, do you anticipate that there would be a need for them to access the national do not call list?

4051             MR. REDELAAR:  The individual ones I farm the leads out to?


4052             COMMISSIONER CUGINI:  Yes.

4053             MR. REDELAAR:  I pray no.  That is why I would like to keep it out of their hands.  I would like the onus to be on either my organization or my one subcontracted to supplier to do all the scrub work, so that the onus on calling the right customers is taken out of the hands of my third party suppliers.  That is my model today.

4054             MR. WATT:  If I could just interject there, there might be some confusion between the multiple third party entities that are placing calls as opposed to the one entity which actually scrubs the lists which are then passed to the multiple entities.

4055             And Michael has argued strongly when I probed him on this to ‑‑ I like using multiple people to place the calls, but I only want one entity to scrub the list so that I have quality control over that list.

4056             COMMISSIONER CUGINI:  And that is your subcontractor?

4057             MR. WATT:  Correct.

4058             COMMISSIONER CUGINI:  Would that subcontractor scrub the list for all of the Rogers companies?

4059             MR. REDELAAR:  Absolutely.


4060             COMMISSIONER CUGINI:  You said that there are ‑‑ there could be as many as forty calling ‑‑ call lists in any given month.  Again, is that an aggregate number for all of the Rogers companies?

4061             MR. REDELAAR:  Actually that was a bit of a mistake.  There is 40 ongoing lists, but many of them would be excluded because many are existing customer lists.  But there are on as much as 21 different cold calling lists spread amongst the entities that we subcontract.

4062             COMMISSIONER CUGINI:  Do you have any idea how many names or numbers would be on those lists?

4063             MR. REDELAAR:  Less and less every month to my stress, but I would say we are still ‑‑ it depends.  As we introduce new products throughout the country that would open up a base that may not have been there when we have it, so it is ‑‑ I guess the best way to establish that is based on our customer base.

4064             So there are ‑‑ I assume ‑‑ not off the top of my head, maybe 20, 22 million households.  I assume somebody knows that better than me.  And we have five million customers.


4065             So take the remaining 17 million customers, slice them into 90 day cycles, you are looking at a potential of 6 million lead pool, slice and dice those the way you want, I would say we could potentially have 2.5 million leads out per month.

4066             COMMISSIONER CUGINI:  We are just trying to get a sense of the magnitude.

4067             MR. REDELAAR:  I understand.

4068             COMMISSIONER CUGINI:  To couple that with what it would take to scrub a list.  What it would take to manage such a list and then to scrub it.

4069             MR. REDELAAR:  Right.

4070             COMMISSIONER CUGINI:  So that is why I was just asking for that kind of information.

4071             MR. REDELAAR:  Understood.

4072             MR. WATT:  Mike, you were telling me earlier today, I think you know this number.  The number of dialing or calling hours that you have in a given month.

4073             MR. REDELAAR:  Sure.  So within the Rogers Wireless cable, Fido entity and Rogers Telecom, cold calling and existing list calling, so up‑selling and cross selling, we would be in the entity of about 160 to 170,000 hours a month.

4074             COMMISSIONER CUGINI:  Across all the entities?

4075             MR. REDELAAR:  Across the entities of outbound calling.


4076             COMMISSIONER CUGINI:  Do you place telemarketing calls to cell phone users?

4077             MR. REDELAAR:  Absolutely not.  Unless they have put it in the data base as their contact number.

4078             COMMISSIONER CUGINI:  Okay.

4079             MR. REDELAAR:  So it lies within the Rogers infrastructure as their main contact number as the world is going to potentially maybe get away from home phones and your cell phone is your only phone.  If they put that in our database then yes, it would pop up to our existing customer calling on occasion.  Not in the cold calling acquisition gathering list.

4080             COMMISSIONER CUGINI:  So given your current structure, both with the group of companies, your subcontractor and your call centres, what is your preferred method of establishing a fee structure for the access of the do not call list?

4081             If I heard you correctly, what you said is that it could be Rogers or it could be the subcontractor that would access the list on behalf of the Rogers group of companies or a Rogers company who is conducting a telemarketing campaign at that time.

4082             MR. REDELAAR:  Right.


4083             COMMISSIONER CUGINI:  So what is your preference?  Should it be based on number of campaigns run annually, monthly, weekly?  Should it be based on the number of ‑‑ numbers that you would be contacting during the campaign?  Give us your guidance on what you believe would be the best method.

4084             MR. WILKS:  I am going to ask Howard Slawner to answer this from the Rogers perspective, and he has the broader perspective of the discussions within the CISC group.

4085             MR. SLAWNER:  Yes, thank you.  This is actually one of the issues we are addressing in the CISC operations group.  I think different telemarketers are going to have different needs.

4086             I think some telemarketers will be able to take an annual subscription and be able to just pay an annual or monthly fee for basically an all you can eat kind of system.  I think others would prefer having more of a usage based system where they just will get charged based upon how much they used.


4087             But these are some of the more operational issues that we need to address.  We don't really currently have all the information, especially the number of telemarketers are going to use the list and how much usage there will be to kind of set fees yet.  That is kind of the work that we are trying to plough through right now and it is some slow ploughing too, I am afraid.  But I think our ‑‑

4088             MR. WATT:  That is why we are here.

4089             MR. SLAWNER:  Yes, that is why we are here.  So I think there are a couple of alternatives.  I think we are trying to pursue them from an operations standpoint, get to the nuts and bolts of it and hopefully we will be able to have some recommendations for the panel and for the consortium, if there is one, or whoever runs the ‑‑ or ministers the do not call list.

4090             COMMISSIONER CUGINI:  Did you want to add to that?

4091             MR. REDELAAR:  I can just tell you how it works with today with the CMA do not solicit list, which is the ‑‑ Cornerstone are again our contracted list processor pays the appropriate fees and of course it is billed back to the user, being me, therefore Rogers.  So that is how it works today.

4092             COMMISSIONER CUGINI:  And your current do not call list, you talked about safeguards for registration.  How do you manage the Rogers do not call list now?

4093             MR. REDELAAR:  The internal ‑‑


4094             COMMISSIONER CUGINI:  The internal list.

4095             MR. REDELAAR:  At all touch points they go back into our internal databases.  Those databases are pulled and sent to Cornerstone again on a monthly basis so that they are updated, so that is part of the entire Cornerstone scrub before they get allocated and sent out to the suppliers.

4096             COMMISSIONER CUGINI:  And do your customers or consumers receive verification that you have included them on your do not call list?

4097             MR. REDELAAR:  No, it is just a confirmation ‑‑ we give them a verbal couple of lines that indicate what the next steps are.  So we tell them what will happen.

4098             COMMISSIONER CUGINI:  Do you think that it should be a requirement?  In other words, should we build that into the do not call list rules that there should be verification?  Some have made suggestions.


4099             MR. SLAWNER:  I'll take this.  Again, I just think it is a bit of an operations issue because in the CISC committees when we look at how feasible that is, what the cost is of doing that, I mean people propose things from mailing, like regular mail, Canada Post, all these are going to have costs, all these are going to require more people.  And I think ‑‑ we don't even understand really the cost of having to do that.

4100             I believe in the States right now you can either go on line or call a 1‑800 number to discover whether or not you are, in fact, on the list.  If you ask for confirmations, what's going to have to happen is we are going to need their names and addresses, there is more information we are collecting.  You need their e‑mail addresses.

4101             So you have these privacy concerns and you have this confirmation concern and they are going to butt heads a little bit and, again, these are some things we are going to try to work out, but there is a give and take here between how much information do you want to collect from the person registering and whether or not you want a valid, feasible confirmation system.

4102             COMMISSIONER CUGINI:  And what information do you collect now for your internal list?


4103             MR. REDELAAR:  We actually have them flagged within our ‑‑ so we will actually capture the record and then that record will go within our care organization and a team data enters it and flags it as a Rogers do not solicit.  So it actually lies there so that if marketing pulls a list they immediately scrub it and then we ‑‑ like we said, we update it for that last check point.

4104             So it is really a field within our infrastructure that says do not contact them on behalf of Rogers.

4105             COMMISSIONER CUGINI:  Is that from both your existing customers and cold calls?

4106             MR. REDELAAR:  Cold calling goes through the CMA do not solicit list.  So Cornerstone secures the CMA do not solicit list prior to the July 15th scrub and wipes them out there, because obviously we don't have a database of cold calling.

4107             COMMISSIONER CUGINI:  But if I am an existing Rogers customer and I get a telemarketing call from Rogers because there is a deal on high definition boxes, for example, and I say to you, look, I am a Rogers customer, I am a happy Rogers customer, if I want more from you I'll call you, put me on your do not call list.

4108             MR. REDELAAR:  Right.

4109             COMMISSIONER CUGINI:  Do you have that capability?


4110             MR. REDELAAR:  Yes, so ‑‑ sorry, I missed your question the first time.  You're right.  If they absolutely call and say I don't want to hear from Rogers again, it goes to our database and to Cornerstone and all lists are scrubbed against it.

4111             I believe that answers that specific question.  And then Cornerstone would make sure that the CMA ‑‑ so if they don't want to be contacted by anybody is out, is eliminated, and the internal do not solicit lists are all gathered and scrubbed so we don't contact them from a Rogers.

4112             So a lead cannot go to a supplier unless it is absolutely scrubbed against our do not solicit, aka Rogers or the CMA.

4113             COMMISSIONER CUGINI:  So let me take it a step further and I say to you, and by the way, put me on every other Rogers do not call list.

4114             MR. REDELAAR:  When on one, on all.

4115             COMMISSIONER CUGINI:  When on one, on all?

4116             MR. REDELAAR:  Yes.

4117             COMMISSIONER CUGINI:  Okay.  Then can I say except for Rogers Wireless?

4118             MR. REDELAAR:  No.

‑‑‑ laughter.

4119             MR. REDELAAR:  We don't actually have it.  If you put on the Rogers do not call list, it extends to all the Rogers companies.


4120             MR. SLAWNER:  I don't think I ever heard ‑‑ and I do take a lot of customer complaints personally because I fill out support and I hear them.

4121             COMMISSIONER CUGINI:  Yes.

4122             MR. SLAWNER:  I have never heard anybody say take me off your list, but don't take me off this.  They either dislike Ted or don't ‑‑ or are a fan of Ted.

4123             MR. WATT:  The one exception is you are not taken off the Blue Jay list.

‑‑‑ Laughter.

4124             COMMISSIONER CUGINI:  How long do the names stay on the list?

4125             MR. REDELAAR:  Within our existing infrastructure at Rogers, they stay on there indefinitely today, although it is in debate.

4126             COMMISSIONER CUGINI:  Okay.  So you are going to anticipate my next question I am sure, because I believe in your March submission you said that they should stay on for three years with a requirement for consumers to re‑register at that point.

4127             First part of that question is, of course, what do you see as the pitfalls of requiring a list to stay on indefinitely, similar to the UK model?


4128             MR. REDELAAR:  Am I allowed to answer this?  I guess not.  I think the pitfalls again are that customers will forget that they are on the list.  Numbers do get recycled.  The person who registered will move and then their child will keep the number.

4129             I think that a periodic renewal period is logical.  It gives ‑‑ people will cancel their phone numbers and I think that three year period just about is around the average time that a number will be used.

4130             So I think it is ‑‑ it is a very viable, logical, fair time frame.

4131             COMMISSIONER CUGINI:  How often do people change numbers?  I've had my same phone numbers for as long as I can remember.

4132             MR. SLAWNER:  I myself have had at least six or seven, so...

4133             COMMISSIONER CUGINI:  How will a customer be reminded or how should a customer be reminded that your three year expiry date is coming up, if you want to re‑register.  In other words ‑‑


4134             MR. SLAWNER:  It's something that we can definitely raise in the operations group as to whether or not we should build in a reminder system.  Again a reminder system would be like a confirmation system.  You'll ‑‑ you can either call or you'll need to mail or e‑mail and therefore you need to collect more information.

4135             I am not convinced yet that we actually need to have a reminder system.  I guess what would happen, after three years they would get one call and they would re‑register, or you make it very clear when they registered in the first place that it does have a three year expiry.

4136             I don't think ‑‑ I mean it is something we can discuss in the operations group, but again, there is going to be cost issues, feasibility issues and we have to address them.

4137             MR. WATT:  Just to add to that, I mean optimal would be to obviously find a way to remind them, otherwise they are going to call the complaints line, register a complaint, and it is going to drive up costs, but what is the optimal way of doing that when we are struggling to, A, find a definition and, B, find somebody to pay for this entire entity?

4138             So wonderful concept to remind them.  How do we build it, how do we pay for it?  And that is a struggle.

4139             COMMISSIONER CUGINI:  Do you currently use ADADs for your telemarketing campaigns?

4140             MR. REDELAAR:  I do not.


4141             MR. WATT:  Howard does, so he can ‑‑ so he can explain.

4142             MR. SLAWNER:  We use ADADs, but we do not use ADADs for solicitation purposes.

4143             COMMISSIONER CUGINI:  For what, I am sorry?

4144             MR. SLAWNER:  Solicitation to market.  We only use ADADs as permitted by the CRTC's rules on ADADs.  The overwhelming majority of ADAD calls are actually collections.  They are just automatic reminders that you are X days past due, please make a payment as soon as possible.

4145             The only other real time we ever use an ADAD is for prepaid phones.  If your minutes are about to expire we will send the message, just a reminder to use them, and those are the only two circumstances that we will do it.

4146             We don't send promotional campaigns or here's a new phone deal for you.  It is basically ‑‑ the overwhelming majority are for collections, just past due reminders.

4147             COMMISSIONER CUGINI:  And voice casting?

4148             MR. SLAWNER:  No, we do not voice cast.


4149             COMMISSIONER CUGINI:  As a telemarketer you do not use voice casting on either wireless or wire line in?

4150             MR. SLAWNER:  No, I don't believe so.  No, I am pretty sure.

4151             COMMISSIONER CUGINI:  Okay.  Mr. Chairman, those are all my questions.  Thank you.

4152             THE CHAIRPERSON:  Thank you.  I just have a couple of questions and then Commissioner Cram has questions and there may be others.  Mr. Slawner, you are the chairman of the operations subcommittee.

4153             MR. SLAWNER:  Yes, I am.

4154             THE CHAIRPERSON:  I get very nervous when I hear someone in that very eminent position speaking as if ‑‑ the period of time that a name is going to be on the list has some relationship to the rapidity with which phone companies circulate numbers.

4155             It seems to me very clear that by the time you are finished, the telcos, including your own, are going to be making periodic 30, 60 day submissions to the database saying these numbers are no longer active.


4156             MR. SLAWNER:  We will definitely look into that.  I mean that's going to be one of the topics of discussion to say whether or not carriers can, in fact, supply lists of disconnected phone numbers and we will definitely look into it, absolutely.

4157             THE CHAIRPERSON:  Yeah.  I mean I guess my question about how long a name should be on the list is premised on the idea that modern technology might somehow be capable of doing that.  I mean if we have the whole discussion on the amount of time people are going to be based on the list on the assumptions the telephone companies can't tell us when companies ‑‑ when numbers are circulating out, I think we do indeed have a serious discussion to have.

4158             But it doesn't seem to me that is a reasonable basis on which to have the discussion.

4159             MR. SLAWNER:  No, it is a very reasonable position and it is definitely one of the things we will tackle.

4160             We will take a look into how do we as carriers provide that information and look into the possibility of it.  It is just ‑‑ again, it is one of those nuts and bolts issues that we have to look into.


4161             THE CHAIRPERSON:  Mr. Redelaar, how will I explain to the Canadian public that the Canadian Bankers Association and the Canadian Marketing Association and Rogers in its vast and various incarnations cannot meet a grace period that has been operating in the United States for four years with hundreds and hundreds of telemarketers?

4162             MR. REDELAAR:  It is a great question we debated with it as well.  Wonderful.  I am going to answer that twofold.  The one is I've made a career out of signing up for something I can accomplish and I am concerned that if we put aggressive time lines, as I suggested and, based on technology today, I have to put the onus in a junior programmer mid‑month to do a scrub, I am setting myself up for failure.

4163             So if I am overriding marketing ‑‑ and I can see you are not buying it ‑‑ philosophy, it would be under‑promise, over‑deliver.  From a ‑‑

4164             COMMISSIONER LANGFORD:  That's the way he looks when he is enthusiastic.

‑‑‑ Laughter / Rires

4165             MR. REDELAAR:  Then I pity his wife.

‑‑‑ Laughter / Rires

4166             COMMISSIONER LANGFORD:  We all do.

4167             MR. REDELAAR:  "That was not a Rogers' statement," he is going to say.

4168             MR. WATT:  As you can see, we didn't bring our professional witnesses.

‑‑‑ Laughter / Rires


4169             MR. REDELAAR:  The real answer is, I would love to have a real‑time virtual system that linked the "do not call" list to my databases that linked directly to my telemarketing suppliers' diallers so that I could knock it out in real time.

4170             I would love to.  It doesn't exist.  I think it is something we would all like to move to in the future.  People speak to it, but it is not financially feasible, and, excuse my ignorance, but I don't even know if it exists today.

4171             Second, there is one major point that a lot of people have not addressed ‑‑ and I was not here yesterday.  In the first zero to, let's say, six months, we anticipate that there will be a lot of people putting their name on the "do not solicit" list.  Agreed.

4172             My process is, take the leads, subdivide them, allocate resources, and put those leads out to a supplier.  If all of a sudden 50 percent of those leads are wiped out throughout the month, I now do not have enough leads to support the resources I allocated.  I am now laying people off.  And, in our industry, they are going home without pay.


4173             So that upfront scrub process, which we haven't found a way to fix today, is actually driving the resources to support those leads as I lie them out.  If those resources dry out mid‑month, those people don't have work.

4174             That is the huge inhibitor for us right now to adhering to the 30 days.

4175             THE CHAIRPERSON:  So there are two answers.  The first is, you don't know what I will say to the public on the general question of why the Americans can do it more quickly than you can.  But you do have a policy for the first six months, which is that we should be reasonable.

4176             That's what you are saying.  I am not trying to put you in a corner, but, fundamentally, that is what you said to me.

4177             MR. REDELAAR:  I agree that it is a very difficult positioning statement.  I would love to have a better solution out there, so that I could ensure I get it right.

4178             My bigger fear, to reiterate ‑‑ and it is not going to help your cause ‑‑ is that, at least, I will get it done correctly.

4179             So I will be committing to a timeline that I will adhere to, and I promise you, with one source of scrubbing, I will get it right.


4180             MR. WATT:  The only thing that I would add is ‑‑ and it does not speak directly to the question, but it is related closely enough ‑‑ that is, when you reduce from 60 days to 30 days, as Mike has already said, it adds immensely to the cost.

4181             You might think that you are going to scrub twice a month instead of once a month, so you will double the cost.  No, it has to then go out into the field, and the cost will be more than doubled.

4182             Someone might say, "That's okay.  A doubling of costs is a fairly good trade‑off to get a list that is in half the timeframe," but that is not really the benefit you are getting.  You are getting the benefit of reducing the time from 60 days to 30 days for the incremental people added in that month.  The vast proportion of the ‑‑ whatever ‑‑ say there are 2 million numbers on the list, they will be on that list and they will be benefiting, but the cost will have doubled on an overall basis to improve the situation for the incremental customers coming in in that month, cutting their time in half.

4183             So it is, maybe, not as good an economic trade‑off as it might seem at first.


4184             When we spoke about it earlier today ‑‑ Mike has not spoken directly with the large American operations to know precisely how they do their telemarketing and what they had to modify in order to accommodate the 30 days.  That might be something in the intervening time period that we could do.  We could see if we could contact some of the companies that we have dealt with in the States to see if they would be willing to share some of that information with us.

4185             THE CHAIRPERSON:  Thank you for the information about the first six months, because I think it is relevant and something that we should be cognizant of.

4186             For the rest, it is sort of ‑‑ the Americans can do it, but we can't.  That is what you are telling me.

4187             I suggest to you, respectfully, that it is going to be a very hard sell.  You must understand that it is going to be extremely difficult for the CRTC to shoulder that particular explanatory burden, unless I have something a little more concrete than what I have heard.

4188             It is very, very simple.  You are saying that notwithstanding ‑‑ and not just you, but the CBA and CMA ‑‑ notwithstanding the relatively satisfactory functioning of an American piece of legislation, with 30 days, it takes us 60 days.  That is a real hard sell.


4189             MR. WATT:  I certainly understand your predicament.

4190             The other issue that we would raise ‑‑ and, frankly, I don't think that this should be the determining consideration, but it is a consideration ‑‑ that is, there was a substantial sum of money paid by the U.S. government to enable the establishment of the list.

4191             I think you would probably say, "That was establishing the list ‑‑ "

4192             THE CHAIRPERSON:  That is what I would say, yes.

4193             MR. WATT:  It seems to me that the issue is that your internal operations have to change, and that would be your cost consideration.

4194             I would presume that there was some efficient sharing of the connection cost between the DNC list and the companies.  We don't know the ins and outs of that, but it certainly would be a consideration.

4195             THE CHAIRPERSON:  Mr. Watt, are you seriously saying that you think part of the first appropriation by the FTC was used to finance the connection costs between the various telemarketer databases and the DNCL?


4196             MR. WATT:  No, I am not saying that specifically.  I assume that the first allocation went to, obviously, the design and the fundamental building of it.

4197             However, there are significant costs in order to connect to that system, and I am assuming that that system was designed in such a fashion, and constructed, and, in part, paid for by the government in order to make it the most economical ‑‑

4198             THE CHAIRPERSON:  I am terribly tempted to call one of the people, who is not intending to appear, so that she could tell us the facts on that.

4199             It seems to me a vanishingly small likelihood that the FTC was financing private sector compliance with the list, but we will leave it there.

4200             Commissioner Cram.

COMMISSIONER CRAM:  Thank you.

4201             I want to clarify one thing.  In your initial March brief you wanted, it seems to me, us both to prohibit telemarketing calls to wireless and to allow them to go on the list.  At least, that is the way I read what you wrote.

4202             But now, I heard you today, Mr. Watt, say:  Just allow them to go on the "do not call" list.

4203             MR. WATT:  No, we still wanted the application that we filed earlier to be approved ‑‑


4204             COMMISSIONER CRAM:  But that's voicecasting.

4205             MR. WATT:  Voicecasting, yes.

4206             COMMISSIONER CRAM:  I am talking about any telemarketing.

4207             If I understood you correctly, in your March brief ‑‑ maybe I misread it.  There is always that possibility.

4208             No, you just want it prohibitive of voicecasting, and then registering on the DNCL.  All right.

4209             On voicecasting, you will recall the last decision we made on the expedited file, with Infolink, I think, in Bell.  In that case, the evidence at the expedited hearing was that, to date, to that time, Infolink could only access the platform of Bell.

4210             It appears that the voicecaster can now get to your platform.

4211             Is that correct?

4212             MR. SLAWNER:  Yes, that is correct.

4213             We have received several complaints from customers who have received voicecasting.

4214             COMMISSIONER CRAM:  Are you aware of any other platforms that they may have been able to access?


4215             MR. SLAWNER:  No, I haven't researched that.  I just understand that they have been able to access our voicemail system, and I would assume that they could access others.

4216             Most of the voicemail systems are pretty similar.

4217             COMMISSIONER CRAM:  All right.

4218             I want to go back to the 30 days.  Is this your present process?

4219             MR. REDELAAR:  Correct.

4220             COMMISSIONER CRAM:  I am looking at the present rules, which are the old rules, the pre‑2004 decision, and the rules seem to say that, on internal "do not call" lists, names and numbers must be entered on the "do not call" list within 30 days of a request.

4221             MR. REDELAAR:  Yes.  What happens is, we do not send to our own customers two months in a row.

4222             If you are on a telemarketing calling list in January, you will not be on the February list.  That way we always comply with that 30‑day rule.

4223             COMMISSIONER CRAM:  That's how you do it.  All right.


4224             Do I understand that ‑‑ and I am looking at this ‑‑ every month, or every second month now, you scrub the list ‑‑ which, in my mind, means the added CMA numbers and the added Rogers numbers.

4225             Is that what scrubbing really means?

4226             MR. REDELAAR:  Every month ‑‑ you were correct the first time, because we do this on the 15th of every month for the following month's list; and, yes, every month we scrub it against the most updated "do not solicit" list from the CMA.

4227             COMMISSIONER CRAM:  But you don't have to go through the list in its entirety, you just have to go through the additions, don't you?

4228             MR. REDELAAR:  I wish it was that simplistic, but, actually ‑‑ and I think this comes back to the Chairperson's point ‑‑ you are looking for a reason why we cannot facilitate this.

4229             Sitting through Howard's and the CISC group's ‑‑ and this is not meant to be an aggressive statement, but you are asking me to adhere to a process that hasn't been defined yet.


4230             Maybe there is technology or there are processes out there so that I can go directly to my suppliers and do the monthly scrubs.  That does not exist today, certainly within the CMA guidelines, or their list.  What we do is, we actually get an updated list every month.  So we are starting from scratch every month.

4231             COMMISSIONER CRAM:  So you compare to see if Abigail Andrew is still on the list, or whatever, the number ‑‑

4232             MR. REDELAAR:  We would take the list ‑‑ and I am speaking a little bit out of my scope of expertise here, because it is such a natural process for us that I haven't addressed it in many years.

4233             We would take the entire entity on a monthly basis, which is, again, why I leave that cornerstone, so I don't have to have that entire entity going to all of my suppliers.

4234             They would take that entire entity, and every list that comes in, through the purchase list, or even our internal "do not solicit" list, we would then start from scratch and take all of the lists that we plan to use this month and scrub it between the 15th and the 26th.

4235             It is a constant ‑‑ it is numerous ‑‑ take all of the individual lists and scrub them against the external and the internal "do not call" lists.

4236             So we are starting from scratch every month.

4237             COMMISSIONER CRAM:  Every month.


4238             MR. REDELAAR:  Yes.

4239             COMMISSIONER CRAM:  Surely there has to be something more efficient than that.

4240             MR. REDELAAR:  I sure hope so.

4241             But, as we say that, the discussions in the committee group are that they don't even want to give us access to the lists.

4242             So are we now going to have to send them in and have them scrubbed?

4243             MR. SLAWNER:  No.  That was the suggestion of some of the parties on the call.  That was not the decision.

4244             MR. REDELAAR:  All right.  I thought we were here to address all of the suggestions.

4245             THE CHAIRPERSON:  At this stage it is Mr. Slawner who is responsible.  You know that.

‑‑‑ Laughter / Rires

4246             MR. REDELAAR:  We don't sit closely together at the office.

4247             COMMISSIONER CRAM:  I take it that you didn't take the opportunity to have a little talk with Mr. DesBrisay after he was here?

4248             MR. REDELAAR:  No.


4249             COMMISSIONER CRAM:  And I take it that you haven't taken the opportunity, before coming here suggesting 60 days, to talk to any of your American counterparts to find out how they do comply.

4250             MR. REDELAAR:  Unfortunately, as we stated earlier ‑‑ and as much as I feel like I am taking a beating here ‑‑ you are correct.

4251             COMMISSIONER CRAM:  Yes, you are taking a beating all right.

‑‑‑ Laughter / Rires

4252             COMMISSIONER CRAM:  On your internal "do not call" list, do you include business?  Do you allow businesses to register?

4253             MR. REDELAAR:  We actually do allow businesses to register on our Rogers "do not solicit" list.

4254             COMMISSIONER CRAM:  Has that impacted your business in a material way?

4255             MR. REDELAAR:  It has not.

4256             COMMISSIONER CRAM:  Thank you.

4257             Those are my questions.

4258             THE CHAIRPERSON:  Commissioner Duncan.


4259             COMMISSIONER DUNCAN:  I would like to pick up on Mr. Watt's point that perhaps you could contact a company or companies in the U.S. that are your equivalent size, to have some preliminary discussion, as you mentioned, and maybe undertake to give us back that information, to see how it might influence your thoughts.

4260             We have been asking for undertakings to be submitted within the next eight to ten days.

4261             Would that be reasonable to ask of you?

4262             MR. REDELAAR:  I believe we had the same recommendation in the working groups, to actually find out.

4263             Howard?

4264             MR. SLAWNER:  We will undertake within ten days to provide you with an answer.  We will speak with some of our American counterparts to see if we can determine that.

4265             COMMISSIONER DUNCAN:  At least some idea, because there is no point in wasting all kinds of time on 60 if we can meet the 31 and it is practical to do so.

4266             MR. SLAWNER:  Yes, we will definitely take that undertaking, speak with them and get back to you.


4267             COMMISSIONER DUNCAN:  I was just trying to understand, on the Rogers list, as Commissioner Cugini was asking you, if I asked to be put on a "do not call" list, how does that work with getting the list scrubbed once a month?

4268             I don't quite understand how that goes together.

4269             MR. REDELAAR:  Your question is, it adheres to the same process, so, therefore, we must be missing the window.

4270             How we actually don't miss the window is, we never call the same customer two months in a row.

4271             COMMISSIONER DUNCAN:  Actually, you are giving me more credit than I probably deserve.

4272             The list that you are going to get from ‑‑ of course, you don't have that at this point.

4273             The list you are scrubbing against ‑‑

4274             MR. REDELAAR:  I am going to call two lists.  I am going to call our existing customers and I am going to call cold‑callers.

4275             COMMISSIONER DUNCAN:  And you are scrubbing your internal Rogers list against those proposed lists.

4276             Do I have it right?

4277             MR. REDELAAR:  Exactly.

4278             COMMISSIONER DUNCAN:  That's fine.  Thank you.


4279             THE CHAIRPERSON:  Commissioner Langford.

4280             COMMISSIONER LANGFORD:  I might as well kick you while you are down.

4281             I'm just getting Woodhead ready for tomorrow.

‑‑‑ Laughter / Rires

4282             COMMISSIONER LANGFORD:  I want to ask, first of all, a question on your understanding of what the future might look like.

4283             Right now you have your own internal Rogers list, but you are also scrubbing the CMA, as dictated by the CMA list.

4284             Once there is a national "do not call" list, can you drop the CMA list?

4285             MR. REDELAAR:  That's a good question.  It is the first time it has been posed.

4286             Absolutely.  I mean, are they not ‑‑

4287             COMMISSIONER LANGFORD:  I don't see the point of it.

4288             MR. REDELAAR:  They are fully redundant.

4289             COMMISSIONER LANGFORD:  All right.  So now we have saved you some time.


4290             MR. REDELAAR:  Can I retract my answer?

‑‑‑ Laughter / Rires

4291             COMMISSIONER LANGFORD:  You can, but I will treat it with a certain amount of scepticism.

4292             I would like to push Commissioner Duncan's ‑‑ or attempt to get you to agree to have me push Commissioner Duncan's request for an undertaking a bit further.

4293             In light of the ground we have been able to cover today ‑‑ and I have huge sympathy.  You have come here as the good Samaritans, but there is a lot of precedent going back to Biblical times of what happens to good Samaritans.  It doesn't always work out for them.

4294             You have come here to instruct us and to give us your processes and the best understanding you can, and we are trying to perhaps push you a little.  But I think what we are actually trying to do is push our own understanding.

4295             I think, as Chairman French said yesterday, it is now or never for us.  This is the process and we have to understand it.


4296             I don't want you to agree to this if there is some real problem to it, but maybe we could work on something of what I am looking at, and you can add to it.

4297             Could we take the kind of general undertaking you have already given to study the American process and see what you can do with it a step further and ask you to recreate something like this, if possible?

4298             Even if you can't do it.  Even if the end is:  This is what we would have to do to do it in 31 days, and we can't for the following reasons.

4299             Or:  This is what we would have to do.  We can do it, but it would mean a 40 percent increase in our costs, or something.

4300             Something that would give us a really hard understanding, finally.

4301             I guess that basically what I am coming down to is, the more clearly you can recreate this on a 31‑day basis, the better.  Even if it needs the proviso built on what one of you said, and I forget, saying:  Maybe the first six months will be a horror show.  We can't do it then, but we can click in.  We can have some milestones, or something like that.

4302             That's good too.


4303             We are looking for some practical advice, because we have people who have come before us ‑‑ for example, the Consumers' Association ‑‑ and they have studied this to the best of their ability, and their first notion was:  seven days.

4304             Looking at it harder, trying to put some water in their wine, they have moved to 30 or 31, and they can live with it for awhile.  They would still prefer seven, because it mirrors our fax regulations.

4305             I think that what I have heard here over two days is a lot of struggling over this.

4306             You have been the good Samaritans.  You have come here and you have given us something that we can analyze and study and come to grips with.

4307             Would it be fair to ask you to go back and see what you can do with the Americans?

4308             I know it would be some work for you to look at it, but it may pay dividends somewhere down the line as a new matrix somewhere.

4309             Would that be a fair thing to ask you to undertake to do in the next ten days or two weeks?

4310             MR. WATT:  I will take the first shot at it, and then I will pass you to Mike.

4311             We are certainly willing to give it our best effort.  Having said that, we have to find an American company that wants to share the details of their operation with us.  I don't know whether we know one of those.


4312             We used to have a close relationship with one of them, an ownership position, but they subsequently have been bought by another party.

4313             So we are somewhat ‑‑ notwithstanding my earlier undertaking, we are groping a little bit in the dark.  We hope we can find a company that would do that.

4314             If we do find a company that would do that, we would certainly be willing to compare what they do to what we do and try to determine what the incremental costs would be.

4315             COMMISSIONER LANGFORD:  The man sitting in sartorial splendour right behind you has some contacts in the United States through the insurance industry.  He might be able to put you onto somebody, if I could suggest that.

4316             MR. WATT:  We could certainly speak to him afterwards.

4317             I can't see whether he is nodding or vigorously shaking his head at the current time.

‑‑‑ Laughter / Rires

4318             COMMISSIONER LANGFORD:  He hasn't left the room.  Put it that way.

4319             MR. WATT:  I think that is pretty much what we could commit to today.


4320             MR. REDELAAR:  I would like to reiterate a couple of points.

4321             I know you said that I wasn't allowed to retract my answer, but you asked that if the CMA goes away, and this one comes in, would it save me time.

4322             I erroneously answered yes.  It is not a saving of time, it is just a change of one task to another.

4323             So I am retracting my statement.  It was made in mistake.

4324             COMMISSIONER LANGFORD:  But you are not adding a third list, you are still with two.

4325             MR. REDELAAR:  Exactly.

4326             COMMISSIONER LANGFORD:  One may be a bit bigger than the other one used to be, but still...

4327             MR. REDELAAR:  Exactly.  It will be.  There is no question.

4328             Then, the second point is, to define a 31‑day process really comes ‑‑ and, again, our mistake for not really taking the time to understand the U.S. model.  I am not sure how we will approach that, but we will approach it.


4329             But until we have a pure definition of what is going to be provided, it really does come down ‑‑ and I can't emphasize it enough ‑‑ it comes down to taking the onus from my one subcontractor supplier that does database management for a living, and moving it into a bunch of suppliers that do call centre telemarketing for a living.

4330             That is the true stress of moving from a 60 to a 30.  That is what I would need to understand in the American model.

4331             COMMISSIONER LANGFORD:  We hear you, and we are not asking for this research to be done in affidavit form or anything like that.  But if you can get back to us with something, I think it could only be helpful, particularly in light of the confusion that we are facing, the sort of comprehension barrier we are facing, simply with a doubling of time here on the north side of the 49th.

4332             Those are my questions.  Thank you, Mr. Chair.

4333             Thank you, gentlemen and ma'am.

4334             THE CHAIRPERSON:  Thank you, Commissioner Langford.

4335             Commissioner Duncan.

4336             COMMISSIONER DUNCAN:  I have a few more questions on this.


4337             You are doing 40 lists at one time, approximately.

4338             I am sure that you have probably looked at this, but I am wondering, looking at the lists, if they were broken into ‑‑ just for discussion ‑‑ 10 lists at a time, how many days could you save from each step?

4339             Then, if you backed up your callback activity into the last week of the month, would that be a reasonable thought?

4340             MR. REDELAAR:  I also looked at opportunities to shorten the window.  The struggle with the upfront list processing is that they are very mutually exclusive events.

4341             First you need to get the lists in.  Then you need to scrub them from the "do not call" list.  Then you need to scrub them from the Rogers list.  Then, once you have your base, your real analytics begin in our enormous world.

4342             Then you are really saying:  Okay, this is our entity.  That entity now has to be ‑‑ there is usually some kind of predictive modelling or something in place to bring it down to useable works.


4343             Then, once it is a final entity, it is:  Okay, how do we align the resources of the major players out there and say, "Okay, take 110,000 of these.  Put them here.  Take this and this."

4344             So even though it looks like ‑‑ it is a long timeframe, and it really is a lot of work to take a list, scrub it, and then ‑‑

4345             The one point I missed is, now we also have to scrub it against everybody we called in the last month, because we don't call two months concurrent.

4346             Sometimes we don't call within a 60‑day period, based on the aggressive nature of the call, if it is more cold calling.

4347             So all of those rules, unfortunately, really do restrict us, unless ‑‑ if we can get the CRM database in, it will allow us to do many of the logic points here in one flash, instead of scrubbing against scrubbing against scrubbing.

4348             That is where we want to go to.  So there is certainly a potential to shorten that window, and we would love to, because it handicaps even my world by not doing it.

4349             Everything we can do to handicap ‑‑ but unfortunately those timelines are needed today.

4350             COMMISSIONER DUNCAN:  Which database was it that you were referring to getting in that would influence it?


4351             MR. REDELAAR:  We are creating an internal ‑‑

4352             COMMISSIONER DUNCAN:  Oh, your new ‑‑

4353             MR. REDELAAR:  Yes, that will literally allow you to do a set of queries at once, as opposed to one query at a time.  That will certainly shorten that upfront cycle.

4354             That is where we need to be.

4355             Unfortunately, not to knock our IT team, we have been working on it for five and a half years.

4356             COMMISSIONER DUNCAN:  Do you think, in the next six to twelve months, that might be available to you?  Or is that the wrong department?

4357             MR. REDELAAR:  Are you asking me about the project ‑‑

4358             COMMISSIONER DUNCAN:  We have noted that answer.

4359             MR. REDELAAR:  Yes.  Is it the project plan, or is it my comfort level in the project plan being adhered to?

4360             Yes, we are making strides, there is no question.

4361             COMMISSIONER DUNCAN:  Thank you.

4362             THE CHAIRPERSON:  Counsel.


4363             MR. MILLINGTON:  Thank you.

4364             The bad news is that I have a bunch of questions, but the good news is that none of them have to do with the implementation period of 30 days or 60 days.

4365             First of all, you indicated in your remarks this afternoon that you do put businesses on your own internal "do not call" list.

4366             Is that correct?

4367             MR. SLAWNER:  Yes, we do.

4368             MR. MILLINGTON:  And yet, in your paper of March 27th, you advocate that businesses not be subject to the "do not call" list.

4369             I am wondering why you would put them on your own list, and how you would reconcile the inconsistency?

4370             MR. SLAWNER:  I don't think that it is actually inconsistent.  Businesses are very different from consumers.  I think that the outcry for a national "do not call" list which basically is a prohibition on contacting businesses has never been made.


4371             I think that it is ill‑advisable to create a "do not call" list for businesses, but I think that it is actually complementary ‑‑ that our internal list is complementary to the national list.

4372             So if a company really does not wish Rogers to contact them, if they are cancelled on our internal list, I still don't believe that they should go on a national "do not call" list.

4373             One, I don't think that businesses have been calling for this, and I think the impact would be far different than it is when you contact the consumer at home during dinner.

4374             MR. REDELAAR:  I could actually make that more simplistic for you.

4375             At the end of the day, if somebody calls you and says, "Please don't have anybody from Rogers call me," it is your natural instinct to take them off the list.  It is goodwill.  Why wouldn't you want to do that.

4376             That is a very different process than allowing people to literally remove themselves from all calling by just saying, "I heard this piece of advertising, and I am just going to remove myself."

4377             The ramifications of both of those entities are very different.


4378             MR. MILLINGTON:  But aren't you assuming that the business owner who says, "I want to go on the national "do not call" list," is somehow not aware of the fact that they are opting out entirely from telemarketing?

4379             Because I think what you are saying is, when you specifically say, "I don't want to go on your "do not call" list," you have identified a specific organization and you say, "I am happy to be telemarketed by everybody, save and except for Rogers," or whomever you have contacted.

4380             But couldn't the business owner say, just as easily, "I don't want to be telemarketed, period, and I want to go on the national "do not call" list.  I don't care if it is Rogers or Bell or Joe's Dry Cleaning, I don't want to be there.  I don't want to be telemarketed."

4381             MR. REDELAAR:  Yes.

4382             MR. MILLINGTON:  Why isn't that as valid a decision as it is in respect of your own individual organization?

4383             MR. WATT:  When they have spoken to us, we will take them off.  We think that is the appropriate thing to do.


4384             For many of the reasons that other people have expressed today, we don't think that a national "do not call" list for businesses is necessary or desirable.  There would be tremendous implications, we think, for the development of commerce.  We do not believe that it is as intrusive to a business as it is to a consumer.  They are being phoned in their place of business, they are not being phoned at dinnertime, et cetera.

4385             We believe that if businesses are that disrupted by the telemarketing they receive, they will place themselves on the individual "do not call" lists of the business organizations that are phoning them.

4386             MR. REDELAAR:  To add, I think we would be creating an issue that just doesn't exist.  We are literally suggesting to the business community that this is a problem, and from somebody who personally handles a lot of customer issues, they are not business issues.  And I have been doing it for 18 years.

4387             MR. MILLINGTON:  But the fact that some businesses have contacted you and asked to be put on your "do not call" list is proof that, in fact, it is an issue for some businesses.

4388             MR. REDELAAR:  I disagree.  That is a Rogers issue.  They now have a Rogers discomfort.  That is not a telemarketing discomfort.


4389             They have some kind of relationship stress with Rogers and have asked to be removed from Rogers calling.

4390             To me, that is a separate entity.

4391             MR. MILLINGTON:  So you are going to parse out that the guy who goes on the Rogers "do not call" list is all about Rogers and not about telemarketing.

4392             MR. REDELAAR:  In the few experiences that I have had with businesses, it is frustration with Rogers in some way, not receiving phone calls.

4393             MR. MILLINGTON:  All right.

4394             Has Rogers ever put itself on a "do not call" list for any other company?

4395             MR. WATT:  No one on this panel would be aware of that.

‑‑‑ Laughter / Rires

4396             MR. WATT:  Whether our purchasing department has done that, I don't know.

4397             MR. MILLINGTON:  Could you undertake to get back to us on that?

4398             MR. WATT:  Certainly we can do that.

4399             MR. MILLINGTON:  As a follow‑up to the business telemarketing, your products, at least on the cellular side, are some of the few products that are marketed to both businesses and consumers.


4400             We were, in the last couple of days, talking about ‑‑ if we were to entertain a carve‑out for business‑to‑business and elaborate on some guidelines around business‑to‑business telemarketing, and we wanted to look at that, we were trying to figure out ‑‑ there are, clearly, some products and services which are consumer oriented and would be easily identifiable, and there would be some at the other end that would be very business‑oriented products.  I am thinking of tires for Caterpillar vehicles.  That is not a consumer item.

4401             But your product line, particularly on the cellular side, and your mobile products, fits into both camps quite clearly, and you have big customer bases on both sides.

4402             Do you have anything that you could offer up to us in terms of guidelines with respect to telemarketing to businesses, if we were to develop those guidelines, that would somehow help us in framing how we would treat those two constituencies differently?


4403             If you were suggesting to us that we should carve out businesses, how do we deal with the size of the business, and what kind of rules, and so on, would be applicable to businesses in telemarketing that would differentiate them from consumer telemarketing?

4404             You don't have to have them this moment.  If you want to get back to us on that ‑‑

4405             MR. SLAWNER:  I'm sorry, I am not quite clear on what we are supposed to provide you.

4406             MR. MILLINGTON:  If, theoretically, we wanted to come up with a regime that would allow ‑‑

4407             At this point in time we are saying that telemarketing is available to businesses.  If you want to say that the "do not call" lists, and certain provisions under the Act, apply to telemarketing to businesses ‑‑ and you are not in favour of that.

4408             So if we were to go down that road and somehow develop a set of guidelines that would remove businesses from the prohibition, what would those guidelines be?

4409             MR. WATT:  Frankly, we don't think that we are a particularly qualified entity to give you any further advice on that.

4410             In light of the other undertaking that we have provided, we think that we might be biting off more than we could chew.

4411             MR. MILLINGTON:  All right.


4412             Also in your March document you indicated that only the telemarketing organizations should be held accountable for the DNCL rules, and that the companies that retain the telemarketing companies should not be, and you make reference to the fact that many of the contract telemarketers are large, sophisticated enterprises and they should bear the responsibility for compliance with the rules.

4413             Could you give us a bit more depth as to why you think that the companies that actually contract with those telemarketers should not also be liable?

4414             In the case, for example, where a telemarketing organization flaunts the rules, and our end perhaps is not a particularly substantial organization, and sort of can rise in many forms and variations, and can basically avoid ‑‑

4415             It would be hard for us to sanction, because they don't really ‑‑ they are not in the environment long enough for us to really regulate.

4416             Some companies could avoid discipline, let's say, or sanctions, simply by using these kinds of telemarketing organizations that are not really viable.


4417             MR. SLAWNER:  I think that any liability or responsibility for breaching a rule or making a violation should lie with who was responsible for the violation.

4418             For example, we like to keep our list central to us.  So if we made a mistake when we did the creation of a list in scrubbing, then I can understand how the responsibility would lie with the seller, if we provided the list.

4419             However, I am sure that in many cases there would be a telemarketer who would say to another organization, "We will telemarket for you," and they would break all the rules, and they wouldn't follow DNCL, and the seller would be ignorant of these facts.

4420             I think that a lot of these telemarketers do have the sophistication to take responsibility if they go ahead and break the rules.

4421             I think it is very hard to start blaming a seller who is unaware of the activities of a third party that they hire, especially when that third party probably has more experience in telemarketing than they do.

4422             MR. MILLINGTON:  But perhaps the seller is seeking out telemarketers who they know will break the rules.


4423             Maybe there are telemarketers out there that are going to play fast and loose, and there are sellers out there who want to use that specific type of telemarketer.

4424             If there is no ability to reach through the telemarketer to the selling organization, then does that not remove a significant form of sanction from the whole regime?

4425             MR. SLAWNER:  There will always be unscrupulous organizations and people out there.  I still find it very hard to hold an organization responsible that takes all of the steps to comply with the rules, and unfortunately, for whatever reason, a third party that they contracted with decided that they wanted to save money and would not comply with the "do not call" list.

4426             To look at the worst case scenario of somebody who is trying to avoid the rules by hiring intentionally a shady organization, I don't think it would reflect on the industry very well.

4427             MR. MILLINGTON:  All right.

4428             I want some clarification on the point with respect to the inclusion of wireless phone numbers on the Canadian DNCL.

4429             Are you suggesting that, de facto, right out of the gate, all wireless numbers go in there?


4430             MR. SLAWNER:  No, not at all.  If someone wants to register their wireless phone number on the DNCL, it should be accepted.  It should not be excluded.

4431             MR. MILLINGTON:  All right.  Thank you.

4432             Those are my questions.

4433             THE CHAIRPERSON:  I think that concludes ‑‑ are there any more undertakings you wish to raise with Rogers, madame le secrétaire, s'il vous plaît?

4434             THE SECRETARY:  No.

4435             THE CHAIRPERSON:  Mr. Watt, and fellow panel members, thank you very much.  It's been very helpful.  We appreciate your coming here and responding so frankly and weathering the storm so elegantly.

4436             Thank you.

4437             MR. WATT:  Thank you very much.

4438             THE CHAIRPERSON:  Do we have Mr. Obermeyer or Mr. Gahan here?

4439             Right.  I think we will proceed to hear which of the two, first or second, Mr. Obermeyer or Mr. Gahan?

4440             Great, Mr. Obermeyer, we will hear you next.


‑‑‑ Pause

4441             THE CHAIRPERSON:  Mr. Obermeyer, as you may have noticed, the normal course of proceedings is that you would take up to 10 minutes to make a preliminary statement, and then we will ask you questions and try to explore with you the issues that concern you.

4442             If that suits you, please, feel free to go ahead.

4443             MR. OBERMEYER:  Sounds good to me.  I was expecting maybe a whistle or a dropping of a button or something.

‑‑‑ Laughter

4444             THE CHAIRPERSON:  No.  Well, Commissioner Langford does some good imitations, but we won't subject you to them.

4445             COMMISSIONER LANGFORD:  If you will allow me, though, I could do an imitation of an adviser.  It won't come out of your time.


4446             This looks very much like what we have already got in written form, just quickly glancing at it, and if it is, I just want you to know it doesn't stop you from reading it again, but it's already on the record.  What we have is already on the record, so if you want to read it again, that's fine, we will have it on the record twice.  But if you want to just go through it and emphasize and work with it as a kind of a presentation plan, that can be effective, as well.

4447             MR. OBERMEYER:  I would like to do so.

4448             I might ask, before we start the official record of this proceeding, that my personal name not appear in relation to these comments.

4449             I have made that request on several occasions on the past, and my reason for doing so is not that I wish to remain anonymous, not that I wish not to be associated with these comments by this Commission, but that I wish to remain protected from retribution, which has, in fact, already begun.

4450             THE CHAIRPERSON:  Well, Mr. Obermeyer, I guess I will have to ask counsel, cause I don't think there's anyone on this panel who's in a position to advise you in that regard.  It seems to me unlikely that we can give such a guarantee.


4451             MR. MILLINGTON:  Well, I think that it's kind of the water is already under that bridge.  You are here, your name is out, it's on the public record, and I don't see how anyone can come before a public proceeding of this type and make a presentation, in fact ‑‑ either in writing prior to this ‑‑ without having your name being associated with the presentation.

PRESENTATION / PRÉSENTATION

4452             MR. OBERMEYER:  I suppose that is your answer.  Okay, I will begin.

4453             I'm not going to read my little introduction, which talks about why I am here and who I claim to be representing.  I think everyone's quite familiar with that piece.  I would like to state why I'm taking the trouble to be here.

4454             We are participating in this proceeding in the hope that the CRTC will build an effective system to curtail unwanted telemarketing as quickly and inexpensively as possible, as directed by Bill C‑37.  We hope that the result will be self‑sustaining and not require funding from the people of Canada, through the federal government, or any other level of government.

4455             Let's take a second to establish some facts for the record.  All those who enjoy receiving telemarketing calls who are present in this room, please, raise your hands now?

4456             Let the record show that there were two hands raised, one in jest.


4457             Of those who have raised their hands, how many undertake to reveal their home and cell phone numbers by legibly writing them on a piece of paper and delivering them to me within the next five minutes to be read into the public record?

4458             Let the record show that out of 48 people in the room, zero hands remain raised.

4459             Let's talk about the success criteria for this endeavour.  Our definition ‑‑ oh, by the way, I assume that means I'm now speaking for everyone in this room.  Congratulations, and welcome to the 97 percent.

4460             Our definition of a successful DNCL is one which would enable any Canadian citizen to permanently stop all unwanted telemarketing calls to their home with less than five minutes of effort at no cost to the subscriber and with no possibility of retribution by the telemarketing industry.

4461             Every single telephone subscriber in Canada must be given the choice of being protected by the DNCL.  Every single Canadian must be able to register for the protection of the DNCL without risk of their confidential information being revealed by the CRTC or their agent.


4462             Why the DNCL shall never be downloaded to a telemarketer.  Bill C‑37 states that the Commission shall be permitted to prevent undue inconvenience from nuisance, giving due regard to freedom of expression.

4463             Our freedom to express our wishes with regard to the undue convenience or nuisance of unwanted telemarketing must not be limited by the technical or procedural implementation of the DNCL.  A subscriber's telephone number is confidential information.

4464             Obvious examples include unlisted numbers, cell phone numbers, emergency telephone numbers, health facilities.  The numbers of the people in this room are considered personal and confidential by every member who is present in this room, bar none.  They have all agreed.

4465             If a subscriber must reveal confidential information, including their telephone number, to the CRTC or its agent to enable that subscriber to participate in the protection of the DNCL, then this confidential information must never be revealed to anyone.  In particular, a registered subscriber's telephone number must never be provided to any telemarketer by the DNCL operator.


4466             Now, I'm using some fairly strong words there, words like "shall" and "must", because I truly believe that to comply with Bill C‑37 that's the only way to do it.  You have got to keep our numbers secret.

4467             Cost‑recovery implications of a downloadable DNCL.  Once downloaded, a copy of the DNCL could be easily shared amongst unscrupulous telemarketers, much as a downloaded MP3 file or files have been shared in the past through programs such as Napster.

4468             Telemarketers can easily share the downloaded DNCL files, and this would remove their incentive to pay for the use of the DNCL.  Telemarketers could easily aggregate their use of the DNCL and avoid paying their fair share of the costs.  We have reason to believe that some unscrupulous organizations may then offer a grey or, if the CRTC chooses to regulate it, a black market in DNCL aggregation services.

4469             How many registered users of the USA's FTC DNCL actually pay for their usage and how many telemarketers are actually using the FTC DNC information?


4470             We suggest that the definitive answer to the first of these two questions should be easily obtainable from the FTC DNC registry operator, and we request that the answer be provided to the DOWG and entered into the official record.

4471             We would hope that the number of telemarketers who actually use the FTC DNC registry information would be equal to the number of non‑exempt telemarketers in the USA.  We suspect, however, that this is not the case.  We note that the USA's FTC DNC registry reported large financial losses in its first year of operation.

4472             Why numbers registered on the DNCL shall never expire.  The stated intent of Bill C‑37 is to prevent undue inconvenience or nuisance.  We respectfully submit that the undue inconvenience and nuisance Bill C‑37 refers to is the inconvenience and nuisance experienced by telephone subscribers when they receive unwanted marketing calls.

4473             Just a clarification of the way we read Bill C‑37.  If registrations are allowed to expire and the DNCL is provided as a downloadable file of any kind, including the proprietary, highly proprietary, commercial format suggested by some parties, it would be a trivial matter for anyone with access to a computer to automatically compare successive copies of the DNCL file and extract lists of expired numbers.


4474             This would put the CRTC into the embarrassing position of having provided the telemarketers with convenient and uncontrolled access to a list of numbers which may be called.  Again, we respectfully submit that the intent of Bill C‑37 is that the CRTC create a "do not call" list.

4475             Demanding that we comply with a piece of legislation should not really even be necessary.  We demand that a telemarketing industry lobbyist not be allowed to pervert ‑‑ not subvert, but pervert ‑‑ in our words, the DNCL into a "do call" list.  If the CRTC allows this to happen, it would be exactly the opposite of what the Bill C‑37 intends.

4476             What happens if the CRTC proceeds with the downloadable‑file approach to the DNCL?  We have contributed to the DOWG a detailed calculation of hidden mandatory costs to telemarketers.  The hidden cost of every business in Canada being required to obtain a computer, sufficient proprietary software and internet connection is initially $4 billion, based on about 2,500 bucks per business ‑‑ I have heard a $25,000 figure today, so I'm off by a factor of 10.  Make it $4 billion, whatever ‑‑ with ongoing annual costs of $500 million.  And, of course, that would scale appropriately based on new information.


4477             No dispute of these figures has yet been made at DOWG meetings ‑‑ well, I will strike that last bit, there is better information now.  It's $25,000 per business times 2 million businesses.  Do the math.

4478             Telemarketers will have every incentive to defray these costs by avoiding proper payment to the DNCL operator.  Canadian's confidential information will be leaked to telemarketers by the CRTC.  Enforcement will become very problematic.

4479             How to do it once and do it right, please?  Telemarketing industry lobbyists typically defend telemarketing as freedom of speech.  We submit that their right to punch stops exactly where our noses begin.  Telemarketers have no right whatsoever to use any equipment which subscribers own, in other words, our telephones or telephone service that a subscriber pays for, to intrude into the subscriber's home against the subscriber's wishes.

4480             THE SECRETARY:  Mr. Obermeyer, you have one minute left.


4481             MR. OBERMEYER:  We are more adamant in this assertion if we have explicitly directed them to refrain from doing so.  There is an exceptionally straightforward solution to balancing the peace and privacy of the subscriber with the freedom of expression of the telemarketer.  The DNCL shall be offered as a national DNCL service.  The DNCL should accept small lists of numbers from telemarketers, and then indicate which ones are permitted for that telemarketer to call, and for what purpose and period of time that permission is given.

4482             The national DNCL service may be readily constructed using non‑proprietary technologies and delivered through IVR for low‑volume, web browser for medium volume or web service for high‑volume, automated usage.

4483             Telemarketing is possibly defensible, but only to willing subscribers.  Unwanted telemarketing is completely indefensible.  It does not create meaningful employment, but instead diminishes the value of our lives, as well as the lives of those who are paid to place the unwanted telemarketing calls.

4484             If you were to add up all the time Canadians spend each year fielding these intrusive useless sales pitches, it's about 87 entire human lifetimes per year.  The effects are defused over our population, but that makes it no less disgusting.


4485             Please do not stand by again while the telemarketing industry lobbyists run amuck, defining the rules for the CRTC and turning the legislation inside out.  The CRTC does not report to the corporations.

4486             We would ask now that you picture a mother or father holding their baby and trying to prepare something to eat after a long day of work, picture another baby sleeping peacefully, et cetera, et cetera, then the phone rings.  Bedlam.

4487             I would ask now for a moment of silence, in respect of those 87 Canadian lifetimes, entire lifetimes, birth to death, on average, about 73 years, 87 of them, per year, being wasted on an ongoing basis.

4488             Moment of silence done.  Thank you for listening.

4489             THE CHAIRPERSON:  Thank you, Mr. Obermeyer, for taking the trouble to be with us and to raise these issues.

4490             Commissioner Cram.

4491             COMMISSIONER CRAM:  Thank you, Mr. Obermeyer.  Thank you for coming.

4492             I have been in this business for a good number of years and I know there are a lot of acronyms in telecom, but what is DOWG, I'm sorry?

4493             MR. OBERMEYER:  Oh, that's the DNCL, which is the "do not call" list ‑‑


4494             COMMISSIONER CRAM:  Yeah.

4495             MR. OBERMEYER:  ‑‑ Operations Working Group.

4496             THE CHAIRPERSON:  CISC.

4497             COMMISSIONER CRAM:  Oh, CISC.  Okay.

4498             MR. OBERMEYER:  Okay.

4499             COMMISSIONER CRAM:  That's the acronym we use.  You know, we have got 900 acronyms and, you know...

4500             COMMISSIONER LANGFORD:  That's the way you spell "dog", isn't it?

4501             COMMISSIONER CRAM:  Yeah.

4502             COMMISSIONER LANGFORD:  You see, I use the TLAs, three‑letter acronyms.  These four‑letter ones are tough to get my head around.

4503             COMMISSIONER CRAM:  Okay.


4504             So I start with your paragraph 13, and your idea is that ‑‑ and I will call them the DNC operator ‑‑ starts with all of the phone numbers in Canada, right, and you want the whole thing reversed.  Is that where we are coming from, that if you don't want your number released, the DNC operator would block, and if you have given explicit written confirmation, the DNC operator would give "do call" lists to people?  Is that the structure you are looking at?

4505             MR. OBERMEYER:  No.  And I think, actually, that's a line of thinking which has been maybe perpetrated on us by previous implementations by other countries.

4506             I'm not proposing that all the telephone numbers in Canada, at least in this specific contribution, start off as being "do not call".  What I'm proposing is that, if I choose to put my unlisted telephone number into the "do not call" list, a place where I would think an unlisted telephone number has every right to appear, that the CRTC should not then turn around and deliver my unlisted telephone number to a telemarketer as a number not to call.

4507             It's kinda like, "Here it is.  Here it is.  Don't call it.  Don't call it".  Does that make sense?

4508             COMMISSIONER CRAM:  Yes, I see.  And the same with cell phones that aren't in directories?


4509             MR. OBERMEYER:  Absolutely.  And the same with the personal telephone numbers of every person in this room.  We all seem to agree that a telephone number, in some context, can represent a piece of confidential private information, depending on the other information that it's associated with.  That determines the context.

4510             COMMISSIONER CRAM:  Okay, so let's take that a little step further.  Say I have a cell phone ‑‑ or you have a cell phone, and you file the number of the cell phone with the "do not call" list, and it's not a ported number so we don't have to worry about it having originally been in a wireline, how do we then ensure that it won't be called if it's not released to the telemarketers?

4511             MR. OBERMEYER:  That's an excellent question, and it really points out the difference in what I would describe as archaic legacy systems, which are built using old technology that rely on many synchronized databases, versus a modern implementation of a database system, a transactional database system.

4512             So what I would propose as a method of operation is that the list itself would contain the phone numbers, the list is kept inside the DNCL operator database as proprietary and secret information, and we sell ‑‑ or the DNCL operator sells to telemarketers approval or disapproval to call a particular number that the telemarketer submits.


4513             COMMISSIONER CRAM:  Oh, so Rogers would then say, "Here's my list" and, essentially, the "do not call" operator would scrub it for them, is that what you are really coming down to?

4514             MR. OBERMEYER:  I don't like the term "lists".  I prefer to think of it as number by number, the telemarketer asking permission of the DNCL operator as to whether they can call that number.

4515             If they choose to do that in an automated way that gets them answers on multiple numbers in a single transaction, and if the DNCL operator is instructed to provide that, that sounds like a convenient way to run a business.

4516             In fact, I would point out that I heard in a previous line of questioning that the FTC DNC registry actually provides that kind of automated service to telemarketers already, as something called a web service.

4517             COMMISSIONER CRAM:  Oh, okay.

4518             MR. OBERMEYER:  They provide that to the larger operators.  Their implementation might be slightly different from what I'm proposing.

4519             COMMISSIONER CRAM:  All right, they provide it to the larger operators, that's right ‑‑

4520             MR. OBERMEYER:  Yeah, that's right, that's right.


4521             COMMISSIONER CRAM:  ‑‑ and there was a fair cost to it, wasn't there?  I think they said something ‑‑

4522             MR. OBERMEYER:  I'm not an expert on the FTC's ‑‑

4523             COMMISSIONER CRAM:  Yeah, somebody said there was a fair cost.

4524             MR. OBERMEYER:  ‑‑ implementation.

4525             COMMISSIONER CRAM:  Yeah.  M'hm.  Yeah.

4526             Okay.  Now ‑‑

4527             MR. OBERMEYER:  If I might, I would point ‑‑ if you don't mind the interruption?

4528             COMMISSIONER CRAM:  No, no, go ahead.

4529             MR. OBERMEYER:  I would like to clarify the cost question.

4530             I'm proposing ‑‑ or rather we are proposing at least three ways to make that DNCL service available.  The one we have discussed so far is a highly automated, bulk‑number approval, which could be a machine‑to‑machine transaction, so there's not even a human involved.

4531             A second way might be through a simple website.  So anybody in this room could open up their laptop computer, go to the CRTC website, key in a single telephone number, and a get a red light or a green light, "Can I call that number of not?".


4532             If they would like to receive from the DNCL operator a confirmation code, which would allow the telemarketer to prove that they have permission to call that number, that would be a service that they should be willing to pay for.

4533             And note that in one stroke now we have taken care of a couple of different problems, one problem being giving the telemarketer permission or denying that permission to call a number, the second problem being the consumer finding out whether or not their number's on the list.  Okay?

4534             So we have now got a web service, highly automated, bulk transactions, lots of numbers going back and forth, machine‑to‑machine communication and real time, we have got a web paper that a telemarketer could go to, and the third way would be an integrated voice response system.  The cost of that should be quite minimal, actually, because, presumably, it's not too much to ask that a telemarketer have access to a telephone.

4535             COMMISSIONER CRAM:  And you get a "yes" or a "no".


4536             MR. OBERMEYER:  You get a "yes" or a "no".  You call up 1‑800‑CRTC DNCL ‑‑ too many digits, but that's okay ‑‑ you key in the number that you would like to call, and it says either "yea" or "nay", you can do it okay or you can't.  If ‑‑

4537             COMMISSIONER CRAM:  You could probably get a verification number the same way.

4538             MR. OBERMEYER:  Through an IVR system?  I would suspect that with the combined might of all the interested parties at this proceeding and all of the corporate resources they have to draw on, I'm sure we could figure out a way to work out a billing system for that and also provide a confirmation number directly through an IVR system, absolutely.

4539             So what that does is it levels the playing field and ensures that, no matter how large or small a telemarketer is, they would all have equal access to the list.

4540             And if they don't really need to depend on having a confirmation number, say, people who do low‑volume transactions or people who already comply with the intent of the rules and don't expect complaints, maybe they could just use it for free, using the same mechanism that an individual subscriber would use to check their number:  just go on a web page, key in the number, 10 digits, boom, "yes" or "no", on the list or not.  Done.


4541             If they have a confirmation number, think about the defence that represents for a telemarketer.  Think about the effect that would have on the number of complaints that you would have in a given year.

4542             Do you think a subscriber is going to complain if a telemarketer calls up and the subscribers says, "Hey, why are you calling me?", and the telemarketer says, "Well, I have confirmation number 2006‑123456789 from the DNCL operator that says I can call you.  If you would like to fight it, I will provide this information to the CRTC".

4543             They will absolutely be able to investigate your complaint because they will already have the facts recorded in the audit trail of the transactional database system that doled out that confirmation number to begin with.

4544             The CRTC or the DNCL operator will already know the name of the telemarketer, the name of the party they are calling on behalf of, the account number of the telemarketer, billing information for the telemarketer, the time of the approval for the call, the calling number, the call‑ed number, et cetera.


4545             That will form something called a confirmation record, which is easily retrievable if you have the confirmation number.  That's what databases do.  They are very good at it.

4546             The information actually transmitted to the telemarketer, then, think about it, think about Martha's Window Washing, okay?  It may be a little company that wants to place 10 calls, the minimum required of them to participate in a system.  That requires them to download the DNCL.

4547             I have heard some people say, "Yeah, let's make it an area code".  Okay, anybody ever seen the Toronto telephone book?  It's more or less the 416 area code.  So now Martha's Window Cleaning, I will say a two‑person operation, has to obtain a computer, get regular internet access, because they will be required to look at that list ever 30 days, download, I would guess, in the neighbourhood of 135 megabytes of information through their internet connection ‑‑ I don't know if there's any technical people in the room here, but they had better have a pretty good internet connection to be able to download an area code worth of numbers, or say if there's only half of the people subscribe to the DNCL half an area code worth, okay, that's a lot of numbers,  that's a lot of information.


4548             That information that's been proposed by some of the members of the DOWG working group ‑‑ sorry for the redundancy ‑‑ that information would arrive in the form of what?  A commercial proprietary spreadsheet, has been suggested.  XXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXX.  Strike that from the record.

4549             Why on earth would we require Martha to go out and buy a computer, a high‑speed internet connection, to be able to get, in a practical way, to that large mass of information, proprietary software to open the file, some kind of software to be able to scrub that file against her own list of 10 numbers she wants to call?

4550             I don't understand how they could possibly comply with a methodology like that without incurring some form of cost.  Multiply that cost by, I heard the number today, 2 million business entities in Canada.  Let's say, I will give you a break, a thousand bucks times 2 million is $2 billion of hidden costs, if you insist that the DNCL be a downloadable file.

4551             COMMISSIONER CRAM:  Moving on ‑‑ and I do see your concerns in paragraph 14 and 15 ‑‑ what I'm trying to figure out is the black market in paragraph 16.  What do you mean "if regulated a black market"?


4552             MR. OBERMEYER:  Okay.  An example would be satellite transmissions of television programs.  There is something called a grey market in that ‑‑

4553             COMMISSIONER CRAM:  Yeah.

4554             MR. OBERMEYER:  ‑‑ because there's an absence of regulation and some people have chosen to put satellite dishes on their homes and pull in signals from satellites that they have not paid for.  In the absence of regulation, that's called a grey market.

4555             If you put regulations on that market and someone still transgresses and, potentially, maybe retransmits those programs to somebody else for money, then that would be defined as a black market, at least in our opinion.

4556             COMMISSIONER CRAM:  Okay.  M'hm.

4557             And you do realize that the U.S. ‑‑ and I think it's been proposed by several parties here ‑‑ are talking about some of your concerns being addressed as violations of the rules.  This bit about sharing, because, of course, the viability of the whole "do not call" list would be gone if there was an allowance to share, and some of the other issues you were talking about, they would, in all probability, be considered as violations of the rules, and then subject to the administrative monetary policies.


4558             MR. OBERMEYER:  Exactly.  And I agree fully that you could, in fact, try to regulate it.  If you choose to do so, I wish you luck, and I would rate your chances of success as roughly equal to the chances of the music industry controlling in any effective way the sharing of MP3 files.

4559             Once that list is downloaded to somebody's computer, there is no technical barrier, no reasonable technical barrier, to that person making an illicit copy and passing it along to someone else for free or for money, or money's worth.

4560             COMMISSIONER CRAM:  M'hm.  And that's why, then, you are suggesting the reverse, the yes/no concept?

4561             MR. OBERMEYER:  That's only one reason that I'm suggesting the yes/no concept.  Other reasons include making the investigation of any particular complaint a trivial matter if the telemarketer has followed the rules.


4562             The FTC DNC registry, I have heard a number quoted of 90,000 complaints per month.  I would define that as an abject failure to implement a system.  The cost of investigating 90,000 complaints per month, how much would it cost to investigate one complaint?  I would guess on the order of maybe $100.  That's $9 million a month they are spending investigating complaints.

4563             Wow, that's more than the cost of providing a robust system that would allow the complaints to be dismissed out‑of‑hand, if the telemarketer has, in fact, followed the rules and has a confirmation number to prove it.  Okay?

4564             So let's get back to Martha and her window‑cleaning service.  Instead of downloading the Toronto telephone directory, or half of it ‑‑ let's rip it in half, we are all strong people, we can do that ‑‑downloading half of that telephone directory, instead she downloads, how many digits, 14 digits, 2006‑123456789, that's 20 bytes of information, as opposed to 135 megabytes as the minimum to make her first call.


4565             That's an extraordinary difference.  I don't know if you are familiar with bytes and megabytes and all that, I would imagine some people have a passing familiarity with them, but if we were to stack up the amount of information as, say, pennies on this desk, one telephone number or one byte of information being a penny, and put it there, I would invite anyone to calculate out the height of a stack of pennies 135 megabytes tall, or say 70, to take half of that number.  On the other hand, put two cents on the desk.  That's what Martha wants to download, two‑cents worth of information, not something that reaches probably to the stratosphere.

4566             COMMISSIONER CRAM:  Thank you very much, Mr. Obermeyer.  Thank you.

4567             THE CHAIRPERSON:  Thank you very much, Mr. Obermeyer.

4568             Commissioner Langford.

4569             COMMISSIONER LANGFORD:  I just have a question on one other line of your submission, your original submission, and that's on penalties.

4570             I'm wondering about zero‑tolerance, and I'm kind of wondering about the Marthas of the world, but we heard yesterday, I don't think you were here, but we did hear yesterday from some representatives of charities who are concerned about the reach of the whole "do not call" kind of violation problem, two reasonably naive but well‑intended soccer moms, summer camp people, people who are freely giving of their time in the neighbourhood to help their children or some cause, and inadvertently, completely inadvertently, discover they are telemarketers in some way.


4571             Do you really want to go to a zero‑tolerance model when you kind of consider that aspect of it?  We are not talking about Rogers, that we just listened to here, we are talking about, you know, somebody from Cornerbrooke, Newfoundland, I think was the example we got yesterday.

4572             MR. OBERMEYER:  Yeah.  I have a lot of sympathy for charities, a lot of sympathy.  The telemarketing, the commercial telemarketing industry has soured the milk because they have abused the current rules so flagrantly for so long and with so little enforcement to cause them to reconsider, charities have now been lumped in with them and forced to defend themselves from this, I can't think of a better word than "madness".

4573             What has commercial telemarketing done to the good will of our communities?  Think about that.  What has it done to the good will of the people who are trying to cook their dinner and may have been willing at some point in time to make a donation to a charity, but they have been so badgered by giant corporations, by professional telemarketers, that they just are out of patience?


4574             I can point to at least one example which has developed an immunity to charities calling on the telephone, and I'm right here.  That's my one example.  I'm sure there are others.

4575             COMMISSIONER LANGFORD:  But in terms of just a penalty situation, you know, a financial penalty, we have never had in Canada before the power to levy monetary penalties.  Parliament has finally almost given that to us.  We have to wait for the rules to be proclaimed, but they are there.

4576             Wouldn't it make sense to have some sort of time to allow that to sort of work through the system and see if it has any salutary effects before we create a situation where some reasonably naive but well‑intended group, who may make a hundred neighbourhood calls, gets nailed?

4577             MR. OBERMEYER:  Absolutely, and I would not criticize any efforts to do so.  I have softened my position considerably on the zero‑tolerance thing.  I can see the need for using some commonsense here.  And commonsense appears to be something that has been sorely lacking this entire endeavour.


4578             I have made a personal project to stop ‑‑ or to try to stop one single telephone from ringing off the hook at dinnertime.  One telephone.  Over the past 10 years, I have recorded ‑‑ well, adding in today, over 400 hours of effort for one subscriber to stop commercial telemarketing to one telephone.  I have not yet been successful.

4579             I'm sure you could imagine that I might be a little bit frustrated.  I'm sure you could imagine that, in the attempt to stop one telephone from ringing, I have had several unpleasant communications with some of the large corporations in this country, some unapologetic large corporations which have continued to place calls, and, in fact, in some cases have stepped up the number of calls that they place to my number because they have found a loophole, an exemption, that they can place those calls under.  So, yeah, I'm a little frustrated.

4580             Yes, I am softening my stance on the zero‑tolerance and I think if the people in this room were to set aside their roles, set aside the organizations they represent, and stop and think honestly to themselves, wouldn't it be better if we could all just talk about this over a beer, as a bunch of responsible rationale people, and come to some middle ground with a robust, simple system that can be implemented with readily available technologies that are non‑proprietary and do not demand a huge investment on the part of a telemarketer to participate.  That's what we are after.


4581             COMMISSIONER LANGFORD:  Thank you very much.

4582             That's my question, Mr. Chair.

4583             THE CHAIRPERSON:  Mr. Obermeyer, thank you very much.  We appreciate the effort you have made and the clarity of your position, and it will certainly remain in our minds.

4584             Thank you.

4585             We will start again tomorrow at 9 o'clock with the companies.

4586             Madame le secrétaire?

4587             THE SECRETARY:  I was just wondering if Mr. Gahan was in the room, but...

4588             THE CHAIRPERSON:  Oh, is Mr. Gahan in the room?  He didn't indicate he was before.  I presume he hasn't arrived since.

4589             THE SECRETARY:  Okay.

4590             THE CHAIRPERSON:  No.

4591             Thank you very much.  Nine o'clock tomorrow.

‑‑‑ Whereupon the hearing adjourned at 1740, to resume

    on Thursday, May 4, 2006 at 0900 / L'audience

    est ajournée à 1740, pour reprendre le jeudi

    4 mai 2006 à 0900

 

 

  

 

                      REPORTERS

 

 

                         

 

_____________________     _____________________

Marc Bolduc               Lynda Johansson

 

 

 

 

_____________________     _____________________

Sue Villeneuve            Fiona Potvin

 

 

 

 

_____________________     _____________________

Madeleine Matte           Sandy Kelloway

 

 

  

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