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TRANSCRIPT OF PROCEEDINGS BEFORE
THE CANADIAN RADIO‑TELEVISION AND
TRANSCRIPTION DES AUDIENCES DEVANT
LE CONSEIL DE LA RADIODIFFUSION
ET DES TÉLÉCOMMUNICATIONS CANADIENNES
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
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
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.
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
Conseil de la radiodiffusion et des
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 /
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
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
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
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.
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.
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.