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Ottawa, 7 March 1991
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Telecom Decision CRTC 91-4
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INTRODUCTION BY BELL CANADA OF CALL MANAGEMENT SERVICE - APPLICATIONS TO REVIEW AND VARY>
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I BACKGROUND
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In Bell Canada - Introduction of Call Management Service, Telecom Decision CRTC 90-10, 9 May 1990 (Decision 90-10), the Commission approved the introduction by Bell Canada (Bell) of Call Management Service (CMS). Available with CMS are certain features (Call Display and Call Return) that enable customers to identify a calling party's telephone number (Caller ID). In Decision 90-10, the Commission directed Bell to provide for the blocking of Caller ID by means of a local operator-assisted dialing service. Tariffs were subsequently approved making operator-assisted Caller ID blocking available at a charge of $.75 per call.
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In Decision 90-10, the Commission also directed Bell to develop, in cooperation with representatives of shelters for victims of domestic violence, a certification procedure whereby charges for local operatorassisted calls placed from such shelters would be waived.
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On 6 June 1990, the Association coopérative d'économie familiale du Centre de Montréal, the Fédération nationale des associations de consommateurs du Québec et the Ligue des droits et libertés (ACEF) filed an application pursuant to section 66 of the National Telecommunications Powers and Procedures Act (NTPPA) requesting that the Commission review and vary Decision 90-10. Specifically, ACEF requested the Commission to vary its Decision by obliging Bell to offer Caller ID blocking service free of charge to anyone using the service. In addition, ACEF requested that the Commission stay the implementation of Decision 90-10.
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On 9 July 1990, the Public Interest Advocacy Centre, on behalf of the Consumers Fight Back Association (CFBA), also applied to the Commission for a review and variance of Decision 90-10. CFBA argued that the Commission should rescind its decision allowing Bell to introduce three of the features associated with CMS, namely, Call Display, Call Trace and Call Return.
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In Bell Canada, Request to Review that Part of Telecom Decision CRTC 78-7 of August 10, 1978, Dealing with the Saudi Arabian Telephone Project, Telecom Decision CRTC 79-1, 2 February 1979, the Commission adopted certain criteria by which it determines whether to review and vary its telecommunications decisions. Those criteria require that, in order for the Commission to exercise its powers pursuant to section 66 of the NTPPA, the applicant must demonstrate, on a prima facie basis, the existence of one or more of the following:
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(1) an error in law or in fact;
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(2) a fundamental change in circumstances or facts since the decision;
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(3) a failure to consider a basic principle that was raised in the original proceeding;
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(4) a new principle that has arisen as a result of the decision.
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In addition, notwithstanding the lack of prima facie evidence that any of the above criteria have been met, it is also open to the Commission to determine that there is substantial doubt as to the correctness of its original decision and that reappraisal is accordingly warranted. This is not so much a fifth criterion, however, as it is a statement of the residual discretion that exists within section 66.
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In its application, ACEF argued that the Commission had committed several errors of law in making the determinations set out in Decision 90-10. In addition, ACEF was of the view that there had been a fundamental change in circumstances since the Decision. Finally, ACEF submitted that the Commission had established an erroneous principle in its Decision. CFBA, for its part, expressed the view that the Commission had erred in law by authorizing the three CMS features noted above, and thus had exceeded its jurisdiction.
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The Commission also received letters from the Regroupement provincial des maisons d'hébergement et de transition pour femmes victimes de violence (Regroupement), the Ontario Association of Interval and Transition Houses (OAITH) and the Déprimés anonymes Inc. (Déprimés anonymes) expressing concern with respect to the Commission's decision.
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Bell answered ACEF's application on 23 July 1990, serving a copy on Regroupement, OAITH, and Déprimés anonymes. ACEF replied on 16 August 1990 and provided supplementary information on 6 September 1990. Bell provided further comments on 9 October 1990. ACEF did not provide any further comments.
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Bell answered CFBA's application on 13 August 1990. CFBA filed a reply on 22 August 1990.
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II ERRORS OF LAW
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A. Positions of Parties
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ACEF contended first that the Commission had erred in concluding that the Quebec Charter of Human Rights and Freedoms (the Quebec Charter) does not apply to prohibit the provision of Call Display without the consent of the caller. In the opinion of ACEF, the right to privacy is guaranteed by Quebec law and cannot be limited by measures such as those approved by the Commission. ACEF submitted that the Quebec Charter has only an incidental effect on a federal undertaking such as Bell's, and does not undermine a vital element of the operation of such an undertaking. In these circumstances, ACEF was of the view that the Quebec Charter is valid legislation that applies to the transmission of a call between two parties resident in the province of Quebec, even though the call is carried out through a medium subject to federal control.
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Second, ACEF submitted that the Commission had erred in concluding that Article 11 of Bell's Terms of Service does not prohibit Bell from offering a service that discloses unlisted telephone numbers.
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Third, ACEF argued that the Commission had infringed the rules of administrative law in two ways. Specifically, it submitted that the Commission had failed to provide reasons for its determination that CMS does not infringe Bell's Terms of Service or the Quebec Charter. In addition, ACEF maintained that the Commission had based its Decision on information that was not part of the record, since the possibility of operator-provided blocking for a fee had not been proposed in the original filing.
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Finally, ACEF argued that the Commission had acted contrary to international law and the Canadian Charter of Rights and Freedoms (the Canadian Charter) in authorizing CMS.
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CFBA also expressed the opinion that the Commission had infringed the Canadian Charter in authorizing CMS. Specifically, CFBA alleged that the Commission had infringed the individual's right to privacy as enshrined in sections 7 and 8. CFBA argued that, in interpreting the meaning to be given to section 8, the Supreme Court of Canada has determined that the protection against unreasonable search and seizure is simply an aspect of the individual's greater right of privacy, and that it guarantees that the individual will be secure against all unreasonable intrusions by the state upon personal privacy.
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With respect to section 7 of the Canadian Charter, CFBA argued that the Supreme Court of Canada has stated that privacy is at the heart of liberty in a modern state and is essential for the well-being of the individual; therefore, it is worthy of constitutional protection. This, in the opinion of CFBA, has created a general right to privacy, subject to reasonable limitations. In the opinion of CFBA, the enjoyment of this constitutional right cannot be made subject to a fee, and hence the provision of Caller ID blocking at a tariffed rate does not justify the limitations placed on the individual's right to privacy.
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CFBA was also of the view that the Commission had violated section 8 of the Privacy Act by disclosing personal information under its control. Finally, CFBA stated that Parliament has enacted a scheme under Part VI of the Criminal Code that regulates the circumstances and manner in which private communications may be intercepted. CFBA submitted that the definition of "private communication" in section 183 of the Criminal Code is broad enough to encompass information that is intercepted via CMS, and that Decision 90-10 is ultra vires, in that it purports to alter the scheme enacted by Parliament.
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In its answer to ACEF's application, Bell submitted that, to the extent that the Quebec Charter imposes conditions on Bell's provision of a service, it prejudices one of the essential and vital elements of its undertaking. In Bell's view, provincial legislation cannot regulate the availability or quality of the company's services. Bell argued further that the Call Display feature does not infringe privacy rights. Finally, Bell submitted that ACEF had not demonstrated that a right to anonymity exists and that the Commission is required to grant preeminence to the interests of the calling party over those of the called party.
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With respect to ACEF's argument that Decision 90-10 violates Bell's Terms of Service, the company stated that the disclosure of non-published numbers in conjunction with CMS has been specifically permitted by the Commission as an exception to Article 11 by virtue of the Commission's approval of tariffs for CMS.
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Bell also submitted that the Commission had not failed to respect the rules of administrative law. Bell argued that the failure of a tribunal to provide reasons for a particular decision, in the absence of legislative requirements to the contrary, is not an error of law or a principle giving rise to the possibility of judicial review. Moreover, Bell was of the view that, even if the Commission is required to give reasons, Decision 90-10 is sufficient in this regard, since it clearly indicates the evidence upon which the Commission relied in reaching its conclusions.
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In addition, Bell argued that the Commission had not taken into consideration documentary evidence or information that was not part of the record before it. Further, the company submitted that the Commission was entitled to draw on its own expertise and knowledge in arriving at its decisions.
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With respect to CFBA's position that the Commission had infringed the Canadian Charter, Bell disagreed that the Supreme Court of Canada has recognized a general, constitu- tionally protected right to privacy. Bell stated that the courts have not interpreted section 7 as providing a separate right to privacy, and that the Joint Committee on the Repatriation of the Constitution had rejected the creation of such a right.
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Bell submitted that, if privacy rights are protected by the Charter, this protection is to be found only in section 8. In this connection, Bell pointed out that the cases on section 8 cited by CFBA are all concerned with criminal investigations and that CFBA had presented no analysis or argument as to how, on the facts, the operation of CMS amounts to an unreasonable search and seizure. In Bell's opinion, the right to privacy to which the Supreme Court refers in its judgments is the right to be secure from direct state intrusion when the state is engaged in criminal or other investigations. Bell noted that, with respect to CMS, the interests of the state and of the individual are not in conflict; instead, CMS concerns the interests of two individuals.
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In addition, the company submitted that, even if a general right to privacy exists, CFBA had not established that such a right includes the right of a party to remain anonymous when initiating contact with another party by making a telephone call.
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With respect to possible violations of the Privacy Act, Bell argued that the Commission does not have within its control records that contain information about identifiable individuals, and that the Act therefore does not apply.
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Finally, Bell submitted that the Criminal Code provides an exception to the prohibition against the intercepting of telecommunications where an originator or recipient of a message consents to the interception. Moreover, Bell was of the view that the communication is not a private one, since it is not displayed under circumstances in which it is reasonable to expect that it will not be displayed.
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In its reply, ACEF elaborated on its views that the Quebec Charter applies to telephone transmissions between Quebec residents. It expressed the opinion that the blocking mechanism approved by the Commission does not assure subscribers genuine and effective control over disclosure of their telephone numbers, since the mechanism may not be economically accessible.
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ACEF recognized the validity of Bell's assertion that the Commission could override the Terms of Service through the approval of a tariff filing, but also submitted that the Commission should not have approved a tariff that derogates from the principle established in Article 11 of the Terms of Service. In addition, it stated that the Commission's failure to provide reasons constitutes an error of law, although this does not open the door to judicial review, and that the specific possibility of tariffed charges for Caller ID blocking was not raised in the proceeding. Moreover, ACEF could see no experience that the Commission might have that it could have applied as the basis for its decision.
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In its reply, CFBA reiterated its view that an unlawful search and seizure occurs when a caller's telephone number is "captured" and transmitted to the recipient of a call. CFBA also maintained that individuals have the right to determine the circumstances in which they will release personal information. Finally, CFBA disagreed with Bell's interpretation of the Privacy Act and the Criminal Code.
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B. Conclusions
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The Commission has considered the arguments of ACEF and CFBA and concludes that neither has demonstrated that the Commission committed an error of law in Decision 90-10.
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With respect to the applicability of the Quebec Charter, the Commission is of the view that the principles of constitutional law clearly establish that valid federal legislation, in the present case the Railway Act and the NTPPA, is paramount to provincial legislation such as the Quebec Charter. Thus, the Commission is entitled to carry out its statutory mandate, and its orders (which have the force of law) will take precedence over provincial legislation where there is a conflict. ACEF asserted that there is no conflict between statutes. However, according to ACEF, the effect of the Quebec Charter in this situation would be to prohibit the operation of Call Display. Meanwhile, the effect of the Commission's order is to authorize the operation of Call Display. In these circumstances, it seems clear that a conflict would exist and that the Commission's order would prevail. Accordingly, the Commission is of the view that it did not err in law when it concluded that the Quebec Charter does not apply to prohibit the Call Display feature of CMS.
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As far as the Terms of Service are concerned, ACEF now acknowledges that the disclosure of an unpublished number is permitted as an exception to Article 11 of Bell's Terms of Service by virtue of the Commission's approval of CMS. ACEF no longer asserts that the Commission committed an error of law in this respect.
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As for ACEF's argument that the Commission erred in not providing reasons for certain aspects of Decision 90-10, the Commission considers that it clearly set out its grounds, regardless of whether or not it had a legal obligation to do so. With respect to the argument that the Commission based its Decision on information not found on the record, it is clear that the Commission is under no obligation to provide all parties with the opportunity to comment on each possible consideration that it might take into account in exercising its discretion under the Railway Act or the NTPPA. Nevertheless, in the present case, the Commission considers that the question of operator-assisted Caller ID blocking was identified along with other options during the course of the proceeding, and that parties were free to comment on the way in which it might be implemented. In these circumstances, the Commission is of the opinion that no error of law was committed.
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In light of the above, the Commission considers that ACEF has failed to demonstrate that the Commission made any of the errors of law enumerated in its application.
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In its submissions, ACEF also noted that it agrees with CFBA that three of the features of CMS, including Call Display, amount to a breach of the Canadian Charter. In ACEF's view, the authorization of CMS without access to free Caller ID blocking is not compatible with Canadian constitutional law and the general principles associated with rights and freedoms. ACEF therefore argued that the Commission established a new, erroneous principle in approving CMS with tariffed Caller ID blocking.
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With respect to the question of the applicability of the Canadian Charter, ACEF argued that sections 7 and 8 contain a fundamental privacy right. CFBA stated that the Supreme Court of Canada has not had the opportunity to consider whether section 7 provides for the individual's right to privacy. Its position is therefore based on an extrapolation from judgments that link privacy and liberty, or privacy and security. The judgments cited by CFBA relate to criminal prosecutions and address protection of the right of the accused to due process. The Commission is of the view that it would be incorrect to conclude that these cases provide a strong basis for a finding that an individual has the right not to have his or her telephone number displayed without direct consent.
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With respect to section 8, the cases cited by CFBA relate to questions of search and seizure in connection with investigations by the state; as Bell pointed out, CFBA presented no analysis or argument as to how the operation of CMS amounts to an "unreasonable search and seizure".
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Since CMS does not involve the physical taking of something by the state, the Commission is unable to characterize it as a seizure. Moreover, as CFBA notes, individuals are protected only against "unreasonable" searches and seizures. In addition, all of the protections found in the Canadian Charter are subject to such reasonable limitations as are demonstrably justified in a free and democratic society. As discussed in Decision 90-10, the Commission is of the view that the introduction of CMS has an effect on the privacy interests of both the called and the calling party, and that any assessment of its reasonability will necessarily involve a process of balancing in which the Commission must assign weights to the various interests. The Commission considers that the terms of its approval of CMS represent an appropriate balancing of interests.
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Based on the existing interpretation of the Canadian Charter, the Commission is of the view that its approach in Decision 90-10 cannot be described as contrary to section 8 of the Canadian Charter. Accordingly, the Commission concludes that ACEF has failed to demonstrate that an error of law was committed in this regard.
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CFBA also submitted that the Commission is precluded from authorizing CMS by virtue of the Privacy Act. CFBA's argument is based on its view that the Commission has control over personal information (i.e., subscribers' telephone numbers). In the Commission's view, the preamble to the Privacy Act suggests that this information must be held by the institution in question in order for it to have control. Since this is not the case in this instance, the Commission concludes that a breach of the Privacy Act has not occurred.
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Finally, CFBA argued that Decision 90-10 purports to alter Part VI of the Criminal Code, which regulates the circumstances and manner in which private communications may be intercepted. In particular, CFBA stated that the definition of "private communication" contained in Part VI is broad enough to encompass information that is intercepted via CMS. In assessing whether Decision 90-10 is ultra vires, the Commission has construed the wording of the relevant provisions strictly. The Commission concludes that the transmission of the calling party's telephone number to the called party does not amount to an interception within the meaning of Part VI, and that the Commission therefore did not act ultra vires in approving CMS.
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In light of the above, the Commission concludes that ACEF and CFBA have failed to identify any errors of law in Decision 90-10.
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III CHANGE IN CIRCUMSTANCES OR FACTS SINCE THE DECISION
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A. Positions of Parties
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In its application, ACEF submitted that the Commission should review its Decision because of a number of new considerations. First, ACEF submitted that those whom Bell intended to assist through the offering of free Caller ID blocking, namely, women's shelters, have indicated that they do not intend to avail themselves of this option, and are instead opposed to the authorization of CMS, which affects their safety. Second, ACEF argued that the order to provide free blocking to shelters amounts to discrimination contrary to section 340 of the Railway Act. Finally, ACEF submitted that the issuance of Criminal Intelligence Service of Ontario - Release of Information by Bell Canada, CRTC Telecom Public Notice 1990-46,11 May 1990, (Public Notice 1990-46), amounts to a new circumstance.
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In its answer, Bell stated that, despite the reluctance of certain groups to participate in the development of certification procedures, it has already certified several shelters. Bell noted that, in any case, the decision whether or not to apply for certification rests with the individual shelter. Bell submitted that the public interest is served inasmuch as shelters have the opportunity to have charges waived. Bell also noted that operator-assisted dialing is available to the individual, whether or not a shelter has made arrangements to be exempted from the operator assistance charge. Furthermore, in Bell's opinion, even if there is discrimination in the provision of free Caller ID blocking to shelters, it is not unjust. Finally, Bell was of the view that the proceeding referred to in Public Notice 1990-46 is not relevant to the Commission's Decision pertaining to the introduction of CMS.
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B. Conclusions
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While some groups may be unwilling to take advantage of all of the Commission's directions to Bell with respect to CMS, the Commission considers that there is nothing that prevents them from obtaining the protection that is available if they so choose. As to the possibility that its ruling amounts to discriminatory treatment, the Commission finds that any preference in favour of women's shelters is justified in light of their particular circumstances. While there may be other groups or individuals who could make out an equally compelling need, they have not been identified in ACEF's application. If any such groups or individuals were to apply to the Commission, they might be able to justify the extension of free Caller ID blocking to them. Finally, the Commission notes that the proceeding established in Public Notice 1990-46 (which led to Criminal Intelligence Service of Ontario - Release of Information by Bell Canada, Telecom Decision CRTC 91-2, 12 February 1991, concerned issues of state intervention for the purposes of law enforcement. The Commission considers that, as stated above, CMS raises issues concerning the appropriate balance to be struck between the interests of private individuals, i.e., the calling party and the called party. Therefore, the Commission concludes that the issuance of Public Notice 1990-46 is not a new circumstance that is relevant to its determinations in Decision 90-10. Accordingly, the Commission concludes that ACEF has failed to demonstrate that there has been a fundamental change in circumstances or facts since that Decision.
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IV DISPOSITION OF THE APPLICATIONS
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In light of the conclusions set out above, the Commission denies the applications of ACEF and CFBA for review and variance of Decision 90-10. Having concluded that a review and variance of that Decision is not warranted, the Commission also denies ACEF's application for a stay of it.
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Allan J. Darling
Secretary General
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