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Telecom Decision CRTC 2004-49
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Ottawa, 22 July 2004 |
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Operator services - Reverse search directory assistance
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Reference: 8651-C12-01/01
and Bell Canada Tariff Notices 6508
and 6508/A |
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In this decision, the Commission finds
that a limited form of Reverse Search Directory Assistance (RSDA)
service is appropriate and establishes a framework, including
safeguards, for the provision of RSDA service by incumbent local
exchange carriers. |
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I Introduction
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1. |
Beginning in the early 1990s, the
Commission approved Reverse Search Directory Assistance (RSDA) service
tariffs for several incumbent local exchange carriers (ILECs) including
NBTel Inc., MTS Communications Inc. (MTS), NewTel Communications Inc.,
BC TEL Inc. (now knows as TELUS Communications Inc.) and TELUS
Communications (Québec) Inc., among others. Generally, these tariffs
provided that the ILEC would undertake a search when presented with a
telephone number, and would disclose the subscriber's name and general
locality information, such as a subcriber's town, city or postal code.
Over time, several ILECs, including Bell Canada, and a number of smaller
independent telephone companies in Ontario, withdrew this service. |
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2. |
In Denied tariff for reverse directory
service, Order CRTC 2000-253,
31 March 2000 (Order 2000-253),
the Commission denied Tariff Notices 1063 and 93 submitted by TELUS Communications
Inc. (TELUS) and TELUS Communications (Edmonton) Inc. (TCEI) respectively.
These tariff notices proposed tariff revisions which would have expanded
their then existing directory assistance services by permitting the
disclosure of a listed name and/or address when provided with a telephone
number. The Commission stated that the degree of detail proposed in
the tariff revisions was inappropriate in light of privacy concerns. |
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3. |
On 23 August 2000, Bell Canada filed Tariff
Notice 6508, amended on 18 September 2000, which proposed that, when
presented with a telephone number contained in its white page
directories, the company would provide a subscriber's listed name and
locality, but not the street address or postal code. |
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4. |
Rather than disposing of Bell Canada's
application, the Commission initiated a public proceeding by way of
Operator services - Reverse search directory assistance, Public
Notice CRTC 2001-56,
25 May 2001 (Public Notice 2001-56).
In that Public Notice, the Commission invited parties to provide submissions
on: |
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a) whether the provision of RSDA service by the telephone companies
is appropriate in light of the objectives of the Telecommunications
Act (the Act), and, if so,
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b) what common tariff provisions should exist for telephone
companies under the Commission's jurisdiction.
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The process
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5. |
Public Notice 2001-56
provided for comments and reply comments from parties. The record
closed on 9 August 2001. However, in a letter dated 6 February 2002,
the Commission invited parties, including the Privacy Commissioner
of Canada (the Privacy Commissioner), to comment on the relevance
and applicability to the proceeding, if any, of the Privacy Commissioner's
report regarding a complaint by Mr. Mathew Englander under the
Personal Information Protection and Electronic Documents Act
(PIPEDA) against TELUS Corporation, TELUS and TELUS Communications
(B.C.) Inc. Comments were to be filed by 13 February 2002
and reply comments by 18 February 2002. However, because
the Privacy Commissioner's comments were submitted on 11 March 2002,
the deadline for reply comments was extended to 5 April 2002. |
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Parties to the proceeding
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6. |
The Commission received submissions from:
the Public Interest Advocacy Centre on behalf of Action Réseau
Consommateur, the Consumers' Association of Canada and the National
Anti-Poverty Organization (ARC et al.); the British Columbia Public
Interest Advocacy Centre on behalf of the BC Old Age Pensioners'
Organization, Consumers' Association of Canada (BC Branch), Council of
Senior Citizens' Organizations of BC, federated anti-poverty groups of
BC, Senior Citizens' Association of BC, West End Seniors' Network, End
Legislated Poverty, and Tenants Rights Action Coalition, Information
Policy Committee - B.C. Library Association (collectively, BCOAPO et al.);
Saskatchewan Telecommunications (SaskTel); Bell Canada on behalf of
itself, Aliant Telecom Inc. (Aliant Telecom), and MTS (collectively,
Bell Canada et al.); TELUS; Northwestel Inc. (Northwestel); the Privacy
Commissioner; the Information and Privacy Commissioner of Ontario (the
IPC); and four individual consumers: Ms. Dym, Mr. Negus, Mr. Piggott and
M. Simard. |
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7. |
BCOAPO et al. stated that it adopted
ARC et al.'s submissions, while Northwestel stated that, in general, it
agreed with the submissions of Bell Canada et al. and SaskTel. |
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II Appropriateness of RSDA service
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Positions of parties
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8. |
Bell Canada et al., Northwestel, SaskTel
and TELUS (collectively the Companies) were of the view that the
provision of RSDA service would be appropriate and would be consistent
with the objectives of the Act. The Companies submitted that RSDA
service struck an appropriate balance between requests for the service
and customer expectations of privacy. They noted that information
associated with telephone lines, where the delivery of the calling line
information display had been suppressed on a per-line basis, and/or
where customers had specifically requested per-line blocking and/or
"private name" display, would not be provided. |
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9. |
Bell Canada et al. submitted that RSDA
service would support the objectives of the Act because it would respond
to the social requirements of users of telecommunications services and
to the protection of their privacy by: |
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- adding value to existing services such as calling line
identification; and
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- enhancing the protection of privacy of persons receiving calls
(called parties) by allowing them to obtain additional
non-confidential information with respect to unfamiliar telephone
numbers, thereby allowing them to make more informed decisions as to
whether to return the calls of persons who made them (calling
parties).
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10. |
SaskTel submitted that RSDA service would
not only support the protection of privacy but would also be consistent
with the objective of encouraging innovation in the provision of
telecommunications services as set out in section 7(h) of the Act.1 |
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11. |
TELUS submitted that the RSDA service, as
proposed by TELUS in Tariff Notice 1063 and by TCEI in Tariff Notice 93,
posed no privacy concerns that would be inconsistent with section 7(i)
of the Act.2 |
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12. |
TELUS also argued that if Canadian carriers
were prohibited from providing RSDA service, they would be at a
competitive disadvantage vis-à-vis other service providers not subject
to the Commission's jurisdiction, such as competitive operator service
providers, that provide essentially the same service. In TELUS's view,
approval of RSDA service would, among other things, provide customers
with more choice among service providers and delivery media. |
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13. |
Both the IPC and ARC et al. argued that
RSDA service is contrary to the privacy protection objective set ;out in
section 7(i) of the Act. For this reason, and because, in its view, RSDA
service would, among other things, diminish a subscriber's privacy and
would not promote any of the objectives set out in section 7 of the Act,
the IPC submitted that the telephone companies should not be allowed to
provide RSDA service. By contrast, ARC et al. stated that invasions of
privacy may be justified for public policy reasons, or where individual
consent to the invasion has been obtained or can be reasonably implied.
However, in ARC et al.'s view, no public policy rationale would justify
the non-consensual provision of RSDA service. |
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Commission determination
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14. |
In the Commission's view, the issue of
whether RSDA service is appropriate in light of the objectives set ;out
in section 7 of the Act requires an assessment of the appropriate
balance to be struck between the respective privacy interests of calling
parties and called parties. |
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15. |
On the one hand, because RSDA facilitates
the disclosure of a person's identity and/or location, the service could
erode the privacy interests of calling parties. |
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16. |
On the other hand, called parties may want
to know the identity of a caller before deciding to return a call or to
answer the telephone. Moreover, in certain circumstances, such as in the
case of a call received from a person whom the called party has reason
to fear, obtaining the caller's identity could be crucial. In this
respect, RSDA service could enhance the security of called parties. |
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17. |
The Commission considers that the
enhancement of called parties' security interests stemming from RSDA is
a significant and valuable feature of the service. The Commission also
considers that the possible reduction of calling parties' privacy
interests can be adequately addressed through the establishment of
appropriate safeguards. The safeguards in question are discussed below.
In the Commission's view, these safeguards allow the privacy interests
of both calling and called parties to be appropriately accommodated in
the provision of RSDA service. |
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18. |
In light of the above, the Commission finds
that, subject to appropriate safeguards, it is appropriate for the ILECs
to offer RSDA service and it is consistent with the objectives set out
in section 7 of the Act. |
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III Appropriate safeguards and whether they should be common to all
ILECs
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19. |
Based on the record of this proceeding, the
Commission has considered possible safeguards pertaining to the
following matters: |
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a) search criteria and information disclosed;
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b) use of RSDA service by commercial entities;
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c) subscriber consent; and
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d) whether the safeguards should be common to all ILECs that
currently, or in the future, provide RSDA service.
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A) Search criteria and information disclosed
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Positions of parties
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20. |
Northwestel, SaskTel and TELUS submitted
that searches by listed street address or telephone number, and the
disclosure of listed street address and name, should be permitted. |
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21. |
Bell Canada et al. submitted that while
Bell Canada and Aliant Telecom were of the view that the provision of
general locality information, as distinct from actual street address,
would be satisfactory, other telephone companies should be permitted to
provide actual street address information. |
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22. |
ARC et al. submitted that street address
information should not be permitted to be disclosed as such disclosure
would unduly threaten the privacy and safety of subscribers. ARC et al.
argued that some individuals, including those that seek refuge from
abusers or stalkers, as well as social workers and other professionals
that deal with troubled persons, would have a legitimate need to remain
anonymous or to keep their location confidential. |
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23. |
ARC et al. noted that the Commission had
denied a previous application by TELUS for the provision of RSDA service
that would have provided listed addresses. ARC et al. submitted that
Bell Canada's proposed service is significantly less privacy-invasive
than the service proposed by TELUS. |
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24. |
ARC et al. also submitted that if the
purpose of RSDA were simply to identify a caller, the provision of
street address information would be unnecessary. |
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Commission determination
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25. |
The Commission notes that there are
significant privacy and safety concerns associated with the use of
street address information as a search criterion, and the disclosure of
such information, in the context of RSDA service. For example, if street
address information is available as a search criterion, a person driving
by a residence could use the address to determine the identity and the
telephone number of a telephone subscriber at the residence. This could
result in the invasion of privacy through unwanted telephone calls,
harassment or even more serious harm. Similar harm could result where a
specific street address is disclosed merely on the basis of a telephone
number provided by the caller. |
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26. |
The Commission further notes that none of
the approved RSDA tariffs currently in effect permits the use or
disclosure of specific street addresses. |
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27. |
On balance, the Commission considers that
the potential negative consequences associated with the disclosure, or
use as search criteria, of street addresses outweigh the potential
benefits stemming from such use or disclosure. Accordingly, the use of
street addresses as search criteria, and the disclosure of street
addresses, will not be permitted. However, the Commission considers that
the disclosure, and use as search criteria, of general locality
information, such as a city, town or postal code, are appropriate, and
will be permitted. In the Commission's view, such use and disclosure
reflect an appropriate balance between the privacy interests of called
parties and those of calling parties. |
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B) Use of RSDA service by commercial entities
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Positions of parties
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28. |
Bell Canada et al. argued that RSDA service
would not be used by commercial entities such as telemarketers, as the
rates proposed for the service would make this implausible. Further,
Bell Canada stated that it was prepared to include in its proposed
tariff an explicit restriction to the effect that RSDA service would not
be available for the purpose of compiling or updating telemarketing
lists. |
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29. |
Bell Canada et al. also proposed to limit
the number of searches to one per call to deter abuse of the service. |
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30. |
SaskTel submitted that RSDA service would
not provide any additional information to telemarketers as they already
have access to the same information through other sources. |
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31. |
Northwestel argued that the number of
searches should not be limited to one, as forcing customers to call back
to finish their requests would result in unnecessary customer
inconvenience and reduced operator services efficiency. Instead, the
Commission should establish a reasonable limit per call. Northwestel
suggested that this approach would provide an effective disincentive to
persons engaging in telemarketing, while allowing customers to have
their requests addressed effectively. |
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32. |
In support of its position that RSDA
service should not be permitted, the IPC submitted that RSDA service,
when combined with Call Display, would facilitate data matching and
profiling. The IPC stated that, for example, commercial enterprises
could use this service to determine the names and addresses of those
calling for information about products or services, without the
knowledge or consent of the called parties. In the IPC's view, this
would be particularly intrusive as it could provide marketers with
personal information about individuals, which was obtained from a source
other than the individuals themselves. |
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Commission determination
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33. |
The Commission notes the significance of
privacy interests and of privacy concerns associated with RSDA service.
Further, the Commission notes Bell Canada's position that it would be
prepared to include in its tariff a prohibition against the use of RSDA
for compiling and updating telemarketing lists. The Commission is of the view that
such use should be prohibited. The Commission also considers that, in order to allay
any concerns that RSDA service could be used by other commercial
interests to compile, or update, marketing lists, the number of searches
per call should be limited to one. |
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C) Subscriber consent
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Positions of parties
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34. |
The Privacy Commissioner stated that to the
extent that individuals consent to have their names and addresses listed
in the white pages of the telephone directory, the regulations made
under the PIPEDA permit the subsequent collection, use and disclosure of
that information without the knowledge or consent of the individuals
concerned. The Privacy Commissioner stated however, that this should not
be interpreted as support, on his part, for RSDA service. The Privacy
Commissioner stated that he was concerned that: (i) the regulations made
under the PIPEDA do not impose any constraints on secondary uses of
information listed in the white pages of the telephone directory; and
(ii) revenues will be generated from a service that may be seen to be an
invasion of privacy. |
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35. |
The Companies submitted that disclosure of
information contained in the white pages of the telephone directory is
permitted pursuant to the PIPEDA without express consent being required.
The Companies argued that there is no compelling reason for the
Commission to establish higher standards of privacy protection than
those provided for under the PIPEDA. |
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36. |
ARC et al. submitted that the Commission
should not fetter its discretion by treating the PIPEDA as conclusive on
all matters respecting privacy. They argued that the Commission must
consider other relevant factors and policy objectives when exercising
its obligations under the Act. ARC et al. submitted that the Commission
is free to establish higher standards of privacy protection under the
Act than those required under the PIPEDA. |
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37. |
ARC et al. submitted that, in order for
RSDA service to be compatible with subscriber privacy under the Act, the
availability of an opt-out process must be effectively brought to
subscribers' attention before their information is provided via RSDA
service, as well as regularly after the fact. ARC et al. argued that all
opt-outs should be effected within a short period, such as 48 hours, of
the request. Further, ARC et al. proposed that the opt-out option be
brought to subscribers' attention annually via the monthly bill and/or
billing inserts, as well as via the printed telephone directory and
Bell Canada et al.'s privacy policies. |
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38. |
SaskTel argued that an annual opt-out
reminder via the monthly bill or other means would be unnecessary and an
undue administrative burden. |
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39. |
While arguing that RSDA service is not
appropriate, the IPC submitted that if it were implemented, in order to
maintain the effectiveness of the current Call Display privacy features,
subscribers would have to be able to opt-out of having their information
made available through RSDA service. |
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Commission determination
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40. |
The Commission notes that, as stated by the
Privacy Commissioner, under the PIPEDA and its attendant regulations,
information contained in the white pages of the telephone directory may
be collected, used and disclosed without the further consent of
subscribers. However, the Commission also notes that its jurisdiction in
this matter stems not from the PIPEDA, but from the Act, and that in
exercising its discretionary powers pursuant to the Act, it may apply
different standards to those contemplated by the PIPEDA. |
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41. |
The Commission notes that the current Terms
of Service of the ILECs provide that all information regarding
subscribers, other than their name, address and listed telephone number,
is confidential and is not to be disclosed, except in circumstances
specified therein, absent subscribers' written consent. The Commission
notes, however, that the Terms of Service were initially approved in a
non-RSDA environment when the various privacy concerns specific to RSDA
service were not at issue. |
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42. |
The Commission considers that the reason
subscribers decide to list their name, telephone number and other
information in the telephone directory is so that other persons can find
these subscribers' telephone numbers to communicate with them by
telephone. The Commission is not convinced that a decision by
subscribers to permit the listing of such information in the white pages
of the telephone directory includes their consent to this information
being used to allow others who may possess their telephone numbers to
identify who they are, or as a means of determining their location. |
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43. |
The Commission is of the view that given
the significant privacy implications associated with RSDA service, it is
important in the specific context of this service that subscribers have
the right to control the use and disclosure of such directory-related
information that pertains to them. |
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44. |
In light of the above, the Commission
considers that express subscriber consent must be obtained for the use
or disclosure of subscriber information in the provision of RSDA
service. |
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45. |
The Commission notes that various methods
of obtaining express customer consent have been approved by the
Commission with respect to the customer transfer process for migrating
customers to protect customers from the unauthorized transfer of their
long distance and/or local exchange service. |
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46. |
The Commission finds that the use of any of
the four methods approved by the Commission for the customer transfer
process is appropriate as a means of demonstrating express consent, for
RSDA purposes, for disclosure of customer information. These methods
include: |
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- oral confirmation verified by an independent third-party;
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- electronic confirmation through the use of a toll-free number; or
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- electronic confirmation via the Internet.
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47. |
The Commission considers that in order to
be meaningful, subscribers' express consent must be informed. In this
respect, the Commission considers that ILECs should explain to their
subscribers: (i) what RSDA service consists of, including what
information may be used by way of search criteria and what information
may be disclosed; and (ii) the requirement for subscriber express
consent. The Commission considers that such information should be
provided by means of a billing insert, telephone directories and, for
those telephone companies that have them, privacy brochures. Details are
set ;out in Section V of this decision. |
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IV Rates
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Positions of parties
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48. |
Those parties that addressed this issue
proposed that the rate charged for RSDA service should be the same as
the tariff rates applicable to an ILEC's directory assistance service. |
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49. |
Northwestel submitted that while the
current directory assistance service should continue to be provided at
no cost to customers calling from pay telephones, such customers should
be required to pay for RSDA service because it is a value-added service. |
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Commission determination
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50. |
The Commission considers that the rate for
RSDA service should be the same as the rate applicable to a telephone
company's directory assistance service given that RSDA service utilizes
the directory assistance database. |
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51. |
The Commission notes that it has never
permitted users of public pay telephones to be charged for the directory
assistance access charge. It was often the case, and remains so, that
telephone directories are not available at public pay telephones as a
result of which users may be forced to use directory assistance service
to be able to make a call. In contrast, users of public pay telephones
would not require RSDA to obtain information to make a telephone call
and so the same considerations would not apply. The Commission notes
that no party in this proceeding provided any compelling policy reason
insofar as RSDA access from public pay telephones is concerned to vary,
the Commission's usual rating approach that permits telephone companies
to charge rates that cover their costs. Accordingly, the Commission
finds that the rate applicable to RSDA service should be applied when
RSDA service is provided to callers from pay telephones. |
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V Implementation
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52. |
The Commission directs the ILECs that
currently provide RSDA service, and intend to continue to do so, to: |
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- file proposed tariff pages reflecting the determinations set ;out
in this decision within 45 days from the date of this decision;
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- file for Commission approval proposed billing inserts as well as
proposed changes to telephone directories and, where applicable,
privacy brochures, within 45 days from the date of this
decision;
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- include the approved changes in the front pages of each telephone
directory coincident with the next release of the directory in the
normal course of publication, and annually thereafter;
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- amend all privacy brochures to include the approved wording within
45 days from the date that approval is given for the proposed
wording.
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53. |
The Commission directs the ILECs that
currently provide RSDA service and do not file, pursuant to
paragraph 52, the proposed tariff pages and other material identified in
paragraph 52, to file proposed tariff pages, proposing the withdrawal of
RSDA service, within 45 days from the date of this decision. |
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54. |
The Commission directs the ILECs that do
not currently provide RSDA service, but intend to do so in the future,
to: |
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- file proposed tariff pages reflecting the determinations set ;out
in this decision 90 days before the proposed commencement date
of the service;
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- file for Commission approval proposed billing inserts as well as
proposed changes to telephone directories and, where applicable,
privacy brochures, 90 days before the proposed commencement
date of the service;
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- include the approved changes in the front pages of each telephone
directory coincident with the next release of the directory in the
normal course of publication, and annually thereafter; and
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- amend all privacy brochures to include the approved wording within
45 days from the date that approval is given for the proposed
wording.
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55. |
Billing inserts, telephone directories and,
where applicable, privacy brochures are, at a minimum, to clearly inform
subscribers that: |
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- the ILEC is providing, or will provide, RSDA service, whichever
applies;
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- RSDA service consists of a person providing the ILEC with a
telephone number and the ILEC disclosing to that person, for a fee,
the name and general locality information associated with that
telephone number;
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- only the names and general locality information of subscribers who
are listed in the telephone directory will be disclosed through the
RSDA service; no information pertaining to subscribers will be used or
disclosed through the provision of RSDA service unless the ILEC
obtains their express consent to such use and disclosure;
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- express consent may be given in the following manner:
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- a signed document as customer confirmation;
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- oral confirmation verified by an independent third party;
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- electronic confirmation through the use of a toll-free number; or
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- electronic confirmation via the Internet; and
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- subscribers may withdraw such express consent at any time, free of
charge, through any one of the means set out above to convey express
consent.
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56. |
In light of the above, the Commission
denies Bell Canada's Tariff Notices 6508 and 6508A for Operator
Services. The Commission notes that, pursuant to paragraphs 54 and 55,
that Bell Canada may file an application consistent with this decision
to provide RSDA service. |
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Secretary General |
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This document is available in
alternative format upon request and may also be examined at the
following Internet site: http://www.crtc.gc.ca |
1 7. It is hereby affirmed that. the Canadian telecommunications policy has as its
objectives.
(h) to respond to the economic and social requirements of users of
telecommunications services.
