ARCHIVED -  Transcript

EXPEDITED PROCEDURE FOR RESOLVING COMPETITIVE ISSUES

INFOLINK COMMUNICATIONS, INC. vs BELL CANADA

INFOLINK VOICECASTING SERVICE

HELD AT: TENUE À:

CRTC Headquarters Administration centrale

du Conseil

1 Promenade du Portage 1 Promenade du Portage

Room 708 Salle 708

Gatineau, Quebec Gatineau (Québec)

September 24, 2004 Le 24 septembre 2004

Transcripts

In order to meet the requirements of the Official Languages

Act, transcripts of proceedings before the Commission will be

bilingual as to their covers, the listing of the CRTC members

and staff attending the public hearings, and the Table of

Contents.

However, the aforementioned publication is the recorded

verbatim transcript and, as such, is taped and transcribed in

either of the official languages, depending on the language

spoken by the participant at the public hearing.

Transcription

Afin de rencontrer les exigences de la Loi sur les langues

officielles, les procès-verbaux pour le Conseil seront

bilingues en ce qui a trait à la page couverture, la liste des

membres et du personnel du CRTC participant à l'audience

publique ainsi que la table des matières.

Toutefois, la publication susmentionnée est un compte rendu

textuel des délibérations et, en tant que tel, est enregistrée

et transcrite dans l'une ou l'autre des deux langues

officielles, compte tenu de la langue utilisée par le

participant à l'audience publique.

APPEARANCES / COMPARUTIONS

FOR THE COMMISSION / POUR LA COMMISSION

Stephen Millington Legal Counsel

Allan Rosenzveig General Counsel, Telecom

FOR / POUR BELL CANADA

David Elder Assistant General Counsel,

Regulatory Law, Bell Canada

Catherine McKenzie Resource Associate,

Executive Care Team

Katherine Capitano Associate Director,

Product Management for

Messaging

Bob Shirley Manager - Technical Design

Operations Group

FOR / POUR INFOLINK COMMUNICATIONS

Cesar Correia President, CEO

Infolink Communications

Ltd.

Kirsten Embree Counsel

Monica Song Counsel

HELD AT: TENUE À:

CRTC Headquarters Administration centrale

du Conseil

1 Promenade du Portage 1 Promenade du Portage

Room 708 Salle 708

Gatineau, Quebec Gatineau (Québec)

September 24, 2004 Le 24 septembre 2004

PAGE / PARA

Opening Remarks:

By the Commission 1 / 1

By Infolink Communications Ltd. 4 / 21

By Bell Canada 14 / 69

Questioning:

By the Commission 24 / 114

By Infolink Communications Ltd. 88 / 551

By Bell Canada 104 / 675

Closing Remarks:

By Infolink Communications Ltd. 119 / 824

By Bell Canada 124 / 847

Undertakings can be found on the following pages: /

Les engagements peuvent être trouvées sur les pages suivantes:

32, 34, 53, 78 and/et 104

Gatineau, Quebec / Gatineau (Québec)

--- Upon commencing on Friday, September 24, 2004

at 0901 / L'audience débute le vendredi

24 septembre 2004 à 0901

1 THE CHAIRPERSON: Good morning, everyone, and welcome.

2 My name is David Colville. I am the Vice-Chairman for Telecommunications of the CRTC and Commissioner for the Atlantic Region and I will be chairing this public hearing.

3 Joining me on the Panel today are my colleagues Commissioner Barbara Cram and Commissioner Jean-Marc Demers.

4 Over the course of this hearing, we will be assisted by a number of Commission staff, including, among others: Stephen Millington, our Legal Counsel; Lynne Fancy, Telecom Staff Team Leader; Shirley Soehn, Executive Director, Telecom; Scott Hutton, Director General, Competition, Costing and Tariffs; Allan Rosenzveig, General Counsel, Telecom; and Paul Godin, Director, Competition, Implementation and Technology.

5 Please don't hesitate to contact Stephen Millington if you have any procedural questions with respect to the content of the hearing, although these usually go so fast that by the time you think of something to ask him, it will be over.

6 The purpose of this oral public hearing is to adjudicate a Part VII Application by Infolink Communications versus Bell Canada regarding Infolink's Voicecasting service. We intend to issue a brief decision by October 5th.

7 I notice the Globe and Mail this morning said within two weeks, I think. But so far we have had a number of these proceedings, and we have been able to get the decision out within one week in each case, as far as I know.

8 Before we begin, I would like to say a few words about the administration of the hearing.

9 There is a verbatim transcript of the hearing being taken by the court reporter. In order to ensure the court reporter is able to produce an accurate transcript, please make sure your microphone is turned on when speaking.

10 We just installed a new sound system here recently, and at the last Commission meeting we had, we were having some difficulty with the microphones. I am assured that the buttons are working now, so please make sure your microphone is on when you are speaking and please turn it off when you are finished.

11 If you have any questions on how to obtain all or parts of this transcript, please approach the court reporter at the end of the hearing. Please ensure that all cell phones and pagers are turned off at all times while you are in the hearing room.

12 As indicated in the Commission's Organization and Conduct letter of September 21, 2004, we plan to consider this application from 9:00 a.m. to 11:00 a.m. There is no fixed end time, but typically these last about two hours.

13 Due to the expedited nature of these hearings, intervenors and the general public will not participate in the oral phase of the proceeding.

14 This hearing is less formal than traditional telecom hearings and much narrower in scope. The parties will be asked to introduce the members of their respective teams. The applicant, followed by the respondent, will have ten minutes each for opening remarks. Following these remarks, the parties will be questioned on matters related to the application, first by the Commission, followed by the applicant, then the respondent and ending with the Commission's final questions.

15 The Commission will not entertain written final argument; rather, parties will have ten minutes at the end of the hearing of their item to make final oral submissions.

16 We are counting on your cooperation to ensure order throughout the hearing.

17 The Notice of Public Hearing letter indicated that the parties must file all documents with the Commission and serve on the other parties prior to the hearing. We are not inclined to accept any additional documents at this hearing.

18 We will now begin with the application by Infolink Communications. We will begin with opening remarks by the applicant, who will have ten minutes to make their presentation.

19 Before beginning their remarks, I would ask the applicant to introduce the members of their team.

20 Ms Embree or...

21 MR. CORREIA: Good morning, Mr. Chairman.

22 MS EMBREE: Mr. Chairman, this morning my colleague Monica Song will actually be introducing the members of the team, and she will actually be delivering the opening remarks of Infolink.

23 THE CHAIRPERSON: That's fine; thank you.

24 MS SONG: Thank you.

25 Good morning, Mr. Chairman, Commissioners, Commission staff. My name is Monica Song, and I appear on behalf of Infolink.

26 With me today are the President and Chief Executive Officer of Infolink, Mr. Cesar Correia; and my partner, Kirsten Embree.

27 We will begin our presentation this morning with Mr. Correia, who will make some brief opening remarks.

28 MR. CORREIA: Good morning, Mr. Chairman, Commissioners and Commission staff.

29 My name is Cesar Correia. I am the President and Chief Executive Officer of Infolink Communications Ltd. With me today are Kirsten Embree and Monica Song from the law firm of Fraser Milner and Casgrain.

30 Infolink is a home-grown, publicly traded company based in Toronto.

31 Since 1995, Infolink has provided corporate communications services to a number of commercial, governmental and not-for-profit organizations in both Canada and the United States.

32 Infolink has been providing ringless Voicecasting services since approximately 1997. Over the years, Infolink's Voicecasting customers include blue chip corporations such as Canada's chartered banks, not-for-profit organizations such as the three major registered political parties of Canada, and governmental bodies such as the Ministry of the Attorney General for Ontario and municipalities.

33 Having started out as a two-man company, Infolink now employees 28 fulltime personnel.

34 I would like now to turn over the microphone to Mrs. Song, who will present the balance of Infolink's remarks.

35 MS SONG: Thank you.

36 Mr. Chairman, the facts surrounding this dispute are relatively simple. In September 2001 Bell Canada threatened to suspend or terminate certain telecommunications services that are provided by Bell to Infolink on the basis that Infolink had allegedly violated Bell Canada General Tariff Item 1800.

37 Bell argued that the delivery of voicemail messages into the voice mailboxes of consumers -- which is the essence of Infolink's Voicecasting service -- constituted the unauthorized use of an ADAD contrary to item 1800 of its General tariff. We will be referring to this tariff as GT Item 1800.

38 In this proceeding Infolink is seeking the following relief:

39 (1) a final order directing Bell Canada to continue providing telecommunications services to Infolink;

40 (2) in the alternative, if the Commission disagrees with our interpretation of Item 1800, we submit that suspension or termination by Bell Canada is an entirely inappropriate remedy in the circumstances. Instead, Infolink submits that GT Item 1800 should be amended to deal expressly with the unique attributes of its Voicecasting service and includes safeguards that are more suited to the non-intrusive nature of the service.

41 For example, we would be open to providing recipients of Voicecasting messages with a toll-free number that they can call to request removal of their names from Infolink's lists.

42 Bell would argue that this dispute boils down to two issues: (1) whether an ADAD is involved; and (2) whether Infolink provides its Voicecasting services for the purposes of solicitation.

43 We submit that Bell Canada's formulation of the issues in dispute conveniently, but incorrectly, ignores the central question that must be addressed in this proceeding, which is whether "a prohibited ADAD call", within the meaning of Item 1800.1(a) of Bell Canada's General Tariff, is taking place.

44 That section of the Tariff reads as follows:

"The use of ADADs to make unsolicited calls for the purpose of solicitation is prohibited.

Prohibited ADAD calls include calls made to solicit on behalf of a charity, the use of ADAD messages to request that a called party hold until an operator is available (when the purpose of the call is to solicit), activities such as radio station promotions, or ADAD calls referring the called party to a 900 or 976 Service number."

45 It is clear from this section of the Tariff that in order for a call to constitute a prohibited ADAD call, a real-time telephone call must be made to a live recipient on the other end of the telephone line sot hat a prerecorded or synthesized message can be played.

46 Infolink's Voicecasting service has none of these characteristics. Infolink's Voicecasting service is a non-real-time, enhanced telecommunications service that involves computer-to-computer communication, which takes places solely and exclusively between Infolink's Voicecasting system and Bell Canada's voicemail platform.

47 From a consumer perspective, therefore, the calling party's telephone never rings and no one has to interrupt what they are doing in order to pick up the telephone. In fact, Infolink's Voicecasting messages don't even reach the recipient's telephone handset or telephone line because they are deposited into a centralized voice mailbox system.

48 Mr. Chairman, when we look at the regulatory scheme contained in GT Item 1800, we see that it regulates three types of activities: real-time voice telemarketing, real-time facsimile telemarketing, and real-time ADAD telemarketing.

49 In the case of all three activities, the restrictions on their uses were designed to address the specific inconveniences caused to consumers by the three real-time telemarketing activities.

50 On the face of it, GT Item 1800 simply does not deal with non-real-time, ringless voicemail messages that are deposited directly into the voice mailboxes of consumers. In fact, the exact opposite appears to be the case.

51 For example, the rules stipulate that ADAD calls include "the use of ADAD messages to request that a called party hold until an operator is available". The rules also state that "ADAD users must make all reasonable efforts to ensure that their equipment disconnects within 10 seconds of the called party hanging up". The rules state as well that ADAD calls may only be placed between 9:30 a.m. and 8:00 p.m. and that they "must display the originating calling number".

52 All of these provisions make it clear that the ADAD rules were designed and only intended to apply to situations involving the use of an ADAD to make contact, in real time, with the called party. If the Commission had intended otherwise, it would not have made reference in its rules to the "called party hanging up" or the called party being placed on "hold until an operator is available".

53 All of these scenarios involve someone who is at the other end of a line picking up a telephone in real time after it rings.

54 Mr. Chairman, Bell Canada will tell you that the only thing you need to decide in this proceeding is whether Infolink's Voicecasting service embodies the "material functionality of an ADAD" in order to determine whether there has been a violation of GT Item 1800.

55 This reasoning is simply incorrect.

56 First, as we have already pointed out, it is not the use of an ADAD per se that is prohibited by GT Item 1800. Rather, it is the placing of "prohibited ADAD calls" which contravenes GT Item 1800.

57 Second, and perhaps more importantly, Bell Canada's approach to statutory interpretation is inconsistent with the modern, purposive approach to legal interpretation that is endorsed by the Supreme Court of Canada in such cases as Bell ExpressVu v. Rex.

58 As we noted in our Statement of Argument in this proceeding, the modern approach requires that the words of the statute be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme and object of the legal instrument and the intention of the legislator.

59 In contrast to this approach, Bell Canada adopts a flawed constructionist interpretation which ignores the purpose of the legal instrument, the context in which it was prepared and the original intention and objectives of the Commission when it rendered Telecom Decision CRTC 94-10, which is the decision in which the ADAD rules were first established by the Commission.

60 Before concluding my preliminary remarks this morning, I wanted to point out that we believe that this proceeding is not just about the interpretation of GT Item 1800. It is equally, if not more so, about the interpretation of section 41 of the Telecommunications Act.

61 This section of the Act provides that:

"The Commission may, 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 that the Commission considers it necessary to prevent undue inconvenience or nuisance, giving due regard to freedom of expression."

62 Mr. Chairman, we wish to make two brief comments regarding the exercise of the Commission's jurisdiction under section 41.

63 First, this section of the Act stipulates that the inconvenience or nuisance caused by an unsolicited telecommunication must be undue. No such inconvenience is caused by Infolink's Voicecasting services, which involve the deposit of messages into voice mailboxes, silently and without disruption to the intended recipients of the messages.

64 Second, with respect to that portion of section 41 which requires the Commission to give due regard to freedom of expression, we would like to draw your attention to the fact that the Supreme Court of Canada has directed that when there is uncertainty or ambiguity in the interpretation of a statutory provision, "the values embodied in the Charter must be given preference over an interpretation which would run contrary to them".

65 Mr. Chairman, the resolution of this dispute is critical to Infolink's business which depends significantly on the provision of Voicecasting services. For this reason, we reiterate our commitment to work with the Commission and Bell Canada to resolve this matter in a manner which balances the respective interests of all parties.

66 Thank you.

67 THE CHAIRPERSON: Thank you very much, Ms Song.

68 Is it Mr. Elder?

69 MR. ELDER: Good morning, Mr. Chairman and Commissioners. I am David Elder. I am Assistant General Counsel.

70 Looking at my tent card, I should be pleased, I guess, that the punctuation in my title is a period and not a comma.

71 With me today, to my immediate right, is Catherine McKenzie, who is a Resource Associate with our Executive Care Team. To her immediate right is Katherine Capitano, who is Associate Director, Product Management in the Messaging portfolio. Next to Katherine is Bob Shirley, who is the Manager of Technical Design who works within our Operations Group.

72 To my left is Pierre-Luc Hebert, who is counsel in the Regulatory Law Group.

73 Bell Canada is pleased to be able to respond to the application of Infolink in this expedited oral hearing format. The company looks forward to a speedy resolution of this matter. There has been a great deal of uncertainty over the past three years as to the legality of back-door ADAD technology, and the public, the company and current and potential ADAD operators will all be better off for knowing what the rules are.

74 As Bell Canada has maintained since Infolink first applied for relief from disconnection, the issues for determination in this proceeding are just these.

75 First, is Infolink operating an automatic dialling-announcing device (ADAD) within the meaning of General Tariff 1800.1? If yes, Infolink is subject to the Commission's restrictions on the use of ADADs. If not, it is subject to no restrictions whatsoever.

76 Second, if Infolink is operating ADADs, are they being used to make unsolicited calls for the purpose of solicitation? The answer to this question determines whether Infolink's operations are prohibited by law or whether they are subject to certain restrictions set out in the tariff.

77 In fact, Bell Canada submits -- and I think this is supported by the remarks just made by the applicants -- that the issue for consideration today can be narrowed even further.

78 As the Commission is aware, Item 1800.1 of the company's General Tariff defines an ADAD as follows:

"For the purpose of this tariff, an ADAD is defined as any automatic equipment incorporating the capability of storing or producing telephone numbers to be called, used alone or in conjunction with other equipment to convey a prerecorded or synthesized voice message to the telephone number called."

79 We submit that it is absolutely clear that Infolink's "internetworked computers" constitute automatic equipment, with the capability of storing or producing telephone numbers. It is also beyond dispute that Infolink's equipment is used to convey a prerecorded or synthesized voice message to the recipients. It is also undisputed by Infolink that it conveys messages for the purposes of solicitation.

80 Infolink has essentially admitted these facts in its various submissions.

81 As a result, we submit that the real issue for determination at today's oral hearing is simply this: Does Infolink's equipment call telephone numbers?

82 Infolink submits that its equipment does not call telephone numbers, because the telephone does not ring. This sounds like a twist on the old philosophical riddle about whether a tree falling in the forest makes a sound if no one is around to hear it. In this case, Infolink would have us believe that if no one hears a telephone ring when a communication has been received, then a call has not been made.

83 Bell Canada submits that a call is simply a transmission of information between parties by means of telecommunications. In our view, a ringing telephone is little more than one method to signal to the call recipient that a communication has been received and cannot be determinative as to whether that communication constitutes a call. There are several problems to such an approach, which could lead to absurd results.

84 For example, many hard of hearing subscribers use terminal equipment that flashes a light to indicate an incoming call -- rather like many telephones do to indicate receipt of a voice message. My own wireless phone, and many of Microcell subscribers' wireless phones, might be set to mute, but they still receive calls.

85 To follow Infolink's logic, neither of these scenarios would constitute calls within the meaning of the ADAD tariff.

86 Moreover, the company notes that many Infolink calls would in fact generate a ringtone, or equivalent -- for example, when a wireless handset or PDA gives an audio signal, or vibrates, to indicate that a message has been received.

87 Similarly, where a telephone subscriber has pager notification, their pager would sound when a message was received.

88 In each of these scenarios there is indeed, to use Infolink's phrasing, an "interruption of the message recipient's daily routine".

89 Infolink also seems to hang its hat on the fact that the communication is not in real time; that is, that the message is not heard by the recipient immediately. If this were the test, then no calls -- even by conventional ADADs -- that are answered by voicemail or answering machines would be covered by the unsolicited telecommunications tariff.

90 Finally, Infolink seems to suggest that the fact that it does not make a direct PSTN connection with a mailbox (instead connecting directly with the company's voicemail access number, then dialling through to a mailbox) also means that it does not make calls. If this analysis were determinative, then the ADAD rules would similarly not apply to calls made to a PBX or similar facility that requires entry of an extension number to reach the intended recipient.

91 The company submits that all of the foregoing definitional arguments are, frankly, a stretch. Infolink has cited Driedger's "Construction of Statutes" and several case authorities in support of a contextual approach to interpretation. Bell Canada does not disagree with this approach, but rather with its application. There is no real ambiguity in the ADAD tariff, using the words in their grammatical and ordinary sense, harmoniously with the scheme and object of the tariff, the Telecommunications Act and the intention of Parliament.

92 In the company's view, all of these contextual sources support the application of the ADAD tariff to Infolink's operations. Indeed, Infolink's contention that its operations are not ADADs would run contrary to this larger regulatory and legislative context, since it would mean that while live voice, facsimile and conventional ADAD use would all be subject to various safeguards designed to minimize consumer inconvenience or nuisance, back-door ADADs would be subject to no safeguards whatsoever.

93 It is this result, it is submitted, that fails the Driedger contextual approach.

94 In effect, what Infolink wants is for the clearly worded provisions in question to be "read down" so as not to apply to their operations.

95 In support of this "reading down", Infolink submits that the restrictions were never intended to apply to its operations and that in fact its operations cause less annoyance than the conventional ADADs considered by the Commission in establishing the current rules.

96 Again, Bell Canada cannot agree with his submission. The company submits that the ADAD prohibition was directed at the use of automatic equipment to make unsolicited recorded synthesized sales calls. The particular machinery, programming or call routing was, and is, immaterial.

97 This is precisely why the definition of an ADAD was deliberately framed by the Commission in a way that focused on essential functionality rather than specific technologies.

98 In Decision 94-10, where the ADAD prohibition was introduced, the Commission found as follows:

"The inconvenience or nuisance caused by unsolicited telecommunications, as well as the perceived invasion of privacy, varies depending on the nature of the call, i.e., whether it is 'live' or delivered by means of an ADAD, and on the purpose of the call, i.e., whether it is for the purpose of solicitation or for some other purpose. In general, unsolicited ADAD calls cause greater inconvenience or nuisance than unsolicited live voice calls, and are more likely to be perceived as an intrusion, because --"

99 And I would emphasize here:

"... ADAD calls do not permit the called party to interact with the caller."

100 The inability to interact with the caller is, in our view, pivotal and just as applicable to Infolink as it is to older generation ADADs. In both cases the recipient of the call has no immediate means to voice their displeasure, or to request that they be added to a do-not-call list. A subsequent call is required and more than likely the call is to the message sponsor, not the voicecaster. Moreover, the recipient may have to listen to the entire message to obtain a number to call -- if a number is included at all.

101 We note that in the Commission's most recent telemarketing decision the Commission has required live voice telemarketers to process do-not-call requests during the call rather than forcing consumers to place another call.

102 We submit that this is the context in which the wording of the ADAD tariff must be read. Moreover, this approach is entirely consistent with the intention behind section 41 of the Telecommunications Act and is a justifiable limit on commercial speech that is consistent with the Charter.

103 In Decision 94-10, the Commission crafted a prohibition on unsolicited telecommunications, pursuant to section 41 of the Act, that was narrowly tailored to affect only automated delivery of recorded or synthesized messages. As the Commission noted at that time, and as is still the case, Infolink and its clients have many other ways to advertise, including live voice telemarketing and unsolicited fax communications.

104 A few sundry important points.

105 Infolink has pleaded that it is behaving responsibly, providing appropriate contact information and honouring do-not-call requests. This may or may not be the case, but the point is that the tariff applies to all operators, not just Infolink, and if such undertakings are found not to be operating ADADs, they are under no legal requirement to adhere to these safeguards.

106 We know currently of six other back-door ADAD operators and suspect that many more, including individual merchants and fax broadcasters, will get into the game if Infolink's application is successful today.

107 As noted in Bell Canada's submission, back-door ADAD calls are also creating additional annoyance to the extent that they overload the company's voicemail platform or could fill customer mailboxes to capacity.

108 Finally, the company takes issues with Infolink's implicit suggestion that when the company applies its tariffs, it must go well beyond the facts at hand and the plain language and scheme of the tariff to take into account the individual circumstances of those to whom the tariff may apply, to determine whether in fact the tariff should be applied.

109 This is clearly an unworkable, overly subjective approach to tariff regulation and would render many of the company's tariffs practically unenforceable, to the detriment of the Commission's recently expressed concerns respecting enforcement of telemarketing restrictions.

110 In light of all of the foregoing, Bell Canada submits that the application of Infolink for relief from disconnection should be denied.

111 Thank you for your attention. We would be happy to take your questions.

112 THE CHAIRPERSON: Thank you, Mr. Elder.

113 Counsel.

114 MR. MILLINGTON: Thank you.

115 I will start with questions to Infolink.

116 My first question relates to the jurisdiction to amend GT Item 1800 in this proceeding.

117 As everybody has discussed in the opening comments this morning, there is some question as to the application of this particular tariff.

118 If the Commission were to find that GT Item 1800 does not apply to Voicecasting, what is your view in terms of the jurisdiction to amend the tariff within this particular proceeding, given that Bell Canada's application for relief and their comments this morning have indicated that it would be beyond the scope of this expedited hearing?

119 MS SONG: I will turn to Ms Embree to address that question.

120 MS EMBREE: I am not sure I understand the question.

121 MR. MILLINGTON: Bell has advanced the proposition in is remarks and in its application for relief that amending the tariff at the expedited proceeding this morning is out of scope.

122 I want to know what your position is on that.

123 MS EMBREE: I think our position is that this is a proceeding which, first of all, we didn't ask to have. We were threatened with disconnection or suspension or termination of service by Bell. In order to respond to that threat, we have asked for relief.

124 The relief that we have asked for is either that Bell's proposal or threat to disconnect be denied; and in the alternative, if the Commission does not agree with our interpretation of GT Item 1800, that the Commission consider amending the ADAD tariff in order to address the kinds of services that Infolink's company provides.

125 In the context of an expedited dispute resolution process, I have to confess that I don't have enough familiarity with the procedures in this process to know whether the Commission has the jurisdiction to initiate a proceeding within the context of this dispute.

126 My answer I guess to the question is that when a party asks the Commission for relief and the relief that is being requested falls within the Commission's jurisdiction, then the Commission can grant that relief in whichever proceeding it chooses to dispose of the request.

127 We have made a request. We think that the Commission can probably dispose of our request in this proceeding, but we are flexible and we would be more than open to a public notice proceeding, which would be open to a broader cross-section of the public, to consider Voicecasting services and their placement in the Commission's telemarketing regime.

128 MR. MILLINGTON: Thanks. My next question relates to consumer safeguards. This issue was raised both by you and by counsel for Bell Canada.

129 At page 9, paragraph 31, of Infolink's Statement of Argument and Relief, Infolink states that the success of its Voicecasting service is founded on the philosophy that responsibility to the consumer comes first.

130 However, recipients of messages must pass through Infolink's customer in order to put themselves on a do-not-call list.

131 You indicated this morning that Infolink would be prepared to provide a toll-free number in the context of the message so as to allow the message recipient to be added to a do-not-call list.

132 What would your views be on going a little further in terms of consumer protection and beginning every prerecorded message with an announcement that a solicitation message was to follow and then provide Infolink's number?

133 MR. CORREIA: That certainly can be done.

134 The reason that Voicecasting has been successful is because it doesn't sound like a telemarketing call. It is a regular telephone call from somebody who actually called someone to tell them some information about our service or product. Doing that would certainly tell the recipient that it is a definite telemarketing call. Sometimes people have predetermined thoughts about telemarketing and it might not be so effective.

135 I would be open to putting an introductory statement at the beginning of each message for the purposes of consumer protection.

136 MS EMBREE: Just one other comment that could be added is that we know that the Commission has a new set of telemarketing rules, and we have given consideration to those rules. We are thinking about how those rules apply to or can be applied to a Voicecasting service business.

137 The option of putting a message at the beginning, I can see that it holds appeal. I understand that there are some applications that have been submitted to the Commission requesting that a portion of the new telemarketing rules be reviewed and varied, and I think there is also one, or possibly two, petitions to Cabinet. If I am not mistaken, I think those petitions actually address or deal with the portion of the rules that prescribe or require telemarketers to put this kind of information at the very beginning of their scripts.

138 So we might have to see how those proceedings unfold to know whether it ultimately makes sense for the Voicecasting service.

139 We are open. We are willing to consider a number of consumer safeguards. That willingness is there.

140 MR. MILLINGTON: Will the service, in your view, be as attractive to your end customers as opposed to the recipient of the messages with that introductory comment?

141 MR. CORREIA: I really don't know the answer to that question. I hope it would still be as attractive, but it might take away some of the attraction if you put an introductory message.

142 MR. MILLINGTON: My next question has to do with the number of voicemail messages that we have been told on the record that have been delivered by Infolink.

143 In response to the interrogs that led up to this particular hearing this morning, in your June 11, 2004 interrog, page 2, you indicate that a total of 2 million subscribers received a total of five messages each over a period of 200 weeks.

144 I do the math on that, and I would like you to confirm that that is approximately one message per year, if you take the 200 weeks as 52 weeks a year.

145 Am I doing the math correctly? Is that the conclusion I am to draw from those numbers?

146 MS EMBREE: We will just take a moment to look at the interrogatory response.

147 That reference to five messages each over a period 200 weeks, that was information that we supplied to the Commission in December 2001.

148 I am not sure if you said 04 or 01.

149 MR. MILLINGTON: It was the interrog.

150 MS EMBREE: Yes. We will just take a minute to verify.

--- Pause

151 MR. CORREIA: It has been a few years since I have done this math and when I did it, it included several million telephone numbers divided by our output based on our computer logs. This is how I came up with this figure.

152 MR. MILLINGTON: All right. It seems a very low number. I am wondering whether you can provide to us this morning, with respect to individual voicemail subscribers in the 416/905 area code, how many messages you would expect an individual voicemail subscriber in those two area codes to receive for the calendar year 2004 and what your projection would be for calendar year 2005.

153 MR. CORREIA: I am on the telemarketing list myself, just to monitor it, and I do get the messages. I don't get them every week, and I don't get them every two weeks either. It is sporadic.

154 You are asking me how many for the calendar year 2004?

155 MR. MILLINGTON: The point I am trying to get at here is that, based on the information in front of us, it looks like people are getting, at the most, one per year, which by I think everybody's accounting would be rather low. I am just curious about that number.

156 Therefore, in order to update it and make it more current and give a number that is more relevant perhaps than the way we have arrived at this particular number, for the benefit of the Commissioners, is to have a number of voicemail messages -- projected; I understand that.

157 For an individual subscriber in the 416/905 area code, what would a voicemail subscriber likely receive within a calendar year?

158 I would like that number also for area code 613.

159 If you don't have it this morning, maybe you could undertake to get it to us as soon as you can provide it.

160 MS EMBREE: I think it is probably best if we take the undertaking. We will have to go back and look at the logs. I am not sure if we have calculated the information the way the Commission is looking for it this morning.

Undertaking

161 MR. CORREIA: If I can add to that, I think the figures that you see here were arrived at by way of taking several million numbers and dividing into it what we normally send out over a year. So that means, on average, what I have said is correct.

162 If our clients target certain areas more frequently than others, then some persons in certain areas will get more messages delivered to them; whereas persons on the outskirts of other areas where our customers don't want to send information to may not get any message.

163 So that figure there is an average.

164 MR. MILLINGTON: If I understand you correctly, your marketing team could identify a group of NXXs that would be then targeted because they would have perhaps the demographics that most closely respond or correspond to your customers' products, and therefore they would be targeted.

165 Therefore, although there is a very random aspect to the way the computers dial these numbers -- as I understand, it is quite random. But because you are targeting a block of NXXs, they would receive more voicemail messages through this system than people in the same area code but not in that block of NXXs.

166 Is that correct?

167 MR. CORREIA: Yes. If the client would ask to target a certain NXX, then we would.

168 MR. MILLINGTON: Do you have any way of identifying the numbers of messages that, if we narrowed it down to an NXX, as an example, a block of numbers, that they might receive within a calendar year?

169 MR. CORREIA: I can go and figure that out. I can undertake to get that for you. I don't have that information with me.

Undertaking

170 MR. MILLINGTON: I understand if you take 416/905, it is a huge area with lots of people. There could be some people, as you say, on the outskirts that receive none and the people that are in the downtown core who might be receiving a lot, whatever that number might be.

171 MR. CORREIA: Yes, that is true. I live in the downtown core myself, and as I mentioned, I don't -- the database is around a million numbers, and we have about four or five computers only for the local area. That is all we use.

172 So that with a million numbers, you are not getting a message every week. It is sparse.

173 MR. MILLINGTON: We will move on.

174 At page 7, paragraph 28, of Infolink's argument and relief sought, you state that "Voicecasting is neither invasive nor intrusive since customers are not interrupted by the delivery of a message".

175 What is your evidence that supports the proposition that Voicecasting is not invasive or intrusive or that the test of undue inconvenience and nuisance is not met just because the phone does not ring?

176 MR. CORREIA: I guess my definition of that is the fact that when people receive a voice message by way of Voicecasting, they can listen to it when they want and they are not taken out of their way when that message is deposited. They can continue doing what they are doing, unlike the conventional telemarketing where the phone rings and disturbs people.

177 It is also not intrusive comparing it to fax broadcasting where it doesn't use up resources, use up paper or toner.

178 MS EMBREE: I would add to that. I think our evidence is that we have a Commission decision, a few Commission decisions that deal with telemarketing in general and ADADs in particular. In those Commission decisions the Commission has examined a number of different telemarketing scenarios and has evaluated evidence from subscribers and user customers on what annoys them the most.

179 What annoys them the most is having the telephone ring during dinner time. What annoys them the most is picking up the telephone, hearing a message and being told to stand by so that they can speak to a live operator. What annoys them the most is after picking up the telephone and hearing a prerecorded or synthesized ADAD message, hanging up and picking up the phone immediately after that and finding out that their line is still being tied up.

180 Those are the things that are the most annoying. That is the evidence that the Commission evaluated and looked at in Decision 94-10.

181 Based on that evidence, that is how the Commission developed the rules for ADADs which exist today.

182 MS SONG: If I could add to that briefly, the messages that are left in Infolink's Voicecasting service are generally no more than 30 seconds long. My understanding from the evidence of Bell is that residential mailboxes have the capacity of 25 messages, with a maximum of three minutes each.

183 So with a 30-second message and where the consumer is retrieving voicemail messages anyways, he is expecting a recorded message. That is the nature of a voicemail.

184 So the message that is being left is not unlike in many ways all the other voicemail messages that he is retrieving.

185 So in terms of the intrusion and the unexpected nature of a live ADAD call, this has many distinguishing features.

186 MR. MILLINGTON: I don't disagree with what you have said, in the sense that there is evidence on the record to show that ADADs are annoying when somebody picks up a phone.

187 What I didn't hear is evidence that shows that subscribers who retrieve voicemail messages that contain a solicitation message are not annoyed by the receipt of those messages.

188 MR. CORREIA: I think there have been some people that have been annoyed by receiving Voicecasting messages. We do our best to add them to our removal list, which we have been building since 1997. We keep them permanently on that list. We do not recycle them at the end of three years, as per the existing CRTC regulations regarding packet broadcasting. We prefer to keep them on the list, because we just don't want them getting annoyed and calling us again, which costs us time and resources.

189 Further, we would like to gather all individuals' phone numbers who don't want to receive messages because we don't wish to annoy anyone and our customers don't wish to annoy anyone. It uses up their resources, as well, to handle these people.

190 We find that when we have a new list of telephone numbers, when we first send information to them we get a higher count of removal requests. The second time we go through the list, it is a lower count. And the third time we go through that list, it is an even lower count again.

191 The point I am trying to make is that slowly over time we clean out the list, and there are less and less persons that are annoyed.

192 MS EMBREE: The other point in terms of evidence, bringing it up to modern day post Decision 94-10, is our own evidence on the record of this proceeding, which is that -- well, the evidence that we gave in our response to the CRTC's June 11th Interrogatory No. 4.

193 In that interrogatory what we said was that, in total, the number of removal requests that have been received by Infolink represent only .03 per cent of the 40 million messages that were referenced in Infolink's letter to the Commission of 18 October 2002.

194 Those are very, very low numbers when you compare them with fax broadcasting and telemarketing fax services. The numbers are significantly higher.

195 MS SONG: I think the number that is given in the interog response is 0.03 not .03 per cent.

196 Perhaps Mr. Correia can speak to the rate of removal for fax broadcasts and other forms of telemarketing as compared to the removal request rate for Voicecasting.

197 MR. CORREIA: I have been in the fax broadcasting industry since 1995, and we have collected over 200,000 fax no-send or no-dial numbers in the 416/905 area alone. We have collected for Voicecasting approximately 12,000 of these do-not-call numbers.

198 So it is quite a difference with persons being annoyed.

199 I think when you have these types of tools such as Voicecasting, let's use them. Let's use them wisely. It is a great communication tool for businesses.

200 The fax broadcasting has really demonstrated to me that that is an annoyance factor more so than Voicecasting.

201 MR. MILLINGTON: Before we go to your comment, Monica, could you repeat the number that you gave in terms of the removal percentage.

202 There was some difference between the number that you and Ms Embree gave.

203 MS EMBREE: I think Monica just said 0.03 and I said .03. That was the only difference.

204 THE CHAIRPERSON: I actually understood you to both give the same number.

205 MS SONG: My apologies.

206 MR. MILLINGTON: I knew it was written down, so I wasn't too fussed one way or the other.

207 MS EMBREE: Lawyers and math, they don't mix.

208 MR. MILLINGTON: I want to return to the point that was made in terms of the evidence here.

209 Is the process for getting on the do-not-fax list, if you allow me that expression, the same as the process to get on the do-not-send me a Voicecasting message the same?

210 MR. CORREIA: It is not quite the same. In the fax broadcasting method, there is a variety of ways.

211 You can call our customer, who will call us. You can call us directly. You can e-mail us. You can fax us. And you can also use our automated system that will take the number for fax broadcasting.

212 For Voicecasting, initially in 1997 when we started doing this, we noticed that the complaints were not as significant in comparison to fax broadcasting. So we didn't set up the same system. We instead have our customers collect the removal requests, and they pass them to us. That is how we do it today.

213 MR. MILLINGTON: While I take the statistic, the fact that the process requires going through your customer in order to trigger a removal doesn't necessarily generate clarity on the dissatisfaction with having received a voice message, because the customer may choose not to send through that do-not-call me message to you.

214 As I understand it -- unless you can point me to something -- they are not obligated as a customer of yours to forward those messages on to you.

215 Is that correct?

216 MR. CORREIA: Yes. They are not obligated, I think by law. Is that what you are saying?

217 MR. MILLINGTON: Even under the terms of service that you have with your customers. You don't say if you don't forward through to us people who want to be removed from the service, you don't drop them as a customer, as an example.

218 MR. CORREIA: Well, we tell our customers to provide us that information.

219 Furthermore, customers receiving complaints don't wish to keep receiving complaints. So they gladly take the number and they do pass it to us.

220 People on the other end, mainly the client, they are the ones receiving the front-line calls from Voicecasting, and they don't like to be disturbed with irate individuals. So they would gladly give us the information.

221 Some of them even tell the caller: Here, call Infolink. Here's the number. Get off my back and just call them.

222 We receive the calls and we take the numbers.

223 MR. MILLINGTON: One final point on this.

224 Other than the statistic you provided us in terms of the people who want to be removed from the service, you don't have any -- at least, this is my understanding. You don't have any other evidence that call recipients find that receiving a voicemail message in their voicemail, as opposed to having it delivered directly to them in so-called real-time, is less inconvenient and less of a nuisance than a real-time voicemail.

225 The argument is an extrapolation argument: because it is not in real-time, because the phone doesn't ring, it is less intrusive and less invasive and less of a nuisance.

226 I have not heard any direct evidence that you can put in front of us that says that the voicemail subscribers find that the fact that it is delivered directly into their voicemail box, as opposed to ringing in their house, is less invasive or intrusive.

227 That is not what the ADAD decision said.

228 The direct drop messaging technology was not considered in 94-10 because it didn't exist then.

229 MS EMBREE: I think what we are looking at is how to interpret section 41 of the Act. In section 41 the emphasis is on undue inconvenience or annoyance.

230 I don't think we are here to say that no one is annoyed or inconvenienced by Voicecasting services. We are not saying that. But it is not undue. It is certainly not undue in comparison to live telemarketing, whether it is fax or voice, or even live ADAD telemarketing. I think that is our point.

231 The evidence that we have given you, at least the way we see it, is that if it was undue maybe the number of removal requests would be significantly higher. But it is at .03 per cent of the 40 million messages that were delivered as of October 2002.

232 MR. MILLINGTON: Those are my questions for Infolink.

233 THE CHAIRPERSON: Before we move on to Bell, do we clearly understand what the undertaking is?

234 MS EMBREE: The undertaking that I wrote down here is: How many subscribers in the 416/905 area code in 2004 -- actually, it would be how many messages would the subscribers in the 416/905 area code have received in 2004.

235 And there is a separate undertaking to provide similar information for the same year for the 613 area code.

236 THE CHAIRPERSON: Is that your understanding, counsel?

237 MR. MILLINGTON: I want actuals or projection to the end of 2004 for 416/905 and 613, and projections for 205.

238 MR. ELDER: And you will serve copies on Bell, counsel?

239 MS EMBREE: Yes, we will.

240 THE CHAIRPERSON: As a matter of interest on this issue -- I appreciate I am stepping in here.

241 To clarify that point, do you offer your customers -- that is those sending out the messages -- different frequency rates for the calls?

242 For example, if it is a chimney sweep, I want to call all the 416 numbers every other month.

243 MR. CORREIA: I'm sorry, I am not sure I understand your question.

244 THE CHAIRPERSON: Can your customers buy frequency, like ads on a radio station? I want an ad on the radio station every morning at 9 o'clock for two weeks.

245 Can your customers buy different frequency rates in terms of sending out Voicecasting messages?

246 The Bank of Commerce may just want to send this out once and that's it. But the chimney sweep may want: Through the fall before we get into fireplace burning season, I want to send the message out to your group of numbers every other month. I don't want to just do it once in the fall.

247 Can they buy different frequency rates from you?

248 MR. CORREIA: It is all up to the customer really. They don't come up to us and say I would like to book now in advance, repeating the same thing every month. They tend to select an area and start there, and based on their success they either continue or they don't continue.

249 Their list is so huge that it takes some of them a long time to get through the entire list.

250 THE CHAIRPERSON: Now that we have the undertaking clarified --

251 MR. MILLINGTON: I was just going to clarify one little bit there. I apologize for going back on this again.

252 Given the fact that there are differences in terms of the way you market to different blocks of NXXs, it perhaps is a more meaningful statistic for us if you provide us those statistics with respect to how many voicemail messages over 2004-2005 for those NXXs which are going to be the most targeted and not have them compiled with all of the NXXs over such a huge area.

253 As you said, there could be some outlying groups of customers who never receive any calls because they are just not in a demographic area that would be attractive to your customers.

254 I think if you can disaggregate those numbers a bit for us, focusing on the group that is most likely to receive these types of Voicecasting messages, so we can see the kind of volume of calls for the mostly highly sought after group of customers.

255 MR. CORREIA: Our clients sometimes request small little areas to send to. Our sales staff has been trained to encourage them to start at the beginning of the list and go to the end, because you never know where you might find a potential client.

256 It is easier for us, as well. It is more work for us to go and pull out little NXXs. It is a lot more work.

257 We tell the customer start here and let's do this whole campaign. That is generally how we try to sell it and get away from targeting little tiny areas.

258 So that way it doesn't congest into particular NXXs. This way we are trying to get away from the congestion.

259 THE CHAIRPERSON: Typically, do you do it by MPA, then?

260 MR. CORREIA: We take our million list and we start at the beginning or the middle or 75 per cent through. We give them a point to start and then they go forward.

261 THE CHAIRPERSON: Thank you.

262 Counsel?

263 MS EMBREE: I an not sure if actually we can provide the disaggregated information that you are looking for. It sounds like they are just using a whole 416/905 list.

264 MR. MILLINGTON: I think you know what we want; and to the extent you can provide it, we would be grateful.

265 MS EMBREE: Okay.

266 THE CHAIRPERSON: When can you provide it?

267 MS EMBREE: Well, we know we have to provide it before October 5th.

268 Let me just find out.

--- Pause

269 MS EMBREE: We will endeavour to get the information to you by Tuesday next week.

270 THE CHAIRPERSON: By the end of day Monday?

271 MS EMBREE: I understand that this is actually quite a difficult exercise. We will try. I am not sure if we are able to do it.

272 THE CHAIRPERSON: All right. We will leave it to you to make your best efforts to have it to us by the end of the day Monday.

273 MS EMBREE: Okay.

274 MR. MILLINGTON: Thank you.

275 I would like to stay on the topic of evidence, as I turn my questions toward Bell Canada.

276 On page 5 in Bell's Canada application for relief from disconnection, paragraphs 25 through 29, Bell Canada set out examples of the nuisance and inconvenience reported by Bell Canada customers caused by Voicecasting.

277 Paragraph 25, there is no live caller interaction, and the statement is made that it is annoying whether the phone rings or not.

278 Paragraph 26, no contact number for Infolink is left on the prerecorded message.

279 Paragraph 27, reliability of the phone system is put in doubt because the message is left without the phone ringing.

280 Paragraph 28, message retrieval and deletion ties up the phone line.

281 Paragraph 29 relates to mailbox congestion and overload.

282 With respect to the voicemail subscriber, what specific evidence do you have as to the degree of inconvenience or nuisance caused by prerecorded voicemail messages left when the phone rings versus when a prerecorded voicemail message is left directly in a voice mailbox without the phone ringing?

283 MR. ELDER: I am not sure we have done sort of a side-by-side comparison and looked at the two of them. Part of the reason that is a little bit difficult to do is we don't see a lot of conventional ADAD use, certainly not as much as we did into the early 1990s. So it is difficult to compare the two at this point in time and in this market.

284 The evidence that we have and the evidence I think we have set out in these paragraphs is certainly based on complaints that we get in to 310-BELL, into our escalated Executive Care Team where we record, to the best of our ability, what particular things about these types of calls people find annoying.

285 You appreciate that we don't have a system that has a hundred different boxes to check, depending on the exact nature of your complaint relating to the receipt of a back-door ADAD call.

286 I don't know if Catherine McKenzie has anything to add to that.

287 I'm sorry, I am not sure what else I can provide you.

288 MR. MILLINGTON: When we were looking at the record, we obviously knew what was put in front of the Commission to justify 94-10, and of course 94-10 did not consider Voicecasting because it didn't exist at the time.

289 What we were looking for was specific evidence on Voicecasting and the degree to which it did cause the undue inconvenience and nuisance.

290 So that's fine; thank you.

291 Do you have statistics that are available here this morning or that you can provide to us as to the number of complaints with respect to other forms of telemarketing coming in to 310-BELL or executive calls versus Voicecasting complaints?

292 MR. ELDER: Perhaps I could confer for a second.

--- Pause

293 MR. ELDER: We don't have a precise number. We didn't bring those numbers with us.

294 In terms of the complaints that we get from customers, about 10 per cent of all the complaints we receive relate to telemarketing. Of that, live voice telemarketing is about half of that, so 5 per cent. The next one after that is fax or back-door ADADs; fax, which we think is around 3 per cent of those and then the back-door ADAD calls are about 2 per cent.

295 MR. MILLINGTON: About 2 per cent did you say?

296 MR. ELDER: About 2 per cent of all the calls that we get for everything.

297 MR. MILLINGTON: That is 2 per cent of what number?

--- Pause

298 MR. ELDER: We don't have that number off the top of our heads. It's thousands and thousands. We can give an undertaking to get that.

299 MR. MILLINGTON: You will give us an undertaking to provide us with the breakdown of the complaints by per cent and actual numbers, then?

300 MR. ELDER: We will try to do that.

301 MR. MILLINGTON: You can follow Infolink's lead and have it to us by the end of day Monday.

302 Is that right, Mr. Commissioner?

303 THE CHAIRPERSON: Could you just run through those numbers again.

304 MR. ELDER: Sorry, can I just clarify too. Is that historical, us looking at 2004 or --

305 MR. MILLINGTON: What do you think you have available. Let's start there.

306 MR. ELDER: So we can probably do a 12-month period. Separately keeping track of these types of ADAD calls is a relatively new thing, when we have logged it separately.

307 I think we can do a 12-month period.

308 MR. MILLINGTON: Going back 12 months from the end of August, something like that?

309 MR. ELDER: Sure.

Undertaking

310 THE CHAIRPERSON: Can you give us those percentage numbers again, the numbers that you just gave us?

311 MR. ELDER: Of all the complaints that we get -- this is at the escalated level within Bell Canada where we do most of the tracking.

312 This is when you have called through 310-BELL and voice a displeasure and you have moved on to the next level. Ten per cent of all the calls that do that relate to telemarketing. About half of those calls, half of the 10 per cent, relates to live voice. Approximately 3 per cent of those calls relates to unsolicited fax and the remainder, approximately 2 per cent, relates to back-door ADAD calls.

313 THE CHAIRPERSON: Voicecasting.

314 So just to be clear, 8 per cent are live voice and fax.

315 MR. ELDER: Yes.

316 THE CHAIRPERSON: And 2 per cent is Voicecasting.

317 MR. ELDER: Approximately, yes.

318 THE CHAIRPERSON: Thank you.

319 MR. MILLINGTON: Is this just going into the executive office or is this total? Can we get the totals?

320 MR. ELDER: Unfortunately, we don't have the capability of tracking at that level of detail, at the 310-BELL level, just because these are -- the front-line operators at Bell Canada are dealing with thousands.

321 MR. MILLINGTON: What would your records indicate in terms of complaints going into Bell generally that go to the exec offices as opposed to 310-BELL, so that we could extrapolate from those numbers?

322 MS McKENZIE: Just to clarify, at 310-BELL they don't necessarily keep statistics. But when we did the public notice with you folks four years ago, 2001-34, we determined at that time that 10 per cent of all calls coming into the Executive Care Team related to unwanted calls, and we determined through our Quality Listening Team that 1 per cent of all calls going into 310-BELL were related to annoyance call issues.

323 MR. MILLINGTON: But what percentage of all the complaints that Bell receives goes to executive offices as opposed to the front line?

324 You promote 310-BELL as the way to contact Bell, so I would assume that you would receive far more complaints at 310-BELL than anywhere else in the company.

325 A statistic just based on executive calls -- I wouldn't know how to call a Bell executive. I would know how to do 310-BELL. So the numbers going into the executive offices may not be helpful as knowing what the totality of the number of calls coming in would be.

326 MS McKENZIE: I understand your query. My only concern is that we don't break down that 1 per cent as to what the customer was annoyed about. Was it a back-door voice solicitation? Was it a fax? Was it a live solicitation?

327 We also don't track the percentage of referrals because the process for 310-BELL is not to refer the customer either to the CRTC or to the Executive Care Team. They are to escalate within their own team.

328 MR. ELDER: I think we can try and get you the number of queries or complaints dealt with by the Executive Care Team and compare it to the number dealt with by 310-BELL.

329 The difficulty on the 310-BELL, of course, is that they are not just getting complaints. Many of these are service inquiries, and what not.

330 I am not sure about our ability to disaggregate just the complaints from that number, but we can certainly tell you how many calls that the 1 per cent is out of that, if that is helpful to you.

331 MR. MILLINGTON: I would like to turn now to a question that relates to how you would urge the Commission to interpret GT Item 1800.

332 We heard from both sides this morning as to the proper rules that should be applied in terms of the interpretation of this tariff. We had in both submissions two points of view with respect to how to interpret this tariff.

333 The one that was advanced by Bell at page 2, paragraph 7, of Bell Canada's application for relief from disconnection, followed on that a plain reading of the tariff was all that was required, and after having gone through the plain wording of the tariff, Bell concludes at page 4, paragraph 19:

"The company submits that the foregoing analysis is all that is required to determine the applicability of, and compliance with, GT Item 1800."

334 We heard from Infolink that a much broader approach needed to be taken. The purposive view of statutory interpretation that would look at going behind the wording of the tariff and the wording of the decision and section 41 of the Telecommunications Act.

335 You dealt with that in your opening remarks this morning.

336 In your remarks you said that under either method of interpretation you get to the same end point that tariff Item GT 1800 is caught.

337 I wonder if you could return to that argument for me and explain, given the evidence that is before the Commission in this proceeding, how you can justify that the test of undue inconvenience and nuisance is satisfied in the context of section 41 that would have given rise to the application of the tariff 1800, given that the effect of the tariff is an outright prohibition of this particular technology?

338 MR. ELDER: My first response would be that our position would be that the tariff says what the tariff says, and the Commission decided to put it in place for the reasons that it has.

339 As we have alluded to elsewhere in our submissions, I think it would be perverse and very difficult for us to enforce our tariffs if every time we went to do so we had to look at the underlying circumstances and decide whether the particular facts of this case were the same as the ones that caused the Commission to put the tariff in place in the first place.

340 That being said, as noted earlier in my remarks and in 94-10, I think the emphasis of the Commission's decision to ban ADADs was certainly on undue inconvenience and annoyance, but I think it was grounded on an inability to interact with the caller, with the receipt of the message.

341 I think overwhelmingly that is what people were annoyed with.

342 Certainly they were also annoyed with having their routines interrupted. As we have indicated this morning, we think even these voicemail calls interrupt people's routines in many cases. There is some kind of an audible tone or disruption.

343 Moreover, in a way you have to do even more work as a consumer when you receive a voicemail message. It is not just picking up the phone but there is a message. You don't know what it is about. You have to pick up the phone. You have to dial *98 or the local access number. You have to input your password and then listen to the introduction to the message and go in before you find out that someone is calling about carpet cleaning.

344 We think that the record is quite clear that there is quite a high degree of inconvenience and annoyance to subscribers. We think it is completely consistent with the determinations that the Commission made ten years ago.

345 MR. MILLINGTON: We don't have, as I see it, any evidence directly on point of the level or the degree to which voicemail subscribers find having prerecorded messages left in their mailboxes -- we don't have any evidence directly on point whether we get through the threshold of undue inconvenience and nuisance.

346 We know that there is some. There are disconnection requests being made or requests to be put on removal lists. There is no doubt. And Infolink has conceded this morning that there is some annoyance. There is no question. That is not in dispute.

347 The question I have is: What is the degree of nuisance, whether we have evidence in front of us to satisfy the undue inconvenience and nuisance threshold test that is the basis of section 41, 94-10 and then filters out through GT Item 1800?

348 MR. ELDER: We have the evidence that we have provided. We have the complaints that we received.

349 If you are asking whether we undertook any survey research asking people "how annoying do you find the following types of unsolicited calls", we have not done that.

350 MR. MILLINGTON: My next question focuses on the guarantee of freedom of expression under the Charter.

351 At page 8, in paragraphs 29 and 30 of Infolink's statement of argument and relief sought, counsel for Infolink has urged the Commission to be mindful of Charter jurisprudence and section 41 of the Telecommunications Act when interpreting GT 1800, particularly in resolving any ambiguities in the wording of the tariff.

352 What is your view on the application of GT Item 1800 to Voicecasting, such that it has the result that this technology would be prohibited, with respect to Infolink's right to freedom of expression under the Charter?

353 MR. ELDER: I think we would accept the fact that this is certainly a limit on freedom of expression. However, this is a form of commercial speech. It is tended to be afforded sort of less weight by the courts than individual or politicized speech.

354 I think this is a clear, narrowly tailored limit that could be justified by a court.

355 I would follow much the same analysis that the Commission used in 94-10 when it introduced the ADAD prohibition. There are several types of unsolicited telecommunications going around, and they have put limits on some of them and have decided that for the ones that are the most annoying and that inherently prohibit direct interaction between the called party and the caller, that it is appropriate to ban those types of activities where they are for the purpose of solicitation.

356 Out of the whole universe of unsolicited telecommunications the Commission has carved off a very small piece, and of that small piece only where it is used for the purposes of solicitation that has effected a ban.

357 There are a number of other avenues available to Infolink or to its clients to do mass market advertising, including live voice telemarketing, including unsolicited fax, including e-mail marketing, including direct mail marketing.

358 There is a wide variety of things available. We would say that this is kind of a minimal impairment of that right to advertise on an unsolicited basis to the public.

359 MR. MILLINGTON: When you talk about minimal impairment, we would need to have some evidence as to what would satisfy that threshold of minimal impairment.

360 In the case of 94-10 there were other steps that were taken leading up to the outright prohibition of ADADs. In this case we have not pursued -- there have been no intermediary steps taken in order to deal with this form of technology. So we would be going from where it exists today to an outright prohibition.

361 How do you deal with the minimal impairment objection with respect to this particular technology and the evidence that is currently before the Commission?

362 MR. ELDER: I am not sure how much more I can offer you. I understand the point.

363 Part of the reason why we haven't put together a Brandeis Brief for you that looks at undue inconvenience and pulls together all kinds of survey research is because we are here talking about application of an existing tariff.

364 We are not before you today asking you to impose a new rule. We are not asking you to create a new regulation, in which case it might be appropriate to marshall that kind of evidence.

365 We are talking about application of an existing tariff to a situation that we think is clearly caught by the plain language.

366 If we are now in a debate about is it appropriate to impose a new restriction through this proceeding, that is a very different sort of animal and I would suggest one that is probably not appropriate fodder for an expedited hearing.

367 MR. MILLINGTON: Would you not agree that in simply applying the tariff to this technology, those issues necessarily arise because it is, a priori, an infringement of Infolink's freedom of expression rights?

368 MR. ELDER: I wouldn't agree with that. I think it is because, as I said, if that is now the test that we have to meet, this is not going to be an enforceable tariff.

369 If another ADAD operator were to pop up and say now I am using a different type of machine than you were using back then, so now you have to redo this whole analysis before you can justify disconnection under this; or yes, but I am leaving a new type of message; or, here, I am going to submit my complaints. I am not DFD Telebroadcasting; here are my complaint records, which is significantly different than the record for 94-10 and therefore it is inappropriate for you to apply this for me.

370 We just can't operate our tariffs in that way. We can't make a federal case out of every application of the telemarketing tariff.

371 MR. MILLINGTON: One final question.

372 Do you have records on the total number of customer removal requests since this Voicecasting service began in 1997 with you here this morning?

373 I know you have provided this information at other times and in other places, but do you have a total number of customer removal requests that you have received since Voicecasting was begun with Infolink in 1997?

374 MR. ELDER: We don't have that back to 1997. As I said earlier, we only started monitoring this flavour of ADAD activity, what we considered to be ADAD activity, in 2003. Up until that point, we have more general statistics about ADADs generally, back to 1997, annoyance calls. But we can't tag it back to 1997 just back to ADADs or to Infolink particularly.

375 MR. MILLINGTON: Since 2003, do you have the total number of removal requests that you received for Voicecasting alone?

376 MR. ELDER: We do, again at the executive level; plus we would have ongoing reports from 310-BELL, where there is ongoing monitoring of the 310-BELL operators and they flag significant issues. I think that is part of our undertaking too.

377 MR. MILLINGTON: The number for total number of removal requests as of today from 2003 into the executive offices is what?

--- Pause

378 MR. ELDER: I think if we are looking in 2003, the number is about 700.

379 MR. MILLINGTON: Thank you. Those are my questions, Mr. Commissioner.

380 THE CHAIRPERSON: Thank you, counsel.

381 Commissioner Cram.

382 COMMISSIONER CRAM: Mr. Elder, 700 was at the executive level since January 2003?

383 MR. ELDER: No. Actually that is not from January. That is from the beginning of the summer, approximately. We can get you the exact date. But there were new system changes put in place.

384 COMMISSIONER CRAM: So about a year; okay.

385 I just have a few questions.

386 Mr. Correia, somewhere in the interrogatories you said in June of 2004 that you had plus or minus 9,000 removal requests in seven years.

387 Do you agree with that?

388 MR. MILLINGTON: Interog 4.

389 MS SONG: Thank you. We were just looking for it, hunting it down.

390 MR. CORREIA: Yes, I do.

391 COMMISSIONER CRAM: And today you said you have had 12,000.

392 MR. CORREIA: Yes, and I can tell you the difference.

393 We have a list that has 12,000, however, there are numbers in there that are fax numbers that people call in for removal and we do add to that list sometimes in error. So the total list contains 12,000 and we figured out that of the 12,000, it's less than 12.

394 COMMISSIONER CRAM: But so it's just plus or minus 12,000, that's really what you are saying.

395 MR. CORREIA: Well, no. The list contains a total of 12,000 records, of which some of them are there in error. There are fax numbers and sometimes customers call us and they tell us, "Here, take this number and put it in your no-call list". And our reception sometimes takes fax numbers and puts it in there, too. So we try to keep it separate as best that we can to keep only telephone numbers in there for removal and we do get some other ones going in there.

396 COMMISSIONER CRAM: Both those numbers, then, the 9,000 and the 12,000, are subject to that same penalty?

397 MR. CORREIA: Yes.

398 COMMISSIONER CRAM: Yes. Notwithstanding that, what that really means to me is that there have been 3,000 requests in the last three months. So I'm starting to ask myself if there is an increase, or appears to be a fairly substantial increase, if 9,000 people wanted to get off the list in seven years and 3,000 more want to get off the list in three months, I'm asking myself if there is a substantial increase in requests to get off the lists.

399 MR. CORREIA: No. That is incorrect.

400 COMMISSIONER CRAM: Okay.

401 MR. CORREIA: The list that I have contains 12,000 numbers, only of which approximately 9,000 are telephone numbers. The rest are not -- are incorrect numbers. I looked at this list when I made these mathematical representations that I have here to find out which ones were local, Toronto, long distance and all that kind of stuff. Some of them are not just telephone numbers and they got into the list. So there has not been an increase the way you are saying.

402 COMMISSIONER CRAM: Okay. So the number we should be using, then, for fax removal versus Voicecasting removal is 9,000?

403 MR. CORREIA: Yes, it should be 9,000.

404 COMMISSIONER CRAM: Okay.

405 MS EMBREE: I think there is a little bit of confusion, and I'm not -- I don't want to put words in Cesar's mouth, but the interrogatory response that I think you found the removal request number from refers to two time periods, October 2002, and then current day.

406 What the interrogatory response says is that since Infolink's last submission of October 2002, it had received 5,000 removal requests from the 416/905 area code. So that would have been where less than a two-year period.

407 And then after that, Infolink had expanded its service to other parts of the country and so it has collected additional removal requests in the order of about 4,000.

408 COMMISSIONER CRAM: Yes, okay.

409 MS EMBREE: So the removal requests don't all come from one area of the country. When Infolink first started its operations, it was just based in Toronto. But it actually provides Voicecasting services throughout the country now.

410 So that's why there has been an increase, and what might look like a significant increase, but it's not a huge increase in a three-month period of time, it's actually from 2002 to 2004 where those additional 4,000 have been accumulated.

411 COMMISSIONER CRAM: Okay. So the number we are using to compare to the 200,000 in faxs is 12,000?

412 MS EMBREE: Yes, it is a total of 12,000, but, as Cesar pointed out -- and I had not known this -- I guess sometimes removal requests come in for the fax service that they provide and incorrectly get assigned to the Voicecasting service. So 12,000 would be actually the outer limit of the number of removal requests that they have received.

413 COMMISSIONER CRAM: Okay. Somewhere in the record -- and I confess it has been six years since I have been a lawyer, so I don't get too precise any more -- there was a mention that you did not phone cell phones, and then today, again, you talked about not using people's resources.

414 I see Mr. Proctor here and he is a CLEC -- he is not, his company is a CLEC -- and so they are entitled to local number portability. So how do you know of it's a cell phone or not?

415 MR. CORREIA: I'm sorry, I don't quite understand the question. Are you saying if we send to cell phones?

416 COMMISSIONER CRAM: You said, I thought, on the record, that you don't send to cell phones. Is that correct?

417 MR. CORREIA: Yes. We have made a practice of not targeting cell phones because people get charged for checking their messages. So we don't to incur any costs.

418 There was an instance last year where TELUS came to us for a special project to target cell phone numbers in Microcell and we took on that project that one time. It was a test pilot to see what happened and in the end we all know what happened: Fido was not happy with this event and we -- I believe there was a court hearing with TELUS and Fido and it was suspended.

419 COMMISSIONER CRAM: So my question is: how do you know that you are not phoning cell numbers?

420 MR. CORREIA: Oh. On the net there is a web site that tells you which NXXs have been assigned to LAN lines, particularly if they are Bell, TELUS or which cell phone carrier.

421 COMMISSIONER CRAM: But the problem is that one cell phone company is entitled to local number portability, which means if I lived in 416 and had a number and decided to take a cell phone instead, I could go to Microcell with that number.

422 So how do you avoid hitting Microcell phone numbers in the normal course of business?

423 MR. CORREIA: So you are saying that if your number belonged to one subscriber and then next month you changed it to a different subscriber, how would I --

424 COMMISSIONER CRAM: Carrier.

425 MR. CORREIA: If you are going to a different carrier, then I wouldn't be able to send you a message.

426 COMMISSIONER CRAM: Why?

427 MR. CORREIA: Because software would have been programmed to follow a certain algorithm for a certain set of NXX.

428 COMMISSIONER CRAM: No, but it would be the same number.

429 MR. CORREIA: Yes, I understand. It doesn't matter if it's the same number. Now, the way to access your voice has changed and the software would not have known that, would not know that.

430 THE CHAIRPERSON: Mr. Correia, do you have a wireline phone at home?

431 MR. CORREIA: Yes.

432 THE CHAIRPERSON: You live in Toronto?

433 MR. CORREIA: Yes.

434 THE CHAIRPERSON: I don't know whether City Fido is available in Toronto right now. I think it is.

435 COMMISSIONER CRAM: It is.

436 THE CHAIRPERSON: You could become a subscriber to City Fido and transfer your existing wireline number to City Fido and use the cell phone -- or a portable phone for that.

437 How would your system know that you are now wireline number today is tomorrow terminating on a portable handset?

438 MR. CORREIA: I wouldn't know.

439 THE CHAIRPERSON: Thank you.

440 COMMISSIONER CRAM: Now, I don't want to get too nit-picky, Mr. Elder, but in Decision 94-10, page -- and I do have the page of this -- page 11, it says:

"In replying to parties' concerns, Bell stated it recognizes the need for caution in handling complaints. It stated that complaints would be thoroughly investigated and then an historical record of complaints would play a large role in the administration of the tariff."

-- this one, 1800.

"Bell proposed to establish a 'telemarketing complaints centre'..."

and

"...was developing internal policies...."

And we, of course, recognized the parties' concerns and ordered Bell's acknowledgement of the need to investigate complaints.

441 So I take it that you have never done that because we are not getting numbers from you here.

442 MR. ELDER: Sorry, I'm having a hard time finding what you referring to because I don't have the page numbers, I have the web version.

--- Off microphone / Sans microphone

443 COMMISSIONER CRAM: I have a different one, I'm sorry.

444 It's under "Enforcement" --

445 MR. ELDER: Number six.

446 COMMISSIONER CRAM: Number six, which is under, "Bell - Conditions for Unsolicited Live and Voice Facsimile Calls". It doesn't matter. You don't --

447 MR. ELDER: No, I'm just trying to follow along, to find it. Okay, I have "Enforcement". Where is it under "Enforcement"?

448 COMMISSIONER CRAM: It's in the fourth paragraph, under "Enforcement".

--- Pause

449 MR. ROSENZVEIG: It appears to be at page 35.

450 COMMISSIONER CRAM: Page 35?

451 MR. ELDER: I'm not sure that I would say that hasn't been implemented. We do have a telemarketing complaints centre. We have an Annoyance Call Bureau within our Executive Care Team that's manned by Catherine.

452 It's not accessible by a 1-800 number, but it is accessible through the 310 Bell numbers, which are local -- hopefully numbers you can from anywhere within our serving territory without incurring a charge.

453 COMMISSIONER CRAM: So I want the historical record of complaints that would play a large role in the administration. What is the historical record of complaints on this service since 1997?

454 MR. ELDER: Well, again, we have tracked telemarketing calls since 1997, we have not separately tracked back-door ADAD or Voicecasting calls since 1997.

455 I'm not even sure -- when did we first become aware of them?

--- Off microphone / Sans microphone

456 MR. ELDER: Yes, it really wasn't until 2001 that we even knew --

457 COMMISSIONER CRAM: Okay.

458 MR. ELDER:  -- that this was going on. So, I mean, you can't create a category for something that you don't know --

459 COMMISSIONER CRAM: Yes. So at page 6, paragraph 27 of your submission dated August 13 -- and I'm at the what-annoys-people-most argument -- you talk about people concerned about security and reliable operations of their phone line. How many?

--- Pause

460 MR. ELDER: Again, we don't have separate figures for each of these types, but we would estimate that approximately 10 per cent of the complaints that we get about ADADs relate to this sort of a concern.

461 COMMISSIONER CRAM: What about missing important calls, in the next paragraph?

--- Pause

462 MR. ELDER: Again, we would estimate it's probably about the same.

463 COMMISSIONER CRAM: What's the most annoying to people? What's the highest percentage of all of the complaints?

464 MR. ELDER: The majority of the complaints that we would get is just, "I got of these messages". They don't necessarily go into a great deal of detail. They just say, you know -- typically we will hear, "This is an invasion of my privacy", "It's an inappropriate use of my voice mailbox", "I don't want these things clogging up my space".

465 COMMISSIONER CRAM: Okay. Since June -- let's say since July 1st of this year, how many complaints have you received?

466 MR. ELDER: We don't have that figure and over that time period. We can undertake to get it. There has been a fairly sharp increase, though, in the last couple of months.

467 COMMISSIONER CRAM: Then, can you give me from January to August by-month complaints, and also, by-month removal requests?

468 MR. ELDER: That's by way of an undertaking.

Undertaking

469 COMMISSIONER CRAM: That's fine by with me, yes.

470 MR. ELDER: Sorry, January of 2004 to August?

471 COMMISSIONER CRAM: To August, inclusive of August.

472 MR. ELDER: To August, month by month.

473 COMMISSIONER CRAM: Yes, the most recent, by month, the number of complaints, and if you have -- it appears they have been tracking them at the front line, too -- and if you have executive office and front-line complaints, and also the number of removal requests.

474 MR. ELDER: Yes, okay. Again, the front lines ones aren't explicitly tracked in the same way, but we will give you the information that we have.

COMMISSIONER CRAM: Okay. Thank you.

475 Thank you, Mr. Chair.

476 THE CHAIRPERSON: Thank you, Commissioner Cram.

477 Commissioner Demers.

478 COMMISSIONER DEMERS: Thank you, Mr. Chairman.

479 I feel a bit far from the mike. Okay.

480 Maybe my concern, maybe you can be precise and maybe I read that and forgot it, is there more than one way to know that I have a message on my voicemail? I think -- well, maybe I should ask first Infolink.

481 MR. CORREIA: If you have the feature, I believe that when you pick up your telephone receiver it will do a fast busy sound, which tells you that you have a voice message. I believe Bell Canada has that service. Also, depending the type of phone that you have, a light may flash, I think.

482 MR. ELDER: Also, I mean, it might vibrate. I mean, there's a number of options available on handsets, but those would be the main things: you would get an audible tone, you would get the fast busy, as Mr. Correia said, and you might have some kind of vibration to notify you that you got the message.

483 COMMISSIONER DEMERS: Thank you.

484 I was a bit concerned when, Mr. Correia, you indicated that the customers could listen to the message whenever they wanted. Maybe you could explain it a little further. The concern I would have is if I picked my phone and there is a beep, there is a message, I don't know where it is from -- or a light or some other things that will indicate a message.

485 From a customer's point of view, how much leniency do I have in not trying to find out what that message is, from an annoyance point of view?

486 MS EMBREE: There are options in the voicemail system to speed through a message, not listen to it all. You can listen to the very beginning and then -- in our voicemail at work, it's 7-6 to get rid of it. It's a fairly quick function and once you are proficient with the voicemail system, again, those would be your options.

487 Cesar, maybe you have some additional thoughts.

488 MR. CORREIA: Yes, you can speed through. I think it's 3-3-7 that will fast forward and delete the message if you don't wish to listen to it.

489 COMMISSIONER DEMERS: Thank you. So in a sense, I can, except for the time I have to take and the network I use to get to my mailbox, this would be a good way of passing quickly onto something important if I feel this is not.

490 I have no further questions. Thank you.

491 THE CHAIRPERSON: Thank you, Commissioner Demers.

492 I just have a couple for clarification. Did I understand, Ms Song or Mr. Correia or Ms Embree, no message is longer than 30 seconds?

493 MR. CORREIA: We always encourage our customers to keep them to 30 seconds. Usually, the attention span of recipients is not -- it doesn't work well when you are trying to give a message to someone and you are having a long, long conversation about it. You want to keep it really short and sweet.

494 Furthermore, we charge the customer extra for the more time so they are encouraged to keep it to 30 seconds. But they can go longer if they like, but usually --

495 THE CHAIRPERSON: So there's no limit -- well, other than the limit on the voicemail system?

496 MR. CORREIA: That's right. But I can say that when it gets more costly for the customer, they retract. They don't put a long message. It's just more and more costly.

497 THE CHAIRPERSON: So, then, do they tend to be mostly around 30 seconds? Or are some of them considerably shorter?

498 MR. CORREIA: No. We have never had anything really over a minute. I think we had a few before, but it's really always around the 30-second mark.

499 THE CHAIRPERSON: Okay.

500 For Mr. Elder, Bell, in talking about these numbers in sort of measuring degree of nuisance, would it be fair to say, in looking at the degree of nuisance, that a nuisance for Voicecasting is considerably less and about a quarter of the nuisance for telemarketing calls, which we permit?

501 MR. ELDER: I don't know about the "quarter". I think we would accept the fact that --

502 THE CHAIRPERSON: And it has taken 2 per cent, as compared to 8 per cent.

503 MR. ELDER: I guess, as represented by those complaints, I think we would accept the fact that it is somewhat less annoying. We are still of the view that it is extremely annoying, but I think we would accept the fact it's somewhat less so than conventional.

504 THE CHAIRPERSON: Sorry, I'm having difficulty. You have the view it's extremely annoying, but it's less annoying --

505 MR. ELDER: Yes.

506 THE CHAIRPERSON:  -- than telemarketing calls we permit?

507 MR. ELDER: Yes.

508 THE CHAIRPERSON: So they are extremely annoying --

509 MR. ELDER: No, no, than ADADs. Sorry, than ADAD calls. I would say, if we are looking at a spectrum of annoyance, I guess we would place the conventional ADAD calls at the extreme end and live voice telemarketing probably more towards the middle or the left part of the scale, and I would put Mr. Correia's technology over to the right, but not as far right as the ADAD technology.

510 THE CHAIRPERSON: Well, whether it's right or left, the numbers suggest they are less annoying than the --

511 MR. ELDER: They are.

512 THE CHAIRPERSON:  -- voice telemarketing calls.

513 MR. ELDER: I'm accepting that they are less annoying. I'm still suggesting to you that they are still very annoying. They are still a substantial annoyance.

514 THE CHAIRPERSON: Okay.

515 I don't have any more questions.

516 COMMISSIONER CRAM: I do, though.

517 THE CHAIRPERSON: Oh, sorry, Commissioner Cram has another one.

518 COMMISSIONER CRAM: The percentage, through, following up on Commissioner Colville's point, the real issue is the number of telemarketing complaints vis-à-vis in comparison to the number of calls, telemarketing calls, and then the number of voice messaging of Voicecasting this service, the number of calls made by this service, vis-à-vis the number of complaints.

519 Do you have any numbers on that?

520 MR. ELDER: I'm sorry, you have lost me.

521 THE CHAIRPERSON: Commissioner Cram is pointing out that I asked you a question based on percentages. Those percentages may be based on --

522 MR. ELDER: The denominator.

523 THE CHAIRPERSON:  -- the volumes of calls --

524 MR. ELDER: Yes, exactly.

525 THE CHAIRPERSON:  -- which I understood to be the case.

526 MR. ELDER: Yes. And so, in fact, I think it's interesting that the statistics that we are seeing today, there are few operators. We are aware of six. Infolink is by far the largest. There are many, many more telemarketers in Canada today, as you know, and as you would have seen through the telemarketing --

527 THE CHAIRPERSON: I understand that.

528 MR. ELDER: So that number and that volume of telemarketers are producing 5 per cent of our complaints; whereas, Mr. Correia's operation, and a couple of others, but pretty well by themselves, are producing about that 2 per cent.

529 COMMISSIONER CRAM: Thank you.

530 THE CHAIRPERSON: It has been suggested we might want to take a brief break.

531 MS SONG: With your indulgence, just before we break, I believe Mr. Correia wanted to add something to Commissioner Cram's question earlier regarding the portability of numbers to mobile telephones.

532 THE CHAIRPERSON: Okay.

533 Mr. Correia.

534 MR. CORREIA: I just wanted to make sure that my answer was understood correctly and that I understood your question.

535 If you have a number and you have voicemail on one carrier, and then you switch, you port that number to a different carrier, my system will not reach you now because the algorithm or the series of steps to access the previous voicemail style programming does not conform to the new sequences of steps you must take to access your voicemail. So its different. So now you are off my radar.

536 MS EMBREE: And I think in my low-tech way of understanding, the algorithm that's used in the Infolink system, it dials the Bell voicemail system, it doesn't dial the customer. It's just a computer-to--computer communication.

537 So if the customer switches carrier, ports its local telephone number to another service provider, his algorithm doesn't dial the other carrier's voicemail system, it's still dialing -- well, it may no longer dial anything, but it would be dialing a Bell voicemail platform.

538 THE CHAIRPERSON: So in Ontario and Quebec, then, does it only deal with Bell Canada's numbers and Bell's voicemail system?

539 MR. CORREIA: Yes.

540 THE CHAIRPERSON: And in the other parts of Canada, is it just with the ILECs voicemail systems?

541 MR. CORREIA: Yes, it would be -- we select the more predominant carrier.

542 THE CHAIRPERSON: So, then, in the case of the Microcell situation, obviously your system is different now than it used to be.

543 MR. CORREIA: It has been modified for that project and, as I mentioned before, we stopped doing the cell phone transmissions ever since that situation.

544 We also never did cell phone transmissions before that TELUS and Fido situation and, when we saw that TELUS came to us for this special project, we thought, "Well, if TELUS is wanting to do this, they are a major telephone company, if they think it's okay, then, okay, we will try it out". So we tried it out.

545 THE CHAIRPERSON: If an alternative carrier within Bell territory used the same voicemail system as Bell used, would your system access the Bell subscriber?

546 MR. CORREIA: Probably not. We would have to look particularly at their platform to see if it would -- if we can access it.

547 THE CHAIRPERSON: Okay. Thank you.

548 So let's take a 10-minute break and then we will return with questions from Infolink, and then from Bell.

--- Upon recessing at 1100 / Suspension à 1100

--- Upon resuming at 1110 / Reprise à 1110

549 THE CHAIRPERSON: Okay. Order, please.

550 We will return to our proceeding now and turn to the next phase of questioning, that being by the applicant Infolink of Bell. You are not allowed to ask us questions.

--- Laughter / Rires

551 MS SONG: Thank you.

552 Okay, I think I would like to start with -- I'm just trying to sort out some of the responses provided by Bell in their interrogatory responses, as compared to what -- some of the statements that were made today on the issue of consumer complaints that are handled by Bell.

553 So in Bell's response to Interrogatory No. 3, dated 11 June 04 -- the response is dated August 13th, sorry, Bell states:

"Since January 1, 2002, the company's executive office received 340 complaints regarding telemarketing messages left on voicemail. Over the same period of time, Bell has recorded 389 complaints to front-line personnel." (As read)

554 In addition, Bell states that it has directed 150 consumer removal requests to Infolink. I'm assuming that's in the same period.

555 MR. ELDER: Well, which, the 150 is in the same period previous?

556 MS SONG: Yes.

557 MR. ELDER: Well, 150 since 28th October 2002.

558 MS SONG: What about the 350, as opposed to the 389?

559 MR. ELDER: Sorry, you are talking about the 340 and the 389 in that first paragraph?

560 MS SONG: Yes.

561 MR. ELDER: I guess that's over -- I mean, we have said here it's since January.

562 MS SONG: Okay. So there are different periods, then?

563 MR. ELDER: Yes.

564 MS SONG: Okay. So with respect to the complaints, do you know what percentage pertain to live voicemail messages and what percentage to ringless Voicecasting messages?

565 MR. ELDER: As far as we are aware, none of these relate to live voice.

566 MS SONG: Sorry, perhaps I'm using the wrong terminology. What I'm trying to determine is whether you know if the message was left by an ADAD that caused the phone to ring, as opposed to a ringless ADAD message.

--- Pause

567 MR. ELDER: We could take an undertaking to give you a precise on that number, but --

568 MS SONG: So you don't know right now?

569 MR. ELDER:  -- our understanding is, in fact, very little, very few, if any, of those would be conventional ADADs, which --

570 MS SONG: How would you know that?

571 MR. ELDER: Well, typically, they don't leave voicemail messages.

572 MS SONG: Okay.

573 MR. ELDER: So if we are getting a caller saying, "I have a message on my voicemail system", we can assume, usually, that means it's a back-door ADAD. In fact, in many cases we are getting complaints about exactly the same campaign, which we are able to trace back to the operators, which, in many cases, has been Infolink.

574 MS SONG: Right. But I'm just trying to understand, of these numbers that you are providing in the interrogatory response, how many of those are live voicemail messages left by telemarketers, how many are left, perhaps with the use of an ADA, pursuant to a telephone ring and how many are ringless, how many are Voicecasting?

575 MR. ELDER: And as I said, I can get you a precise number. I don't have one off the top of my head.

576 MS SONG: Okay.

577 MR. ELDER: But it will be a very small, I mean, negligible number of those that would have been through conventional ADAD technology?

578 MS SONG: Okay. And is this interrogatory response specific, then, to Infolink? I'm assuming not, since you can't really tell me what percentage of the numbers that you are providing are for the three types of messages that I have just discussed.

579 MR. ELDER: Our understanding is this is specific to Infolink. We were asked about using Infolink's Voicecasting service, so this does not include complaints relating to other operators.

580 The interrogatory at the beginning posited they are talking about telemarketing messages left on voicemail using Infolink's Voicecasting service.

581 MS SONG: Right. And that's the reason for my question. So when you are providing this response, is it specific to Infolink? Or is it total number of complaints received?

582 MR. ELDER: Okay, excuse me, I will correct myself. The first two numbers are the total received for all back-door ADADs. The 150 number is Infolink-specific.

583 MS SONG: Okay. I'm just trying to understand, then -- I believe Commission counsel, but I may be mistaken about that, asked a question about customer removal requests since 1997, which is the date of inception of Infolink service, so customer removal requests with respect to Infolink's Voicecasting services.

584 I believe that you couldn't provide the number since 1997, but that you said that since January 2003 there were 700 such requests received at the executive office level. I would just like you to explain that response, in light of the interrogatory response dated August 13th.

585 MR. ELDER: I apologize if that was the understanding. That number was the number of complaints we have received. I guess I would make a distinction between someone calling us to complain about the activity versus someone who says, "Bell Canada, will you call Infolink on our behalf and get us put no the do-not-call list?".

586 MS SONG: Right. But, still, Interrogatory Response No. 3, dated August 13th, says that the executive office received 340 complaints since January 1, 2002. So even if your response earlier -- I'm just trying to understand it. So now you are saying that the 700 number deals with complaints and not removal requests, first of all?

587 MR. ELDER: I think that's right, yes.

588 MS SONG: Okay. So which number should we go by, 340 since January 1, 2002 or 700 since January 2003?

--- Pause

589 MR. ELDER: I'm sorry. I mean, I gave an approximation of 700. I think the relevant number, and the one that we were focusing on, were complaints. In many cases the complaints would also have been requests to Infolink to remove the system.

590 We are just responding here to the way the Commission positioned a request. Normally, we would not have separately identified requests to pass on to Infolink to ask them to be removed from the list.

591 MS SONG: Okay. I'm just --

592 MR. ELDER: And I guess I would suggest that -- I mean, we can play around with the numbers, I mean, whether it's 650 or whether it's 800. In our view, these are all complaints by customers about a technology that we think violates a tariff. So I'm not sure where we are going.

593 MS SONG: Well, I think that there is a relevance because we are trying to understand what level of annoyance, what level of undue annoyance or inconvenience is caused by this service. I'm just noting there appears to be an inconsistency between the interrogatory response and the statements that were made earlier this morning, so I am just trying to give you an opportunity to explain that, if you can.

594 MR. ELDER: We would stand behind the numbers that we put in this interrogatory.

595 MS SONG: Okay. Thank you.

596 THE CHAIRPERSON: Ms Song, I don't want to interrupt your line of questioning, but I didn't make it clear earlier that the parties have 20 minutes.

597 MS SONG: Thank you.

598 THE CHAIRPERSON: I just want to make sure you understand that.

599 MS SONG: Now, would it be reasonable to expect that if a greater number of Voicecasting messages are left for an increasing number of customers over the years that the number of complaints would increase?

600 MR. ELDER: I think that's fair. In fact, our numbers indicate that they have.

601 MS SONG: Right. But we don't know what those numbers are. You have stated that the rate has increased, but you haven't given us the rate of increase.

602 MR. ELDER: We haven't because we didn't come here today with the type of breakdowns sort of month over month, but we have an undertaking to provide that by the end of the day Monday.

603 MS SONG: Okay. Can you tell me, of the 340 executive office complaints referred to you in your interrogatory response and the 389 front-line personnel, do you know whether any of them are from the same people?

--- Pause

604 MR. ELDER: Generally, these should not be duplicative. The way our system tracks these complaints is by customer and we assign number to them and when we compile these numbers we would have pulled it out by customer. But it is possible that an individual customer could complain twice, particularly if they had asked to be taken off a list and weren't.

605 MS SONG: Okay. Right.

606 I believe at paragraph 35 of your statement dated August 13th, Bell states:

"If Infolink and similar companies are not prohibited from carrying on their Voicecasting services, it will open the flood gates to similar challenges to the application in the future item 1800, thereby tying up significant company resources." (As read)

607 At paragraph 32, you state that Bell Canada -- you state that there is one other such provider. Do you see that?

608 MR. ELDER: Yes.

609 MS SONG: Is that correct?

610 MR. ELDER: No. In fact, it has come to light since that time that there are more of those. We currently think the number is six.

611 MS SONG: So since August 13th, you have become aware of three others?

612 MR. ELDER: Yes -- four.

613 MS SONG: Four others?

614 MR. ELDER: Four.

615 MS SONG: Can you tell us who they are?

616 MS McKENZIE: I will be happy to answer that question.

617 We currently have OC3RA, I believe they are called, which is run by a gentleman by the name of Ed Portelli. We also have FNC, that's First National Communications. They are waiting for the ruling to go forward with the full broadcast. They are registered as a voice broadcasting company. Club Cranberry in the Muskokas is using back-door voicemail messaging. SafeTec Alarms is using back-door voicemail technology, as are Best Price Movers and VoicePRO Canada.

618 VoicePro Canada was identified to me by Cesar Correia of Infolink Technologies as being a customer who purchased their dialer program in the U.S. and that they were going full force. I believe that Cesar identified to me as them being his major competitor in that field.

619 MS SONG: Okay. Has Bell Canada initiated any tariff enforcement action against voicemail?

620 MR. ELDER: We have not instigated any enforcement against any other provider in the wake of the Commission staff's request that we not disconnect Infolink back in September 2001.

621 MS SONG: So any of the other four or five that you --

622 MR. ELDER: Right.

623 MS SONG:  -- now identified but not previously mentioned --

624 MR. ELDER: Right. It seemed rather pointless to us to initiate a disconnect action against them when this issue was before the Commission and we didn't -- I mean, I fully anticipated if we tried to do it again, staff would again ask us not to disconnect until the matter was resolve.

625 MS SONG: Right. So no further company resources have been tied up in tariff enforcement action against these other people that you have now identified to us?

626 MR. ELDER: No.

627 MS SONG: Okay.

628 I will now direct you to your response to Interrogatory No. 2. I believe there Bell states that the company has been required to invest approximately $1 million in 2004 alone to augment its mailbox hardware and the associated hardware licences.

629 So is this $1 million the sum total of Bell's investments in mailbox hardware and software for 2004 to date?

630 MR. ELDER: I don't believe it is. Bob can comment on that. We tried to identify the number that we thought was attributable to the Voicecasting activity with the back-door ADAD activity.

631 MR. SHIRLEY: That is correct. That is what we have spent so far to augment message hours, hardware and software. The licence is only for a messaging increase, not for the number of mailboxes that have been added for growth for subscribers.

632 MS SONG: Can any of the $1 million be attributed to specific geographic areas?

633 MR. SHIRLEY: Yes.

634 MS SONG: Where would that be?

635 MR. SHIRLEY: More than 80 per cent of the money has been in the Greater Toronto Area, 416/905, Barrie, Oshawa and also in the Greater Ottawa Area.

636 MS SONG: So are you saying that the increase in the number of lines or accounts can or cannot explain, in part, the $1-million expenditure that you are referring to here?

637 MR. SHIRLEY: Cannot.

638 MS SONG: Okay. Okay, I will refer you to, I guess, the second paragraph of that interrogatory response.

639 I believe there you are referring to a particular week of August 2004, where you noted an increase in daily voicemail volume. Can you tell me what central office that was?

640 MR. ELDER: Sorry, if we could just take a minute to make sure that Bob can see the interrog.

--- Pause

641 MR. SHIRLEY: Sorry, what paragraph are you referring to now, please?

642 MS SONG: The second paragraph.

643 MR. ELDER: Sorry, counsel, can I just get you to quickly repeat the question, just so --

644 MS SONG: Can you tell me what central office that paragraph refers to?

645 MR. SHIRLEY: Not one central office in specific. Generally, the way we have noticed the increase in the call volume is based on a specific NPA/NXX that has been targeted. These NPA/NXXs, of course, are spread across the area, just like our messaging platforms are spread across the area. So the money that has been spent augmenting our licences and hardware is spread geographically across many physical platforms.

646 MS SONG: Okay. The interrogatory response refers to a specific central office, so that was the reason for my question. So you are now clarifying that answer?

647 MR. SHIRLEY: There is not one specific central office that we have been --

--- Off microphone / Sans microphone

648 MR. SHIRLEY: Okay, sorry, I was thinking the wrong thing.

649 In that particular instance, what was being hit was our physical machine that is located in the central office in Finch, in Toronto. I do not know the specific NPA/NXXs right now, but I can certainly get those for you.

650 MS SONG: Okay. And what day was that you are referring?

651 MR. SHIRLEY: I don't have that right now, but, again, I can get it for you.

652 MS SONG: Okay. What is the total capacity of the voicemail system in that central office expressed in? Bytes? Megabytes?

653 MR. SHIRLEY: In what instance?

654 MS SONG: The memory capacity of the voicemail system?

655 MR. SHIRLEY: The memory capacity of the system would be 854 hours of messages --

656 MS SONG: Okay, great.

657 MR. SHIRLEY:  -- to be shared by all mailboxes on the system.

658 MS SONG: Okay. I just have one other question, one other area, and that's with respect to the universal messaging service.

659 I'm wondering if somebody could, please, describe that service to me and whether a prerecorded voice message could be broadcast to the subscribers of that service?

660 MS CAPITANO: Universal messaging is a fully integrated, non-real-time communications service that allows subscribers to exchange messages with both universal -- or to exchange messages with other compatible messaging services, as well as non-mailbox subscribers.

661 MS SONG: Right. So can you just answer the question: is it possible for a subscriber to that service to broadcast a prerecorded message to whoever he or she wants or it wants to send a message to?

662 MR. ELDER: It is possible, and if they did that and the message was for the purpose of solicitation, we would take steps to enforce the tariff against them.

663 MS SONG: Okay. Thank you.

664 Thank you. I have no further questions.

665 THE CHAIRPERSON: Ms Song, Mr. Shirley indicated that he could provide certain information. Are you requesting that information as an undertaking?

666 MS SONG: Sure. Yes, thank you.

667 MR. ELDER: Okay. Can we just clarify what it was?

--- Laughter / Rires

668 THE CHAIRPERSON: Yes.

669 MR. ELDER: Sorry, I'm --

670 MS SONG: I believe Mr. Shirley offered to provide the specific NPA/NXXs for the central office that's referred to in Interrogatory Response No. 2.

671 MR. ELDER: Okay. Thank you.

672 COMMISSIONER CRAM: And also the day.

673 MS SONG: Thank you.

Undertaking

674 THE CHAIRPERSON: Mr. Elder.

675 MR. ELDER: Thank you.

676 Mr. Correia, maybe I will start off, how many pieces of equipment? It's PC-driven, is it, your system?

677 MR. CORREIA: Yes, it is.

678 MR. ELDER: And how many PCs do you have to operate to do the Voicecasting?

679 MR. CORREIA: We have about 15 now.

680 MR. ELDER: Fifteen. Does each one of those have a telephone line, have a connection?

681 MR. CORREIA: Yes.

682 MR. ELDER: What do you use for that? Do you use 1FLs? Or do you have PRI set up?

683 MR. CORREIA: 1FLs.

684 MR. ELDER: 1FLs? So you have the 15 machinery and you have 15 1FLs?

685 MR. CORREIA: No.

686 MR. ELDER: No. Sorry.

687 MR. CORREIA: I have 15 machines --

688 MR. ELDER: Right.

689 MR. CORREIA:  -- and then I have 32 1FLs per machine.

690 MR. ELDER: Oh, I see. So each machine can make multiple --

691 MR. CORREIA: Yes.

692 MR. ELDER:  -- calls across multiple --

693 MR. CORREIA: Yes.

694 MR. ELDER: Okay. Are those lines -- are all of those 1FLs with Bell?

695 MR. CORREIA: Some of them are.

696 MR. ELDER: Some of them are. Could you give me a percentage or the number of them?

697 MR. CORREIA: Yes, I can tell you. Five machines, multiplied by --

698 MR. ELDER: Five times 32?

699 MR. CORREIA: Yes.

700 MR. ELDER: That's okay.

701 MR. CORREIA: I think it would be about three or four them use their Bell Canada phone lines.

702 MR. ELDER: Okay. And the remainder, are they with a single alternate carrier or are they spread out amongst a number of other carriers?

703 MR. CORREIA: There is about three different carriers.

704 MR. ELDER: Okay. Thanks.

705 And each of these machines, how many messages is it capable of sending out, let's say, on an hourly basis, assuming your 30-second --

706 MR. CORREIA: Yes. Well, if you do the math, one of the 1FLs can sent out approximately, say, about one message every 45 seconds for one 1FL.

707 MR. ELDER: Okay. Are all of your clients sending promotional or sales messages?

708 MR. CORREIA: No.

709 MR. ELDER: About what percentage of your business, do you think would be promotional and sales? What's the rest of it, sort of informational?

710 MR. CORREIA: The rest of it would be what we call "permission-based messages". We have all three political parties that use this whenever there is an election. We have done some charity work for Canadian Blood Services, Heart and Stroke, Ottawa Hospital Lottery. there are others that supply their own list to send information to their recipients or client base, as well.

711 MR. ELDER: Okay. Would you say the majority of the calls that you are doing are for promotional or sales activity?

712 MR. CORREIA: I would say the majority would be for promotional activity?

713 MR. ELDER: Generally speaking, are your customers repeat customers? or do they tend come with an individual campaign and then you don't hear from them for a while?

714 MR. CORREIA: Well, they will repeat if they are successful, so -- I'm sorry, what's your question?

715 MR. ELDER: I'm just trying to get a sense of how many of your customers would be recurring customers and how many of them would be transactional, would come in to do a single campaign and that would be it, as opposed to customers that every quarter or whatever would have you do a campaign on their behalf?

716 MR. CORREIA: It really varies. A few of them are repeat customers. The majority just come in, they try to service out and, you know, if it doesn't go to their liking, they don't stick around. There's many variables as to why it might not go to their liking: their message, their service, their price. There's a lot of variables that affect that.

717 MR. ELDER: Okay. Sorry, you spoke a little bit about your do-not-call list. I would just like ask you a couple more questions --

718 MR. CORREIA: Yes.

719 MR. ELDER:  -- about that so I understand that.

720 The list that your operate right now, I think I heard you say that it's a global Infolink list?

721 MR. CORREIA: Which list are you referring to?

722 MR. ELDER: Well, the do-not-call list that you would keep for your Voicecasting product --

723 MR. CORREIA: Yes.

724 MR. ELDER:  -- is it the case that there is an Infolink list or do you rely on individual lists for each of your customers, each of the advertisers whose messages you are distributing?

725 MR. CORREIA: There are two lists: one for the removal requests for faxs, which contains over 200,000 --

726 MR. ELDER: Okay.

727 MR. CORREIA:  -- and the other list is the Voicecasting which, as I mentioned, has 12,000 numbers in there, of which 9,000 are telephone numbers that were on our sending lists.

728 MR. ELDER: Okay. So when -- I guess what I'm trying to get at is when a customer receives a voicecast message, typically, who would they call?

729 MR. CORREIA: They would typically call my client?

730 MR. ELDER: Your client?

731 MR. CORREIA: My client, yes.

732 MR. ELDER: Right. And that's because it's only your client whose contact information would be identified in the message?

733 MR. CORREIA: Normally, we would put only the client's contact information in the message because we only have 30 seconds.

734 MR. ELDER: Right. And it's also the case that, because of the way that you are dialing into the voicemail platform, there is no CLID information available to the call recipient, is that right -- call-line identification, they won't know --

735 MR. CORREIA: Oh, no. It would be nice if they would, but, no.

736 MR. ELDER: So do you agree with me a caller wouldn't necessarily know that they had received a message from Infolink?

737 MR. CORREIA: No. I have tested this, sending myself messages, and when I press "5" during listening to the message, you would think that it would give us the details of who the sender was, but I don't think Bell has that availability on their --

738 MR. ELDER: Well, we do for calls that come in through the front door.

739 MR. CORREIA: Oh, okay.

--- Laughter / Rires

740 MS EMBREE: But not for calls that go into the voicemail system, rather than to the subscriber itself -- him or herself.

741 MR. ELDER: Right. Okay, so in compiling your do-not-call list, then, you are relying on your customers to feed into you information about general call requests so you can put it on your master voice broadcasting list?

742 MR. CORREIA: Yes, and we rely on our customers. We also send out information to that list about the Infolink services, so then we rely on own selves to take the calls. And we also rely on Bell Canada, who gives us information by e-mail or for Voicecasting removals.

743 MR. ELDER: Yes, I understand that.

744 You said earlier that a lot of your business is transactual in nature, so I guess I'm wondering what incentive do these customers have to provide you with do-not-call requests to augment your list?

745 MR. CORREIA: What incentive do my customers have to provide me no-send information?

746 MR. ELDER: Yes. If I'm doing business with your, you know, I'm selling carpet cleaning services, and I'm just going to do it once and see how it goes, what incentive is there for me at the end of that, if I have a number of complaints, to pass those on to you?

747 MR. CORREIA: Well, our customers -- it's actually a natural progression. They receive people who wish to be removed. They are sometimes irate and they provide us the information. Our customers have to have a release valve, let's say, and that release valve is to give us the information so that they don't get called by these people again.

748 So that's enough of an encouragement for them to give us the no-call information, and we do get that often from customers.

749 MR. ELDER: But if they are not going to use you again, what incentive is there?

750 MR. CORREIA: I agree, there may be less incentive if they don't use us again.

751 MR. ELDER: Okay. Thank you.

752 I would like to reference one of your interrogatory responses. This is Interrog No. 4. This is where you are going through your complaint numbers. We have explored these a little bit already and I think we have come up with this is a total of 9,000 removal requests.

753 MR. CORREIA: Right.

754 MR. ELDER: You are expressing that, on a percentage basis, over a denominator of 40 million messages?

755 MR. CORREIA: Right.

756 MR. ELDER: But, I mean, that's not 40 million individual recipients, right, that's 40 million messages, so there would be repeat messages to a number of customers?

757 MR. CORREIA: Yes.

758 MR. ELDER: Should it be the case that a customer should have to ask to be removed more than once?

759 MR. CORREIA: Is it the case?

760 MR. ELDER: Should it -- or is it the case, I guess.

761 MR. CORREIA: No, that shouldn't have to be the case.

762 MR. ELDER: So might this also be expressed as a larger percentage of a much smaller denominator? How many call recipients have you contacted over this time period, as opposed to how many individual messages have you sent? Even just order of magnitude.

763 MR. CORREIA: Okay. Are you asking me the total number of removables that we have collected?

764 MR. ELDER: No. I'm asking you how many people, how many individuals do you think you have called, whether you have called them one or whether you called them multiple times?

765 MR. CORREIA: Yes -- oh, I don't know. I mean, we keep sending to the list of numbers until somebody says, "Take me off".

766 MR. ELDER: How big is the universe? You are saying that you are mostly calling Bell --

767 MR. CORREIA: Oh, how big is our list, you are asking?

768 MR. ELDER: Yes.

769 MR. CORREIA: Okay, our list is a little over 3 million numbers.

770 MR. ELDER: Three million.

771 MR. CORREIA: For Canada.

772 MR. ELDER: So might another way to express this be that you have 9,000 requests out of 3 million, of 3 million potential customers that you have reached?

773 MR. CORREIA: Yes.

774 MR. ELDER: Right. It should up the percentage a bit, wouldn't it?

775 MR. CORREIA: Well, it's 0.3 per cent --

776 MR. ELDER: Right.

777 MR. CORREIA:  -- versus the fax broadcasting, which is 80 per cent removal requests that we have accumulated over the years. But you keep in mind that these 9,000 removals that we had are from repeatedly sending information to people, and some of them might not care after getting one, two or three messages, maybe five and six or seven, then they will call.

778 MR. ELDER: I'm just playing with your statistics, that's all.

779 MR. ELDER: With respect to your fax list, when you send out fax broadcasts, and that's part of your business, as well, on the fax that you send out is there call-line identification or is Infolink referenced in some way on those fax broadcasts?

780 MR. CORREIA: There is always information. There is a disclaimer line where we put our removal number on there. If I can mention also we don't do very much in that business any more. The majority of our business is all now permission-based. The fax broadcasting, for the purposes of solicitation, has really died off. In 1995, we were charging 5 cents a page and it has come down to like a quarter a cent and it's really --

781 MR. ELDER: Okay. But I guess what I'm getting at, wouldn't you say it would be easier for a recipient of an unsolicited fax that you have sent out, wouldn't it be easy for a recipient to know it was you and be able to contact you to get on a list than it would be for them if they received a message in their voice mailbox?

782 MR. CORREIA: Yes, it would.

783 MR. ELDER: Yes. Okay. Thanks.

784 Just in terms of the way your call pattern actually works, how your algorithm works -- and we talked about this a bit earlier -- maybe I will just say it and you can tell me if I have got it right, my understanding is your dialer, your PC, will dial out over these 1FLs via PSTN connection, you will call the Bell pick-up number for that particular voice mailbox -- am I right so far -- and then, once you are in there, you will wait for a system message and then you will input a number to send. Is that correct?

785 MR. CORREIA: Yes.

786 MR. ELDER: Now, do you make a call to the -- do you have to do it on a one-to-one basis? Can you make a call into the voicemail platform and then send out multiple messages or do you --

787 MR. CORREIA: Oh, no, we wouldn't do that.

788 MR. ELDER: So each and every time that they deposit a message --

789 MR. CORREIA: Is one call.

790 MR. ELDER:  -- they are making a PSTN telephone call. Is that right?

791 MR. CORREIA: Yes.

792 MR. ELDER: Okay. When you are doing that dialing, it's sequential, is it? You dial in and then you start with an NXX and --

793 MR. CORREIA: You don't use sequential.

794 MR. ELDER: Sorry?

795 MR. CORREIA: It's not sequential.

796 MR. ELDER: Okay. I had understood from some of your earlier evidence, maybe I'm mixing it up, you dial from a list --

797 MR. CORREIA: That we have collected, yes.

798 MR. ELDER: That's right, okay. But in order to establish the list, my understanding is you do some sequential dialing to detect a voicemail -- an active voicemail box and then you retain that list. Is that right?

799 MR. CORREIA: We don't do sequential dialing to detect lists.

800 MR. ELDER: Okay. How do you develop your list?

801 MR. CORREIA: It's random.

802 MR. ELDER: It's random.

803 MR. CORREIA: Yes.

804 MR. ELDER: Okay. Okay. All right. So you dial into the platform, you randomly generate numbers, your equipment can detect when you reach a live mailbox and then you retain that number for other use?

805 MR. CORREIA: Yes.

806 MR. ELDER: Do you always do it in those two steps? Or do you sometimes dial in with a random number, if you get a mailbox, you leave a message?

807 MR. CORREIA: We only do the random process once every year or every year-and-a-half. That's all. Once we have established a list, there is no need to do that any more.

808 MR. ELDER: Okay.

--- Phone ringing /*

809 MR. ELDER: Let's hope it's not a telemarketer.

--- Laughter / Rires

810 MR. ELDER: Maybe I will just ask maybe just one more question, series of questions.

811 So once your PCs are set up, once you have loaded the message that you are going to offer, once you have plugged in the list that you are going to call, is there any human intervention required in order for this campaign to continue, for these messages to be dropped into a voicemail platform?

812 MR. CORREIA: No. The process involves recording a message and loading the message into one of the PCs and also the operating setting which list they are going to send to, and then you press a key and the system will dial out and access the voice boxes.

813 MR. ELDER: Okay. Thank you.

814 Those will be my questions. Thank you.

815 THE CHAIRPERSON: Thank you, Mr. Elder.

816 So the next phase of our proceeding, then, is the final remarks. You each have 10 minutes.

817 Are you prepared to do that now? Or do you need a short break? By "short", I mean like five minutes of so.

818 MS SONG: Yes, please, we request a five-minute break.

819 THE CHAIRPERSON: Okay.

820 MS SONG: Thank you.

821 THE CHAIRPERSON: Okay. So we will reconvene in five minutes.

--- Upon recessing at 1150 / Suspension à 1150

--- Upon resuming at 1155 / Reprise à 1155

822 THE CHAIRPERSON: Okay. Order, please.

823 We will return to our proceeding now, with closing remarks, first from Infolink. You have 10 minutes.

824 MS SONG: Thank you, Mr. Chairman.

825 Mr. Chairman and Commissioners, we believe that taking a modern textual approach to legal interpretation and taking into consideration section 41 of the act, the act of depositing a voicemail message directly into a subscriber's voice mailbox, which is the essence of Infolink's Voicecasting service, in no way contravenes the prohibition against making prohibited ADAD calls under GT Item 1800.

826 If the Commission ultimately disagrees with Infolink's interpretation of GT Item 1800, disconnection or suspension of service is not the solution.

827 Again, bearing in mind the guiding words of section 41 of the act, and taking into consideration the specific characteristics of Infolink's Voicecasting service, the Commission must balance the interest of consumers to privacy and the right to expression of the commercial and not-for-profit entities served by Infolink.

828 We believe that the record amply demonstrates that Voicecasting service is a unique service; it's a non-real-time enhanced telecommunication service; it is unobtrusive, silent and ringless; it deposits short 30-second messages and consumers ultimately control when, how and if they wish to listen to the message.

829 From a consumer perspective, a Voicecasting message is like any other voicemail: a recorded voice message. The service does not disrupt the normal routines of the household and does not involve the consumption of the consumer's resources.

830 The record establishes that Infolink has, on a purely voluntary basis, restricted the hours of the day when the service is provided, does not deliver multiple or sequential messages to the same mailbox, it provides identifying information to the customer, never a message, it permanently removes the name of persons who request removal from Infolink's lists and, as previously indicated, Infolink has no objection to considering further reasonable safeguards, such as providing a number where Infolink can be contacted directly to request removal. This will ensure that the persons who are most annoyed, subjectively, by the service can request removal.

831 For this reason, the record shows that, in contrast to the experience with other telemarketing services, other real-time telemarketing services, such as fax broadcasting, the removal rates are very low for Voicecasting. There is no compelling evidence of undue consumer disruption resulting from this service on the record of this proceeding.

832 The only direct evidence that has been discussed today are removal rates -- removal request rates, and the evidence is that whether it be 0.03 per cent or 0.04 per cent or 0.4 per cent, the removal rate for Voicecasting is extremely low when compared to rates for other services, such as fax broadcasting, where experience has shown that the rate can be as high as 80 per cent.

833 In the course of this morning's proceedings, Bell has provided further evidence of other entities which they submit -- or they state are providing Voicecasting services. We have not had an opportunity to further investigate, obviously, as this information has just now come to light, but it would appear that at least two of the entities that have been identified provide a ring ADAD service, so a true real-time ADAD service, and the other parties identified are possibly users of the service, rather than service providers.

834 So there is no evidence on the record of this proceeding, again, that in the over seven years since Infolink has provided Voicecasting services that consumers have been deluged with Voicecasting. This is, in part, explained on the record on this proceeding as due to the proprietary software that is operated by Infolink, which gives it the ability to be the only provider with national capability.

835 Infolink serves a broad range of major corporations, as well as not-for-profit entities, who are not soliciting or money's worth. As such, Infolink believe that it is providing a valuable way for such entities to stay in touch with the public in one way another.

836 Given the unique distinguishing features of Infolink's Voicecasting services from real-time ADAD, this connection is not justified, either under General Tariff Item 1800 or section 41 of the Telecommunications Act.

837 Infolink is confident that the Commission will weigh with care the submissions and record of this proceeding in arriving at a fair determination that balances the legitimate expectations and rights of consumers, business, not-for-profit organizations, the telephone company and Infolink.

838 Infolink wishes to thank the commissioners, Commission staff, for this opportunity to furnish its submissions in this proceeding.

839 Thank you.

840 THE CHAIRPERSON: Thank you, Miss Song.

841 Mr. Elder.

842 MR. ELDER: Thank you.

843 I guess down to its essence, again, I would say if it looks like a duck and it walks like a duck and it quacks like a duck, it's a duck. And if people --

844 THE CHAIRPERSON: I used that in the --

--- Laughter / Rires

845 MR. ELDER: Okay.

846 THE CHAIRPERSON:  -- decision that was just concluded yesterday from you, Mr. Elder.

847 MR. ELDER: Well, the metaphor is inapplicable to defining appropriate markets, and, moreover, people are complaining about the quacking, so -- I mean, in our view, nothing has changed. Looking at the scheme of the tariff, looking at Decision 94-10 and the Commission's comments and the process that came let up to it, looking at the Telecommunications Act and section 41, having due regard to the Charter, we don't think a lot has changed. We don't think there is a significant difference between the conventional ADAD technology and the back-door ADAD technology, Infolink's technology.

848 The core functions are still the same: you don't have an ability to interact with the caller, it makes it a bit more difficult to contact people to get on do-not-call lists, you know, it's a disruptive technology, as we have heard.

849 It may not always be ringing, but there are things that you -- there are some audible tones and vibrations that cause people to disrupt what they are doing and go to check their messages, and to do that you have to go through the added hoop of entering a voicemail system and entering your password in order to do it.

850 Just like the ADADs of old, there are very high potential call volumes. As Ms Embree said, lawyers and math aren't a good fit, but thinking based on Mr. Correia's earlier answers we are looking at the capability of doing something like 450,000 calls a day just through this one operator.

851 So, again, we would say it's the same as in 1994, where the Commission found that there was undue annoyance and inconvenience associated with this technology.

852 I would also like to just talk a little bit, I guess, about onus here and whether, really, in this proceeding the onus is on us to prove why, when we are applying this tariff today, things are exactly the same as they were when the tariff was set up or whether, in fact, the onus is on Infolink to disprove that requirement.

853 I would remind the Commission that if you find today, or if you find on October 5th, that Infolink's operations are not an ADAD, they are not covered by safeguards, they are not line burst telemarketing, they are not faxs.

854 I would also remind the Commission that this is not just an Infolink proceeding, this isn't a Infolink-specific provision or an Infolink-specific tariff. We are talking about a tariff that applies to sort of non-interactive outbound solicitation telecommunications. There are other operators. I think we need to keep in mind the capabilities of these systems and the fact that there could very well be other operators.

855 With respect to our statistics and perhaps, you know, the desire for greater granularity in statistics that Bell have, I would just like to point out, I guess, in our view, we are just enforcing our tariffs. So the only thing we were tracking were: were people receiving messages via the automatic equipment for the purpose of solicitation? We didn't think we needed to go beyond that at that time and say, "Well, on top of that, why did you find it annoying and what, in particular, about it was the problem?".

856 We are just tracking incidents of non-compliance by any measure. And we can quibble about the figures. We have had hundreds of complaints. I think we have a very clear record that, if you find that they are an ADAD, it has been offside.

857 Other than that, as I said at the very beginning, this has been going on for some time and I think everybody will be in a better position, hopefully, on October 5th to know where we go from her and how we operate in the future.

858 I thank you for your time.

859 THE CHAIRPERSON: Thank you, Mr. Elder.

860 COMMISSIONER CRAM: Can I just ask a question?

861 THE CHAIRPERSON: Commissioner Cram has a question.

862 MR. ELDER: I hope it's not math.

863 COMMISSIONER CRAM: It is, it is.

864 How many hours in the day did you --when you did that capability, the 450,000?

865 MR. ELDER: Twelve. Twelve hours a day.

866 THE CHAIRPERSON: That was simple.

867 Okay. Thank you very much, again, Mr. Elder, and I thank you all.

868 The issues are clear. I thank you for your cooperation in the process of the process of the proceeding.

869 We will retire to make our decision and consider the information that we have, and we will receive, and we will endeavour, as I indicated at the outset, to have a decision out by next Friday.

870 Thank you all very much. This phase of our proceeding is concluded.

871 Mr. Godin.

872 MR. GODIN: Can they e-mail their information to us by Monday?

873 THE CHAIRPERSON: Would it be possible to use e-mail, perhaps not Voicecasting, as the means of communicating the responses to us?

874 Who are they going to send it to?

875 MR. GODIN: They send it to me.

876 MR. ELDER: Directly to Mr. Godin.

877 MS EMREE: Right. Those are the undertakings?

878 MR. ELDER: Sure. And should it to your attention, Kirsten, in terms of --

879 MS EMBREE: That's fine. I think Monica is on the last string.

880 MR. ELDER: Okay.

881 THE CHAIRPERSON: Okay? All right, thank you very much.

--- Whereupon the hearing concluded at 1207 /

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