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TRANSCRIPT OF PROCEEDINGS BEFORE
THE CANADIAN RADIO‑TELEVISION AND
TELECOMMUNICATIONS COMMISSION
TRANSCRIPTION DES AUDIENCES DEVANT
LE CONSEIL DE LA RADIODIFFUSION
ET DES TÉLÉCOMMUNICATIONS CANADIENNES
SUBJECT:
Proceeding to establish a national do not call list
framework and to review the telemarketing rules /
Instance visant à établir le cadre de la liste nationale
de numéros de téléphone exclus et à examiner
les règles de télémarketing
HELD AT: TENUE À:
Conference Centre Centre de conférences
Outaouais Room Salle Outaouais
140 Promenade du Portage 140, Promenade du Portage
Gatineau, Quebec Gatineau (Québec)
May 3, 2006 Le 3 mai 2006
Transcripts
In order to meet the requirements of the Official Languages
Act, transcripts of proceedings before the Commission will be
bilingual as to their covers, the listing of the CRTC members
and staff attending the public hearings, and the Table of
Contents.
However, the aforementioned publication is the recorded
verbatim transcript and, as such, is taped and transcribed in
either of the official languages, depending on the language
spoken by the participant at the public hearing.
Transcription
Afin de rencontrer les exigences de la Loi sur les langues
officielles, les procès‑verbaux pour le Conseil seront
bilingues en ce qui a trait à la page couverture, la liste des
membres et du personnel du CRTC participant à l'audience
publique ainsi que la table des matières.
Toutefois, la publication susmentionnée est un compte rendu
textuel des délibérations et, en tant que tel, est enregistrée
et transcrite dans l'une ou l'autre des deux langues
officielles, compte tenu de la langue utilisée par le
participant à l'audience publique.
Canadian Radio‑television and
Telecommunications Commission
Conseil de la radiodiffusion et des
télécommunications canadiennes
Transcript / Transcription
Proceeding to establish a national do not call list
framework and to review the telemarketing rules /
Instance visant à établir le cadre de la liste nationale
de numéros de téléphone exclus et à examiner
les règles de télémarketing
BEFORE / DEVANT:
Richard French Chairperson / Président
Elizabeth Duncan Commissioner / Conseillère
Barbara Cram Commissioner / Conseillère
Rita Cugini Commissioner / Conseillère
Stuart Langford Commissioner / Conseiller
ALSO PRESENT / AUSSI PRÉSENTS:
Madeleine Bisson Secretary / Secrétaire
Stephen Millington Legal Counsel /
Conseiller juridique
HELD AT: TENUE À:
Conference Centre Centre de conférences
Outaouais Room Salle Outaouais
140 Promenade du Portage 140, Promenade du Portage
Gatineau, Quebec Gatineau (Québec)
May 3, 2006 Le 3 mai 2006
TABLE DES MATIÈRES / TABLE OF CONTENTS
PAGE / PARA
Presentation by Marketing Research and 342 / 2275
Intelligence Association
Questions by the Commission 376 / 2507
Presentation by Contact NB 376 / 2514
Questions by the Commission 382 / 2547
Presentation by the Consumers Association 424 / 2823
of Canada (presented by PIAC)
Questions by the Commission 439 / 2903
Présentation par le Mouvement des 476 / 3190
caisses Desjardins
Questions by the Commission 486 / 3242
Presentation by RESP Dealers Association of Canada 514 / 3404
Questions by the Commission 520 / 3437
Presentation by the Canadian Life and Health 561 / 3756
Insurance Association
Questions by the Commission 568 / 3794
Presentation by the Canadian Marketing Association 596 / 4002
Questions by the Commission 604 / 4034
Presentation by Mark Obermeyer 661 / 4452
Questions by the Commission 669 / 4491
Ottawa, Ontario / Ottawa, (Ontario)
‑‑‑ Upon resuming on Wednesday, May 3, 2006 at 0900 /
L'audience reprend le mercredi, 3 mai 2006 à 0900
LISTNUM 1 \l 1 \s 22702270 THE CHAIRMAN: Order, please. À l'ordre, s'il vous plaît.
LISTNUM 1 \l 12271 Welcome to this second day of hearing on the telemarketing issue.
LISTNUM 1 \l 12272 Madame la secrétaire.
LISTNUM 1 \l 12273 LA SECRÉTAIRE: Merci, monsieur le président.
LISTNUM 1 \l 12274 Our first group today will be Marketing Research and Intelligence Association. I would like to introduce Mr. Brendan Wycks who will introduce his colleagues.
PRESENTATION / PRÉSENTATION
LISTNUM 1 \l 12275 MR. WYCKS: Thank you Commissioners and members of the CRTC for the opportunity to speak today at this public consultation and good morning, ladies and gentlemen.
LISTNUM 1 \l 12276 My name is Brendan Wycks and I am Executive Director or the Chief Staff Executive of the Marketing Research and Intelligence Association, MRIA, and I would now like to introduce to you my two colleagues.
LISTNUM 1 \l 12277 To my immediate left is Mr. Barry Watson who is the President Elect of our Association and to his left is Mr. Alain Choinière, the chair of our Government Relations Committee.
LISTNUM 1 \l 12278 M. CHOINIÈRE: Bonjour. Il me fait plaisir, au nom de l'Association de la recherche et de l'intelligence marketing, de prendre la parole aujourd'hui.
LISTNUM 1 \l 12279 Nous vous remercions beaucoup de l'opportunité de prendre la parole aujourd'hui et il nous fera plaisir de répondre à toutes vos questions tant en français qu'en anglais.
LISTNUM 1 \l 12280 MR. WYCKS: The Marketing Research and Intelligence Association, the voice of the market and survey research industry in Canada is pleased to be a part of these proceedings.
LISTNUM 1 \l 12281 MRIA is a Canadian not for profit association representing all sectors of the survey research industry. Among other initiatives, our organization is responsible for certifying both individual research practitioners and research companies in Canada.
LISTNUM 1 \l 12282 Our members include over 1,700 individual research professionals and over 200 corporate members, our corporate members being comprised of small to large research agencies and many buyers of research services such as financial institutions, major retailers, insurance companies, telecommunications firms and manufacturers.
LISTNUM 1 \l 12283 And with that as introduction, I would now call on Barry Watson, our President Elect, who will present our brief.
LISTNUM 1 \l 12284 MR. WATSON: One of the major pillars of MRIA's mandate is to protect the good relationship that exists between survey researchers and the general public.
LISTNUM 1 \l 12285 For the most part, this revolves around ensuring that the activities of the research industry do not unreasonably infringe on an individual's right to privacy. As such, MRIA applauds the government's efforts to create privacy and consumer rights in Canada.
LISTNUM 1 \l 12286 We believe the creation of a national do not call list will go a long way toward meeting that goal.
LISTNUM 1 \l 12287 MRIA was an active participant in the consultations that led to the passage of Bill C‑37. Legislators agreed to exempt survey research calls because they acknowledged that there are two key characteristics that define survey research and differentiate our work from that of the telemarketing industry.
LISTNUM 1 \l 12288 First, legitimate survey researchers never attempt to sell anything. In fact, solicitation violates the industry's rigorous code of conduct and ethical practices.
LISTNUM 1 \l 12289 And second, survey research gives Canadians an opportunity to voice their opinions and to have influence on important issues in public policy, products and services, overall serving a valuable societal role.
LISTNUM 1 \l 12290 Survey researchers currently enjoy a good relationship with the public because Canadians are keenly aware of the impact that their opinions could have when collected through survey research. And they are willing to share their views with researchers because they trust the industry to respect privacy.
LISTNUM 1 \l 12291 Clearly, the inclusion of survey research calls within the scope of the do not call list framework would have severely impeded survey research. Statistical reliability is essential to good research, which is in turn essential to good decision making.
LISTNUM 1 \l 12292 Any such limitations were deemed by Legislators as well as regulators in previous CRTC decisions to be a disservice to Canadians. U.S. regulators had previously reached the same conclusion as Canadian Legislators where survey research is also excluded.
LISTNUM 1 \l 12293 In fact, a number of important lessons can be learned from the experience in implementing a do not call list in the U.S. In the U.S. the National do not call registry has been plagued since it was introduced by problems related to poor communication specifically about what's covered and what's not.
LISTNUM 1 \l 12294 We understand that in many instances registrants to the do not call list did not clearly understand the scope of the calling restrictions and were not aware of exemptions. This led to confusion and frustration when they continued to receive calls from exempted parties such as survey researchers.
LISTNUM 1 \l 12295 In this connection, the key point we would like to leave you with today is that a comprehensive communications plan is required to educate Canadians about the registry and to make clear just what is covered and what is not and in effect, to include messaging that explains the parameters of what should be more accurately called "The telemarketing do not call list".
LISTNUM 1 \l 12296 A robust communications and awareness program will be instrumental in the smooth implementation of the do not call list as well as in reducing unwarranted complaints of violations by exempted parties.
LISTNUM 1 \l 12297 The points that we are stressing through our participation in the CRTC's operations working group are as follows:
LISTNUM 1 \l 12298 First, a robust communications and awareness program will be critical to both managing public expectations with respect to the registry and to managing public inquiries and complaints once it is operational.
LISTNUM 1 \l 12299 The U.S. do not call registry receives over 90,000 complaints a month; 15,000 of these are deemed to be incomplete or unfounded and a full 15 per cent of the complaints are unfounded and many stem from consumer confusion about the system, particularly with respect to what types of calls are covered.
LISTNUM 1 \l 12300 New registrants with the Canadian Registry should be advised immediately, in our view, upon registration as to its scope, including the list of exempted calls.
LISTNUM 1 \l 12301 We would also like to speak briefly about two questions outlined in the Public Notice 2006‑4.
LISTNUM 1 \l 12302 With respect to paragraph 48 of the Public Notice, MRIA recommends that the do not call list rules be applied to telemarketers making the calls as well as to the companies on whose behalf telemarketers are engaged.
LISTNUM 1 \l 12303 MRIA also strongly recommends that the do not call list should apply to voice casting calls.
LISTNUM 1 \l 12304 These two simple actions would serve to create a stronger, more coherent telemarketing do not all list and go a long way towards limiting what has become an increasingly prominent irritant for consumers.
LISTNUM 1 \l 12305 In closing, we want to stress that the market survey and public opinion research industry regards Canadians who respond surveys as their partners. We believe that if that partnership is to continue to thrive, our industry and our association will have to place increasing emphasis on the treatment and rights of respondents as we go forward.
LISTNUM 1 \l 12306 Therefore, as an important new initiative, we expect to introduce later this year a respondent Bill of Rights. This will be a major addition to our self‑regulatory and professional standards program which includes the Canadian Survey Registration system which monitors member research projects being conducted across Canada.
LISTNUM 1 \l 12307 The system performs an important service by providing the public with a toll free number to confirm the legitimacy of a given research survey and to ensure that any personal information is being collected and used for legitimate purposes.
LISTNUM 1 \l 12308 MRIA looks forward to continuing to work with the CRTC to provide input and assistance towards a smooth implementation of the do not call list in Canada and, in this regard we intend to align our industries communications programs to support the CRTC in these efforts.
LISTNUM 1 \l 12309 Thank you again for the opportunity of speaking to you this morning and for considering our views on this topic, which is of great importance to our industry.
LISTNUM 1 \l 12310 THE CHAIRMAN: Thank you very much, Mr. Watson for that very clear and concise presentation.
LISTNUM 1 \l 12311 Commissioner Cram.
LISTNUM 1 \l 12312 COMMISSIONER CRAM: Thank you. Mr. Wycks, Mr. Watson, Mr. Choinière, I wanted to talk initially about your organization.
LISTNUM 1 \l 12313 There are 1,600 members you say. Are they all Canadian or operate in Canada and in the States?
LISTNUM 1 \l 12314 MR. WYCKS: The vast vast majority are Canadians operating in Canada. We do have a small handful of members that are outside the borders of our country.
LISTNUM 1 \l 12315 COMMISSIONER CRAM: And when you are doing the surveys, do you conduct surveys on wire line only or do you phone wireless numbers when you do a survey?
LISTNUM 1 \l 12316 MR. WATSON: I think by far the majority or almost all of the calls would be ‑‑ calls by telephone would be with wire line.
LISTNUM 1 \l 12317 There may be some special surveys where wireless would be used. For example, possibly a customer satisfaction study with customers of cell phone services where there had been a pre‑arrangement to do that, but we would not routinely phone cell phone customers as part of our regular surveys, no.
LISTNUM 1 \l 12318 COMMISSIONER CRAM: So, how would you know ‑‑ I guess you would know that they were wireless because they have different prefix numbers; is that it?
LISTNUM 1 \l 12319 MR. WATSON: Yes. Most of the dialling would be done based on data basis that would be assembled from land line phones.
LISTNUM 1 \l 12320 COMMISSIONER CRAM: And I guess when the numbered portability comes in you are going to have a problem?
LISTNUM 1 \l 12321 MR. WATSON: These are all challenges for our industry. We are thinking about ways to deal with these as they emerge, yes.
LISTNUM 1 \l 12322 COMMISSIONER CRAM: So, the point would be though that you actually avoid phoning wireless people, wireless subscribers?
LISTNUM 1 \l 12323 MR. WATSON: As a general rule, yes.
LISTNUM 1 \l 12324 COMMISSIONER CRAM: Uh‑huh! And there has got to be the odd person who gets pretty ticked about being phoned about a survey. Do your people normally have internal do not call lists? I know it affects the validity that you are worried about ‑‑ I know that, but I am not sure I would like to be a surveyor, you know, phoning somebody who is fairly irritable about this?
LISTNUM 1 \l 12325 MR. WATSON: We do occasionally get such a call and I think it is generally the practice among our members that when someone complains and asks that they not be called again, that indeed a note is made and that person is not called again.
LISTNUM 1 \l 12326 MR. CHOINIÈRE: If I may add. The land that we are looking at in that direction is that when people ask not to be called, each company has their do not call list, but on top of that we feel that once the telemarketing do not call list is in place, people will not be annoyed as much as they are right now.
LISTNUM 1 \l 12327 The number of calls will go down dramatically for those who choose not to be called and we feel this is going to be a plus for our industry where when we call, they see that we are serious in getting their opinion and no longer selling. I think the participation rate will go up.
LISTNUM 1 \l 12328 COMMISSIONER CRAM: And do you do surveys by e‑mails?
LISTNUM 1 \l 12329 MR. WATSON: Yes, we do.
LISTNUM 1 \l 12330 COMMISSIONER CRAM: And you find them statistically valid?
LISTNUM 1 \l 12331 MR. WATSON: It depends on the purpose. There are many sampling challenges when surveys are being done on the internet and then some situations it works better than others, but these are areas where we are developing standards to improve the quality as well.
LISTNUM 1 \l 12332 COMMISSIONER CRAM: So you see that as increasing in the future?
LISTNUM 1 \l 12333 MR. WATSON: Yes. In our national surveys of our members we see that the proportion of work that's done on the internet is increasing each year.
LISTNUM 1 \l 12334 COMMISSIONER CRAM: Uh‑huh! What are you doing to educate your members about their obligations under telemarketing rules?
LISTNUM 1 \l 12335 MR. WATSON: We have a very comprehensive set of standards and best practices. These are practices which are included as part of our education program.
LISTNUM 1 \l 12336 So, for example, there is a program or a course on standards and privacy and ethics which all members who are looking to earn our individual certification must take that course. And also, elements of that program are part of the audit and certification program that we have for our corporate members.
LISTNUM 1 \l 12337 MR. CHOINIÈRE: May I add also that to be a member, to be accepted as a member, they have to sign that they will abide by the rules of conduct, all members?
LISTNUM 1 \l 12338 COMMISSIONER CRAM: And you said you're self‑regulatory. So, let's say your best practices said you can only survey between, I don't know, 0900 in the morning and 0900 at night and if there was a constant breech of that, do you have a continuum of punishments?
LISTNUM 1 \l 12339 MR. WATSON: Yes. We have a disciplinary process. When a complaint is received, there is a ‑‑ it's investigated, a panel can be convened to review it and then, there are... there are a stage of disciplinary actions ultimately being excluded from the industry.
LISTNUM 1 \l 12340 M. CHOINIÈRE: There are two types of members. Membership is individuals and, as well companies. Companies have to sign and abide by a set of rules and there are various regulatory procedures.
LISTNUM 1 \l 12341 For individual members it's the same thing. There are as well under one of the committees that handles all complaints.
LISTNUM 1 \l 12342 COMMISSIONER CRAM: So, you wouldn't object to us imposing limitations on time of day calling in the telemarketing rules, to which you would be subject?
LISTNUM 1 \l 12343 MR. CHOINIÈRE: Well, we are not in the telemarketing business. We are in the research business and, as such ‑‑
LISTNUM 1 \l 12344 COMMISSIONER CRAM: So, your position would be that any rules we would make for telemarketing such as time of day, you would not be subject to them?
LISTNUM 1 \l 12345 MR. CHOINIÈRE: I think we have been excluded in the Legislation.
LISTNUM 1 \l 12346 COMMISSIONER CRAM: From the rules?
LISTNUM 1 \l 12347 MR. CHOINIÈRE: Yes.
LISTNUM 1 \l 12348 THE CHAIRMAN: It's not clear that that's the case.
LISTNUM 1 \l 12349 COMMISSIONER CRAM: You have been excluded from being required to have a do not call list.
LISTNUM 1 \l 12350 MR. CHOINIÈRE: Uh‑huh!
LISTNUM 1 \l 12351 MR. WYCKS: But through several prior CRTC decisions, we have been excluded from the telemarketing framework.
LISTNUM 1 \l 12352 COMMISSIONER CRAM: So, are you asking that that happen again?
LISTNUM 1 \l 12353 MR. WYCKS: We believe that it is a legitimate exclusion based on the industries work and the societal value that we bring.
LISTNUM 1 \l 12354 COMMISSIONER CRAM: So, you would object to us imposing restrictions on time of day when you could conduct a survey? Like these are the kind of rules we are talking about, that you would not conduct a survey at midnight in Saskatchewan.
LISTNUM 1 \l 12355 THE CHAIRMAN: Especially in Saskatchewan.
LISTNUM 1 \l 12356 COMMISSIONER CRAM: Listen; I love surveys. I answer everyone, but ‑‑ I'm outside the demographic, that's right.
LISTNUM 1 \l 12357 MR. CHOINIÈRE: I think that the position we have had from the start is that if we are excluded from the do not call list and, by fact, in the past all decisions have been that we be excluded from telemarketing rules, if these are rules that are to apply to telemarketing, we would like to be excluded for sure.
LISTNUM 1 \l 12358 I am not talking specifically about time of day, but some of the rules are ‑‑ that would apply to telemarketing we don't feel that we should be included in those.
LISTNUM 1 \l 12359 COMMISSIONER CRAM: Yes. Time of day you wouldn't have a problem with?
LISTNUM 1 \l 12360 MR. CHOINIÈRE: Not necessarily. I mean, we do have best practice.
LISTNUM 1 \l 12361 COMMISSIONER CRAM: And you wouldn't have a problem with the requirement that you provide identification at the first of the call, who is calling?
LISTNUM 1 \l 12362 MR. CHOINIÈRE: No. We do that already. All of our members have a set of rules. The time of day, as long as it's ‑‑ we have not had any problems in the past in terms of setting hours ourselves and it is ‑‑
LISTNUM 1 \l 12363 COMMISSIONER CRAM: What are the hours that you set?
LISTNUM 1 \l 12364 MR. CHOINIÈRE: We are reviewing it right now, but I think it's nine o'clock at night.
LISTNUM 1 \l 12365 MR. WATSON: Both of these are recommended practices. For example, that there be a clear identification of the member that is a required part of our standards.
LISTNUM 1 \l 12366 We have recommendations with respect to the length of the interview and recommendations with respect to calling times and from my familiarity with the practice of certainly the larger companies, these are quite rigidly followed.
LISTNUM 1 \l 12367 There are some ‑‑ there would be some problems with making it absolute because there would be some circumstances when it might be necessary or appropriate or not problematic to call late. You know, we deal with all sorts of population and not all Canadians, you know, work nine to five jobs, for example, and so, you know, sometimes its necessary to reach them later and we might even have made a pre‑arrangement to reach them later.
LISTNUM 1 \l 12368 COMMISSIONER CRAM: And you would probably get the 15, 16 year olds at two in the morning and there would be no problem.
LISTNUM 1 \l 12369 So ‑‑ and you, habitually, I would assume, and tell me if it's a requirement or a best practice, you would have the number. You don't block the number, the phone number ID on your ‑‑‑ when you do the surveys?
LISTNUM 1 \l 12370 MR. WATSON: We do not have a particular recommendation with respect to that. I think the general practice though is that companies display their name, partly because you know, most of the companies have a certain level of brand recognition and if it says, you know, a certain research company, then the caller knows that this isn't a telemarketing call.
LISTNUM 1 \l 12371 I think in the experiments that we have done, showing the name actually elicits more co‑operation than if you block the name.
LISTNUM 1 \l 12372 COMMISSIONER CRAM: Do you on request provide another number if I want to find out that you are legitimate?
LISTNUM 1 \l 12373 MR. WATSON: Yes, absolutely.
LISTNUM 1 \l 12374 COMMISSIONER CRAM: It seems like this, the 1‑800 number, is a common one in a normal call.
LISTNUM 1 \l 12375 MR. WATSON: In practice I think there are two responses that are given. Let's say, for example, an interviewer has phoned a household and the respondent is a little bit uneasy about whether this is legitimate. I find the first response on the part of the respondent is to say: "Can I speak to your supervisor."
LISTNUM 1 \l 12376 COMMISSIONER CRAM: Yes.
LISTNUM 1 \l 12377 MR. WATSON: So there is immediately a transfer. This is usually a person who has more knowledge of the situation, is more experienced. They explain the situation and the respondent is satisfied.
LISTNUM 1 \l 12378 If they are not satisfied with that, then the survey registration system is explained to them and they are given the 1‑800 number and they can make a call to that number to verify the survey.
LISTNUM 1 \l 12379 We provide them with the registration number for the particular survey that we were executing so that they can readily identify it when they call the survey registration centre.
LISTNUM 1 \l 12380 COMMISSIONER CRAM: If you want to be exempted from the telemarketing rules, I guess I need to know what is the continuum of penalties that you give for a breach of your requirements ‑‑ not the best practices but your requirements.
LISTNUM 1 \l 12381 MR. WATSON: Could I suggest that we provide you with the documentation on that, which would go through it in some detail?
LISTNUM 1 \l 12382 These are all processes which are under some review. If it was appropriate to make some enhancement to that, I think we would certainly be quite willing to do that.
LISTNUM 1 \l 12383 In fact, this is something which is being reviewed right now, in that there are a number of initiatives.
LISTNUM 1 \l 12384 One initiative that is being proposed by the world association that deals with these issues wanting to have more visible policing and enforcement, that would involve a more public presentation when in fact someone violated one of the rules.
LISTNUM 1 \l 12385 So we are certainly open to looking at enhancements to that process.
LISTNUM 1 \l 12386 COMMISSIONER CRAM: Inevitably I would ask that you would file both the requirements and the best practice, the recommendations.
LISTNUM 1 \l 12387 What are the consequences of breach of a best practice or suggestion? Nothing.
LISTNUM 1 \l 12388 MR. WATSON: There are two things that happen. This is reviewed by a number of peers who are aware of some violation. It is brought to the attention of the member and it is recommended that the process be corrected.
LISTNUM 1 \l 12389 This is also done when our auditor reviews the individual company's practices. This is a process where our auditor, which is done by Deloitte, goes through files in detail within the research company, interviews the senior staff responsible for standards in lengthy questioning on how certain standards are met.
LISTNUM 1 \l 12390 COMMISSIONER CRAM: So what are the consequences?
LISTNUM 1 \l 12391 MR. WATSON: The consequences are a report which indicates what needs to be improved. There is no particular penalty or exclusion for best practice issues, though.
LISTNUM 1 \l 12392 COMMISSIONER CRAM: Do any of your members use predictive dialling devices?
LISTNUM 1 \l 12393 MR. WATSON: I expect they do. I think what is more common is power diallers rather than predictive diallers. But I am not sure of the statistics on that.
LISTNUM 1 \l 12394 COMMISSIONER CRAM: So all I am worried about is dead air, abandonment.
LISTNUM 1 \l 12395 Do you have any standards for those who do use predictive dialling on an abandonment rate?
LISTNUM 1 \l 12396 MR. WATSON: We don't have one but it would certainly be something that we would be happy to include in our standards.
LISTNUM 1 \l 12397 COMMISSIONER CRAM: Do you have any position on ADADs? You don't use them, ADADs ‑‑ automated dialling announcement devices?
LISTNUM 1 \l 12398 MR. WATSON: No. I don't think that is commonly used by our members.
LISTNUM 1 \l 12399 COMMISSIONER CRAM: I take it, as you do not have to access the "do not call" issue, you wouldn't have a position on fee structures.
LISTNUM 1 \l 12400 Both times, in your written submission initially and in this submission, you use the word "strongly" recommend that the "do not call" lists apply to voicecasting calls.
LISTNUM 1 \l 12401 Why "strongly"?
LISTNUM 1 \l 12402 MR. WYCKS: I think it's just an adjective for emphasis.
LISTNUM 1 \l 12403 COMMISSIONER CRAM: Okay. So it's not that it is annoying to you guys or there is something that really is ‑‑ now you have a young gentleman there.
LISTNUM 1 \l 12404 Maybe you can tell us why it is "strongly".
LISTNUM 1 \l 12405 MR. JODOIN: We feel that any calls that are considered an intrusion or a nuisance to the general public tend to affect our industry.
LISTNUM 1 \l 12406 The calls that are considered a nuisance tend to impact our industry. We have been found not be considered a nuisance, either in the complaints that we receive or in CRTC proceedings. But the general public sometimes doesn't necessarily differentiate calls to the home.
LISTNUM 1 \l 12407 So any type of nuisance calls tends to add up and it becomes a respondent fatigue for us.
LISTNUM 1 \l 12408 So if we see a coherent telemarketing "do not call" list, we are strongly in favour of that.
LISTNUM 1 \l 12409 COMMISSIONER CRAM: Mr. Wycks?
LISTNUM 1 \l 12410 MR. WYCKS: Allow me to introduce Greg Jodoin, who is MRIA's government relations consultant.
LISTNUM 1 \l 12411 COMMISSIONER CRAM: Thank you.
LISTNUM 1 \l 12412 I know you are involved in CISC‑2, the second CISC working group.
LISTNUM 1 \l 12413 I guess my question is ‑‑ and I understand, and I think it is certainly to your advantage, that we would have a robust communication plan.
LISTNUM 1 \l 12414 The question in my mind, though, comes down to who is going to pay for it. How much would your members be willing to contribute to the cause? It is certainly going to help you.
LISTNUM 1 \l 12415 That is going to be an issue, isn't it?
LISTNUM 1 \l 12416 Mr. Jodoin, do you want to say something? You can say something, you know. You don't have to whisper.
LISTNUM 1 \l 12417 MR. WATSON: Brendan is going to answer.
LISTNUM 1 \l 12418 MR. WYCKS: It was our sort of understanding and belief that a robust communications program would be a necessary element in what the CRTC would roll out, so be there by necessity.
LISTNUM 1 \l 12419 We just wanted to emphasize how critical we felt it was and also the fact that we will support it and sort of dovetail with it in our own communications programs.
LISTNUM 1 \l 12420 That is the approach that we had in mind.
LISTNUM 1 \l 12421 COMMISSIONER CRAM: So you are planning on your members contributing by having a communications plan sort of individually, I guess.
LISTNUM 1 \l 12422 MR. WYCKS: As an association, which our members would be kind of the grassroots roll‑out component of it.
LISTNUM 1 \l 12423 MR. WATSON: Our organization is not one which has a large ‑‑
LISTNUM 1 \l 12424 COMMISSIONER CRAM: I know the organization doesn't have any, but my question, though, is: It is clearly to your advantage to have this.
LISTNUM 1 \l 12425 One of these days it is going to come down to money and how much the CRTC can or will afford.
LISTNUM 1 \l 12426 What do you think about the idea from PIAC that we would go back to the 2004‑35 decision and have notes in the bills? I think it was something like that. We would require that the telephone companies put inserts in their bills.
LISTNUM 1 \l 12427 MR. CHOINIÈRE: This will be part of our communication program. We do have a plan that is being presently rolled out and in the coming year we will have a specific communication program which will include various utilities putting information in there so the public understands how important their opinion is and why the research industry is so important to them.
LISTNUM 1 \l 12428 COMMISSIONER CRAM: Thank you. I'm glad you value my opinion.
LISTNUM 1 \l 12429 Thank you, Mr. Chair.
LISTNUM 1 \l 12430 THE CHAIRPERSON: Thank you, Commissioner Cram.
LISTNUM 1 \l 12431 Commissioner Langford.
LISTNUM 1 \l 12432 COMMISSIONER LANGFORD: Thank you, Mr. Chair. I won't try to drag this out. You have been very kind and very generous with your time.
LISTNUM 1 \l 12433 I do have a question really of just straight information.
LISTNUM 1 \l 12434 You are exempt. There is no question about that. But I am a bit curious about the desire for an exemption in the sense of what you do.
LISTNUM 1 \l 12435 I'm not trying to roll back time here. It is done. But there is an aspect to it that I just don't quite understand, and it's probably because I'm just not a surveyor.
LISTNUM 1 \l 12436 If you are doing a survey ‑‑ we get a lot of surveys here, particularly on the broadcasting side. People who are applying for radio licences, television licences, they survey the communities and they try to find out what people want and what formats in radio they are particularly attracted to. Then they bring these surveys to us as empirical data that they are onto the right kind of service here.
LISTNUM 1 \l 12437 Of course, normally we get something like 300 or 500 people surveyed in an average size city. They may choose a demographic to survey.
LISTNUM 1 \l 12438 I have seen of the normal breakdown, "strongly agrees", "agrees", "disagrees", "strongly disagrees", "no opinion". But I have never seen a "hang‑up" column or a "do not call me" column or an "I don't want to talk to you" column in any of these surveys.
LISTNUM 1 \l 12439 So what do you do when you are calling? You pick your 300 random numbers or your 500 random numbers and someone says: Put me on a "do not call" list. I don't care whether you have one or not. Or they are just annoyed.
LISTNUM 1 \l 12440 How do you quantify those in a survey?
LISTNUM 1 \l 12441 MR. WATSON: Actually, we have quite a comprehensive set of specifications for how our members need to classify every response they get on the telephone.
LISTNUM 1 \l 12442 So for every number dialled, they need to account for an outcome.
LISTNUM 1 \l 12443 When you think of your 300 or 400 completed interviews that come to you as some evidence, that is the number of completed interviews. But behind that there may be many numbers that were out of service, numbers where the interview could not be completed because there was a language barrier and this might have only been interviewed in English and French and maybe one other language and it couldn't be completed. There would be some where you only reached an answering machine and were never able to reach the person. And some, of course, where people say no, I don't agree to complete the survey and I don't want to be called again.
LISTNUM 1 \l 12444 So all of these are accounted for and in fact are used to calculate various statistics that we used to reflect on how representative that particular survey is.
LISTNUM 1 \l 12445 COMMISSIONER LANGFORD: That part interests me.
LISTNUM 1 \l 12446 So there is some value to any of these outcomes, whether they are a hang‑up, an answering machine, a never call me again, I hate you, whatever, in polite or rude terms.
LISTNUM 1 \l 12447 What is the value? How do you weigh the value of those sorts of responses?
LISTNUM 1 \l 12448 MR. WATSON: We use them for two general purposes.
LISTNUM 1 \l 12449 One is to assess the statistical reliability of the interviews that we got. So we will want to know of those people that we did not reach, is there reason to believe that they are different in character than the people that we did interview?
LISTNUM 1 \l 12450 For example, were they more in one part of the country than the other? Are they individuals more of one age category than the other?
LISTNUM 1 \l 12451 We will look at those sorts of things.
LISTNUM 1 \l 12452 The other reason that we look at that information is that we want to maximize the level of co‑operation. So if we are not reaching a household successfully, we want to know why not and whether there is something that we might do that would improve that situation.
LISTNUM 1 \l 12453 I gave the example of the language barrier. If we carry out a survey in a particular area and a very large proportion of the interviews could not be completed because of a language barrier, then there would be a good reason to speak with that client and say perhaps we should translate it into additional languages and complete it.
LISTNUM 1 \l 12454 It is also an indication of some technological interviews.
LISTNUM 1 \l 12455 For example, if we are reaching answering machines or something of that sort, in many cases where we get no response at all, sometimes that is dialling into dead exchanges. And we need to look at that.
LISTNUM 1 \l 12456 COMMISSIONER LANGFORD: So if I may ‑‑ and we are not going back in time. Parliament has spoken. I don't want to alarm anyone here.
LISTNUM 1 \l 12457 But if I may, could I focus just on people who say "never call me; I don't want to be called; leave me alone" ‑‑ for whatever reason. We don't know. They might have been scared by a survey when they were children or something. Who knows?
LISTNUM 1 \l 12458 What value are they to your companies?
LISTNUM 1 \l 12459 I can understand the language example you gave or perhaps a timing element in some exchange or whatever value of some of the lists you are getting.
LISTNUM 1 \l 12460 But what value is it to you to take the chance of keeping on getting these sorts of responses?
LISTNUM 1 \l 12461 MR. WATSON: Statistically, it is critical.
LISTNUM 1 \l 12462 COMMISSIONER LANGFORD: It is.
LISTNUM 1 \l 12463 MR. WATSON: You can't tell in advance which phone number is going to be someone who may not be willing to participate in this particular study.
LISTNUM 1 \l 12464 What we also know is that there are many reasons for not agreeing to participate. It might be that "I just don't want to be bothered at all for any reason whatsoever". I think that is quite a minority of situations.
LISTNUM 1 \l 12465 The most frequent one is "this just isn't a convenient time". So we find that if we can have a couple of seconds with the person and find out is there a better time to call, what can we do to make it more co‑operative for you, then we can arrange the call at another time.
LISTNUM 1 \l 12466 MR. CHOINIÈRE: May I answer this?
LISTNUM 1 \l 12467 COMMISSIONER LANGFORD: Absolutely.
LISTNUM 1 \l 12468 MR. CHOINIÈRE: One of the points that we have been looking at very strongly is that when there is a "do not call" requirement, one person chooses for the whole household. Subjects may be very different.
LISTNUM 1 \l 12469 If I need to speak to a 16‑year‑old or a 25‑year‑old, it is going to be very different. One person in the household may decide that they don't want to answer surveys, but when they take that decision it should not imply that everybody else in the household will not be called and will not give their opinion.
LISTNUM 1 \l 12470 The second element is I just want to step one step back on the reporting.
LISTNUM 1 \l 12471 In most instances ‑‑ and in all instances very soon ‑‑ companies will give the administrative report with a calculation of the response rate at the beginning of a report or in an appendix. So we do know if the response rate is higher or lower.
LISTNUM 1 \l 12472 Our feeling is with the "do not call" list, our response rates will go up and hence give a better quality survey.
LISTNUM 1 \l 12473 COMMISSIONER LANGFORD: This is what got me started because either you or one of your colleagues made this comment earlier this morning.
LISTNUM 1 \l 12474 Wouldn't it be to your advantage to have your own internal "do not call" lists so that you simply ‑‑ I know you don't want to be on the national one because of all these reasons: you might be able to talk people around and specify. You have been very clear on that.
LISTNUM 1 \l 12475 In the sense of that small but determined group who never wish to speak to you ever, as long as they live, wouldn't it be to your advantage simply not to have these numbers and not to be burdened with having to keep these statistics over and over?
LISTNUM 1 \l 12476 Wouldn't it be to your advantage just to get rid of them?
LISTNUM 1 \l 12477 I can't see any advantage to you phoning them. And that's why I am missing it. If there is an advantage, let me know.
LISTNUM 1 \l 12478 MR. CHOINIÈRE: There are a few.
LISTNUM 1 \l 12479 Financially, it would be an advantage; statistically, it would not be.
LISTNUM 1 \l 12480 As I mentioned, we are excluding everybody in that household because one person has chosen not to be called.
LISTNUM 1 \l 12481 Most companies ‑‑ and I would say probably all companies who are members in the MRIA ‑‑ do have their own "do not call" list. But it is not the interviewer that decides.
LISTNUM 1 \l 12482 In my company it is my vice‑president, one of my vice‑presidents, that decides yes, he is going to go on the "do not call" list. Sometimes it is the subject. They don't want to answer a survey for something that is not interesting to them.
LISTNUM 1 \l 12483 When it comes to health, for instance, when we conduct work for Health Canada and we say at the beginning that it is for Health Canada, the participation rate is much higher, and very, very few people ask not to be called.
LISTNUM 1 \l 12484 So the subject is an item.
LISTNUM 1 \l 12485 I think it is a very wide problematic, really.
LISTNUM 1 \l 12486 COMMISSIONER LANGFORD: So you are doing everything from sort of brands of instant coffee right through to fundamental health issues, and you feel people should be able to choose.
LISTNUM 1 \l 12487 MR. CHOINIÈRE: Yes. And people should also be told that their opinion is very important, both in general public policy and in approving products.
LISTNUM 1 \l 12488 If they don't give their personal opinion on it, their neighbour, which does not necessarily have the same opinion, will give his opinion. Therefore, it is a statement of choice really.
LISTNUM 1 \l 12489 COMMISSIONER LANGFORD: Yes.
LISTNUM 1 \l 12490 I just want to narrow it down once last time, if you don't mind.
LISTNUM 1 \l 12491 I live alone ‑‑ I don't but this is hypothetical.
LISTNUM 1 \l 12492 I live alone. There is no one else in my household. One of your members phones and I say: "Look, I live alone. I don't ever want to be bothered by any of your questions ever again as long as I live."
LISTNUM 1 \l 12493 And this goes to your vice‑president. What is your betting?
LISTNUM 1 \l 12494 MR. CHOINIERE: You will have put them on the "do not call" list.
LISTNUM 1 \l 12495 COMMISSIONER LANGFORD: So it would be an advantage not to call this curmudgeonly old character one more time.
LISTNUM 1 \l 12496 MR. CHOINIERE: Well, maybe we will call two years down the road.
LISTNUM 1 \l 12497 COMMISSIONER LANGFORD: To see whether I have come around.
LISTNUM 1 \l 12498 MR. CHOINIERE: Yes. Or if you have read an article on how important it is to have your ‑‑
LISTNUM 1 \l 12499 COMMISSIONER LANGFORD: It's gone. Why didn't you push me harder?
LISTNUM 1 \l 12500 That helps me very much.
LISTNUM 1 \l 12501 So you probably will keep ‑‑ am I safe in assuming that all of your members probably will keep some form of "do not call" list, but that they will be judiciously culled by the pros, the experts, before names are put on it?
LISTNUM 1 \l 12502 MR. CHOINIERE: I can't say for sure, but that is certainly the practice right now.
LISTNUM 1 \l 12503 COMMISSIONER LANGFORD: Thank you very much.
LISTNUM 1 \l 12504 Those are my questions, Mr. Chair.
LISTNUM 1 \l 12505 THE CHAIRPERSON: Thank you, Commissioner Langford.
LISTNUM 1 \l 12506 Commissioner Cram.
LISTNUM 1 \l 12507 COMMISSIONER CRAM: You would be filing those best practices and recommendations, say, within ten days or so?
LISTNUM 1 \l 12508 MR. WATSON: Yes.
LISTNUM 1 \l 12509 COMMISSIONER CRAM: Thank you.
LISTNUM 1 \l 12510 THE CHAIRPERSON: Thank you very much for your presence and advice. We are aware of the importance of your industry. We appreciate your collaboration with our various working groups, and we look forward to continuing that collaboration.
LISTNUM 1 \l 12511 MR. CHOINIERE: Thank you.
LISTNUM 1 \l 12512 THE CHAIRPERSON: Madam Secretary.
LISTNUM 1 \l 12513 THE SECRETARY: Thank you, Mr. Chair. We will now proceed with a presentation from Contact NB, Mr. Rick DesBrisay.
PRESENTATION / PRÉSENTATION
LISTNUM 1 \l 12514 THE CHAIRPERSON: Please proceed, Mr. DesBrisay.
LISTNUM 1 \l 12515 MR. DesBRISAY: Thank you very much, Mr. Chairman and Commissioners. My name is Rick DesBrisay, and I am a member of the Executive Committee of the Board of Directors of Contact NB. Contact NB is the trade association for the contact centre industry in New Brunswick.
LISTNUM 1 \l 12516 We have submitted a written presentation this morning, but I think, in the interests of time, I will simply highlight the main points of it.
LISTNUM 1 \l 12517 Contact NB represents about 45 companies, who employ about 16,000 New Brunswickers in the inbound and outbound call centre industry.
LISTNUM 1 \l 12518 The industry in New Brunswick is, in fact, the second largest industry sector in New Brunswick, and it continues to grow. The largest is the tourism and hospitality industry, but it is larger than forestry, larger than the fishery. It has become a huge industry.
LISTNUM 1 \l 12519 The principal focus of the association is to promote the industry as a good place to work, a place to establish a career, which enables us to attract quality employees.
LISTNUM 1 \l 12520 The industry had some kind of perception of being a place where there were sweatshops and low‑paying, dead‑end jobs, but that is not the case. People do make very important careers in the industry, and we wish to continue to play a role in that business.
LISTNUM 1 \l 12521 The public image of the industry is vitally important to us as an association.
LISTNUM 1 \l 12522 I should also declare that I have a business, which is called RainMaker Call Centres. We are an outbound telemarketing firm.
LISTNUM 1 \l 12523 We have four call centres, two in New Brunswick and two in British Columbia. We employ about 150 employees. We call mainly into the United States, on behalf of a client in the U.S., although we do some calling in Canada. In fact, we are DNC compliant and have systems in place to manage that.
LISTNUM 1 \l 12524 I will be talking this morning about Contact NB's position, but I will certainly entertain any questions that you may have regarding my business during the question‑and‑answer period.
LISTNUM 1 \l 12525 The association has five main issues. The first of those, and not necessarily in order of importance, is calling business‑to‑business.
LISTNUM 1 \l 12526 We believe, fundamentally, that allowing businesses to put their numbers on the "do not call" list will be a restraint of trade and will make it especially difficult for emerging businesses who don't have existing clients. Using the telephone is a very powerful way to develop new clients.
LISTNUM 1 \l 12527 Having businesses put their numbers on the list tends to be an impediment to the development, particularly of emerging businesses, but certainly the development of any business.
LISTNUM 1 \l 12528 There is a danger with business numbers, in particular, that someone may put the business number on the "do not call" list unbeknownst to the company. I suspect that there will be numerous ways of putting those numbers on the list, and there could be numbers put on the list that the company would not be aware of.
LISTNUM 1 \l 12529 Could you imagine IBM, for example, having their number on the list, put there by a receptionist who didn't want to take as many calls, or by a disgruntled employee, or by a hacker, or by a tele‑terrorist ‑‑ that is someone who really hates telemarketing.
LISTNUM 1 \l 12530 If another company that had a "do not call" blocking system tried to dial IBM's number, it just wouldn't let them call IBM because the number would be on the list.
LISTNUM 1 \l 12531 Business‑to‑business is a very important concern.
LISTNUM 1 \l 12532 The second concern is the cost to telemarketers to set up compliance systems. I know from our experience at RainMaker that it costs about $25,000, at a minimum, to establish the hardware and software to allow you to mesh the CRM database, your customer database, with the "do not call" list, and it costs several thousand dollars per year to maintain it ‑‑ to keep it updated and maintain it.
LISTNUM 1 \l 12533 If there are, maybe, 2 million companies in Canada who call their customers, that means that about 2 million companies will have to spend $25,000 each ‑‑ $5 billion, maybe ‑‑ to make Canadian businesses compliant with the DNC list, to manage it, and also to manage their own internal "do not call" list.
LISTNUM 1 \l 12534 The third issue is: How long will the number remain on the list.
LISTNUM 1 \l 12535 I don't know where I got this number, but I am led to believe that about 14 percent of Canadians move during the year, and numbers are moved. So, over a period of time, if a number is left on the list in perpetuity, for five years or ten years, or whatever it may be, there will be a whole lot of numbers that will be on the list that should not necessarily be on the list.
LISTNUM 1 \l 12536 We need to think about how we go about doing that.
LISTNUM 1 \l 12537 Furthermore, the process of putting numbers on the list needs to be managed so that only the rightful owner of that number can add that number to the list. There needs to be some mechanism to make sure that happens.
LISTNUM 1 \l 12538 Fourthly, with regard to the cost of operating the system, we believe that it should be spread amongst all users of the list, the 2 million or so businesses across Canada that make calls to their customers.
LISTNUM 1 \l 12539 Similarly, as was mentioned yesterday, we should consider charging the consumers some fee for putting their number on the list.
LISTNUM 1 \l 12540 For example, people now pay their telco a monthly fee to have a non‑published number ‑‑ an unlisted number. Why couldn't we do the same thing with the "do not call". If you wanted to be on the "do not call" list, you would pay $2 a month, or whatever the fee might be.
LISTNUM 1 \l 12541 Most importantly, and our last point, is that the public image of the industry may be damaged by this. We believe, based on some of the testimony to the Senate committee that studied the bill, and by anecdotal evidence that we have, that 80 percent or 85 percent of the calls that are currently being received by consumers will be exempt from these regulations. So consumers, in particular, who expect their telemarketing calls to go to zero because they are on the list are going to be shocked, perhaps angry ‑‑ "I added my name to the list and you are still calling me. Why are you still calling me? I don't want to be called. I am on the list."
LISTNUM 1 \l 12542 We think that there will be a public backlash about this, because people who put their name on the list will expect the calls to stop, and they are not going to stop.
LISTNUM 1 \l 12543 There needs to be, which has been mentioned before, and which we fully support, a broad, strong education campaign to let people know that they are still going to receive calls from all of the parties that are exempt, and to expect that.
LISTNUM 1 \l 12544 Granted, there will be some reduction in the calls, but maybe 80 percent or 85 percent of them will continue to be passed.
LISTNUM 1 \l 12545 That is my presentation.
LISTNUM 1 \l 12546 THE CHAIRPERSON: Commissioner Cugini.
LISTNUM 1 \l 12547 COMMISSIONER CUGINI: Good morning, Mr. DesBrisay, and thank you very much for being here. I think you have made some very interesting points this morning, coupled with your written submission.
LISTNUM 1 \l 12548 I am going to ask you some general questions about Contact NB, and then we will get into the specifics on both what you said this morning and what you filed in your written submission.
LISTNUM 1 \l 12549 Just so I understand it better, Contact NB, you say, represents over 65 inbound and outbound customer contact centres. These are strictly call centres, or do you do your own telemarketing?
LISTNUM 1 \l 12550 MR. DesBRISAY: They are strictly call centres.
LISTNUM 1 \l 12551 COMMISSIONER CUGINI: What is an inbound call centre?
LISTNUM 1 \l 12552 MR. DesBRISAY: When you call your bank to inquire about an account, you are calling into the bank, and an agent receives your call and handles your inquiry. That is an inbound centre.
LISTNUM 1 \l 12553 An outbound centre is where the agent calls you to initiate the contact.
LISTNUM 1 \l 12554 COMMISSIONER CUGINI: So telemarketers will contract Contact NB to place the telemarketing calls for them, through your outbound centres.
LISTNUM 1 \l 12555 MR. DesBRISAY: Contact NB is primarily represented by inbound ‑‑ the membership is primarily inbound, not outbound. But they still call our customers.
LISTNUM 1 \l 12556 Under the definition of a telemarketer, anyone that calls a customer is a telemarketer.
LISTNUM 1 \l 12557 COMMISSIONER CUGINI: You said this morning that you maintain a "do not call" list.
LISTNUM 1 \l 12558 MR. DesBRISAY: Yes.
LISTNUM 1 \l 12559 COMMISSIONER CUGINI: Or your members maintain a "do not call" list.
LISTNUM 1 \l 12560 MR. DesBRISAY: I said that RainMaker maintains a "do not call" list.
LISTNUM 1 \l 12561 I can't speak for the Royal Bank, for instance, or Delta Hotels, or all of the other companies, as well as Air Canada, which are members of the association. I presume they do, but I can't speak for them.
LISTNUM 1 \l 12562 COMMISSIONER CUGINI: So RainMaker's "do not call" list currently ‑‑ consumers that you phone, how do they register their name on your "do not call" list?
LISTNUM 1 \l 12563 MR. DesBRISAY: They say so to our agent, and on the computer screen our agent clicks a button, "Do not call", and it gets registered in the computer database immediately.
LISTNUM 1 \l 12564 COMMISSIONER CUGINI: Do you have a way of acknowledging for the consumer that you have placed them on your "do not call" list?
LISTNUM 1 \l 12565 MR. DesBRISAY: No.
LISTNUM 1 \l 12566 COMMISSIONER CUGINI: What happens when a consumer changes his mind and wants to be de‑listed?
LISTNUM 1 \l 12567 Is it the reverse process?
LISTNUM 1 \l 12568 MR. DesBRISAY: Yes, only it requires a senior manager to remove a number from the "do not call" list. An agent can't do that.
LISTNUM 1 \l 12569 COMMISSIONER CUGINI: An agent cannot do it.
LISTNUM 1 \l 12570 Is it always through a live person answering the phone or placing the call that receives the request to either be listed or de‑listed?
LISTNUM 1 \l 12571 MR. DesBRISAY: No, it can come in by fax or by e‑mail. Mainly by phone. We have an 800 toll‑free number that they can call.
LISTNUM 1 \l 12572 COMMISSIONER CUGINI: Have you received any complaints from consumers who have said, "Hey, I have been placed on your "do not call" list and I am still getting calls from you"?
LISTNUM 1 \l 12573 MR. DesBRISAY: No.
LISTNUM 1 \l 12574 COMMISSIONER CUGINI: How soon after the request comes in are you able to remove them from the list?
LISTNUM 1 \l 12575 Is it immediately?
LISTNUM 1 \l 12576 MR. DesBRISAY: Yes, immediately. The computer system will not dial a number that is flagged "Do not call".
LISTNUM 1 \l 12577 COMMISSIONER CUGINI: Do you currently place a time limit on how long a consumer can be on your list?
LISTNUM 1 \l 12578 MR. DesBRISAY: No, it is in perpetuity.
LISTNUM 1 \l 12579 COMMISSIONER CUGINI: What is your suggestion for how long consumers should keep their name on the "do not call" list?
LISTNUM 1 \l 12580 MR. DesBRISAY: The association doesn't have an opinion on that.
LISTNUM 1 \l 12581 Personally, I think it should be one year, because numbers change all the time. If you want to be on the list, you will be obliged to re‑register every year.
LISTNUM 1 \l 12582 COMMISSIONER CUGINI: What if we were able to build in provisions that ensured that numbers that either were reassigned or disconnected would be automatically scrubbed from the list?
LISTNUM 1 \l 12583 MR. DesBRISAY: That would be good.
LISTNUM 1 \l 12584 COMMISSIONER CUGINI: Would you still maintain that a one‑year limit would be appropriate?
LISTNUM 1 \l 12585 MR. DesBRISAY: No, it could be longer in that case.
LISTNUM 1 \l 12586 COMMISSIONER CUGINI: Would you have any objection to it being in perpetuity?
LISTNUM 1 \l 12587 MR. DesBRISAY: No.
LISTNUM 1 \l 12588 COMMISSIONER CUGINI: The point is, if we were to impose a shorter time period than perpetuity, we would get into the complications of: How does a consumer know that their registration on the "do not call" list is about to expire. Whose responsibility would it be to remind that consumer that, "Hey, your three‑year limit is up and you have to re‑register." And what would be the costs involved with implementing that type of renewal system.
LISTNUM 1 \l 12589 MR. DesBRISAY: I see the problem, but I just don't think ‑‑
LISTNUM 1 \l 12590 I am going to retract my earlier comment. I don't think that numbers should be on there in perpetuity. There should be some deadline that allows people to change their mind. If they forget that they are on the list ‑‑
LISTNUM 1 \l 12591 Maybe people would like to receive survey ‑‑ not survey calls, but other calls from telemarketers with whom they have not had an existing business relationship in 18 months.
LISTNUM 1 \l 12592 Forever is ‑‑
LISTNUM 1 \l 12593 COMMISSIONER CRAM: A long time.
LISTNUM 1 \l 12594 MR. DesBRISAY: ‑‑ a bit too long.
LISTNUM 1 \l 12595 COMMISSIONER CRAM: Business‑to‑business. Do you currently do any telemarketing?
LISTNUM 1 \l 12596 MR. DesBRISAY: Yes, we do.
LISTNUM 1 \l 12597 COMMISSIONER CRAM: Business‑to‑business.
LISTNUM 1 \l 12598 MR. DesBRISAY: Yes.
LISTNUM 1 \l 12599 COMMISSIONER CRAM: The current telemarketing rules, do you agree that they should continue to apply?
LISTNUM 1 \l 12600 MR. DesBRISAY: Yes.
LISTNUM 1 \l 12601 COMMISSIONER CRAM: What do you see as the major impediment to including business‑to‑business calls on the "do not call" list?
LISTNUM 1 \l 12602 I take your point about emerging businesses. You made it very strongly. They need the opportunity to build a client base. But do you have any other examples of what would be a major impediment?
LISTNUM 1 \l 12603 MR. DesBRISAY: Sure. A lot of companies, big and small, rely upon using the telephone to contact prospective customers, former customers, existing customers, and using the telephone to do that is a very powerful marketing and sales tool. Very powerful. It is the most cost‑effective method of marketing.
LISTNUM 1 \l 12604 Businesses placing their numbers on the "do not call" list, and people using automated blocking devices, such as we do ‑‑ and I think that everyone will have to go that way, in some way ‑‑ we will just not be able to call IBM any more if their number is on the list. You won't be able to reach them.
LISTNUM 1 \l 12605 It opens up a huge problem for companies that want to contact other companies whose number is on the list.
LISTNUM 1 \l 12606 COMMISSIONER CRAM: What do you foresee being a new rule on the "do not call" list that is not currently in the telemarketing rules that would directly impact business‑to‑business?
LISTNUM 1 \l 12607 In other words, what would change for businesses?
LISTNUM 1 \l 12608 MR. DesBRISAY: There will be a lot of businesses that we won't be able to call.
LISTNUM 1 \l 12609 COMMISSIONER CRAM: If businesses are currently doing telemarketing to consumers, they would have to oblige by the rules.
LISTNUM 1 \l 12610 MR. DesBRISAY: Yes.
LISTNUM 1 \l 12611 COMMISSIONER CRAM: They would have to access the "do not call" list.
LISTNUM 1 \l 12612 How much further a step is it for those businesses who do business‑to‑business telemarketing to access that same list?
LISTNUM 1 \l 12613 MR. DesBRISAY: It isn't difficult. The problem is ‑‑
LISTNUM 1 \l 12614 Let me back up a bit. I don't think there is any hue and cry by the business community to have their numbers on the "do not call" list. It is residential consumers who have been driving this. It is not the business community saying, "We need to be able to put our numbers on the list."
LISTNUM 1 \l 12615 I don't think that's happening and, frankly, I think it's a mistake that businesses were not given an exclusion and I would ‑‑ I would recommend ‑‑ I know the chairman has said otherwise, that CRTC go back to the House of Commons and ask to have businesses added to the exclusion.
LISTNUM 1 \l 12616 COMMISSIONER CUGINI: I don't know if you were here yesterday for the proceedings, but there was quite a bit of discussion about family relationship exemption and I was just wondering if you had an opinion on whether that should be included or not.
LISTNUM 1 \l 12617 MR. DESBRISAY: The association doesn't have any view on that. We didn't consider it.
LISTNUM 1 \l 12618 COMMISSIONER CUGINI: Okay. One of the things that struck me in your written submission was the existing business relationship:
"Many businesses who have not previously considered themselves to be telemarketers will be forced to install DNC blocking systems."
LISTNUM 1 \l 12619 What type of businesses were you referring to in that?
LISTNUM 1 \l 12620 MR. DESBRISAY: Let me give you an example. If you ‑‑ say you buy a car from an automobile dealer and in six months time the automobile dealer will call you to say, oh, it's time for you to come in and have the car serviced, oil changed. That is a telemarketing call.
LISTNUM 1 \l 12621 And so if the consumer does not do business with the dealer for eighteen months and one day, they will no longer be excluded and the automobile dealer that's calling you, the consumer, to have you come in and have the oil changed will be in violation because they will be ‑‑ if you are ‑‑ if your number is on the list.
LISTNUM 1 \l 12622 So that automobile dealer is going to have to have some method of checking their database to make sure that they have an existing business relationship with that customer within the eighteen months and secondly, to see whether or not they are on the do not call list.
LISTNUM 1 \l 12623 So that company is going to have to have some system, and it will be a telemarketer and it's going to have to comply.
LISTNUM 1 \l 12624 COMMISSIONER CUGINI: Do you think it's the responsibility of that car dealership or the car maker to maintain a do not call list and to, you know, be responsible for the scrubbing and so on, or should it be both?
LISTNUM 1 \l 12625 MR. DESBRISAY: I'm not sure it's ‑‑ it's whoever is originating the call. If the car maker of General Motors is making the calls, then perhaps they should be required to comply also or be responsible, but I don't think that ‑‑ I think it's the party making the call or making the call on behalf of the party.
LISTNUM 1 \l 12626 COMMISSIONER CUGINI: Because that ‑‑
LISTNUM 1 \l 12627 MR. DESBRISAY: For instance, a car dealer might hire my firm, for instance.
LISTNUM 1 \l 12628 COMMISSIONER CUGINI: Right.
LISTNUM 1 \l 12629 MR. DESBRISAY: Or someone else to make calls for them. Call our 5,000 customers and tell them we have a special on summer reconditioning for your whatever. And so our telemarketing firm would be responsible to comply and so would the car dealer, the customer.
LISTNUM 1 \l 12630 COMMISSIONER CUGINI: Well, taking your example further then, do you ‑‑ should it be the car maker, car dealer and your firm who should be responsible for maintaining the list, therefore accessing the list, therefore paying the fees to access the list?
LISTNUM 1 \l 12631 MR. DESBRISAY: I don't know. I'd have to give some thought to that.
LISTNUM 1 \l 12632 COMMISSIONER CUGINI: Okay. You make a strong point this morning as well as in your written submission that a strong public awareness program should be initiated so that consumers are well aware of what is included and excluded from the do not call list rules.
LISTNUM 1 \l 12633 Do you have any suggestions for us as to what form that educational process should take and who should be responsible for it?
LISTNUM 1 \l 12634 MR. DESBRISAY: I believe it's got to be much more than just putting in a little flyer in the telephone bills. And by the way, let's not forget that not everyone is going to get a telephone bill from their telco anymore because there is a huge wave coming, starting right now, for voice over internet phones.
LISTNUM 1 \l 12635 As a matter of fact, our company, Rainmaker, is a hundred percent voice over internet. And so that's not going to reach everybody. I never read those little things that are in the envelope anyway and so it needs to be a big campaign on television and newspapers and what have you and it should be paid by the government.
LISTNUM 1 \l 12636 It is the government that has put this law into effect and it is the government that has created all the exclusions and it is the government ‑‑ some branch of it is going to have to pay.
LISTNUM 1 \l 12637 COMMISSIONER CUGINI: You are giving our Chairman more tasks. Do you use voice casting?
LISTNUM 1 \l 12638 MR. DESBRISAY: No.
LISTNUM 1 \l 12639 COMMISSIONER CUGINI: Do you use ADADs?
LISTNUM 1 \l 12640 MR. DESBRISAY: No.
LISTNUM 1 \l 12641 COMMISSIONER CUGINI: Thank you. Those are all my questions. Thank you, Mr. Chairman.
LISTNUM 1 \l 12642 THE CHAIRPERSON: Mr. Debrisay, I have a couple of questions and I'm going to exercise my prerogative just to pursue them with you.
LISTNUM 1 \l 12643 Anyone who calls a customer is a slight overstatement as to what the bill applies to, but you have given us some interesting illustrations of the problems that could arise in a practical matter.
LISTNUM 1 \l 12644 Do you seriously ‑‑ are you seriously telling us today that based on your experience, two million Canadian businesses are going to have to invest $25,000 each to link their CRM software, which they may or may not have in the first place, to the DNCL list or is it possible that's somewhat overstated?
LISTNUM 1 \l 12645 MR. DESBRISAY: Well, let's look at the definition of a telemarketer. It's any party or company or individual that solicits, uses a telephone to solicit business. So if a company makes telephone calls to solicit business, they are a telemarketer.
LISTNUM 1 \l 12646 THE CHAIRPERSON: To solicit business. Yes.
LISTNUM 1 \l 12647 MR. DESBRISAY: Right.
LISTNUM 1 \l 12648 THE CHAIRPERSON: And in your view, what would a prudent government have done or do to reduce that burden?
LISTNUM 1 \l 12649 MR. DESBRISAY: The burden ‑‑
LISTNUM 1 \l 12650 THE CHAIRPERSON: The cost that you claim is going to fall on Canadian business as a result of the legislation?
LISTNUM 1 \l 12651 MR. DESBRISAY: Frankly, I don't think the government gave it that much thought, how much it was going to cost. How is this going to be implemented by each and every telemarketer? It's not difficult for the Royal Bank, who is calling their customers because they've got a whole battery of IT people, so they can do this.
LISTNUM 1 \l 12652 But the small business, the little car dealers, the hundreds of thousands of small businesses across Canada who call their customers are going to have to have an internal do not call list and be compliant with the national list, and I don't know how that's going to be done.
LISTNUM 1 \l 12653 I do know that it cost us to buy a blocker ‑‑ it's a server basically that allows you to download the list off the internet ‑‑ through the internet download the list. It costs us $15,000 for the box, the switches. All telephones in our offices have to be routed through the switch.
LISTNUM 1 \l 12654 So you have got to go through the process of collecting all the telephone lines in your business ‑‑ that car dealer as an example, you have to take all their phone lines and put them through that blocker so they'll check against their customer database and the do not call list to make sure they're not making calls that are not compliant.
LISTNUM 1 \l 12655 THE CHAIRPERSON: And this is because you are, in fact, already in compliance with the US DNC?
LISTNUM 1 \l 12656 MR. DESBRISAY: Well, Rainmaker is, yes.
LISTNUM 1 \l 12657 THE CHAIRPERSON: Yes. That is extremely valuable information from us in a practical sense, however, if indeed it's still your contention that all of that apparatus will be required for every one of the Canadian businesses which you estimate at two million who will be calling customers and therefore become "Telemarketers", but there's ‑‑ you don't see any obvious thing that the Commission could do or that the government should have done?
LISTNUM 1 \l 12658 MR. DESBRISAY: Well, perhaps we could order the telcos to modify their switches to block numbers, but that doesn't ‑‑ still doesn't deal with internal do not call lists. So the telco is not going to be able to monitor the internal list. They might be able to monitor the national list, but not the internal list.
LISTNUM 1 \l 12659 THE CHAIRPERSON: The switch would be ‑‑
LISTNUM 1 \l 12660 MR. DESBRISAY: There was no ‑‑
LISTNUM 1 \l 12661 THE CHAIRPERSON: Excuse me. The switch would have to be ‑‑ excuse me, sorry, please go ahead.
LISTNUM 1 \l 12662 MR. DESBRISAY: Go ahead.
LISTNUM 1 \l 12663 THE CHAIRPERSON: The switch would have to ‑‑ the teleswitch would have to recognize the source of the call and the call party?
LISTNUM 1 \l 12664 MR. DESBRISAY: That's right.
LISTNUM 1 \l 12665 THE CHAIRPERSON: It would say these two combinations, no go.
LISTNUM 1 \l 12666 MR. DESBRISAY: Right. Now, that could be made to work. I mean, I'm not a telecom. It could be made to work, I don't know at what cost. But, A, it doesn't deal with the internal do not call list, and, B, it doesn't deal with companies and individuals that are using voice over internet protocol telephone systems because those calls do not go through the routers.
LISTNUM 1 \l 12667 And there's more and more companies and businesses moving daily to voice over internet systems.
LISTNUM 1 \l 12668 THE CHAIRPERSON: So, in effect, you have given us some very valuable specific information about your business, the cost to which are ‑‑ after all, costs inherent in the very nature of your business and therefore they are a burden which you don't particularly enjoy, as no businessman does, to incremental costs, but one which comes to the territory, it seems to me.
LISTNUM 1 \l 12669 Whereas ‑‑ whereas ‑‑ and as for the auto maker who phones 5,000 people, well, he's put himself basically in the same area. But the auto maker who is calling back customers and making single calls or twelve calls or a dozen calls a day by someone whose primary job is elsewhere, your point to us today, and it seems to be an important one, is that there is a potential incremental cost which is quite large and which the Commission ought, at a minimum, to be cognizant of as it goes forward and makes its rules.
LISTNUM 1 \l 12670 MR. DESBRISAY: Certainly. If there's some inexpensive way for all businesses who call our customers to scrub their outbound calls against the list and their internal list, let's not forget that.
LISTNUM 1 \l 12671 THE CHAIRPERSON: Well, for example ‑‑
LISTNUM 1 \l 12672 MR. DESBRISAY: Then let's do it.
LISTNUM 1 \l 12673 THE CHAIRPERSON: Yes, okay. I mean that's a very important and interesting piece of advise and we appreciate it.
LISTNUM 1 \l 12674 On business to business, I think you were here yesterday, and I had a discussion with ‑‑ I'm very embarrassed to say I don't remember the witness, but it was a discussion, the burden of which was, instead of an exclusion for business to business, which is really what you are asking us here for, and I am not going to get into ‑‑ I don't think I am going to get into the question of whether that is justified in principle, but as a matter of ‑‑ as a matter of practice one thing we could do would be to define ‑‑ to find a way of inputting in the definition of telemarketing, the definition of a violation, the notion that telemarketing for purposes of selling other than consumer goods, other than goods destined to be bought in quantities of ones and twos for use in a residence by a family or a person in his residence, other than that, that kind of telemarketing would be allowed. I don't know if I am making any sense to you.
LISTNUM 1 \l 12675 It would achieve, it seems to me, what you say you are looking for, without getting us into the question of telling ‑‑ I guess it was Mr. Hill and the CMA. Thank you, I am sorry that ‑‑ that would allow us to ‑‑ not to get into the question of distinguishing businesses from residences when people phone up and say I want to put my number on the list.
LISTNUM 1 \l 12676 It seems to me it is a lot to ask us, and I am not sure how you intend for us to do it, to say you are a business, you can't go on the list. How would we do that? I mean how could we do that or, more to the point, would you be more sympathetic to the notion that we try by defining what a telemarketing violation is, i.e., consumer goods only, to solving your problem in that way?
LISTNUM 1 \l 12677 MR. DESBRISAY: The logistics of checking every company, the two million, whatever number of companies that there are in Canada to see whether or not they're telling consumer goods and whether exempt or not exempt is humungous. Being flippant, maybe we could get the gun registry people to do that for us.
LISTNUM 1 \l 12678 THE CHAIRPERSON: We're not allowed to talk about gun registry here. I am ruling it out of order right away.
‑‑‑ Laughter.
LISTNUM 1 \l 12679 MR. DESBRISAY: I am from New Brunswick, so I have to put a plug in there for them. But I just see it as a horrendous problem.
LISTNUM 1 \l 12680 If businesses want to have their number listed, then why don't we have a special form that they have to fill out signed by an officer of the company and sent in and say that's the only way you can have your number on the ‑‑‑
LISTNUM 1 \l 12681 THE CHAIRPERSON: But how would the list operator know it was a business?
LISTNUM 1 \l 12682 MR. DESBRISAY: Well, because in my perfect world a residential customer is going to have to prove that they own that number.
LISTNUM 1 \l 12683 THE CHAIRPERSON: And how would they do that?
LISTNUM 1 \l 12684 MR. DESBRISAY: Send a copy of the phone bill in. If you're doing it over e‑mail ‑‑ I mean if you have a disgruntled employee or, my term, teleterrorist, that just hates all telemarketing, there's nothing to prevent someone from going on and putting hundreds ‑‑ thousands of numbers.
LISTNUM 1 \l 12685 You can even download them off the internet from whitepages.ca or yellowpages.ca, and someone could post thousands of numbers on the list without any control and who is going to stop that?
LISTNUM 1 \l 12686 So only the owner, the rightful owner of the number should be allowed to put that number on the list.
LISTNUM 1 \l 12687 THE CHAIRPERSON: Technically the phone company owns the number, but anyway, we get the point.
LISTNUM 1 \l 12688 MR. DESBRISAY: Yes.
LISTNUM 1 \l 12689 THE CHAIRPERSON: And so in your mind it would be reasonable to expect the list operator to police the eligibility of the numbers which we're seeking to be placed on the do not call list?
LISTNUM 1 \l 12690 MR. DESBRISAY: Absolutely.
LISTNUM 1 \l 12691 THE CHAIRPERSON: Whereas in the United States after three or four years of functioning there is no, as I understand it, absolute demonstration that there aren't hundreds of thousands of small business numbers on that database without any obvious harm it seems to me in the industry in the United States or am I wrong? Do you have ‑‑
LISTNUM 1 \l 12692 MR. DESBRISAY: Yes, I have anecdotal evidence from another telemarketing firm in the United States that I had some discussion with, and they tell me that they've had the case where people have put thousands of numbers on the list, and as a matter of fact, put his own number on the list, and he certainly didn't put it on the list. Someone else did.
LISTNUM 1 \l 12693 And so they believe that thousands and thousands of numbers were added unbeknownst to the owner of the number.
LISTNUM 1 \l 12694 THE CHAIRPERSON: And these were business numbers or residential numbers?
LISTNUM 1 \l 12695 MR. DESBRISAY: Residential numbers. And I believe that businesses are not permitted to put ‑‑ in the U.S. not permitted to put their number on the list. I don't know how they police that.
LISTNUM 1 \l 12696 THE CHAIRPERSON: No, I mean I think you are right because they need to be exempt, so in theory they can't go on the list. But the question which I am asking you, which quite reasonably you can't necessarily answer definitively is I've been told that there are lots of business numbers on the list, but that no obvious damage to anyone has occurred as a result.
LISTNUM 1 \l 12697 Well, thank you very much for that. Commissioner Cram and then Commissioner Langford.
LISTNUM 1 \l 12698 COMMISSIONER CRAM: Thank you, Mr. Debrisay. I wanted to talk about ‑‑ is it rain ‑‑ Rainmaker?
LISTNUM 1 \l 12699 MR. DESBRISAY: Rainmaker.
LISTNUM 1 \l 12700 COMMISSIONER CRAM: Yes. You operate out of Canada, but you phone into the States. And is it the position of the FCC that you are subject to their rules?
LISTNUM 1 \l 12701 MR. DESBRISAY: Yes, because our client is an American company.
LISTNUM 1 \l 12702 COMMISSIONER CRAM: Ah, okay, okay. So they would get ‑‑ if there was a breach, they would get to the client, not necessarily yourself.
LISTNUM 1 \l 12703 MR. DESBRISAY: Yes.
LISTNUM 1 \l 12704 COMMISSIONER CRAM: And that is the only reason, because the transporter issue is one that I would worry about in terms of people phoning from the States up to Canada. So the only sort of jurisdiction we would have would be over the client and where it would be.
LISTNUM 1 \l 12705 MR. DESBRISAY: That's right.
LISTNUM 1 \l 12706 COMMISSIONER CRAM: Okay. I wanted to talk to you about business to business. First there was the CMA distinction that said that business could register with the ‑‑ with the list, but on business to business type ‑‑ which would be sort of, I guess, bulk selling, that they would not be immune from telemarketing calls. What do you think of that distinction?
LISTNUM 1 \l 12707 MR. DESBRISAY: Who is going to be the judge of that? I just think it is impossible to police and ‑‑
LISTNUM 1 \l 12708 COMMISSIONER CRAM: Yes.
LISTNUM 1 \l 12709 MR. DESBRISAY: ‑‑ make judgment calls and this company's okay and this company isn't. Who is going to say so? Who has that wisdom?
LISTNUM 1 \l 12710 COMMISSIONER CRAM: Yes. And I am famous for taking notes. They say we don't even need the person taking the transcript.
LISTNUM 1 \l 12711 You said if there is no business to business there will be a lot of customers you couldn't call. That's what you said, if there was no business to business exemption ‑‑
LISTNUM 1 \l 12712 MR. DESBRISAY: Okay.
LISTNUM 1 \l 12713 COMMISSIONER CRAM: ‑‑ there would be a lot of customers we couldn't call.
LISTNUM 1 \l 12714 MR. DESBRISAY: Sure.
LISTNUM 1 \l 12715 COMMISSIONER CRAM: So you are saying presumably ‑‑ I mean, that's based on the fact that if there were not a business to business exemption a lot of businesses would put themselves on the do not call list.
LISTNUM 1 \l 12716 MR. DESBRISAY: Or they could be put there unbeknownst to them. The disgruntled employee, my teleterrorist, the receptionist.
LISTNUM 1 \l 12717 COMMISSIONER CRAM: Okay.
LISTNUM 1 \l 12718 MR. DESBRISAY: All kinds of ways that a business number could be put on the list, unbeknownst to the business. Then my call blocker ‑‑ when I try to call that business, my call blocker will not process the call.
LISTNUM 1 \l 12719 COMMISSIONER CRAM: Okay. So that is how that fits with ‑‑ the business community is not concerned.
LISTNUM 1 \l 12720 MR. DESBRISAY: Yes, we don't think there's any demand by the business community to have business numbers on the do not call list.
LISTNUM 1 \l 12721 COMMISSIONER CRAM: Okay. And then you talked about charging consumers for the do not call list, and I am going to read you the opposite view by Mr. Gahan:
"Because the consumer pays for telephone service, no marketer has the right to misuse this service. Any unauthorized contact intended to make a profit directly or indirectly must be considered misuse."
LISTNUM 1 \l 12722 I guess the argument then comes down to, if Mr. Gahan is correct, he pays for the service, he pays a pretty penny for having a phone and he should be able to decide who phones him because he's paying for the service.
LISTNUM 1 \l 12723 If he didn't have the telephone service, Rainmaker couldn't call him.
LISTNUM 1 \l 12724 MR. DESBRISAY: He also has the ability to arrange with his telco to have his number listed as a non‑published number and it is not in the directory. He does pay for that. It is an additional service over and above the standard service offered by the telco.
LISTNUM 1 \l 12725 COMMISSIONER CRAM: But that wouldn't ‑‑
LISTNUM 1 \l 12726 MR. DESBRISAY: So why wouldn't the do not call be another additional service similar to a non‑published number.
LISTNUM 1 \l 12727 COMMISSIONER CRAM: Does a non‑published number get him out of being telemarketed?
LISTNUM 1 \l 12728 MR. DESBRISAY: Not completely because his number may somehow end up on someone's list, but you are not going to see it in the white pages.
LISTNUM 1 \l 12729 COMMISSIONER CRAM: Okay, thank you very much.
LISTNUM 1 \l 12730 THE CHAIRPERSON: Mr. Langford.
LISTNUM 1 \l 12731 COMMISSIONER LANGFORD: Thank you, Mr. Chairman. I just want to pursue last point. And you have been very patient with us and I am sorry to drag it out, but we don't like to let a witness go if we think there's still a little information we can squeeze out of you.
LISTNUM 1 \l 12732 MR. DESBRISAY: Plus I am a telemarketer.
LISTNUM 1 \l 12733 COMMISSIONER LANGFORD: That's right. Get ones brave enough to come in here, you know, we like to see what we can do.
LISTNUM 1 \l 12734 MR. DESBRISAY: Sheep amongst the lions.
LISTNUM 1 \l 12735 COMMISSIONER LANGFORD: I am just trying to figure out why it would out why it would ‑‑ we've mentioned the word done registries. I'll just say those two words again and say no more. They say it all. Nobody's happy with it, nobody's proud of it, and let's assume everybody went into it with the best intentions in the world, but somehow these things ‑‑ to me they stand at least for the proposition that these things can get out of control and they're very, very difficult to project into the future in terms of costs and ongoing expense.
LISTNUM 1 \l 12736 I think it is an important lesson, because if you start to charge consumers and they have to send in a phone bill and they have to prove their number and it is getting pretty close to sending in, you know, what model of gun you own and where you live and a picture of yourself and you end up getting the gun registered and then you get registered as well. It all seems like a great idea in theory, and then you look at the costs and it is out of sight.
LISTNUM 1 \l 12737 I just wonder why you wouldn't take a chance on something simpler. I take the point about the terrorist, but perhaps you wouldn't have to charge consumers if you didn't make it so complicated. In other words, you put in your number and that is it, there's got to be a way to test it, I suppose.
LISTNUM 1 \l 12738 I mean if people find out they're not getting calls, I guess theoretically they could explain and say what's happened. I haven't heard from anybody.
LISTNUM 1 \l 12739 MR. DESBRISAY: It is not going to happen.
LISTNUM 1 \l 12740 COMMISSIONER LANGFORD: No, you are right, which tells us a lot. It just seems excessive. I mean have you ‑‑ you are experienced in dealing with a reasonably large industry and a membership in a really large industry, can you actually see the feasibility of keeping a cap on those kinds of expenses if you require so much from each registered person?
LISTNUM 1 \l 12741 MR. DESBRISAY: Well, let me just address the whole concept of costs. To my knowledge, no one has tried to really estimate how much this is going to cost to operate the DNC list, to implement it.
LISTNUM 1 \l 12742 I haven't ‑‑ I am on one of the working committees and I don't think it is been ‑‑ unless I have missed it, I don't think it is been discussed.
LISTNUM 1 \l 12743 I don't think anyone has really put pencil to paper and say it is going to cost a million dollars or a hundred million dollars, no one knows. So how much are we going to have to charge? How many people are going to be buying this list, what are we going to charge them? I don't think that arithmetic has been done.
LISTNUM 1 \l 12744 So no one knows how much it is going to cost, and just the principle that we are coming at is saying, yes, all users of the list should pay and that we need to consider having consumers pay their share, a share of it by paying as they would for a non‑published number.
LISTNUM 1 \l 12745 COMMISSIONER LANGFORD: But you folks are already going to have to pay for this automatic dialing or blocking device that you have put in at a cost of 15 to 25,000 in your own firm. I heard two figures so I wasn't quite sure which it is. Fifteen for the server and then an extra ten for software and things like that?
LISTNUM 1 \l 12746 MR. DESBRISAY: Yes.
LISTNUM 1 \l 12747 COMMISSIONER LANGFORD: So 25 all told. You've got to put it in anyway. You could write it off as an expense. I know that is the old song and dance, but you can at least write it off over time as a business expense.
LISTNUM 1 \l 12748 Since you have to have it in anyway, since you are calling people and they say please push the DNC button, they are already in a sense registered. What's the point then of going back to them and saying pay $2 a month for what's been done already? It is over, it is done.
LISTNUM 1 \l 12749 MR. DESBRISAY: I see your point. It is a valid point. It is done, it is just the initial cost of setting that up. Maybe there's a $10 fee. I really don't know. I just feel that there's some obligation on behalf of the consumer to pay a share for implementing this what will be a costly system, not just to install, but to operate.
LISTNUM 1 \l 12750 It costs us thousands of dollars a month to continue to keep our list updated and to solve problems, because it is technology and they are not trouble free. They do break down and you have to fix them. So there's a huge cost to keep it operating.
LISTNUM 1 \l 12751 COMMISSIONER LANGFORD: Yes.
LISTNUM 1 \l 12752 MR. DESBRISAY: And plus, the car dealership that we were talking about, the hypothetical car dealership, not only they, but all the other businesses that call our customers are going to have to put some kind of a system in.
LISTNUM 1 \l 12753 COMMISSIONER LANGFORD: So are you suggesting this $2 a month or $10 flat fee would go to subsidizing the machinery you have to buy?
LISTNUM 1 \l 12754 MR. DESBRISAY: No, no.
LISTNUM 1 \l 12755 COMMISSIONER LANGFORD: Just the ongoing costs once you are in it, the list operator and that sort of thing, violation enforcement and what not.
LISTNUM 1 \l 12756 MR. DESBRISAY: Keep in mind, it is only a suggestion. I mean we are looking for alternatives here and I think that it is a reasonable thing to expect the users to pay. It is a principle that is established in Canada, user pay. User ‑‑
LISTNUM 1 \l 12757 COMMISSIONER LANGFORD: Oh, that is for sure. That is for sure. It is a principle with which I am familiar.
LISTNUM 1 \l 12758 I once ‑‑ I shouldn't indulge in anecdotes, but I actually once received, having filed my income taxes back in the years ‑‑ some years ago when I was running my own business, a bill demanding a 41 cent payment with a thick computer print‑out as to how my accountant, the fool, had failed to realize that it was 41 more cents owed than he had put down.
LISTNUM 1 \l 12759 And perhaps because I am slightly contrary in my views, I let it run just to see what would happen. And every once in a while after that I'd get another one in a big thick envelope, 41 cents. I figured the government must have spent close to a hundred dollars before I finally took pity on them and wrote them a cheque for the 41 cents. It was so small I don't even think it went up with interest costs or anything. Just stayed there at 41 cents. Month after month I'd get these thick computer print‑outs.
LISTNUM 1 \l 12760 And I sort of think of trying to collect that $10 fee from somebody and I just wonder whether it won't get out of control.
LISTNUM 1 \l 12761 But I take your point that it is a view, it is a position, it is ‑‑ what you are giving us here is something to consider and I am grateful for it.
LISTNUM 1 \l 12762 MR. DESBRISAY: It could be collected by the telco.
LISTNUM 1 \l 12763 COMMISSIONER LANGFORD: Ah, yes. I saw ‑‑
LISTNUM 1 \l 12764 MR. DESBRISAY: A source of revenue for the telco. They will take a chunk of it.
LISTNUM 1 \l 12765 COMMISSIONER LANGFORD: Well, we will run that by Ted Woodhead when he gets up here with the companies later. Thank you very much. Those are my questions.
LISTNUM 1 \l 12766 THE CHAIRPERSON: Counsel.
LISTNUM 1 \l 12767 MR. MILLINGTON: Mr. Debrisay, I just have a couple of questions. Yesterday we were talking to the insurance company about consents. I am wondering whether in the context of your car dealership scenario if at the time of purchase or whenever the relationship was established, if the car dealership obtained the consent to continue to have a relationship with respect to servicing the automobile, as an example, if that mechanism was available.
LISTNUM 1 \l 12768 It doesn't remove the list scrubbing, but those ‑‑ I am just making it up as I go along here. So those customers could be kept internal to the car dealership and could be contacted because they have agreed to being marketed for the purposes of the services of that company.
LISTNUM 1 \l 12769 Is that kind of mechanism feasible for a broad number of companies that you see being encumbered with the costs of managing a do not call list participating in the regime? Does that go any distance at all in helping out?
LISTNUM 1 \l 12770 MR. DESBRISAY: The company ‑‑ all telemarketers will have to have technology, computer‑based system of some kind to manage this, and they will be able to ‑‑ once they get written consent, I think it needs to be written consent by e‑mail or fax or some other way, letter, then the company will be able to go into their own system and remove a number from the do not call blocker. It is possible and we do it.
LISTNUM 1 \l 12771 MR. MILLINGTON: Because, I mean, I am ‑‑ you know, emboldened by the recent anecdote to recount one of my own.
LISTNUM 1 \l 12772 I get my car serviced, and following every service I get a call from the dealership asking me how it was. You know, whether it was good for me.
‑‑‑ Laughter.
LISTNUM 1 \l 12773 MR. DESBRISAY: Was it good for you too?
LISTNUM 1 \l 12774 MR. MILLINGTON: And they obviously keep me in a database of some kind that exists today. They call me regularly, and so I am just wondering if this is really a huge financial impediment because they have obviously got a system there already. All they have to do is simply delete me if I say I don't want to participate or just maintain my name in the current system that they have and continue to call me anD call me about next updates.
LISTNUM 1 \l 12775 MR. DESBRISAY: Well, they need some technology to do that, because if your number is on the file, they need to be able to tell whoever is calling next week or next month that, hey, don't call that person or it is okay to call that person.
LISTNUM 1 \l 12776 There's training that goes on. You would have to train every employee, every new hire, what is the ‑‑ how do we continue to comply with the do not call legislation. So there's a training component of it.
LISTNUM 1 \l 12777 It has to be done. Everyone who works at every company will have to be trained on management of the do not call system. So, yeah, it can be done.
LISTNUM 1 \l 12778 MR. MILLINGTON: Okay. The other question I have has to ‑‑ goes to, again, the business to business telemarketing.
LISTNUM 1 \l 12779 I am ‑‑ you know, I heard the discussions and I am wondering about this exemption. The problem I have with it is that if ‑‑ people other than the ‑‑ these teleterrorists and the disgruntled employees, presumably a company who values services being provided by other businesses would not put themselves on the list and certainly companies that are familiar with how difficult it is to get started wouldn't put themselves on the list because they might have some empathy for what it is to start a new business.
LISTNUM 1 \l 12780 They are in an entirely different class of ‑‑ than the residential consumer, who is sort of captive of their phone calls and they want to be excused from the nuisance.
LISTNUM 1 \l 12781 So I take your point that there has not been any ‑‑ there doesn't seem to be a ground swell, in your view, a ground swell of public opinion within the business community that is driving them forward to get themselves on the do not call list.
LISTNUM 1 \l 12782 So wouldn't that logically say at the end of the day that if they aren't unhappy with it, they won't put themselves on it.
LISTNUM 1 \l 12783 You know, we don't have ‑‑ the Chairman indicated we don't have a lot of evidence coming out of the States that would indicate that it has been a problem there, although their regime is different. So I am wondering why it is, in your view, that this is such a problem for businesses when they don't have to participate if they don't want to and they can just not put themselves on if they value being telemarketed by other businesses.
LISTNUM 1 \l 12784 MR. DESBRISAY: Well, the problem is that if you have a curmudgeon running the business, he may have a bad day and say, "I don't want any more calls" and put my number on the list. Or the curmudgeon's secretary can do it.
LISTNUM 1 \l 12785 I mean there could be a whole lot of ways that that company's number could get on the list and maybe in hindsight it wasn't the right thing.
LISTNUM 1 \l 12786 I just think that it is a restraint of trade that we don't ‑‑ just don't have to deal with it. It is tough being in business already for all business people. Nothing's easy, and this just adds another impediment.
LISTNUM 1 \l 12787 MR. MILLINGTON: Would you feel any better if there were some ‑‑ there was some sort of verification process that it would take out of ‑‑ the registration out of the hands of disgruntled employees, as an example, the ability to register a company on behalf of a company? That the steps were a little bit more onerous because it is not ‑‑ you know, a company is not a single person that owns a phone number like a residential customer, but there was a little bit more in terms of process associated with putting a company on the list? Would that deal with your concern?
LISTNUM 1 \l 12788 MR. DESBRISAY: Yes, I would think if the ‑‑ if it was some way of having an officer of the company sign that they wanted the number on the list, then it creates sober second thought of putting the number there.
LISTNUM 1 \l 12789 If someone ‑‑ a business owner really doesn't want their number on the list or really does want their number to be on the list, then I guess I wouldn't have any objection.
LISTNUM 1 \l 12790 MR. MILLINGTON: And would you ‑‑
LISTNUM 1 \l 12791 MR. DESBRISAY: But just to open it up carte blanche for all businesses I think is a serious mistake.
LISTNUM 1 \l 12792 MR. MILLINGTON: So if it took more to put on, would you also see the need to have different kind of other rules, for example, how long you stay on the list as being different from residential? Would this enchain a whole different sort of sub‑regime to deal with businesses as opposed to residential? Would that kind of address your constituency's concerns?
LISTNUM 1 \l 12793 MR. DESBRISAY: I hadn't really thought about that, but first thought, yes, perhaps that might be a solution. Maybe the number ‑‑ a business number would only be ‑‑ if it's put on by an officer of the company, maybe it is on there for a year and it has to be removed or is removed automatically.
LISTNUM 1 \l 12794 MR. MILLINGTON: Thanks very much.
LISTNUM 1 \l 12795 THE CHAIRPERSON: Commissioner Duncan.
LISTNUM 1 \l 12796 COMMISSIONER DUNCAN: Yesterday we heard from the Primemerica people that ‑‑ in the U.S. that they have a line, a toll free line, as I understood it, where consumers or companies could call and verify, find out if their number was on the list. So would that satisfy your concern if such a facility was in place in Canada?
LISTNUM 1 \l 12797 In other words, you could do it periodically or if you were suspicious or ‑‑
LISTNUM 1 \l 12798 MR. DESBRISAY: It is possible to go on the FTC website and enter the number and see whether or not it is on the list or you can call the FTC 800 number and ask if the number is on the list. I presume that the operator here will have the same capabilities.
LISTNUM 1 \l 12799 COMMISSIONER DUNCAN: But do you think that that would go a long way to addressing your concern about ‑‑ what did you call it, tele‑‑
LISTNUM 1 \l 12800 MR. DESBRISAY: Teleterrorist?
LISTNUM 1 \l 12801 MS. DEWAL: Teleterrorists, yes.
LISTNUM 1 \l 12802 MR. DESBRISAY: That's my own.
LISTNUM 1 \l 12803 COMMISSIONER DUNCAN: I get that. Would it go a long way to addressing that concern?
LISTNUM 1 \l 12804 MR. DESBRISAY: No, because most people are not going to think to do that.
LISTNUM 1 \l 12805 COMMISSIONER DUNCAN: Well, I guess maybe that might be a function if it is published. Over time people would become aware of it.
LISTNUM 1 \l 12806 MR. DESBRISAY: It is probably ‑‑ probably not adequate, but it will help.
LISTNUM 1 \l 12807 COMMISSIONER DUNCAN: And do you think after the three year review period we might be in a better position to assess the impact on business to business? As it is today it is exempt, as you know ‑‑ it is not exempt.
LISTNUM 1 \l 12808 MR. DESBRISAY: Not exempt. Three years in business is a long time and I know if I wanted to call IBM and their number was blocked I would be pretty upset.
LISTNUM 1 \l 12809 COMMISSIONER DUNCAN: Thank you.
LISTNUM 1 \l 12810 MR. DESBRISAY: Because I am dialing through my call blocker, and all businesses will have to if they are going to be compliant.
LISTNUM 1 \l 12811 COMMISSIONER DUNCAN: Just on your call blocker, then, does that ‑‑ it works obviously with your internal call list?
LISTNUM 1 \l 12812 MR. DESBRISAY: Yes, and the national list.
LISTNUM 1 \l 12813 COMMISSIONER DUNCAN: It will.
LISTNUM 1 \l 12814 MR. DESBRISAY: Both.
LISTNUM 1 \l 12815 COMMISSIONER DUNCAN: Yes, because you are ‑‑ all right, great. Thank you.
LISTNUM 1 \l 12816 THE CHAIRPERSON: Mr. Debrisay, thank you very much. It has been extremely valuable to hear what you have to say. You bring us information from the front lines and you create employment. Those are important things and they are considerations the Commission cannot afford to just dismiss. So we appreciate very much your coming.
LISTNUM 1 \l 12817 We're going to take a break. we'll start again at five minutes to eleven and, then, I promised the Public Interest Advocacy Centre that they will be first.
‑‑‑ Upon recessing at 1040 / Suspension à 1040
‑‑‑ Upon resuming at 1055 / Reprise à 1055
LISTNUM 1 \l 12818 THE CHAIRPERSON: Order, please.
LISTNUM 1 \l 12819 Madam Secretary.
LISTNUM 1 \l 12820 THE SECRETARY: Thank you, Mr. Chair.
LISTNUM 1 \l 12821 The next participant is the Consumers' Association of Canada, represented by PIAC.
LISTNUM 1 \l 12822 Mr. John Lawford, would you please present your panel.
PRESENTATION / PRÉSENTATION
LISTNUM 1 \l 12823 MR. LAWFORD: Thank you, Madam Secretary.
LISTNUM 1 \l 12824 With me today is Joy Mauthe, who is a student volunteering at PIAC, and Hasini Palihapitiya, who is our articling student for this year.
LISTNUM 1 \l 12825 I am here to talk about the devil; that is, the devil that is in the detail of this "do not call" list.
LISTNUM 1 \l 12826 The "do not call" list is a very promising development for consumers, and the CAC fully supports it. However, the seemingly pleasing shape of this development hides certain consumer pitfalls which would make it, if not quite hellish, then certainly not consumer nirvana.
LISTNUM 1 \l 12827 Although the Commission has been handed new powers in relation to telemarketing by Bill C‑37, the underlying framework regarding unsolicited telecommunications still exists. This must be borne in mind during the Commission's deliberations on this Public Notice.
LISTNUM 1 \l 12828 Section 7(i) of the Telecommunications Act has, as one of its policy objectives, to contribute to the protection of the privacy of persons. Most importantly, however, section 41 gives the Commission the power to, by order, prohibit or regulate the use by any person of the telecommunications facilities of a Canadian carrier for the provision of unsolicited telecommunications, to the extent the Commission considers it necessary to prevent undue inconvenience or nuisance, giving due regard to freedom of expression.
LISTNUM 1 \l 12829 These policy objectives and powers of the Commission are, therefore, to be supplemented and not supplanted by the creation of a "do not call" list.
LISTNUM 1 \l 12830 The cardinal principles that should guide the Commission's consideration of all the rule‑making in this proceeding, therefore, are the protection of privacy, the prevention of undue inconvenience or nuisance, and freedom of expression.
LISTNUM 1 \l 12831 Note that the powers to regulate telemarketing under the Act, even as amended by Bill C‑37, do not have as their goals either the health of the telemarketing industry or the creation of jobs in general. Such considerations are irrelevant to creating a "do not call" list.
LISTNUM 1 \l 12832 There are several exceptions to the "do not call" list, as laid out in Bill C‑37, and we submit that it will actually come as a very large surprise to most Canadians that these exceptions even exist. After all, the "do not call" list, in people's minds, will mean "do not call".
LISTNUM 1 \l 12833 However, these exceptions have the potential to become the rule. This proceeding, therefore, is the Commission's chance to set limits on these exceptions and, in so doing, preserve the greatest utility of the "do not call" list for telephone customers.
LISTNUM 1 \l 12834 The Commission can do this, firstly, by narrowly and clearly defining the undefined terms in these exceptions in the telemarketing rules.
LISTNUM 1 \l 12835 First I will deal with existing business relationships.
LISTNUM 1 \l 12836 The Commission can exorcise quite a few of DNCL's demons with a detailed definition of "organization" under the existing business relationship exception, as it is applied in subsections 41.7(1)(b)(i) and (ii).
LISTNUM 1 \l 12837 "Organization" should be defined strictly. It should mean that the legal entity with which I do business is the only one that may rely on the exception to call me.
LISTNUM 1 \l 12838 For example, my local telephone account at Bell would not let Bell ExpressVu, Bell Mobility and Sympatico all call me. It is of no importance that all four of these entities are, in turn, controlled by BCE Inc.
LISTNUM 1 \l 12839 We submit that it is within telephone users' expectations that their business relationship with one business will not automatically make them customers of the affiliates for any purpose of being called under the DNCL customer exception.
LISTNUM 1 \l 12840 This is not quite the practice in the United States. Actually, you won't find the answer in the telemarketing final rule. However, if you go to their information guide, called "Complying With the Telemarketing Sales Rule", on page 43 of the hard copy it says that an existing business relationship, or established business relationship, as it is referred to in the final rule, is between the seller and the customer, and not necessarily between the seller's subsidiaries or affiliates and that customer.
LISTNUM 1 \l 12841 I quote:
"The test as to whether a subsidiary or affiliate can claim an established business relationship with a sister company's customer is:
Would the customer expect to receive a call from such an entity, or would the customer feel that such a call is inconsistent with having placed his or her number on the National Do‑Not‑Call Registry..."
LISTNUM 1 \l 12842 It goes on from there to give more factors to consider, and I have appended a copy of those two pages to the end of our submission.
LISTNUM 1 \l 12843 The CAC submits that we here in Canada can do better than that. The Commission can instead adopt a clear, bright line, legal entity test, which we have proposed, and avoid a very large number of existing business relationships, which all businesses will contend fall under these exceptions.
LISTNUM 1 \l 12844 Many large businesses can actually control entities within an entire economic sector. Obvious examples are banking, insurance, telecommunications and broadcasting, as you can see from the list of intervenors.
LISTNUM 1 \l 12845 We are concerned that they will all try to use the exception in a very broad manner without this narrower definition. This may have the effect of eating the entire "do not call" list.
LISTNUM 1 \l 12846 Secondly, the charity exception. The Commission can keep devilishly minded people out there from putting hayloads over their horns by clearly defining a telecommunication made by or on behalf of a registered charity as a sole‑purpose call; that is, any other type of solicitation may not be made in connection with the charitable call in order for it to shelter under this exception.
LISTNUM 1 \l 12847 While this tactic could be used with all of the other exceptions, it is most likely to be used with charitable calls.
LISTNUM 1 \l 12848 I will address briefly the newspaper of general circulation exception. We feel it is ripe for use, also, by little devils. The Commission, therefore, should make a clear and cogent definition of that term.
LISTNUM 1 \l 12849 The CAC suggests that the Commission define "general circulation" as requiring the existence of an independent editorial board, a reasonably large circulation, perhaps 100,000, as an example, except where the newspaper is the only one in a small town of, say, 10,000 or more persons.
LISTNUM 1 \l 12850 Finally, the newspaper would have to have general or local news content and not specialist information, such as a specialist magazine.
LISTNUM 1 \l 12851 I will turn now to the existing telemarketing rules.
LISTNUM 1 \l 12852 We believe that the Commission can do most for consumers, as I said, in preserving the present regime and adding to it with a "do not call" list. That would include all of the telemarketing rules thus far, and the ADAD restrictions.
LISTNUM 1 \l 12853 However, what we would really like to speak about are the Decision 2004‑035 requirements.
LISTNUM 1 \l 12854 Very briefly, the CAC would support all of the restrictions in 2004‑035, with the exception only of those which have been rendered unnecessary or not compatible with a "do not call" list.
LISTNUM 1 \l 12855 However, one of those, which is quite contentious, has been the tracking of individual "do not call" list registrations, as required by Decision 2004‑035 at paragraph 93.
LISTNUM 1 \l 12856 We feel that actually could be suspended, if there were other safeguards, and I will get to those.
LISTNUM 1 \l 12857 The CAC also expects that the "do not call" list operator will continue to collect the type of information that the Commission had ordered telecommunications service providers to collect and report semi‑annually under Decision 2004‑035.
LISTNUM 1 \l 12858 However, the "do not call" list operator should also ‑‑
LISTNUM 1 \l 12859 This is the safeguard to do with removing the requirement to give a reporting number.
LISTNUM 1 \l 12860 The "do not call" list operator should also track complaints related to compliance with company‑specific "do not call" lists, and if there continues to be a problem, we will have adequate evidence when the review comes, within three years, to decide whether that should again be added.
LISTNUM 1 \l 12861 There are a number of other unnecessary elements, which I will skip over.
LISTNUM 1 \l 12862 Regarding the consumer awareness aspects of Decision 2004‑035, we believe that they are appropriate for the general awareness of a "do not call" list in Canada, and that would be a full page in the ILECs' white pages directory describing the rules under the "do not call" list, and also in every telecommunications service provider's billings, one bill insert for the next three years describing the "do not call" list.
LISTNUM 1 \l 12863 This could be justified on the basis that the telecommunications service providers and ILECs are logical sources of information about "do not call" lists for consumers, where they can expect to see it. In addition, hopefully, there will be some other consumer awareness materials created by the Commission, but that is a logical place for people to look.
LISTNUM 1 \l 12864 Other requirements of Decision 2004‑035, such as predictive dialler and abandonment rates, we would like to have continue. Therefore, the CAC respectfully submits that the review of applications filed by the Canadian Marketing Association and others in connection with Decision 2004‑035 be dismissed.
LISTNUM 1 \l 12865 Finally, the CAC would ask the Commission to make time‑of‑day restrictions on voice calls. As stated in our initial comments, calls could be made between 9:00 a.m. and 9:00 p.m. on weekdays, and 10:00 a.m. and 6:00 p.m. on Saturdays and Sundays, and there should be restrictions roughly the same as those for fax calls.
LISTNUM 1 \l 12866 The last points have to do with enforcement. With respect to enforcement, we have a number of concerns.
LISTNUM 1 \l 12867 First, the Commission asked whether the "do not call" regime should apply to telemarketers or to sellers, or both. We believe that this is an enforcement question. The CAC supports the liability of both the seller and the telemarketer for violations. If it is not done, rogue telemarketers will move from client to client. On the other hand, if telemarketers only are made liable, companies that wish to perform illegal or sloppy telemarketing will have a ready subset of fly‑by‑night telemarketers to take the rap for the violation. Only by making both liable will greater compliance with the "do not call" rules be achieved.
LISTNUM 1 \l 12868 Secondly, we wish to underline that the list operator choice is a difficult question, but it is of crucial importance, given the wide scope of investigation and enforcement powers that Public Notice 2004‑035 implies will be given to the "do not call" list operator.
LISTNUM 1 \l 12869 The CAC is participating in the CISC committee on choosing the operator. However, the CAC would caution the Commission that the choice of a marketer or a marketer‑controlled group to run the DNC list is clearly inappropriate. There is a clear conflict of interest in disciplining one's own industry.
LISTNUM 1 \l 12870 If the Commission wishes, however, to trust the devil you know, then we would ask the Commission to ensure that the composition of whatever body oversees the eventual list operator will not, in turn, be controlled by marketers. Here we are thinking of the consortium.
LISTNUM 1 \l 12871 There are a couple of points under investigation and enforcement.
LISTNUM 1 \l 12872 Firstly, the Commission should set some clear guidelines for both functions, that is, investigation and enforcement, so that the list operator will be made to meet an acceptable service standard and account for shortfalls in either area.
LISTNUM 1 \l 12873 Both functions are time consuming and expensive, and the list operator will be tempted to cut either function to improve the bottom line, which will undermine the effectiveness of a "do not call" list.
LISTNUM 1 \l 12874 Some specific guidelines we have for investigation are that all investigations should be undertaken with a reasonable delay, and, if requested, both the telemarketer and seller should be kept aware of the status of the investigation ‑‑ both sides.
LISTNUM 1 \l 12875 In particular, consumers should be permitted to make representations.
LISTNUM 1 \l 12876 The reason I am getting into this is, if the initial complaint goes up a level in the mechanism ‑‑ for example, if there is an initial cut where an operator decides whether or not the number is on the list ‑‑ that probably wouldn't be a stage where representations could be made, but further up the line.
LISTNUM 1 \l 12877 As well, both parties should be informed of the decision, if requested, in writing, and be provided with information regarding any appeal process.
LISTNUM 1 \l 12878 I also want to note that the reporting and investigation of complaints should not be left to business or industry.
LISTNUM 1 \l 12879 I think both the banking and the newspaper associations have mentioned in their comments that they already have complaint investigation mechanisms in place and that they could handle telemarketing complaints. This cannot be allowed if the CRTC or "do not call" list operator is to trap repeat offenders, fraud, the effectiveness of the rules, et cetera.
LISTNUM 1 \l 12880 It is, in effect, making two tiers of complaints: those who are banking customers, for example, and those who are customers of other kinds of organizations.
LISTNUM 1 \l 12881 Guidelines for enforcement: Violations are not a numbers game. It can be a violation to have one single call.
LISTNUM 1 \l 12882 However, there are other factors which could be aggravating or not, and we have suggested some of those in our initial comments, and I would be happy to take questions on them.
LISTNUM 1 \l 12883 Enforcement, therefore, should match the gravity of the offence, rather than sheer frequency, although high frequency and repeat offenders should tend to produce progressive discipline.
LISTNUM 1 \l 12884 I will turn now to voicecasting.
LISTNUM 1 \l 12885 It is the CAC's submission that consumers find voicecasting just as annoying as ringing telephone calls, but in a different fashion. It is time consuming and disturbing, because it is stealthy, and we believe that it is against the spirit of a "do not call" list.
LISTNUM 1 \l 12886 Most importantly, it is against the expectations of consumers as to the level of protection they will receive from a "do not call" list that voicecasting would be permitted, while entirely similar live calls would be stopped.
LISTNUM 1 \l 12887 Primus, I believe, has suggested that finding and deleting voicecast messages is not a consumer nuisance, and we beg to differ.
LISTNUM 1 \l 12888 We would point out that even Infolink is supporting a "do not call" list, including voicecasting, as well as a number of other parties here today.
LISTNUM 1 \l 12889 There is a somewhat cutesy legal argument that I have made about whether the existing business relationship even covers voicecasting. I think it has to be to a real person, not to your voice mailbox, but I will leave that to counsel to probe.
LISTNUM 1 \l 12890 Quite apart from the legal gymnastics, pruning one's voicemail can be costly for consumers. Such voicemails may be placed on wireless numbers, where retrieving them incurs airtime costs.
LISTNUM 1 \l 12891 Perhaps more importantly, whether on wireline or wireless accounts, it is an incredible waste of consumers' time. It is basically voicemail spam. It can be expected to increase exponentially with VoIP systems.
LISTNUM 1 \l 12892 The Commission has an opportunity to ensure that voicemail linked to a number on the "do not call" list is not plagued with voicemail spam and should seize it.
LISTNUM 1 \l 12893 Finally ‑‑ and I had hoped this wouldn't have to be such a big issue, but it appears to be starting to rear its head ‑‑ let it never be forgotten that residential ratepayers paid for the building of networks over which telemarketers now exercise their trade. Calls, therefore, to fund the "do not call" list from subscribers constitute double taking from ratepayers and are unjustified. The "do not call" list should never be costing the residential subscriber a penny.
LISTNUM 1 \l 12894 However, from the proceedings in the CISC committee and other information, it seems that there are dark clouds of costs on the horizon.
LISTNUM 1 \l 12895 The U.S. "do not call" list received seed money from Congress to set it up, and we have received no such guarantees here.
LISTNUM 1 \l 12896 The U.S. registry operator has indicated that there was a shortfall in the early years and that part of the problem was that there was a lower number of telemarketers than they had expected to sign up to the list.
LISTNUM 1 \l 12897 However, we recall that in the Public Notice the Commission had initially taken the position that the Commission was considering that the delegate would charge telemarketers who access the "do not call" list and did not mention anything about consumers.
LISTNUM 1 \l 12898 We are now calling on the Commission to remove any temptation of the list operator to recoup cost overruns and start‑up or other costs. This could be done by having the Commission explicitly mandate, under section 45.1, that neither those who sign up for the "do not call" list nor residential telephone subscribers be made to pay for it.
LISTNUM 1 \l 12899 If you set this out as a rule now, then we won't be revisited with a shortfall upon the backs of residential subscribers, or even, indeed, business subscribers.
LISTNUM 1 \l 12900 The "do not call" list has come not to destroy the existing telemarketing regime, but to fulfill it. The Commission, therefore, would greatly aid consumers in setting clear rules, defining key terms, and sending an enforcement direction that is consumer focused.
LISTNUM 1 \l 12901 I thank the Commission for hearing us on behalf of the CAC, and I would welcome any questions you may have.
LISTNUM 1 \l 12902 THE CHAIRPERSON: Commissioner Cram.
LISTNUM 1 \l 12903 COMMISSIONER CRAM: Thank you, Mr. Lawford and colleagues.
LISTNUM 1 \l 12904 First I want to talk about what types of calls telemarketing would include. In other words, the ones that we would exclude from telemarketing totally.
LISTNUM 1 \l 12905 Number one is wireless. Do you have a position on that, whether it should be excluded or simply be allowed to be on the list?
LISTNUM 1 \l 12906 MR. LAWFORD: Our position is that consumers should be able to put wireless numbers on the "do not call" list. If that results in certain additional costs, then we would have to look at it, but that is our position at the moment.
LISTNUM 1 \l 12907 COMMISSIONER CRAM: I was somewhat surprised that you didn't push for e‑mails, for us to look at spam. Was there a reason for that?
LISTNUM 1 \l 12908 MR. LAWFORD: In terms of making it a "do not e‑mail" list as well?
LISTNUM 1 \l 12909 I guess we were expecting a slightly more coordinated response from the government after the Spam Task Force Report.
LISTNUM 1 \l 12910 Quite honestly, being realists, we wanted to hammer down the telephone exceptions first.
LISTNUM 1 \l 12911 COMMISSIONER CRAM: Is there any concern by the CAC about IP faxing?
LISTNUM 1 \l 12912 MR. LAWFORD: It is a problem, and I am anticipating that you might ask about whether we should include fax numbers on this list.
LISTNUM 1 \l 12913 Yes, in the same way that telemarketing ‑‑
LISTNUM 1 \l 12914 Voicecasting will be easy with IP, and it would be the same thing with faxing. It could be quite distressingly large.
LISTNUM 1 \l 12915 I am assuming that IP‑based fax numbers would still be recognized as numbers under the North American numbering plan.
LISTNUM 1 \l 12916 Is that not correct?
LISTNUM 1 \l 12917 COMMISSIONER CRAM: No, we just have the Internet address.
LISTNUM 1 \l 12918 MR. LAWFORD: Just IP.
LISTNUM 1 \l 12919 Well, then we will have to consider whether that could be something we could control from the originating phone number, in which case we would have to go back and given all of the parties a reasonable chance to consider that.
LISTNUM 1 \l 12920 COMMISSIONER CRAM: Paragraph 64(8) of your brief, the March brief, says that it is a violation for a party to pass on the cost of subscription to the list to its contacts or those with whom it has an existing business relationship.
LISTNUM 1 \l 12921 Number one, what do you mean by contacts?
LISTNUM 1 \l 12922 MR. LAWFORD: We were thinking of customers or clients, in the sense that, if you want to do business with us, there will be a fee, because we are running the "do not call" list and we are trying to recoup 2 cents from you and everybody else.
LISTNUM 1 \l 12923 It is trying to download costs directly.
LISTNUM 1 \l 12924 I suppose that you could hike prices, in the sense that ‑‑
LISTNUM 1 \l 12925 COMMISSIONER CRAM: I was going to say that, at the end of the day, all they do is do it indirectly.
LISTNUM 1 \l 12926 MR. LAWFORD: Yes, indirectly.
LISTNUM 1 \l 12927 MS MAUTHE: I think that part of the concern, as well, was to eliminate fraud in that respect; people purporting to provide a "do not call" service or charging for that additional service.
LISTNUM 1 \l 12928 The value‑added aspect.
LISTNUM 1 \l 12929 COMMISSIONER CRAM: All right.
LISTNUM 1 \l 12930 I think it was Primerica yesterday who was talking about an exception for family, friends and acquaintances.
LISTNUM 1 \l 12931 Do you have a position on that?
LISTNUM 1 \l 12932 MR. LAWFORD: Yes. That is not in the legislation and we don't feel that it is necessary for the Commission to add that exception.
LISTNUM 1 \l 12933 COMMISSIONER CRAM: I have to say that they made a pretty persuasive presentation with the reverse onus, because the risk has been higher to the telemarketer.
LISTNUM 1 \l 12934 If I don't think the person who phoned me is a friend or an acquaintance, I can complain, and they are almost presumed to be in violation.
LISTNUM 1 \l 12935 Do you not think that that would be a sufficient protection?
LISTNUM 1 \l 12936 MR. LAWFORD: In the sense that that is a defence to the ‑‑
LISTNUM 1 \l 12937 COMMISSIONER CRAM: It is not a defence. In fact, it's almost ‑‑ if I don't think that that friend that phoned me is a friend, I complain and it's almost prima facie a breach of the rules.
LISTNUM 1 \l 12938 MR. LAWFORD: Right.
LISTNUM 1 \l 12939 COMMISSIONER CRAM: Yes, go ahead.
LISTNUM 1 \l 12940 MS MAUTHE: I think our position is that it was something that could be considered as part of a defence. A true referral from a close friend or neighbour, if it is genuinely invited, would not even lead to a complaint. But by setting out a limit of what can be referred by a family or friend, you invite people that abuse that by soliciting referrals. They are rewarding customers for providing those names.
LISTNUM 1 \l 12941 So by setting in stone a limit, you invite people to stretch it rather than just considering it a defence in the true case.
LISTNUM 1 \l 12942 COMMISSIONER CRAM: I see two steps here. I see the exception being family, friends and acquaintances, in which case there is the reverse onus. But then the next step is referrals, where family, friends and acquaintances give referrals to third parties yet again.
LISTNUM 1 \l 12943 So the first step though, an exception of family, friends and acquaintances, you think that that would be a defence.
LISTNUM 1 \l 12944 MR. LAWFORD: Yes.
LISTNUM 1 \l 12945 COMMISSIONER CRAM: Okay. So what about referrals?
LISTNUM 1 \l 12946 MR. LAWFORD: That's a good question.
LISTNUM 1 \l 12947 Referrals as a business model cause us some pause.
LISTNUM 1 \l 12948 Go ahead.
LISTNUM 1 \l 12949 MS MAUTHE: I'm not sure if I understand the distinction.
LISTNUM 1 \l 12950 If you make a referral to your acquaintance, is that an acquaintance exception or a referral exception? I'm not sure under what case you would refer someone who you didn't have that relationship acquaintance with.
LISTNUM 1 \l 12951 COMMISSIONER CRAM: That's a good point.
LISTNUM 1 \l 12952 MS MAUTHE: A blank referral to a strange third party falls under an affiliate or the stretching of the existing business relationship exceptions.
LISTNUM 1 \l 12953 COMMISSIONER CRAM: Thank you.
LISTNUM 1 \l 12954 Voicecasting, you say in paragraph 77 that it is annoyance. There is a cost. There is an inconvenience.
LISTNUM 1 \l 12955 Has CAC compiled complaints data on this at all?
LISTNUM 1 \l 12956 MR. LAWFORD: No. It is our intention to do that, though. We don't have those studies done yet.
LISTNUM 1 \l 12957 COMMISSIONER CRAM: All right.
LISTNUM 1 \l 12958 You have answered the one question about continuance of the rules.
LISTNUM 1 \l 12959 You have said nothing about ADADs except today you said you supported ‑‑
LISTNUM 1 \l 12960 MR. LAWFORD: The existing.
LISTNUM 1 \l 12961 COMMISSIONER CRAM: And that's 5 percent.
LISTNUM 1 \l 12962 MR. LAWFORD: We called for 3 percent, I believe, in our submissions.
LISTNUM 1 \l 12963 Oh, sorry. Are you talking abandonment or ‑‑
LISTNUM 1 \l 12964 COMMISSIONER CRAM: No. I am talking about ADADs.
LISTNUM 1 \l 12965 MR. LAWFORD: ADADs, excuse me.
LISTNUM 1 \l 12966 COMMISSIONER CRAM: Yes, you are right.
LISTNUM 1 \l 12967 MR. LAWFORD: Are you referring to the CMA proposal about allowing ‑‑
LISTNUM 1 \l 12968 COMMISSIONER CRAM: Let's start at ADADs.
LISTNUM 1 \l 12969 MR. LAWFORD: Okay.
LISTNUM 1 \l 12970 COMMISSIONER CRAM: Your position today said that it should just continue. Our present rules should continue.
LISTNUM 1 \l 12971 MR. LAWFORD: They shouldn't be reduced in the sense of the Canadian Marketing Association request to allow ADADs with existing business relationship, yes.
LISTNUM 1 \l 12972 COMMISSIONER CRAM: Okay. So don't ‑‑
LISTNUM 1 \l 12973 MR. LAWFORD: They shouldn't be relaxed.
LISTNUM 1 \l 12974 COMMISSIONER CRAM: They should be relaxed.
LISTNUM 1 \l 12975 MR. LAWFORD: Shouldn't be relaxed.
LISTNUM 1 \l 12976 COMMISSIONER CRAM: Should not be relaxed.
LISTNUM 1 \l 12977 MR. LAWFORD: Right.
LISTNUM 1 \l 12978 COMMISSIONER CRAM: Okay; good.
LISTNUM 1 \l 12979 Then on predictive diallers, what percentage of abandonment are you talking about?
LISTNUM 1 \l 12980 MR. LAWFORD: We asked for 3 percent in our initial comments because that is the rate that seems to be achievable in the United States, and we don't see a lot of difference in the technology here.
LISTNUM 1 \l 12981 COMMISSIONER CRAM: You are saying no to guidelines but not no to principles.
LISTNUM 1 \l 12982 Is that the concept?
LISTNUM 1 \l 12983 MR. LAWFORD: It is so difficult at the moment to know what shape the enforcement regime will be in, because the list operator isn't chosen. We don't know whether there is going to be a consortium on top and whether there will be a telemarketing review board at your level or not.
LISTNUM 1 \l 12984 I am assuming that whether you call them guidelines or general principles ‑‑ that's a hard one at this stage.
LISTNUM 1 \l 12985 We really think that in our submissions today we wanted to give you a sense of general principles. But as these questions are dealt with, for example, in finer grain in the CISC committees, there may emerge in the reports there guidelines which could be recommended out of that.
LISTNUM 1 \l 12986 But at this stage, it is difficult to say what those guidelines should be.
LISTNUM 1 \l 12987 If you have a particular example, I would be happy to try to give you our viewpoint. But at this point in general, I can't say that you have to have a 30‑page guideline set out.
LISTNUM 1 \l 12988 The United States guidelines are a product of a lot of work, but I do recommend that the Commission look at them closely and see whether the list operator or the Commission couldn't use as a basis for a lot of the work.
LISTNUM 1 \l 12989 COMMISSIONER CRAM: So dependent on our structure of enforcement, if we do it, as somebody suggested yesterday, or if the list operator does it, or if a third party does it, the stringency of the guidelines or principles, or the fineness of detail, would be dependent upon that structure.
LISTNUM 1 \l 12990 MR. LAWFORD: In part. If you are going to err on any side, it would be setting more rules from top down than not, is our viewpoint, so that the list operator doesn't have extreme discretion in how they operate the list and investigate and do enforcement.
LISTNUM 1 \l 12991 COMMISSIONER CRAM: You say there should be no threshold but there is clearly a de minimis defence.
LISTNUM 1 \l 12992 Could you, within ten days, sort of give us examples of what you would think would consist of a de minimis defence?
LISTNUM 1 \l 12993 MR. LAWFORD: Of what would be a very low level one? Can we give examples also of ones which we think would be perfectly justified in one call, this is a bad call and should be punished anyway?
LISTNUM 1 \l 12994 COMMISSIONER CRAM: M'hmm.
LISTNUM 1 \l 12995 MR. LAWFORD: Okay. Then we will do that, absolutely.
LISTNUM 1 \l 12996 COMMISSIONER CRAM: In other words, what is the maximum of de minimis?
LISTNUM 1 \l 12997 MR. LAWFORD: Okay, I understand.
LISTNUM 1 \l 12998 COMMISSIONER CRAM: I like that question.
‑‑‑ Laughter / Rires
LISTNUM 1 \l 12999 COMMISSIONER CRAM: I am going to go to your brief now, the March brief.
LISTNUM 1 \l 13000 At paragraph 15 you say:
"The Commission should clarify that the rules apply to parties within Canada and any parties outside Canada who place calls to Canadian telephone numbers."
LISTNUM 1 \l 13001 How can we enforce that?
LISTNUM 1 \l 13002 MR. LAWFORD: This is the same difficulty which the Privacy Commissioner of Canada faces when Canadians have personal information abused by companies outside of the country.
LISTNUM 1 \l 13003 We foresee the same difficulty arising here in being telemarketed from anywhere, by perhaps the United States. And sure, it's a problem.
LISTNUM 1 \l 13004 Is there no utility at all in saying that that is a violation?
LISTNUM 1 \l 13005 The result of the complaint which was in the Privacy Commissioner's hopper lately about abeeka.com from Pacific, the Privacy Commissioner threw up her hands and said, "Whoa, it's out of our jurisdiction." They did not even answer the question of whether that had been a privacy violation.
LISTNUM 1 \l 13006 We would like the Commission to at least be able to say yes, there is this company in the United States that is doing X, Y, Z and look at all the technical violations it has done. Sure, we can't punish them.
LISTNUM 1 \l 13007 But the other thing to consider is as well as the United States has a "do not call" regime, England has a "do not call" regime. The Commissioner of Competition has been working with those countries to mutually assist each other. Perhaps a treaty could be drafted or a mutual assistance to prosecute each other's offenders.
LISTNUM 1 \l 13008 That is what we are looking at down the road.
LISTNUM 1 \l 13009 So we don't want the Commission to just give up on those cross‑border situations.
LISTNUM 1 \l 13010 COMMISSIONER CRAM: Perhaps in the sense of the three‑year review it would make sense, because we would then have compiled data of whether or not it is a problem.
LISTNUM 1 \l 13011 MR. LAWFORD: That's right. Actually, in all of our submissions today we are hoping the Commission will lean very heavily to record‑keeping by the list operator of all sorts of violations so that again we will have some evidence to work with in three years, because it's always the evidence that is lacking when we come to discuss telemarketing.
LISTNUM 1 \l 13012 COMMISSIONER CRAM: At paragraph 16 you talk about exempt organizations should receive free access to the national "do not call" list.
LISTNUM 1 \l 13013 That would be in the case that they could not or chose not to run their own "do not call" list?
LISTNUM 1 \l 13014 MR. LAWFORD: Exempt organizations would be charities ‑‑
LISTNUM 1 \l 13015 COMMISSIONER CRAM: And political parties.
LISTNUM 1 \l 13016 MR. LAWFORD: And political parties.
LISTNUM 1 \l 13017 The thinking at the time I believe was that in order to encourage those parties to keep very tight specific "do not call" lists for their own organization, that they could devote resources which they would otherwise be paying as telemarketing fees to shoring up their own lists.
LISTNUM 1 \l 13018 It is difficult for the Commission to order that as quid pro quo, but that was the thinking at the time.
LISTNUM 1 \l 13019 Since being in the CISC committees I am a little dismayed to hear that perhaps there might not be enough telemarketers to shake out of the tree to pay for all this. And we are reconsidering that completely free access would be for all people holding exceptions.
LISTNUM 1 \l 13020 But at the moment that was the thinking behind that statement.
LISTNUM 1 \l 13021 COMMISSIONER CRAM: I need a clarification of 19(1):
"Calls made by a for profit organization where part of the proceeds of a sale would benefit a registered charity."
LISTNUM 1 \l 13022 I think that is what you were also talking about today.
LISTNUM 1 \l 13023 MR. LAWFORD: Yes, that's right.
LISTNUM 1 \l 13024 COMMISSIONER CRAM: I am selling you Encyclopedia Britannica and in exchange, if you buy ‑‑ maybe that's not the thing to sell.
LISTNUM 1 \l 13025 If you buy that, I'll give $20 to SOS.
LISTNUM 1 \l 13026 MR. LAWFORD: Absolutely.
LISTNUM 1 \l 13027 COMMISSIONER CRAM: That's what you mean.
LISTNUM 1 \l 13028 MR. LAWFORD: That's what I mean. And if survey people were also not covered, I would say ones that said "by the way, we will donate $20 to charity if you take this survey" also would have been covered. But they have an exception.
LISTNUM 1 \l 13029 So that is the thinking.
LISTNUM 1 \l 13030 COMMISSIONER CRAM: All right.
LISTNUM 1 \l 13031 Now we are at the single legal entity issue.
LISTNUM 1 \l 13032 It is fair to say that if you had a Bell account, when you signed up with Bell, Bell could very easily get you to give them consent to market you for Mobility and Sympatico and that sort of thing?
LISTNUM 1 \l 13033 MR. LAWFORD: Yes, they can at the moment ask that they be able to share personal information, and that's the way the clauses are worded at the moment. They inform you that they will be marketing for those other corporations.
LISTNUM 1 \l 13034 The Act to amend the Telecommunications Act, C‑37, doesn't discuss consent. So I am glad the Commission is trying to sort it out now, because we urged the Commons to consider and the Senate and they didn't. So now we are stuck.
LISTNUM 1 \l 13035 If there is going to be a consent exception, we are very concerned that again we will see the same pattern developing as we do with privacy and personal information sharing, and that is that those clauses exist and no one ever sees them. They are often buried. They are far away in the bottom of a legal document. Consumers are really not aware of what they are giving permission for the companies to do.
LISTNUM 1 \l 13036 With the "do not call" list in the United States you have to get explicit acknowledgement. We think that is a sensible requirement that you could impose here as well.
LISTNUM 1 \l 13037 It is more than PIPEDA would require because that allows implicit consent. In the past the Commission has asked, for example with customer confidential information, that a higher standard, that explicit consent be required.
LISTNUM 1 \l 13038 You could do the same thing here.
LISTNUM 1 \l 13039 If you want to go around the telemarketing regime with consent, you have to make it very clear to the consumer that you are going around the telemarketing regime.
LISTNUM 1 \l 13040 If you will just bear with me, on the very last page of our submission today I have cut out the U.S. rule on that as well.
LISTNUM 1 \l 13041 The very first line about written permission to call exceptions says the rule allows sellers and telemarketers to call any consumer who gives his or her express agreement to receive calls.
LISTNUM 1 \l 13042 So the kind of language that is being proposed, I believe, by the Bankers Association earlier on was that if you have a clause in there that says we may offer you products and services which might be of interest to you, blah, blah, blah, that that is good enough. We don't think so.
LISTNUM 1 \l 13043 We think it has to be an explicit acknowledgement of consent to be called, even though your name may or may not be on the "do not call" list.
LISTNUM 1 \l 13044 That would provide at least some boundaries to the consent exception, which otherwise would be printed on every contract with a pre‑checked box saying "yes, I agree to give my consent to avoid the do not call list". That would be on every piece of paper from now on in every consumer transaction.
LISTNUM 1 \l 13045 COMMISSIONER CRAM: What you are suggesting is that it says "yes, I agree to receive calls about markets, about products available from this company and its affiliates", namely, so‑and‑so, so‑and‑so, so‑and‑so?
LISTNUM 1 \l 13046 MR. LAWFORD: Well, ideally I would like it if the Commission were able to prohibit them from including all of their affiliates. I don't think that you can quite go that far if you give people free will.
LISTNUM 1 \l 13047 But yes, it has to say explicitly we are going to call you, despite the "do not call" list, and you are giving permission now to all of these other related entities.
LISTNUM 1 \l 13048 One last point I will just make about that before I finish my answer is that keep in mind PIPEDA ‑‑ I think it is Principle 4.3.3 in Schedule 1, which says that you cannot as a condition of offering a product or service require someone to give extra personal information beyond that necessary for the transaction.
LISTNUM 1 \l 13049 We would like to have a similar requirement where you can't require someone to give consent to go around the "do not call" list in order to get that product or service; that you can stay on the "do not call" list and not give your permission to that but still get the product or service.
LISTNUM 1 \l 13050 COMMISSIONER CRAM: Thank you.
LISTNUM 1 \l 13051 On existing business relationships ‑‑ and let's just say we are talking about Bell itself ‑‑ I take it that if Bell were working with ExpressVu on a joint marketing plan, you would say that is not an existing business relationship and they couldn't phone you unless you consented.
LISTNUM 1 \l 13052 MR. LAWFORD: That's right. That is not my expectation.
LISTNUM 1 \l 13053 COMMISSIONER CRAM: So the issue is your reasonable expectation.
LISTNUM 1 \l 13054 MR. LAWFORD: In effect, our view is that consumers have that as their reasonable expectation just that they will get that entity calling them and not every other affiliate.
LISTNUM 1 \l 13055 COMMISSIONER CRAM: Yes.
LISTNUM 1 \l 13056 In the due diligence defence, starting at paragraph 66, what I noticed here ‑‑ and it is contrary to what Rogers said ‑‑ is that you have not referred to monitoring compliance and auditing it by the telemarketer.
LISTNUM 1 \l 13057 Do you think that that is necessary required efficacious?
LISTNUM 1 \l 13058 MR. LAWFORD: If that type of audit function is not going to be given to the list operator, then yes, in the sense that you are saying that it is all very well to say that you have trained your employees but there is no audit of whether it has actually been done.
LISTNUM 1 \l 13059 COMMISSIONER CRAM: Then the auditing would be about compliance. They would do their own internal audits.
LISTNUM 1 \l 13060 MR. LAWFORD: I believe that is useful feature which should be considered. It is not in our submissions.
LISTNUM 1 \l 13061 COMMISSIONER CRAM: Okay.
LISTNUM 1 \l 13062 On page 6 today of your presentation, on charities, what is the mischief that you are worried about here?
LISTNUM 1 \l 13063 MR. LAWFORD: I believe we may have touched on it earlier.
LISTNUM 1 \l 13064 COMMISSIONER CRAM: That is the same, the Encyclopedia Britannica and $20?
LISTNUM 1 \l 13065 MR. LAWFORD: Yes, that is the same example.
LISTNUM 1 \l 13066 COMMISSIONER CRAM: Okay; good.
LISTNUM 1 \l 13067 Thank you. I have no further questions.
LISTNUM 1 \l 13068 Thank you, Mr. Chair.
LISTNUM 1 \l 13069 THE CHAIRPERSON: Commissioner Langford.
LISTNUM 1 \l 13070 COMMISSIONER LANGFORD: I have one question but it might grow. You know how these things start and sort of turn into broccolis with many branches ‑‑ but perhaps not.
LISTNUM 1 \l 13071 My question is: I wonder if you are familiar with The Companies' submission, the written submission by The Companies, which lays out in incredible detail their notion of defences and common law defences that are mentioned, and how expanded a view any enforcement body might have to take of that.
LISTNUM 1 \l 13072 Could you give me your comment on that.
LISTNUM 1 \l 13073 MR. LAWFORD: It is provided for in the legislation that you have that defence, the common law defences.
LISTNUM 1 \l 13074 COMMISSIONER LANGFORD: Could you speak a little louder.
LISTNUM 1 \l 13075 MR. LAWFORD: Sorry. It is provided in the legislation, is it not, that you have all those common law defences?
LISTNUM 1 \l 13076 COMMISSIONER LANGFORD: It says common law defences, and I just wonder how many of those you recognize.
LISTNUM 1 \l 13077 It was a trip down memory lane for me, I must say.
LISTNUM 1 \l 13078 MR. LAWFORD: I guess I had to think that there would be a rare case where you would need to have duress and such, for example, in making the calls.
LISTNUM 1 \l 13079 I don't think that those common law defences would necessarily eviscerate the enforcement of the list. I am not concerned.
LISTNUM 1 \l 13080 COMMISSIONER LANGFORD: You are not concerned.
LISTNUM 1 \l 13081 MR. LAWFORD: I am not concerned.
LISTNUM 1 \l 13082 Is there a particular one which seemed to be larger than the other, in your view?
LISTNUM 1 \l 13083 COMMISSIONER LANGFORD: Not necessarily. I noticed drunkenness wasn't there, but I looked for it.
LISTNUM 1 \l 13084 That may only go to mitigation of sentence. It was always popular back in law school. I remember sleep walking was another one that we followed with great enthusiasm.
‑‑‑ Laughter / Rires
LISTNUM 1 \l 13085 COMMISSIONER LANGFORD: But to be a bit serious, I think what got me wondering ‑‑ and I don't want to direct you as a witness too much. But what it might mean to process in the sense of I suddenly, as I read that, began to see sort of stretching out in front of me some very, very, long adjudications with openings to kind of routes to appeals, all of which, as a believer in due process of course, one side of my brain is glad to see.
LISTNUM 1 \l 13086 But in the sense of looking for kind of the sense of an expedited and reasonably quick, though fair, process it seemed that these raise their heads more as hurdles than as helps.
LISTNUM 1 \l 13087 I just wondered how you felt about it in that sense.
LISTNUM 1 \l 13088 MR. LAWFORD: Okay. Well, it has never been phone companies' style to let defences drop.
LISTNUM 1 \l 13089 It would seem to me again that the situations where that would be seriously argued would likely be larger corporations who had been nonetheless charged and were not happy about that. In that case I would expect they would fight it to the death in any way they could.
LISTNUM 1 \l 13090 What you might be able to do is have again at some level within the Commission or perhaps a body above the list administrator that would deal with those sorts of defences in a slightly more protracted process but still administratively streamlined, as compared to a court.
LISTNUM 1 \l 13091 Then there is always judicial review and so on and so forth.
LISTNUM 1 \l 13092 But the initial enforcement perhaps by the list operator, the first level enforcement: Yes, the list contained the number. Yes, you called it. Now you are talking common law defences. That's nice; violation.
LISTNUM 1 \l 13093 Then the person gets to go up to the next level and try to explain it in two pages. They try their drunkenness defence and they say no. Now we have an avenue of appeal again, to federal court or wherever.
LISTNUM 1 \l 13094 But if it is not really raisable at the very first level, then I think that would cut out ‑‑ it has to cut out an awful lot of them. I just can't imagine there are a lot of common law defences going to be raised. It will likely be in those situations.
LISTNUM 1 \l 13095 COMMISSIONER LANGFORD: Moving on to their sort of pyramid model approach which they seem to have adopted from the Competition Bureau of everything from non‑punitive to punitive mechanisms for bringing people sort of around to seeing the light, I see at least five different levels, moving from kind of a letter to mediation to final kind of rulings.
LISTNUM 1 \l 13096 And then there is the whole sort of notion that you can build up a reputation as having maintained the rules, and that kind of gives you some sort of credit in the bank.
LISTNUM 1 \l 13097 How do you react to that, again from a process point of view, from a sense of ever getting around to making the point that at a certain point a violation is a violation?
LISTNUM 1 \l 13098 MR. LAWFORD: I believe there should be a definite tendency on the part of the list operator, whoever is enforcing at first level, to give a fine. It says up to $1,500 for an individual and up to $15,000 for a business. So give a fine. The fine can be low at the first stage.
LISTNUM 1 \l 13099 There may be some utility in a warning. I can't see where mediation would be of assistance in all these other elaborate processes. It's supposed to be quick, bang, bang, bang. There could be a hundred violations and you might be fined $1.00 for each. But at least you got a fine. It was a violation.
LISTNUM 1 \l 13100 And what is also important about that is when we get to three years from now, well look, we've got a list of 4,000 companies that had on average 17.5 violations.
LISTNUM 1 \l 13101 That's of some utility as well.
LISTNUM 1 \l 13102 If it goes to mediation, it goes off the books. It's gone forever. This happens in the Privacy Commissioner all the time.
LISTNUM 1 \l 13103 COMMISSIONER LANGFORD: Right.
LISTNUM 1 \l 13104 Do you have a sense ‑‑ you mentioned sort of fines for individuals and fines for businesses.
LISTNUM 1 \l 13105 Do you have a sense that there should be some way to parse the business one in the sense of small businesses versus large? Or do you just use the fining power and give them a $1.00 fine or something and do it that way?
LISTNUM 1 \l 13106 MR. LAWFORD: The issue was raised a little bit before the Senate committee by carpet cleaners, and that sort of thing. I think any reasonable enforcement regime will look at the source of the complaint and the type of violation that it was, whether it is repeated or not.
LISTNUM 1 \l 13107 It is not to say that a particular telemarketer in a small market, which as a business can't be annoying and can't be annoying on a level where they are thumbing their nose at the rules, that doesn't in certain situations require a slightly higher fine in order to make the point, because pure reliance on size of business, for example, might lead those types of businesses who rely on telemarketing very heavily to just take it as a business cost.
LISTNUM 1 \l 13108 COMMISSIONER LANGFORD: Thank you very much.
LISTNUM 1 \l 13109 Those are my questions, Mr. Chair.
LISTNUM 1 \l 13110 THE CHAIRPERSON: Commissioner Duncan.
LISTNUM 1 \l 13111 COMMISSIONER DUNCAN: Mr. Lawford, I just have one question for you.
LISTNUM 1 \l 13112 Following up on the Marketing Research Association that was in earlier, I am wondering do consumers consider research calls to be an undue convenience or nuisance?
LISTNUM 1 \l 13113 MR. LAWFORD: I think I would have to go to look at the Environics poll.
LISTNUM 1 \l 13114 I know that in that one, they certainly didn't make a lot of distinction between telemarketing for charities and other ones. I can't remember offhand if it also included statistics on whether they found studies, polls, to be also an annoyance.
LISTNUM 1 \l 13115 If not, that would be wonderful research to have.
LISTNUM 1 \l 13116 Just anecdotal, I am of the same view as Commissioner Langford, that there is a certain portion of people that are annoyed by it, by any call at all.
LISTNUM 1 \l 13117 Unfortunately, that particular person doesn't really have much they can do at the moment under the exception for surveys, is there. There has been no undertaking or guarantee by the survey or polling groups that they will keep specific "do not call" lists.
LISTNUM 1 \l 13118 What I would like to stress is perhaps that you might consider asking a list operator to keep complaints about specific "do not call" lists even in relation to exempt organizations, so I can call and say a survey person called me. I was on the "do not call" list. I know they are exempt, but it still bugged me.
LISTNUM 1 \l 13119 Then in three years time you will have 50 of those complaints or 5,000. I don't know.
LISTNUM 1 \l 13120 COMMISSIONER DUNCAN: That's a good suggestion with respect to gathering data.
LISTNUM 1 \l 13121 So I can take it, then, that you would agree, if it were possible, that they should be subject at least to the other telemarketing rules.
LISTNUM 1 \l 13122 MR. LAWFORD: Yes.
LISTNUM 1 \l 13123 COMMISSIONER DUNCAN: Thank you.
LISTNUM 1 \l 13124 That was my question.
LISTNUM 1 \l 13125 THE CHAIRPERSON: Mr. Lawford, you have raised the issue of privacy and I would like to go a little further with you on it, if I may.
LISTNUM 1 \l 13126 More particularly, the issue of privacy that interests me is the issue of the privacy value inherent in the list, the "do not call" list itself.
LISTNUM 1 \l 13127 MR. LAWFORD: Yes.
LISTNUM 1 \l 13128 THE CHAIRPERSON: I make a hypothesis that a given record, a record equivalent to one phone number, would have the phone number. It would have perhaps the name of the person who requested the listing. It might have the address. It might have the e‑mail address. It might have a unique number administered by the operator, and there might be one or two other fields. But there wouldn't be much more than that, I don't suppose.
LISTNUM 1 \l 13129 MR. LAWFORD: Right.
LISTNUM 1 \l 13130 THE CHAIRPERSON: I am asking this in the context of what would the danger be of someone hacking into or otherwise accessing that list in the minds of your organization?
LISTNUM 1 \l 13131 MR. LAWFORD: If that list has all of the other information that you are saying it will be populated with ‑‑ name or e‑mail ‑‑ well, that's the Holy Grail for rogue telemarketers or anyone in fact who would like to do identity theft or any of these nefarious activities because it is completely accurate. It can then be cross‑referenced with any other information they have gathered on that person, and they can do it for millions of people all at once.
LISTNUM 1 \l 13132 So protecting the list, the list operator will have to have it bullet‑proof.
LISTNUM 1 \l 13133 What we would like to see ‑‑ I believe the U.S. model is this way: that they just keep the phone number. They don't even have your name.
LISTNUM 1 \l 13134 This is why they get into is it a business that got registered or a fax number, a wireless number? We don't know because they don't want to keep the name. You've just created name plus phone number, leading to this sort of problem.
LISTNUM 1 \l 13135 It's a huge problem. To my knowledge, it did arise in Australia. It was perhaps the number portability database. It got in the hands of telemarketers. It was being sold around.
LISTNUM 1 \l 13136 And it will be something which could be a target.
LISTNUM 1 \l 13137 I believe that the way the U.S. confirms e‑mail ‑‑ because you can register via the Web and you get an e‑mail back and you confirm. The operator on the calls in the CISC committee has said that they hatch the e‑mail so that even the list operator, there is some sort of algorithm that it is unrecognizable; it is unusable to them.
LISTNUM 1 \l 13138 So they just keep the phone number. That's how they get around it.
LISTNUM 1 \l 13139 THE CHAIRPERSON: This is going to be a very subtle question, but I might as well ask you because I don't know who else to ask.
LISTNUM 1 \l 13140 How upset would you be if another national state had, by virtue of its domestic legislation, potential access to a "do not call" list in Canada, by virtue of the nationality of the company that operated the database?
LISTNUM 1 \l 13141 MR. LAWFORD: That would be something which we should avoid from the start. It is something that may have already occurred with the local number portability database.
LISTNUM 1 \l 13142 It is a consideration that I think you should bear in mind when you are choosing your list operator. It is something that has been recommended against by the Privacy Commissioner of B.C. and I think again has come out in the guidelines from the federal government as to protection of personal information in government databases.
LISTNUM 1 \l 13143 I believe it was also mentioned that where you can choose a Canadian list operator, just choose Canadian list operator. You don't get into these problems.
LISTNUM 1 \l 13144 It would be very upsetting for us to have that information available to other countries which might be using it for whatever purposes they wish to use it for once it is in their hands.
LISTNUM 1 \l 13145 So avoid that problem, if you can at all.
LISTNUM 1 \l 13146 THE CHAIRPERSON: Counsel.
LISTNUM 1 \l 13147 MR. MILLINGTON: I have no questions.
LISTNUM 1 \l 13148 THE CHAIRPERSON: I apologize.
LISTNUM 1 \l 13149 COMMISSIONER LANGFORD: No, there is no apology needed. I actually just thought of this when you got on the subject of lists.
LISTNUM 1 \l 13150 My apologies to you, counsel, for butting in.
LISTNUM 1 \l 13151 One question that I had wanted to ask you and it just slipped my mind, was your notion that the grace period should be seven days, bringing it into lines with the grace period on faxes. It has a nice symmetry to it, and I appreciate that.
LISTNUM 1 \l 13152 I am looking not only from you but from ‑‑ and unsuccessfully, I must say so far from many witnesses.
LISTNUM 1 \l 13153 I am looking for a real kind of, I don't know, what would I call it, practical, pragmatic functional reason why seven is more realistic than 30, or 60 is more realistic than 30.
LISTNUM 1 \l 13154 I am still having trouble trying to understand just how much of a burden the difference between 90 and seven days is.
LISTNUM 1 \l 13155 Can you help me with that, or did you just ‑‑ and it's fine if you did. Did you just pick the seven because it's symmetrical with the fax rule, or do you have some sense of technologically what these people have to go through to collect lists, scrub lists, bring them up to date?
LISTNUM 1 \l 13156 MR. LAWFORD: I can speak as one learning this myself, especially through the CISC committees and reading people's submissions.
LISTNUM 1 \l 13157 Partly we recommended seven days because it was in line with the fax rules. We would also like whatever period was chosen to be as short as possible. So here we are echoing the Union's submission.
LISTNUM 1 \l 13158 People put their name on the list. They want calls to stop. What's the problem? This is the modern world. Why can't we have it right now?
LISTNUM 1 \l 13159 I believe you will hear later from a consumer rep that will say there is a way to do this. You can do it by a Web querying thing where if I'm a telemarketer and I want to telemarket to a list, I've got the list, right, my own list. I'm just about to call that list of numbers. Well, why don't I send it to the operator, who checks it against the national "do not call" list and says, "Okay, 93 percent of your numbers are valid. You can call those. But the other 7 percent, no." And that can be done in real time.
LISTNUM 1 \l 13160 Now people on the CISC committee are saying that is hugely expensive, could never be done. The AT&T operator in the United States is saying they do it for really huge clients down there. So perhaps in the future we could have that no delay and we would support that.
LISTNUM 1 \l 13161 Maybe that is something that will develop in the next three years.
LISTNUM 1 \l 13162 On the other hand, we do know that there are some marketing campaigns that go out there and are done, generally speaking, in a timeframe of 30 days, 45 days. This will just fit into the way they are doing business so they can work it in. And practically speaking, they will then do it.
LISTNUM 1 \l 13163 If you make it extremely impossible for them to do, or very expensive, they will be pushed back and there will be delays in actually getting the "do not call" list to work.
LISTNUM 1 \l 13164 If we get it to work and it's 31 days, well, you have 30 more days of calls but then it starts working. And that is really what we are after, is eventually that it starts working.
LISTNUM 1 \l 13165 COMMISSIONER LANGFORD: So do you see a benefit to say starting at 31 days with a review, at the same time as the stated review, that at that time we would expect more databased evidence for wanting to move it one way or the other?
LISTNUM 1 \l 13166 MR. LAWFORD: Yes. We would really hope that the only trend it could be would be downwards and that the technological aspects by then would have been investigated.
LISTNUM 1 \l 13167 Doing the "do not call" list so quickly now, I don't have every confidence that even in the CISC committee that we can come up with that information.
LISTNUM 1 \l 13168 COMMISSIONER LANGFORD: Right.
LISTNUM 1 \l 13169 MR. LAWFORD: So hopefully by then we would have some.
LISTNUM 1 \l 13170 COMMISSIONER LANGFORD: So you have flexibility there in the sense that seven is an ideal at this point but 31 is realistic perhaps.
LISTNUM 1 \l 13171 Do you have sympathy? You must have sympathy for the sort of small business people, the sort of people that the gentleman from New Brunswick was talking about earlier, who are going to have a major kind of learning curve here?
LISTNUM 1 \l 13172 MR. LAWFORD: Do you really think they will?
LISTNUM 1 \l 13173 If you have say ‑‑ I don't know ‑‑ 250 customers, if the list coming from the "do not call" list operator is an XML spreadsheet, how hard is it to cross‑reference 250 numbers?
LISTNUM 1 \l 13174 It doesn't seem like the end of the world difficult to me.
LISTNUM 1 \l 13175 Perhaps there are things that I'm missing. If it is going to be encrypted and you need a special program, who knows. Right?
LISTNUM 1 \l 13176 And do you have to keep track of when people were put on? Maybe it is more difficult than that.
LISTNUM 1 \l 13177 I just think we don't have evidence of whether it's difficult or not difficult. We have statements from people saying that there may or may not be difficulties for small business. But until the list is set up, we don't know.
LISTNUM 1 \l 13178 COMMISSIONER LANGFORD: Thanks for that.
LISTNUM 1 \l 13179 That is my last question.
LISTNUM 1 \l 13180 THE CHAIRPERSON: Thank you, Commissioner Langford.
LISTNUM 1 \l 13181 Counsel? No.
LISTNUM 1 \l 13182 Thank you very much. Again, I thank you for your flexibility with respect to your ‑‑
LISTNUM 1 \l 13183 MR. LAWFORD: Thank you.
LISTNUM 1 \l 13184 LA SECRÉTAIRE: Monsieur le Président, I do have some undertakings for PIAC. Thank you.
LISTNUM 1 \l 13185 THE CHAIRPERSON: We will take a five‑minute break.
LISTNUM 1 \l 13186 I'm told it has been reduced to 30 seconds; sorry.
‑‑‑ Upon recessing at 1158 / Suspension à 1158
‑‑‑ Upon resuming at 1200 / Reprise à 1200
LISTNUM 1 \l 13187 THE CHAIRMAN: Order, please. À l'ordre, s'il vous plaît.
LISTNUM 1 \l 13188 Madame la Secrétaire.
LISTNUM 1 \l 13189 LA SECRÉTAIRE: Merci, monsieur le président. Nous allons maintenant enchaîner avec le Mouvement des Caisses Desjardins. Je demanderais à monsieur Grimard de présenter son groupe.
PRÉSENTATION / PRESENTATION
LISTNUM 1 \l 13190 M. GRIMARD: Alors, bonjour, monsieur le président, bonjour mesdames les Commissaires et monsieur le Commissaire. Alors, je vais laisser mes collègues se présenter eux‑mêmes, si vous êtes d'accord.
LISTNUM 1 \l 13191 MME BOMBARDIER: Sylvie Bombardier pour Desjardins...
LISTNUM 1 \l 13192 LE PRÉSIDENT: On m'informe que la traduction ne fonctionne pas, alors on va attendre, avec votre permission.
LISTNUM 1 \l 13193 M. GRIMARD: D'accord. J'attends votre signal.
LISTNUM 1 \l 13194 LE PRÉSIDENT: Alors, ça va, on marche. Est‑ce qu'on peut recommencer? Je m'excuse, mais paraît‑il que mes collègues n'ont pas eu bénéfice même de la présentation jusqu'à ce moment.
LISTNUM 1 \l 13195 M. GRIMARD: Alors, bonjour, monsieur le président, bonjours mesdames les Commissaires et monsieur le Commissaire. Alors, je me présente; mon nom, c'est Yvan Pierre Grimard. Je suis Conseiller à la vice‑présidence Relations gouvernementales du Mouvement des Caisses Desjardins et si vous êtes d'accord, je vais laisser mes collègues se présenter elles‑mêmes.
LISTNUM 1 \l 13196 MME BOMBARDIER: Sylvie Bombardier pour Desjardins, groupe d'assurances générales.
LISTNUM 1 \l 13197 MME CIMON: Kathie Cimon, Chef de service pour la vice‑présidence service d'Accès au niveau de télécommercialisation.
LISTNUM 1 \l 13198 M. GRIMARD:
LISTNUM 1 \l 13199 M. GRIMARD: Alors, bonjour et merci de nous donner l'occasion de vous faire part du point de vue du Mouvement des Caisses Desjardins dans le cadre des audiences publiques sur l'Avis de Telecom‑CRTC 2006‑4.
LISTNUM 1 \l 13200 Alors, Desjardins Groupe Financier intégré de nature coopérative le plus important au Canada et il est la plus grande institution financière au Québec avec plus de 5.5 millions de membres et un actif global de plus de 118 milliards de dollars.
LISTNUM 1 \l 13201 Il regroupe un réseau de caisses et une vingtaine de sociétés filiales dont plusieurs sont actives à l'échelle du Canada.
LISTNUM 1 \l 13202 Desjardins met à la disposition de ses membres et clients des services conseils et un éventail complet de produits et services financiers.
LISTNUM 1 \l 13203 Pour assurer une qualité de services optimale en télécommercialisation, rien n'est laissé au hasard. Nos ressources humaines sont formées aux meilleures pratiques de l'industrie et bénéficient d'un support constant de la part de leurs supérieurs et de l'organisation. Les taux de satisfaction à l'endroit de nos services avoisinent les 90 pour cent.
LISTNUM 1 \l 13204 À cela s'ajoute une vigilance constante à l'égard du respect des différentes lois et règlement et ce, partout où Desjardins est présent, qu'il s'agisse du réseau des caisses ou des sociétés filiales, chaque entité s'assure d'être conforme aux obligations légales auxquelles elle est assujettie.
LISTNUM 1 \l 13205 Par ailleurs, il importe de souligner que nous avons déjà pris des mesures pour nous préparer à nous conformer aux exigences de la Loi C‑37 et à l'implantation de la liste nationale de numéros exclus.
LISTNUM 1 \l 13206 En ce qui concerne plus directement la Loi C‑37 et l'Avis Public 2006‑4 maintenant, d'entrée de jeu il importe de spécifier que la principale caractéristique de Desjardins est son statut de coopérative de services financiers.
LISTNUM 1 \l 13207 Concrètement, il en découle que notre organisation appartient à ces 5.5 millions de membres qui, au fil du temps et de l'évolution de leurs besoins, se sont donné des services qu'ils ont eux‑mêmes choisis, tels les services de télécommercialisation.
LISTNUM 1 \l 13208 Ainsi, il apparaît essentiel que le Conseil élabore sur sa vision de ce que représente une relation d'affaires existante au sein d'un groupe financier réglementé et ce, notamment lorsque les membres ont donné leur consentement à l'offre de produits et services financiers.
LISTNUM 1 \l 13209 Un autre élément important en lien avec la notion de relation d'affaires existante que le Conseil devra clarifier concerne les questions relatives au consentement. Cette notion a été peu abordée et il serait intéressant de connaître le point de vue du Conseil sur ce qu'il considère comme un consentement et sur les effets d'un tel consentement sur les activités des entreprises assujetties.
LISTNUM 1 \l 13210 L'opinion du Conseil devrait aussi aborder cette question sous l'angle de la possibilité d'invoquer le consentement lors d'une instance traitant d'une violation à la Loi.
LISTNUM 1 \l 13211 Pour illustrer l'importance de cette notion, il est de pratique courante en assurance de dommages notamment de demander à un consommateur l'autorisation de communiquer avec lui peu de temps avant le renouvellement de son contrat d'assurance maison ou automobile afin de lui soumettre un devis.
LISTNUM 1 \l 13212 Dans le contexte de la nouvelle loi, il est probable que le délai de six mois précédant la date de la télécommunication soit insuffisant puisque ce type de contrat couvre toujours au moins une année entière.
LISTNUM 1 \l 13213 Alors, comment interpréter le fait que le client potentiel accepte de donner la date de renouvellement de son assurance? Selon nous, ceci devrait être considéré comme une demande formelle de soumission à laquelle il faut obligatoirement donner suite et ce, même si l'individu s'inscrit sur la liste entre l'appel initial et l'offre de service en bonne et due forme.
LISTNUM 1 \l 13214 C'est dans ce contexte que la notion de consentement prend toute son importance et ce n'est pas en contradiction avec la Loi. En dedans de six mois il n'y a pas de problème, il n'y aurait pas de problème, mais au‑delà, nous aurions besoin que le CRTC reconnaisse le consentement ou alors, nous allons nous mettre dans une situation propice à insatisfaire nos clients.
LISTNUM 1 \l 13215 Toujours en lien avec cette notion, le *référencement+ constitue également une activité importante dans tout le secteur financier. Effectivement, il est possible que dans le cadre d'une offre de service effectuée par téléphone un agent, avec le consentement de la personne bien sûr, réfère le nom de celle‑ci à une autre entité du Groupe financier afin que cette dernière puisse lui faire une proposition sur un produit correspondant à ses besoins.
LISTNUM 1 \l 13216 Comme il s'agit d'une procédure courante et appréciée de nos membres, nous souhaiterions que le Conseil exprime son point de vue sur cette façon de faire.
LISTNUM 1 \l 13217 Selon nous, ce genre d'appel ne devrait pas être considéré comme une communication non sollicitée puisque le destinataire aura préalablement donné son accord pour être référé à une autre entité du Groupe financier.
LISTNUM 1 \l 13218 Vu sous un autre angle, on pourrait dire que le client s'attend à recevoir un appel, donc il ne s'agit pas d'une communication non sollicitée que la Loi cherche à encadrer.
LISTNUM 1 \l 13219 Une autre des pratiques qui caractérisent le secteur de l'assurance concerne le marketing en partenariat. En fait, il arrive que des entreprises comme Desjardins et des associations conviennent de partenariat d'affaires incluant des activités de marketing.
LISTNUM 1 \l 13220 Par exemple, des assureurs, des associations de diplômés pourraient s'associer et dans le cadre de ce partenariat le membre de l'association en question serait éligible à des rabais que l'assureur présente parfois par téléphone. Au moment de l'appel, le destinataire est informé que c'est à titre de membre de l'association X qu'il est sollicité.
LISTNUM 1 \l 13221 Puis il importe aussi de souligner que dans ce genre de partenariat, les associations permettent toujours à leurs membres de ne pas être sollicités. En fait, les associations permettent aux membres de s'exclure de leur liste. Ainsi, nous aimerions obtenir le point de vue du Conseil sur cette pratique.
LISTNUM 1 \l 13222 Dans l'Avis, le Conseil sollicite également des commentaires sur l'établissement d'un délai de grâce au cours duquel les appels destinés à des personnes figurant sur la liste ne constitueraient pas une violation.
LISTNUM 1 \l 13223 Nous croyons nécessaire d'obtenir un tel type de délai et pour ce faire, il serait intéressant de s'inspirer de l'expérience américaine puisque cette dernière semble donner des résultats probants.
LISTNUM 1 \l 13224 Si les États‑Unis présentées par le Conseil comme étant à l'avant‑garde en cette matière ont octroyé un délai de 30 jours, alors il faudrait moduler le délai canadien en fonction des capacités technologiques de la liste. Ainsi, selon ses capacités, le délai de grâce pourrait être plus ou moins long.
LISTNUM 1 \l 13225 En fait, ce qu'il faudrait faire, c'est de trouver l'équilibre entre la capacité technologique de la liste, les capacités techniques des entreprises et l'intérêt des consommateurs également.
LISTNUM 1 \l 13226 En ce qui concerne l'obligation d'identification qui est abordée à l'article 41.7 de la Loi, il s'agit d'un élément important en ce qui nous concerne. Il s'agit d'un élément important, pardon.
LISTNUM 1 \l 13227 Nous croyons que la procédure d'identification devrait être exécutée sur la base du destinataire de l'appel et non sur celle de la première personne qui répond. S'il fallait que ça soit sur la base du premier répondant, il y a des risques que certaines personnes soient privées d'obtenir les services auxquels elle s'attendait. Dans notre secteur d'activités, cela pourrait avoir des conséquences néfastes.
LISTNUM 1 \l 13228 En ce qui concerne l'obligation des télé‑vendeurs de tenir leurs propres listes de numéros exclus, Desjardins estime qu'il faudrait qu'elles soient maintenues.
LISTNUM 1 \l 13229 Si les entreprises exemptées en raison de relation d'affaires existantes doivent le faire pour des raisons de respect du consommateur, la même obligation devrait être prévue pour les télé‑vendeurs puisqu'il est possible qu'un consommateur puisse vouloir recevoir des offres de tous les télé‑vendeurs, tout en ayant la possibilité de rayer le nom de ceux dont il n'est pas satisfait.
LISTNUM 1 \l 13230 Selon nous, cela permettrait d'ajouter de la souplesse et de permettre au consommateur de conserver la liberté de choisir avec qui il souhaite faire des affaires et recevoir des offres.
LISTNUM 1 \l 13231 En ce qui concerne la possibilité de choisir les entreprises à exclure, ce que l'on craint c'est qu'involontairement, un consommateur, en s'inscrivant sur la liste, pourrait se priver de connaître l'existence de produits dont il pourrait vouloir bénéficier.
LISTNUM 1 \l 13232 Pour éviter que des membres et clients de Desjardins ou d'autres organisations se retrouvent privés d'information qu'ils auraient voulu obtenir, le Conseil pourrait prévoir la possibilité pour un individu de s'inscrire sur la liste et de procéder ensuite à ses propres exemptions en fonction de ses besoins.
LISTNUM 1 \l 13233 Concrètement, cela voudrait dire qu'une personne pourrait s'inscrire sur la liste pour ne plus recevoir d'appels non sollicités, sauf lorsqu'il s'agit des produits et services financiers offerts par Desjardins ou d'autres entreprises qu'il aurait lui‑même ciblé.
LISTNUM 1 \l 13234 Il s'agirait encore une fois d'une formule ajoutant de la souplesse et ce, tout en permettant au consommateur de contrôler personnellement les communications qu'il souhaite recevoir.
LISTNUM 1 \l 13235 Dans le cadre des travaux actuels sur l'Avis 2006‑4, certains groupes se sont prononcés en faveur du maintien pour trois ans de l'inscription à la liste. Après cette période, le consommateur devra s'inscrire à nouveau s'il ne souhaite toujours pas recevoir d'appel sollicité. Il serait intéressant d'entendre le Conseil à ce sujet.
LISTNUM 1 \l 13236 En ce qui concerne le télémarketing business to business, le Conseil devrait se pencher sur cette question. Selon notre compréhension, ce type d'activité ne semble pas être révisé. À ce sujet, nous aimerions entendre l'Avis du Conseil.
LISTNUM 1 \l 13237 Nos travaux nous indiquent qu'il n'était pas de l'intention du Législateur d'inclure ce type d'appel.
LISTNUM 1 \l 13238 En terminant, en ce qui concerne les règles qui prévalaient avant 2004, avant la Décision 2004‑35, nous pensons que celle‑ci était suffisante.
LISTNUM 1 \l 13239 Alors, pour conclure, il importe de souligner que dans notre secteur d'activité, le marketing direct représente pour certains segments de clientèle souvent moins bien nantie, le seul moyen par lequel ils ont accès à des renseignements sur des produits et services financiers.
LISTNUM 1 \l 13240 C'est dans ce contexte que les notions de relations d'affaires existantes de consentement et de référencement prennent toute leur importance.
LISTNUM 1 \l 13241 Je vous remercie de votre attention.
LISTNUM 1 \l 13242 LE PRÉSIDENT: Merci beaucoup, monsieur Grimard.
LISTNUM 1 \l 13243 On pourrait commencer peut‑être avec la question de consentement que vous trouvez aussi importante. Je ne sais pas si vous étiez ici hier lors de la comparution de CADRI. Vous étiez là, ce sont vos concurrents d'ailleurs, je pense?
LISTNUM 1 \l 13244 M. GRIMARD: Nous sommes membres de CADRI.
LISTNUM 1 \l 13245 LE PRÉSIDENT: Bon. Alors, à ce moment‑là, on a discuté en quoi consiste un consentement, si j'ai bien compris.
LISTNUM 1 \l 13246 Un consentement pourrait consister à une conversation téléphonique avec un préposé, un de vos préposés qui est enregistré de façon digitale, de telle façon à ce que ça constituait une défense dans le cas où le consommateur oublie ou par la suite s'inscrive et se plaigne.
LISTNUM 1 \l 13247 Deuxièmement; que le consentement pourrait consister à un record de message courriel que vous auriez eu de bonne foi, les bonnes raisons de penser vient réellement de la personne en question, et caetera, qui est conservé, et qui pourrait démontrer ou montrer dans le cas d'une défense par rapport à une plainte.
LISTNUM 1 \l 13248 Et, troisièmement; évidemment la signature du client ou du plaignant sur un document qui, entre autres choses, constitue un consentement à un contact subséquent pour les fins en question.
LISTNUM 1 \l 13249 Est‑ce qu'on a raison que c'est à peu près ça?
LISTNUM 1 \l 13250 M. GRIMARD: C'est à peu près ça. Vous oubliez le consentement oral, si j'ai bien... si j'ai bien compris. Il peut arriver qu'une personne donne son consentement aussi au téléphone pour certains types.
LISTNUM 1 \l 13251 LE PRÉSIDENT: Mais j'avais compris que le record était gardé, la conversation a été enregistrée de façon digitale.
LISTNUM 1 \l 13252 M. GRIMARD: Oui, oui, oui, tout à fait, c'est exact. Excusez‑moi.
LISTNUM 1 \l 13253 LE PRÉSIDENT: Oui. Vient la question suivante : c'est que dans le complexe formulaire qui est rempli par un client potentiel, date X qui devient... fait partie de votre famille et donc, devient un client, il y a quelque part une ligne qui dit : nous pouvons utiliser les renseignements personnels qui vous concernent pour vous présenter d'autres produits et services de temps en temps qu'on juge appropriés pour vous.
LISTNUM 1 \l 13254 C'est la question que ma collègue a abordée avec le groupe précédent : dans quelle mesure est‑ce qu'un tel aspect de la formule, du formulaire est perceptible pour le signataire au moment de la signature? Qu'est‑ce que vous avez actuellement par ailleurs à cet égard?
LISTNUM 1 \l 13255 M. GRIMARD: Ce genre de document signé là, ça se produit toujours de la même façon. C'est lorsqu'un membre d'une Caisse Desjardins se pointe à sa caisse pour s'ouvrir un compte. Alors, à ce moment‑là, il se fait expliquer par la personne qui est devant lui de quoi il est question dans ce formulaire‑là.
LISTNUM 1 \l 13256 Donc, selon nos pratiques, le membre est informé qu'il serait possible qu'il soit sollicité pour obtenir d'autres produits offerts par notre entreprise. Est‑ce que vous voulez ajouter quelque chose?
LISTNUM 1 \l 13257 MME BOMBARDIER: L'autre point que je pourrais ajouter, c'est toute la notion de consentement, que ce soit à travers l'ensemble de nos activités, elles sont toujours régies par la Loi sur la protection des renseignements personnels dans le secteur privé et il y a la Loi fédérale aussi, PEPIDA Act qui a été discuté aussi.
LISTNUM 1 \l 13258 Donc, toute cette façon d'obtenir un consentement, on estime que c'est suffisamment légiféré et qu'il y a des lois pour mettre les balises qui s'imposent pour obtenir les consentements suffisants auprès des consommateurs et on s'engage, nous, à respecter ces lois‑là depuis déjà plusieurs années.
LISTNUM 1 \l 13259 LE PRÉSIDENT: Je pense même que j'ai été responsable alors que j'étais Ministre des communications du Québec, le passage de la Loi sur la protection des renseignements personnels.
LISTNUM 1 \l 13260 Donc, vous avez déjà un régime en place.
LISTNUM 1 \l 13261 MME BOMBARDIER: Tout à fait.
LISTNUM 1 \l 13262 LE PRÉSIDENT: Votre régime permet à l'individu de se soustraire de cet aspect‑là de l'entente. Il peut devenir client sans vouloir être sollicité pour d'autres choses ou par d'autres réseaux, il peut indiquer ça sur le formulaire. Il est donc sur votre liste de numéros de ne pas appeler.
LISTNUM 1 \l 13263 MME BOMBARDIER: Effectivement, ça pourrait être comme ça ou tout dépend des activités.
LISTNUM 1 \l 13264 Il y a d'autres secteurs aussi où est‑ce que l'individu peut appeler puis dire : écoutez, je ne veux plus que vous communiquiez avec moi et, là, chaque entité se tient des listes à l'interne aussi de ne pas appeler.
LISTNUM 1 \l 13265 LE PRÉSIDENT: Alors, dans le fond, ce que vous nous recommanderez dans une telle situation, ce serait de regarder bien les pratiques des compagnies telles vous autres, tels les membres de CADRI ou d'autres compagnies qui endossent et utilisent les meilleures pratiques dans la matière pour être certain que nous permettons à ce que les règlements comprennent et sont réconciliés avec ces pratiques‑là.
LISTNUM 1 \l 13266 MME BOMBARDIER: Tout à fait et que le CRTC reconnaisse qu'il y a déjà des balises de mises en place pour obtenir des consentements jugés raisonnables dans l'industrie pour que ce soit l'information personnelle dont les numéros de téléphone et tout ça, donc, pour obtenir les moyens de communiquer avec le client.
LISTNUM 1 \l 13267 Une fois que ça c'est déjà légiféré et que le CRTC reconnaisse que c'est déjà légiféré et qu'il dise : bon bien, ça va. Quand les consentements sont jugés raisonnables et suffisants en fonction des Lois provinciales et de la Loi fédérale, nous reconnaissons que le consentement est valide et ça pourra être une défense pour l'entreprise qui croit raisonnablement elle a le consentement... elle croit que le consommateur ne sera pas offusqué, mais qu'il s'attend à avoir une telle communication.
LISTNUM 1 \l 13268 Et on croit fortement que lorsque le consommateur s'attend d'avoir des nouvelles d'une entreprise, il va de soi que l'entreprise, pour continuer son bon service, elle devra faire le suivi requis.
LISTNUM 1 \l 13269 Et il va de soi aussi qu'il y a des clients qui pourraient se mettre sur la do not call list et, par la suite, faire affaires avec une entreprise hormis le fait qu'ils se sont déjà mis sur la do not call list, ce qui ne changera rien au fait qu'ils s'attendent d'avoir des communications de cette nouvelle entreprise‑là.
LISTNUM 1 \l 13270 M. GRIMARD: En fait, monsieur le président, il ne faut pas que les effets de la Loi fassent en sorte qu'un membre Desjardins ou un client Desjardins qui ait... qui veut obtenir des services de notre part soit pénalisé.
LISTNUM 1 \l 13271 LE PRÉSIDENT: C'est très peu probable que lui serait pénalisé; c'est plutôt la question si vous seriez pénalisé si, entre‑temps, ils se mettent sur une liste nationale et il se plaint après, suite à l'appel de votre part.
LISTNUM 1 \l 13272 N'êtes‑vous pas dans le fond en train de nous dire : une défense devrait consister... un consentement légitime devrait constituer une défense face à une plainte d'un de vos clients que lui‑même a oublié qu'il vous a déjà donné son consentement et parce qu'entre‑temps, il s'est mis sur la liste nationale?
LISTNUM 1 \l 13273 M. GRIMARD: Tout à fait.
LISTNUM 1 \l 13274 MME BOMBARDIER: Tout à fait.
LISTNUM 1 \l 13275 LE PRÉSIDENT: Oui. Écoutez, il me semble que vous avez un problème avec la question des délais qui sont un peu moindres que certaines autres compagnies, avec vos consoeurs, des banques?
LISTNUM 1 \l 13276 Vous avez... le client a toujours dans la mesure où son argent reste avec vous, il a toujours une relation d'affaires avec vous.
LISTNUM 1 \l 13277 Alors, à moins que vous fassiez beaucoup d'assurance aux clients qui n'ont pas de compte avec vous autres, à moins que vous fassiez beaucoup d'autres activités de gestion de portefeuille, je ne sais pas si vous faites encore ça?
LISTNUM 1 \l 13278 M. GRIMARD: Hum‑hum! Oui, bien sûr.
LISTNUM 1 \l 13279 LE PRÉSIDENT: Bon. Avec les gens qui n'ont pas de compte de coopérative, de caisse pop. avec vous, vous n'avez pas de problème parce que le client est par définition, il a toujours une relation d'affaires avec vous jusqu'à aussi longtemps que le compte existe.
LISTNUM 1 \l 13280 MME BOMBARDIER: L'exemple qu'on a donné aussi et que Yvan‑Pierre a soulevé et qui a probablement été soulevé dans CADRI aussi ‑‑ je n'étais pas là ‑‑ c'est dans le cas où un client qui n'est pas nécessairement membre d'une caisse et tout ça voudrait avoir une assurance, il nous fait une demande : pouvez‑vous communiquer avec moi pour me faire un prix lors de mon renouvellement?
LISTNUM 1 \l 13281 Les renouvellements se font aux années, donc parfait ça va dépasser six mois. Donc, c'est le problème qu'on vit, mais qui est assez important dans le cadre des activités d'assurance.
LISTNUM 1 \l 13282 On considère, encore une fois, que le client, il s'attend à ce qu'on communique avec lui et c'est un consentement.
LISTNUM 1 \l 13283 Il est possible que ce client‑là ait déjà... se sont mis sur une liste do not call list, pour ne pas recevoir d'autres communications non sollicités, mais nous considérons que suite à son autorisation ou à sa demande à ce qu'on lui fasse un prix l'année prochaine, nous considérons que c'est un consentement, que le client va s'attendre à ce qu'on communique avec lui et on ne voudrait pas que ce soit vu comme une entrave.
LISTNUM 1 \l 13284 On veut que nos pratiques soient... dans le fond que le CRTC clarifie la situation afin qu'on dise : bon, bien, écoutez, c'est clair, il n'y a pas d'entrave à ce moment‑là.
LISTNUM 1 \l 13285 LE PRÉSIDENT: Je pense que dans une telle clarification, on hésiterait beaucoup à faire référence aux lois provinciales ou d'autres lois fédérales d'application générale.
LISTNUM 1 \l 13286 On serait plutôt susceptibles, je pense, d'énumérer quelques cas de consentement sans limitation du genre que je vous ai fait au début puis avec lequel vous êtes d'accord et s'il y en a d'autres suggestions, on pourrait les ajouter et de dire, donc, une légitime défense pourrait constituer un consentement du genre tatata!, essentiellement indiquant que, à un moment donné, de bonne foi, l'institution a reçu d'un consommateur averti, une invitation ou une permission qui pourrait subséquemment être évoquée par l'institution en question, lors d'une plainte de ce consommateur‑là qui aurait oublié ou qui, bon...
LISTNUM 1 \l 13287 C'est essentiellement ça que vous cherchez, essentiellement ça qui est possible pour nous autres?
LISTNUM 1 \l 13288 MME BOMBARDIER: Effectivement.
LISTNUM 1 \l 13289 M. GRIMARD: C'est exactement ça, monsieur le président.
LISTNUM 1 \l 13290 LE PRÉSIDENT: Pour ce qui est des associations, du marketing au partenariat, est‑ce que vous êtes en train de nous dire un membre d'une association qui est simultanément... qui s'est simultanément inscrit sur la liste nationale, ne pourrait pas se plaindre et avoir sa plainte reçue et appuyée parce qu'il est membre d'une association qui a fait un partenariat avec les Caisses pop ou une autre entreprise de vente par télémarketing?
LISTNUM 1 \l 13291 M. GRIMARD: C'est ce qu'on vous dit.
LISTNUM 1 \l 13292 LE PRÉSIDENT: So, un membership dans l'association efface en quelque sorte, en ce qui a trait au partenariat de marketing de cette association, son inscription à la liste nationale?
LISTNUM 1 \l 13293 MME BOMBARDIER: Si je peux me permettre une précision, ce qui va arriver dans un contexte de partenariat de marketing, souvent un membre d'une association, son association peut communiquer avec lui et lui demander : est‑ce que vous acceptez... est‑ce que vous consentez à ce qu'on transfère vos coordonnées à un assureur, par exemple, qui pourra communiquer avec lui pour vous faire part des bonnes offres, compte tenu du fait que vous faites partie...
LISTNUM 1 \l 13294 LE PRÉSIDENT: Que vous êtes membre de l'association?
LISTNUM 1 \l 13295 MME BOMBARDIER: Effectivement. Donc, la personne consent, effectivement, oui, je suis d'accord; ou si vous ne voulez pas, écoutez, faites‑nous le savoir, on vous met sur des listes et tout ça.
LISTNUM 1 \l 13296 Donc l'entreprise qui reçoit une liste de numéros de téléphones qui est déjà épurée des membres qui ont dit : non, je ne veux pas être sollicité par l'assureur même s'il va m'offrir des bons prix parce que je suis membre de votre association, je ne veux pas.
LISTNUM 1 \l 13297 Sauf que si la personne... si on a une liste des gens qu'on peut s'attendre... qui s'attendent à obtenir des communications de l'assureur, l'assureur va communiquer avec eux au titre du fait qu'ils sont membres de l'Association et qu'ils ont déjà été informés.
LISTNUM 1 \l 13298 Donc, les gens s'attendent... les membres de l'association sont informés que dans les prochains mois ils seront... ils auront des communications par l'assureur pour leur faire part des offres, donc, là, ils seront au courant et pourront accepter ou refuser.
LISTNUM 1 \l 13299 Au départ, ces gens‑là ont toujours la possibilité de consentir, donc d'où l'importance de reconnaître le consentement. À cet effet‑là, il n'y a pas une relation directe entre l'assureur et le membre de l'association, mais il y a une forme de consentement.
LISTNUM 1 \l 13300 Le client s'attend à recevoir de l'information par un assureur qui va communiquer avec lui. La communication n'est pas non sollicitée. Il pourrait arriver qu'une personne, membre d'une association, accepte et veut recevoir les prix de l'assureur parce qu'il entend parler partout ses pairs que c'est effectivement des très bons prix, il est intéressé.
LISTNUM 1 \l 13301 Sauf qu'il est possible que cette personne‑là se soit mise sur la liste de téléphone nationale exclus parce qu'il ne veut pas recevoir d'autres communications non sollicitées.
LISTNUM 1 \l 13302 LE PRÉSIDENT: Alors, ce que vous nous demandez, c'est de se prononcer sur la question suivante : est‑ce que nous sommes obligés, nous, Desjardins, nous sommes obligés de tamiser notre liste par rapport à la liste nationale dans le cas où une association qui a déjà eu des consentements spécifiques à cet égard fasse de nous un partenariat de marketing par lequel on voudrait solliciter l'ensemble, la totalité de leurs membres.
LISTNUM 1 \l 13303 MME BOMBARDIER: Tout à fait. Nous, ce qu'on dit, c'est qu'on fait déjà une première épuration, on considère que ces gens‑là s'attendent à ce qu'on communique avec eux. Donc, compte tenu qu'on a ce consentement‑là, on ne voudrais pas avoir à re‑vérifier auprès de la do not call list puis ça pourrait causer des problèmes du fait que quand une personne dit : oui, je veux avoir... je consens à ce que vous transfériez mes coordonnées pour recevoir la promotion de l'assureur, à cause qu'il est sur la do not call list, nous on ne l'appelle pas.
LISTNUM 1 \l 13304 Donc, il y a comme un vide ou un problème où est‑ce qu'on se dit : bon, qu'est‑ce qu'on fait? Il s'attend à ce qu'on l'appelle, il est sur la do not call list, en principe, by the book, on ne peut pas l'appeler, mais il s'attend à ce qu'on l'appelle.
LISTNUM 1 \l 13305 M. GRIMARD: Et puis aussi, il faut ajouter à ça qu'il y a certains membres d'associations qui sont membres des associations justement parce qu'ils savent qu'ils peuvent bénéficier de certains rabais sur certains produits.
LISTNUM 1 \l 13306 LE PRÉSIDENT: Alors, dans le fond, la question est assez précise : est‑ce que par une entente de mise en marché en partenariat, une association pourrait transférer le consentement à une compagnie de marketing de vente comme... ou une coopérative de vente comme vous autres?
LISTNUM 1 \l 13307 MME BOMBARDIER: Tout à fait. L'important, c'est d'obtenir un consentement pour que le consommateur, lui, ait l'occasion de consentir.
LISTNUM 1 \l 13308 LE PRÉSIDENT: Je répète, c'est : est‑ce que le consentement que le consommateur a donné à son association enlève la nécessité de mettre en application la liste nationale à un partenariat dûment constitué entre l'association originale et la Caisse pop.?
LISTNUM 1 \l 13309 M. GRIMARD: C'est bien ça.
LISTNUM 1 \l 13310 LE PRÉSIDENT: Bon, c'est clair, en tout cas, ce qui est devant nous et puis je vous remercie de votre aide.
LISTNUM 1 \l 13311 Je ne suis pas sûr que j'ai compris la question de l'obligation d'identification. Pourriez‑vous passer à travers ça parce que ça a passé vite puis je suis loin d'être certain que j'ai compris.
LISTNUM 1 \l 13312 M. GRIMARD: Je vous réfère à l'article... l'article 41.73 de la Loi dit que :
* Une entreprise exemptée lorsqu'elle appelle en vertu de son exemption une personne inscrite à la do not call list doit se présenter et dire pourquoi la communication est effectuée. +
LISTNUM 1 \l 13313 Alors, nous, ce qu'on demande, c'est que cette obligation d'identification‑là soit mentionnée au destinataire de l'appel, c'est‑à‑dire que vous, par exemple, si Desjardins...
LISTNUM 1 \l 13314 LE PRÉSIDENT: Je comprends. Alors, supposons que je suis le premier répondant, mais je ne suis pas la personne, c'est à ma femme que vous voulez vraiment parler?
LISTNUM 1 \l 13315 M. GRIMARD: Oui.
LISTNUM 1 \l 13316 LE PRÉSIDENT: Alors, quelle est l'implication? Vous n'êtes pas obligé de vous identifier à moi?
LISTNUM 1 \l 13317 M. GRIMARD: L'implication, c'est que je puisse pouvoir appeler puis dire : est‑ce que je pourrais parler à votre femme?
LISTNUM 1 \l 13318 LE PRÉSIDENT: Oui.
LISTNUM 1 \l 13319 M. GRIMARD: Et lorsque votre femme prend le téléphone, je lui dirais : bonjour, je suis Yvan‑Pierre Grimard de chez Desjardins, je vous appelle pour vous offrir le produit...
LISTNUM 1 \l 13320 LE PRÉSIDENT: Non, mais monsieur Grimard, ça, ça va jusque là, pourvu que le premier répondant dise, d'accord, je vais appeler ma femme.
LISTNUM 1 \l 13321 M. GRIMARD: Bien sûr, bien sûr.
LISTNUM 1 \l 13322 LE PRÉSIDENT: Le problème surgit lorsque le premier répondant qui n'est pas la cible de votre effort de marketing dit : qui êtes‑vous puis qui est‑ce que je peux dire appelle.
LISTNUM 1 \l 13323 M. GRIMARD: Tout à fait puis, on portait cet aspect‑là à votre attention parce que dans la décision 2004‑35, il était question en quelque part que dès que quelqu'un répondait au téléphone, il fallait enclencher un processus de présentation puis d'explication de la nature de l'appel.
LISTNUM 1 \l 13324 Alors, on voulait seulement vous préciser qu'il faudrait que... qu'on est d'accord pour se soumettre à cette procédure‑là, mais au destinataire de l'appel, pas à la première personne qui répond au téléphone.
LISTNUM 1 \l 13325 LE PRÉSIDENT: Donc, vous voulez qu'on sanctionne votre refus de vous identifier au premier répondant? Non?
LISTNUM 1 \l 13326 M. GRIMARD: Non. En fait, si j'appelle chez vous et que je veux parler à votre femme, c'est un bon exemple, ça, et que vous répondez, je voudrais que le CRTC nous confirme que l'obligation de dire bonjour, je suis Desjardins, blablabla!...
LISTNUM 1 \l 13327 LE PRÉSIDENT: Vous ne voulez pas engendrer...
LISTNUM 1 \l 13328 M. GRIMARD: ... que je le fasse à votre épouse et non à vous lorsque vous allez prendre le téléphone puisque c'est à votre épouse que je veux offrir mon produit.
LISTNUM 1 \l 13329 LE PRÉSIDENT: Vous ne voulez pas enclencher le script formel, total, qu'à la personne que vous cherchez?
LISTNUM 1 \l 13330 M. GRIMARD: C'est ça. On veut faire... on veut faire notre laïus à la personne à qui on veut parler.
LISTNUM 1 \l 13331 LE PRÉSIDENT: Je comprends. Par contre, ce n'est pas là où j'en suis. Quelle est votre obligation envers le premier répondant? Comment est‑ce que vous gérez ça? Qu'est‑ce que vous allez dire à vos préposés?
LISTNUM 1 \l 13332 M. GRIMARD: On va dire : bonjour, est‑ce que je pourrais parler à monsieur...
LISTNUM 1 \l 13333 LE PRÉSIDENT: Oui, je sais que vous allez dire ça d'abord. Ce n'est pas ça la question. Quand la personne répond puis dit : mais qui appelle? Pourquoi voulez‑vous lui parler, qu'est‑ce que vous dites? Qu'est‑ce que vous voulez qu'on vous conseille de dire?
LISTNUM 1 \l 13334 M. GRIMARD: Bien, nous allons nous soumettre à ce que l'article de Loi dit. L'article de Loi dit qu'il faut se présenter, dire quel est l'objet de notre appel.
LISTNUM 1 \l 13335 MME CIMON: Monsieur le président, si je peux me permettre. Je suis en charge d'un des centres d'appels sortant et puis en ce moment, on se présente immédiatement, que ça soit la personne, monsieur French ou madame French qui répond.
LISTNUM 1 \l 13336 Toutefois, par le passé, on ne le faisait pas. On demandait : bonjour, pourrais‑je parler avec madame French puis si monsieur French était au téléphone et nous demandait : qui êtes‑vous? On s'identifiait automatiquement : bonjour, mon nom est Kathie Cimon de Desjardins.
LISTNUM 1 \l 13337 Alors, on n'avait pas... on ne s'empêchait pas de le donner parce que, de toute façon, on ne voulait pas qu'il y ait de mauvaise communication avec la personne, que ça soit la personne destinée à l'appel ou non, mais on le fait déjà.
LISTNUM 1 \l 13338 LE PRÉSIDENT: En tout cas, sache qu'on n'a pas l'intention... sachez, qu'on n'a pas l'intention de compliquer votre vie indûment ça, c'est sûr. On n'a pas l'intention non plus de sanctionner une espèce d'approche qui dit que je ne m'identifie pas, sauf qu'à madame French parce que je ne pense pas que ça... ce n'est pas dans votre intérêt, ça, et certainement pas dans le nôtre.
LISTNUM 1 \l 13339 Alors, on va essayer de trouver un moyen à la lumière des questions pratiques que vous soulevez, que je comprends comme étant il y a une série d'exigences assez serrées et on ne veut pas les enclencher dans leur totalité, à la première personne, à moins que cette première personne est la cible de notre effort de marketing.
LISTNUM 1 \l 13340 M. GRIMARD: Exactement.
LISTNUM 1 \l 13341 LE PRÉSIDENT: Bon. Je vous remercie.
LISTNUM 1 \l 13342 M. GRIMARD: Puis on va le faire comme ma collègue vient de vous mentionner, on le fait, on ne se cache pas. On ne se cache pas, mais on voulait juste clarifier.
LISTNUM 1 \l 13343 LE PRÉSIDENT: Non. Je le savais, mais je voulais juste voir exactement quel était le problème.
LISTNUM 1 \l 13344 Dans le fond, vous êtes en train peut‑être de nous dire que l'exigence telle qu'elle est actuellement, qui est suspendue là, est assez élaborée et peut‑être trop élaborée?
LISTNUM 1 \l 13345 M. GRIMARD: Dans 2004‑35, c'était effectivement trop élaboré.
LISTNUM 1 \l 13346 LE PRÉSIDENT: C'était mon impression.
LISTNUM 1 \l 13347 M. GRIMARD: On est plus à l'aise avec ce qui se trouve dans C‑37 là.
LISTNUM 1 \l 13348 LE PRÉSIDENT: O.k. Oui, mais on a le pouvoir d'ajouter d'autres choses là, vous savez.
LISTNUM 1 \l 13349 M. GRIMARD: Je sais.
LISTNUM 1 \l 13350 LE PRÉSIDENT: D'accord. Alors, je retiens qu'on soit raisonnable dans nos exigences.
LISTNUM 1 \l 13351 M. GRIMARD: Exactement.
LISTNUM 1 \l 13352 LE PRÉSIDENT: Merci. Ah! oui, l'exclusion des entreprises de la liste nationale.
LISTNUM 1 \l 13353 En principe, on ne peut pas s'objecter, mais en pratique, comment voulez‑vous qu'on fasse ça? Il y a tellement d'exceptions possible, on vient de doubler ou tripler la taille de notre record pour chaque individu.
LISTNUM 1 \l 13354 M. GRIMARD: Bien, nous, notre point, monsieur le président, c'est que pour avoir suivi les travaux du Sénat et de la Chambre, c'est que l'intention du Législateur était réellement de limiter l'intrusion dans les foyers des individus.
LISTNUM 1 \l 13355 Alors, il n'était pas question de limiter le télémarketing entre entreprises et on pense que ça ne serait pas nécessaire. On pense que ce n'est pas nécessaire d'inclure ça puisqu'on...
LISTNUM 1 \l 13356 LE PRÉSIDENT: Excusez‑moi; on n'est pas sur la même longueur d'onde là. Vous parlez de B. to B. là?
LISTNUM 1 \l 13357 M. GRIMARD: Oui.
LISTNUM 1 \l 13358 LE PRÉSIDENT: Non, ce n'est pas ça que j'évoque. J'évoque que le client peut s'inscrire au registre national, mais il peut dire, par contre, quand la Caisse pop. m'appelle c'est O.k. Est‑ce que vous n'avez pas demandé ça ou vous avez demandé ça d'après moi?
LISTNUM 1 \l 13359 M. GRIMARD: Oui, oui, nous avons demandé ça.
LISTNUM 1 \l 13360 LE PRÉSIDENT: Alors, philosophiquement, mettons d'accord que ce serait idéal.
LISTNUM 1 \l 13361 M. GRIMARD: Oui.
LISTNUM 1 \l 13362 LE PRÉSIDENT: Il n'y a pas de question de principe là‑dedans. C'est strictement une question problématique comment est‑ce qu'on va réussir à * manager + ça pour un potentiel de 12 millions de numéros de téléphone et deux millions à trois millions de business.
LISTNUM 1 \l 13363 M. GRIMARD: Écoutez; c'est vrai que ça peut être compliqué. Par contre, l'informatique est capable de réaliser de grandes choses.
LISTNUM 1 \l 13364 On est membre du sous‑comité du CDCI sur l'exploitation de cette liste‑là et puis c'est une chose qu'on suit de près puis on pense que ce serait vraiment... ce serait idéal de procéder comme ça pour que le consommateur soit, comme je l'ai mentionné, soit maître des communications qui rentrent chez lui.
LISTNUM 1 \l 13365 Je comprends qu'au niveau technique ça peut poser certains défis, mais c'est peut‑être pas insurmontable, mais si c'est faisable, bien on souhaiterait que le Conseil donne son consentement à ce que ça soit... ça soit réalisé par l'exploitant de la liste.
LISTNUM 1 \l 13366 LE PRÉSIDENT: Bien alors, mettons d'accord pour le fait que c'est un défi technique...
LISTNUM 1 \l 13367 M. GRIMARD: Oui, j'en conviens.
LISTNUM 1 \l 13368 LE PRÉSIDENT: ... avec lequel au point de vue de principe et de philosophie il est difficile de s'objecter, mais sur le plan pratique, il pourrait surgir un certain nombre de problèmes.
LISTNUM 1 \l 13369 Sur le B. to B., je ne sais pas si vous avez d'autre chose à dire. Je ne pense pas qu'on a déjà assez discuté ça. La seule phrase dans votre présentation qui me fait arrêter un peu :
* Nos travaux nous indiquent que ce n'était pas l'intention du Législateur d'inclure ce type d'appel. +
LISTNUM 1 \l 13370 Mais c'est vrai qu'il y a deux sénateurs qui ont dit qu'ils n'étaient pas d'accord, mais de là à dire que tous les parlementaires n'ont pas voulu couvrir notre business c'est un peu un stretch, à moins que vous ayez d'autres renseignements que je n'ai pas?
LISTNUM 1 \l 13371 M. GRIMARD: Bien, écoutez, moi, j'ai beaucoup suivi les travaux autant du Sénat que les travaux de la Chambre des Communes et puis ce n'est pas une préoccupation qui est ressortie de la part ni des sénateurs ni des députés de la Chambre.
LISTNUM 1 \l 13372 Ce que j'ai toujours compris puis ce qui me semblait assez clair à la lumière des travaux que j'ai pu faire là‑dessus, c'est que le Législateur, c'est le consommateur chez lui qu'il veut protéger. Ce n'est pas l'entrepreneur au bureau le mardi après‑midi.
C'est vraiment notre perception de la situation.
LISTNUM 1 \l 13373 LE PRÉSIDENT: Oui et je ne la contesterai pas, mais sauf que vous demandez un peu plus que ça. Vous nous demandez à ce que... à dire à l'entrepreneur le mardi après‑midi, non, vous n'avez pas le droit même si vous voulez, de vous inscrire.
LISTNUM 1 \l 13374 M. GRIMARD: Bien, écoutez, j'ai compris hier que vous aviez des préoccupations et puis vous vous demandez comment est‑ce qu'on va faire pour faire ça.
LISTNUM 1 \l 13375 Ce qui pourrait être une solution, ce serait que le Conseil édicte que lorsque le télé‑vendeur est capable de démontrer qu'il y a eu une plainte sur un numéro d'entreprise, bien que la plainte soit rejetée et ne puisse pas être entendue.
LISTNUM 1 \l 13376 LE PRÉSIDENT: O.k. Je ne pense pas que j'aie d'autres questions. Je ne sais pas si mes collègues ont des questions?
LISTNUM 1 \l 13377 Commissioner Cram.
LISTNUM 1 \l 13378 COMMISSIONER CRAM: Merci. Vous savez qu'il y aura peut‑être les problèmes avec l'écoute du DNCL, the do not call list, parce qu'il n'y a pas beaucoup de telemarketers au Canada.
LISTNUM 1 \l 13379 Vous avez dit ici que la liste, l'inscription pour les consommateurs doit finir après trois ans, mais il y aura les... ça va augmenter les coûts peut‑être trop pour la comptabilité de la liste.
LISTNUM 1 \l 13380 Est‑ce que les coûts, s'ils sont trop élevés, est‑ce que ça va changer vos idées des trois ans parce que ça va vous coûter plus?
LISTNUM 1 \l 13381 M. GRIMARD: Effectivement, c'est probable que ça nous coûte plus cher. Par contre, l'esprit de notre demande, c'est qu'on a... on a l'impression que les lois, les règlements actuels conjugués à la mise en place de la liste vont faire en sorte de réconcilier les consommateurs avec la pratique du télémarketing.
LISTNUM 1 \l 13382 On pense que dans trois ans, si les résultats sont positifs, si, effectivement, les intrusions ont été limitées, mieux encadrées, on pense qu'après trois ans il y a un bon nombre de personnes qui décideraient de ne pas se réinscrire sur la liste puis ça, ça nous apparaît important dans la mesure où on a lu dans les documents préparés par Canadian Marketing Association que le télémarketing, c'est plus de 200 000 emplois et c'est autour de 15 milliards de chiffres d'affaires au Canada. Donc, c'est dans cet esprit‑là qu'on fait la recommandation.
LISTNUM 1 \l 13383 COMMISSIONER CRAM: Puis ça vaut le coût, peu importe combien?
LISTNUM 1 \l 13384 M. GRIMARD: Non, quand même, pas à n'importe quel prix. C'est certain qu'on ne pourrait pas faire ça à n'importe quel prix, mais on pense que l'idée est bonne, l'idée mérite d'être analysée et puis, bien sûr, comme je le mentionnais tout à l'heure, on travaille sur le sous‑comité du CDCI sur l'exploitation, on devrait être en mesure d'avoir une meilleure idée de ce que ça pourrait représenter comme coût au fil des ans puis on pourrait... on vous reviendrait là‑dessus.
LISTNUM 1 \l 13385 Mais l'esprit, c'est qu'on pense que la liste, les règlements vont réconcilier le consommateur avec le télémarketing puis qu'en bout de piste ça va être bon pour tout le monde.
LISTNUM 1 \l 13386 COMMISSIONER CRAM: Merci.
LISTNUM 1 \l 13387 THE CHAIRMAN: Counsel.
LISTNUM 1 \l 13388 M. MILLINGTON: Merci, monsieur le président. J'aurais une petite question.
LISTNUM 1 \l 13389 Monsieur Grimard, pouvez‑vous nous fournir des documents que vous auriez utilisés pour obtenir le consentement de vos clients? J'imagine qu'il y a plusieurs types de documents qui sont utilisés?
LISTNUM 1 \l 13390 M. GRIMARD: Nous allons vous fournir les documents utilisés dans les Caisses et nous allons vous expliciter les autres façons dont nous obtenons le consentement de nos membres et clients, certainement.
LISTNUM 1 \l 13391 M. MILLINGTON: O.k. Parfait. Merci.
LISTNUM 1 \l 13392 LE PRÉSIDENT: Madame la Secrétaire a des demandes à faire? Non? Pas d'undertaking? Non.
LISTNUM 1 \l 13393 Alors, monsieur Grimard, madame Cimon, maître Bombardier, merci beaucoup. Vous avez été fort utiles et votre présence est très appréciée.
LISTNUM 1 \l 13394 Nous allons prendre une pause pour le lunch.
LISTNUM 1 \l 13395 We'll see one other again after lunch at two o'clock sharp, please.
LISTNUM 1 \l 13396 LA SECRÉTAIRE: Monsieur le président?
LISTNUM 1 \l 13397 LE PRÉSIDENT: Madame la Secrétaire; excusez‑moi.
LISTNUM 1 \l 13398 THE SECRETARY: Canadian Life and Health Insurance agreed to change its place in the order of appearance in order to accommodate RESP Dealers Association of Canada and Investment Dealers Association of Canada. So, thank you very much, Mr. Goldthorpe.
LISTNUM 1 \l 13399 LE PRÉSIDENT: Merci. À 2 h 00. Thank you; at two o'clock.
‑‑‑ Upon recessing at 1242 / Suspension à 1242
‑‑‑ Upon resuming at 1400 / Reprise à 1400
LISTNUM 1 \l 13400 THE CHAIRPERSON: Order, please. À l'ordre, s'il vous plaît. Welcome.
LISTNUM 1 \l 13401 Madame la Secrétaire.
LISTNUM 1 \l 13402 LA SECRÉTAIRE: Merci, monsieur le Président.
LISTNUM 1 \l 13403 Nous allons commencer avec RESP Dealers Association of Canada, Ms Robin Morrissey.
PRESENTATION / PRÉSENTATION
LISTNUM 1 \l 13404 MS MORRISSEY: Thank you.
LISTNUM 1 \l 13405 My name is Robin Morrissey. I am the Director of ‑‑
LISTNUM 1 \l 13406 THE CHAIRPERSON: You must press the button.
LISTNUM 1 \l 13407 MS MORRISSEY: Thank you very much. There we go. I can hear me now.
LISTNUM 1 \l 13408 Once again, my name is Robin Morrissey. I am the Director of Corporate Affairs for USC Education Savings Plans Inc., and I am here representing the RESP Dealers Association of Canada.
LISTNUM 1 \l 13409 The following comments are submitted on behalf of the Association in response to your notice.
LISTNUM 1 \l 13410 The RESP Dealers Association represents four of Canada's established registered education savings plans providers, and we do appreciate this opportunity to consult with you today.
LISTNUM 1 \l 13411 The members of our Association which have participated in the development of this submission include CST Consultants Inc., Children's Education Funds Inc., Heritage Education Funds Inc. and USC Education Savings Plans Inc.
LISTNUM 1 \l 13412 RESP members obtain telephone numbers of prospective purchasers by means of various lead generation programs. The vast majority of these programs include a specific opt‑in consent.
LISTNUM 1 \l 13413 I would like to be specific here that this is an explicit opt‑in, not an implicit one. They do have to specifically tick a box that says "please have someone contact me".
LISTNUM 1 \l 13414 Others, most notably referrals from family members and friends, do not involve a specific opt‑in request from the individual and could be considered as unsolicited telecommunications, which is why we are here.
LISTNUM 1 \l 13415 We understand the intent of the legislation is to permit the CRTC to administer a national "do not call" list to regulate or prohibit unsolicited telecommunications. For the purposes of our comments with respect to this list, we include under the term "unsolicited telecommunications" only those communications that are done by telephone.
LISTNUM 1 \l 13416 While the RESP Dealers Association is quite supportive of the intent of the "do not call" list, it wishes to ensure that the operation of the list is properly established to permit member firms to simply and cost‑effectively comply with the rules and that the rules pursuant to which the list operates are clear and unambiguous.
LISTNUM 1 \l 13417 With respect to timely compliance of the regulations, it is the view of the RESP Dealers Association that the most effective process to ensure timely compliance with the requirements of your DNCL rules is to have the DNCL operator make the list available to users, both persons and organizations, to enable them to determine whether an individual may be contacted or not, and this as opposed to an alternate which was put forth where we would submit lists to the operator who would scrub them and then return it back to us.
LISTNUM 1 \l 13418 It is our opinion that the only information from the DNCL that need be made available to persons or companies accessing the list is the telephone number.
LISTNUM 1 \l 13419 RESP Dealer Association member firms distribute information to numerous individuals within our respective organizations across Canada. We have a distribution structure that involves a few levels.
LISTNUM 1 \l 13420 From our head offices information is sent to our branch offices across Canada. From there there are sales representatives that operate out of that branch office, that may be remote from that branch office as well, that need to have this list in their hands. And in fact those people may indeed have appointment makers or telemarketers who will need to have that list as well.
LISTNUM 1 \l 13421 So there is a few people that it needs to get to from our respective head offices and across Canada, in all provinces and all areas and territories.
LISTNUM 1 \l 13422 These individuals may in turn send it to other people operating on their behalf.
LISTNUM 1 \l 13423 Given this, the RESP Dealers Association is recommending a 60‑day grace period be applied from the date that the individual registers to be included on the list, during which calls to the individual would not be deemed to be in violation.
LISTNUM 1 \l 13424 This would ensure that there is sufficient time to allow the list to be disseminated to all levels of the organization in all regions of the country.
LISTNUM 1 \l 13425 We would further like to recommend that should an individual on the list cease to have a particular telephone number assigned to them that this number be removed from the list. Since the individual no longer owns or perhaps rents the number from the telephone company, they shouldn't be issuing instructions with respect to it.
LISTNUM 1 \l 13426 Following from this recommendation, if an individual who is on the list moves or otherwise changes their telephone number, should they call to register to put their new number on, the old number should be automatically removed from the list as well, because it is not assigned to them any longer.
LISTNUM 1 \l 13427 RESP Dealers Association is of the view that it is reasonable to require all telemarketers to continue to maintain their own "do not call" lists and companies to continue to maintain their "do not call" lists following the establishment of a national "do not call" list.
LISTNUM 1 \l 13428 This is reflective of the fact that some consumers may not want to be on a national list but would like to prevent contact from specific organizations if they have made that request to that specific organization.
LISTNUM 1 \l 13429 The RESP Dealers Association is of the view that it is reasonable to charge a fee to those firms that make use of the list. However, we are concerned that the fee be structured to reflect both the scale of the organization and the actual usage of the organization or the individual.
LISTNUM 1 \l 13430 We note that an exemption exists for existing business relationships, which includes a relationship formed by a voluntary two‑way communication between the person making the telecommunication and the person to whom that telecommunication is being raised.
LISTNUM 1 \l 13431 We would like to see some clarity around the extent of the existing business relationship. It is our view that an individual who has provided express consent to be contacted through an opt‑in method within the past six months should be deemed to fall within an existing business relationship.
LISTNUM 1 \l 13432 We are supportive of the creation of a compliance continuum whereby organizations will need to display a pattern of contravening the DNCL rules before being subject to a full investigation. This will the CRTC to focus investigations on those firms who have demonstrated a pattern of non‑compliance with the rules as opposed to investigating every single incident that occurs.
LISTNUM 1 \l 13433 These are the comments from the RESP Dealers Association at this point in time. As further details on the DNCL rules are established, we would like to perhaps make further comments at that time.
LISTNUM 1 \l 13434 Again, thank you very much for the opportunity to submit.
LISTNUM 1 \l 13435 THE CHAIRPERSON: Thank you, Ms Morrissey. Admirably concise and clear.
LISTNUM 1 \l 13436 Commissioner Duncan.
LISTNUM 1 \l 13437 COMMISSIONER DUNCAN: Good afternoon.
LISTNUM 1 \l 13438 MS MORRISSEY: Good afternoon.
LISTNUM 1 \l 13439 COMMISSIONER DUNCAN: With respect to the referrals by family, friends and acquaintances, because we have had a lot of discussion around that issue over these two days, I am wondering if it can't be ‑‑ we have obviously a reluctance to amend what Parliament has given us with respect to the exemptions.
LISTNUM 1 \l 13440 I am wondering how you think that might work if we were to just apply it in the rules, the guidelines.
LISTNUM 1 \l 13441 MS MORRISSEY: The current guidelines, from our read, do not exempt referrals, regardless if it is a family member. Distinct from calling a family member, when you refer a third person, is what I am specifically speaking of.
LISTNUM 1 \l 13442 It is not our opinion that it should be exempted.
LISTNUM 1 \l 13443 Is that your question?
LISTNUM 1 \l 13444 COMMISSIONER DUNCAN: I'm just concerned. I thought you wanted to have exempt family members, friends and acquaintances.
LISTNUM 1 \l 13445 MS MORRISSEY: No. Our current position is that we are ‑‑ certainly we would like to ‑‑ I'm speaking on behalf of the Association.
LISTNUM 1 \l 13446 No, we don't necessarily need to see that exemption. We do believe that a referral in that case is unsolicited by the party who you are calling.
LISTNUM 1 \l 13447 COMMISSIONER DUNCAN: All right. I appreciate that.
LISTNUM 1 \l 13448 I think you would probably agree with me that if they are actually from families, friends and acquaintances they are likely to result in a complaint, in any event. Since the process is complaint‑driven, it is probably not that big a deal.
LISTNUM 1 \l 13449 With regard to small telemarketers ‑‑ and I don't consider that the companies you are representing would be considered small, the four companies you said.
LISTNUM 1 \l 13450 MS MORRISSEY: Four companies ‑‑
LISTNUM 1 \l 13451 COMMISSIONER DUNCAN: Or dealers.
LISTNUM 1 \l 13452 MS MORRISSEY: Yes.
LISTNUM 1 \l 13453 COMMISSIONER DUNCAN: But with respect to smaller‑sized operators, do you think they should be given special consideration in the rate structure, for example, to accommodate them and ensure their viability?
LISTNUM 1 \l 13454 MS MORRISSEY: Yes, I do. Specifically, we as four organizations, each organization is not a small organization but the representatives who are contracted by those organizations, as sales representatives for example, are small organizations.
LISTNUM 1 \l 13455 For instance, if they live in a remote area, they may not have access to infrastructure for e‑mail, Web access, may not even have a computer, in some cases working out of a home office.
LISTNUM 1 \l 13456 So within the design of the guidelines we have to take into account that they are small organizations and they might be in very remote locations.
LISTNUM 1 \l 13457 COMMISSIONER DUNCAN: In that instance, then, would those individual operators be paying the fee or would you as a group? Or would the four companies they represent, the savings plans?
LISTNUM 1 \l 13458 MS MORRISSEY: We would be purchasing the list as the organization and disseminating that through our affiliates.
LISTNUM 1 \l 13459 COMMISSIONER DUNCAN: So in that respect you would probably be paying based on a larger number then, if it ends up being paid on a per‑access basis.
LISTNUM 1 \l 13460 MS MORRISSEY: Yes. We would be purchasing it at that level and then disseminating it and collecting as we would.
LISTNUM 1 \l 13461 COMMISSIONER DUNCAN: That's all right. I think we have covered that.
LISTNUM 1 \l 13462 With respect to the grace period and your suggestion of the 60 days, as you know, the U.S. seemed to be satisfied with their 31‑day turnaround.
LISTNUM 1 \l 13463 MS MORRISSEY: M'hmm.
LISTNUM 1 \l 13464 COMMISSIONER DUNCAN: I am wondering if you have considered transmitting your updated lists via e‑mail to people and allowing them to have access on line to your lists, if that wouldn't expedite the process and cut down that time.
LISTNUM 1 \l 13465 MS MORRISSEY: It absolutely would and in many cases we would be able to accommodate that. And certainly in the majority of cases that would be the method that we would be disseminating the list.
LISTNUM 1 \l 13466 There are people who don't have that access who we do have to consider in the process.
LISTNUM 1 \l 13467 We had 60 days from the date that the person registers onto the list, assuming that there would be a period of time between that date and when we were actually getting the list from the operator, which is going to be a function of how the fee structure is set up and what the expectations are in terms of how frequently one would purchase that list.
LISTNUM 1 \l 13468 So the 60 days was built in with an assumption on a worst case scenario, if one obtained the list on a monthly basis, we would need a 30‑day period to get that to the farthest corner of the countries.
LISTNUM 1 \l 13469 So it was 60 days from the date that you went on the list.
LISTNUM 1 \l 13470 I think 31 days from the day that we get the list is not unreasonable.
LISTNUM 1 \l 13471 COMMISSIONER DUNCAN: All right.
LISTNUM 1 \l 13472 That probably would be the U.S. scenario then, would it, the 31 days? That would probably be in compliance with the U.S. situation?
LISTNUM 1 \l 13473 MS MORRISSEY: It might be that, yes, it might be. That wasn't a consideration in our coming up with the timeframe, but it might well.
LISTNUM 1 \l 13474 COMMISSIONER DUNCAN: So actually the grace period you are recommending is 60 days from the date you get the list ‑‑ 31 days; sorry.
LISTNUM 1 \l 13475 MS MORRISSEY: Yes. The other month is really built in depending on how frequently one would access the list.
LISTNUM 1 \l 13476 COMMISSIONER DUNCAN: Just to make sure I understand it, then, if I am a consumer and I want to be registered on the list, how long is it going to take?
LISTNUM 1 \l 13477 MS MORRISSEY: In a worst case scenario, which is what we built in in our submission, you would put your name on the list. If the promoter was obtaining the list on, let's say a worst case scenario, a monthly basis, you could be on the list for a month before the company actually purchased the list from the operator, and then getting it out to all of the representatives.
LISTNUM 1 \l 13478 From there it would probably really only take a week in most circumstances because it is electronic and we can do it quickly.
LISTNUM 1 \l 13479 But we have to build in for these other constituents in our organization who aren't on line.
LISTNUM 1 \l 13480 COMMISSIONER DUNCAN: So two parts to my next question.
LISTNUM 1 \l 13481 If you were to do your updates every 20 days, that would allow you ten days to disseminate it throughout your organization.
LISTNUM 1 \l 13482 For the people that are on line, that would definitely not be an issue.
LISTNUM 1 \l 13483 So what percentage of your dealers would be not on line?
LISTNUM 1 \l 13484 MS MORRISSEY: Oh, a very small percent. Less than 5 percent of the dealers would be not on line.
LISTNUM 1 \l 13485 COMMISSIONER DUNCAN: So then that probably could be managed as well through exceptions, just assessing complaints on a case by case basis, because first there would have to be a complaint.
LISTNUM 1 \l 13486 MS MORRISSEY: Absolutely.
LISTNUM 1 \l 13487 Our intent is really just so those people don't get caught betwixt and between while they are waiting for their lists. We know that they are going to be operating in good faith. It is just a matter of making sure that they aren't getting caught, fined and not realizing that they are in violation.
LISTNUM 1 \l 13488 COMMISSIONER DUNCAN: Thank you.
LISTNUM 1 \l 13489 There has also been a lot of discussion of this too, with respect to consumer consent. You mentioned that yours was an explicit opt‑in; that they would tick a box.
LISTNUM 1 \l 13490 MS MORRISSEY: Yes.
LISTNUM 1 \l 13491 COMMISSIONER DUNCAN: Are they actually signing and dating or how ‑‑
LISTNUM 1 \l 13492 MS MORRISSEY: It varies by campaign. The majority of them, they tick a box. There are others where they sign. There are still others where it is a verbal consent to a hostess or someone who is standing in front of them, and they say: "Would you like this company to call you? Yes. Okay, give me your name and telephone number."
LISTNUM 1 \l 13493 And without them giving the name and telephone number, you wouldn't have that information to contact them.
LISTNUM 1 \l 13494 COMMISSIONER DUNCAN: Thank you.
LISTNUM 1 \l 13495 So in your view that would be satisfactory if there was an investigation?
LISTNUM 1 \l 13496 MS MORRISSEY: It is our position that that type of two‑way communication falls under an existing business relationship category where that person is making an explicit request to be contacted.
LISTNUM 1 \l 13497 COMMISSIONER DUNCAN: Automatic dialling and announcing devices, I assume you are not involved with those.
LISTNUM 1 \l 13498 At this point do you expect to be using a third party provider or do you expect to be dealing directly with the DNCL operator yourselves?
LISTNUM 1 \l 13499 MS MORRISSEY: We expect to be dealing directly with the DNCL operator ourselves, the four companies.
LISTNUM 1 \l 13500 COMMISSIONER DUNCAN: Do you think that third party providers should be allowed to access the list?
LISTNUM 1 \l 13501 MS MORRISSEY: I think my answer to that question depends on what information is going to be contained in the list and how it is going to be maintained and what kind of security there is going to be around that.
LISTNUM 1 \l 13502 Without really being able to vision that, it is very difficult to answer that question.
LISTNUM 1 \l 13503 But the proper safeguards.
LISTNUM 1 \l 13504 COMMISSIONER DUNCAN: Following along on that, I would expect, because everybody else is paying, you would expect them to pay, if they were granted access?
LISTNUM 1 \l 13505 MS MORRISSEY: Yes. I think yes, if you are granted access to it, you should be expected to pay for it.
LISTNUM 1 \l 13506 COMMISSIONER DUNCAN: That's fine, Mr. Chairman; thank you.
LISTNUM 1 \l 13507 THE CHAIRPERSON: Commissioner Langford.
LISTNUM 1 \l 13508 COMMISSIONER LANGFORD: I will be brief.
LISTNUM 1 \l 13509 As of this point, we do not have a national "do not call" list, but how are your members dealing with requests that people they are contacting don't want to be called any more?
LISTNUM 1 \l 13510 MS MORRISSEY: We maintain an internal "do not call" list. If someone calls to indicate their preference not to be contacted by us, we put them on that list and that list is disseminated to our representatives as well on a regular basis.
LISTNUM 1 \l 13511 COMMISSIONER LANGFORD: Take me through what the pronoun "we" means.
LISTNUM 1 \l 13512 Does each member, each sales person have their own list or do you have one list for all your members and share it?
LISTNUM 1 \l 13513 Or how do you work it?
LISTNUM 1 \l 13514 MS MORRISSEY: We have one list for all members and share it.
LISTNUM 1 \l 13515 COMMISSIONER LANGFORD: Can you give me any idea, just in general terms, how many names or numbers might be on that list ‑‑ numbers, I suppose?
LISTNUM 1 \l 13516 MS MORRISSEY: No, I can't, to be honest with you, Mr. Langford. I haven't looked at it for quite some time. So I couldn't answer that.
LISTNUM 1 \l 13517 COMMISSIONER LANGFORD: How do you break it up? By area code to your members?
LISTNUM 1 \l 13518 MS MORRISSEY: That's correct, yes.
LISTNUM 1 \l 13519 COMMISSIONER LANGFORD: To your recollection, have you had any complaints of people violating these things up to now?
LISTNUM 1 \l 13520 MS MORRISSEY: Not as yet.
LISTNUM 1 \l 13521 COMMISSIONER LANGFORD: Has anybody complained and said: "What's wrong? I wanted my number on the list."
LISTNUM 1 \l 13522 MS MORRISSEY: No, not as of yet. We haven't had any complaints of that nature.
LISTNUM 1 \l 13523 Once your name is on the list, from the perspective of a representative, there is not really a lot of value in calling you. You don't want to hear from us. We don't want to spend time irritating you. There is really no value to it.
LISTNUM 1 \l 13524 COMMISSIONER LANGFORD: No. But I have heard from other witnesses that mistakes are sometimes made.
LISTNUM 1 \l 13525 MS MORRISSEY: Indeed.
LISTNUM 1 \l 13526 COMMISSIONER LANGFORD: You can put the wrong number so someone's number doesn't come on the list. Then they get bothered and they say, "Why are you bothering me?"
LISTNUM 1 \l 13527 MS MORRISSEY: Yes, I'm sure that could occur. I haven't heard any complaints of that sort yet.
LISTNUM 1 \l 13528 COMMISSIONER LANGFORD: I see. And do you have rules and regulations for your members to follow? Guidelines?
LISTNUM 1 \l 13529 MS MORRISSEY: Yes, we do.
LISTNUM 1 \l 13530 COMMISSIONER LANGFORD: And you, I assume, have read some of the comments on the concept of due diligence in here?
LISTNUM 1 \l 13531 MS MORRISSEY: Yes, I did.
LISTNUM 1 \l 13532 COMMISSIONER LANGFORD: Do you think the sort of rules and regulations you have are more or less in the spirit of those sort of comments now?
LISTNUM 1 \l 13533 MS MORRISSEY: Absolutely, yes. We do regular audits with our ‑‑ our branch managers do regular audits and our provincial compliance officers do regular audits. And, in fact, we have provincial auditors that do regular audits for ensuring compliance with conduct.
LISTNUM 1 \l 13534 COMMISSIONER LANGFORD: When a new dealers comes into your group, how do you kind of vet them, train them or what do you do? What are your processes for that?
LISTNUM 1 \l 13535 MS MORRISSEY: There is a recruiting process. They have to go through a series of interviews to establish suitability, both from their perspective and from ours. There is also credit checks, RCMP checks that are done as a result of having to get a securities license. You need to have a securities license to be a sales representative within our organization.
LISTNUM 1 \l 13536 So once we've established that you are worthy, then we move forward into the training process. There is an industry exam that has to be passed with an 80 percent mark and then your license goes in for consideration to the provincial securities regulator.
LISTNUM 1 \l 13537 COMMISSIONER LANGFORD: Thank goodness we didn't have to go through all that, right, folks? None of us would be sitting here. Well, that's good though, that is a good thing.
LISTNUM 1 \l 13538 Well, thank you. Those are my questions. I am taking note of your notion on how, you know, there should be a compliance continuum and I think that is probably, from the perspective of what you've described here today, probably a pretty appropriate approach for the type of organization you have got, so I don't think I have any questions on that. Thank you very much.
LISTNUM 1 \l 13539 MS MORRISSEY: Thank you. My pleasure.
LISTNUM 1 \l 13540 THE CHAIRPERSON: Commissioner Cram.
LISTNUM 1 \l 13541 COMMISSIONER CRAM: These less than five percent of people who are not on line ‑‑
LISTNUM 1 \l 13542 MS MORRISSEY: Um‑hum.
LISTNUM 1 \l 13543 COMMISSIONER CRAM: Can you tell me, sort of, where they are?
LISTNUM 1 \l 13544 MS MORRISSEY: More recently I spoke to someone who is in a remote area of Alberta and we spoke about him being on line and I talked to him a little bit about why not and he said, well, I just don't have the infrastructure up there. The wireless is not very reliable, so it is very difficult.
LISTNUM 1 \l 13545 I imagine there are ‑‑ I know that there are other representatives who are not on line, not because of a physical geographical location, but they just simply don't have a computer and aren't computer savvy and haven't gotten there yet. They might.
LISTNUM 1 \l 13546 We hadn't mandated it in our organization as of yet. So there is a combination between people who just aren't there yet, who may have a computer but don't have it on line yet, or who are in a physical location where it is difficult for them to get access.
LISTNUM 1 \l 13547 COMMISSIONER CRAM: Okay, thank you.
LISTNUM 1 \l 13548 THE CHAIRPERSON: Commissioner Duncan.
LISTNUM 1 \l 13549 COMMISSIONER DUNCAN: Just one more quick question.
LISTNUM 1 \l 13550 MS MORRISSEY: Yes.
LISTNUM 1 \l 13551 COMMISSIONER DUNCAN: How long do you think that the name should stay on the list?
LISTNUM 1 \l 13552 MS MORRISSEY: Interesting question. I was considering that when you were asking it earlier today. Forever seems a long time, I do agree with you. But it should be meaningful enough.
LISTNUM 1 \l 13553 I think a year is short. I would go ‑‑ and it becomes very arbitrary, but really I think from a consumer's standpoint I would like to see it perhaps two or three years and then maybe want to consider a re‑registration at that time.
LISTNUM 1 \l 13554 COMMISSIONER DUNCAN: Just to give the consumer a chance for a second thought?
LISTNUM 1 \l 13555 MS MORRISSEY: Yeah. I mean they can at all times get their name off of it, but are you really thinking about that? And maybe there are opportunities that you are not getting that you might like to because you have forgotten.
LISTNUM 1 \l 13556 COMMISSIONER DUNCAN: Thank you very much. That is great.
LISTNUM 1 \l 13557 THE CHAIRPERSON: Commissioner Cugini.
LISTNUM 1 \l 13558 COMMISSIONER CUGINI: Just a quick question.
LISTNUM 1 \l 13559 MS MORRISSEY: Sure.
LISTNUM 1 \l 13560 COMMISSIONER CUGINI: Based on your discussion earlier that you would access the ‑‑ your association would access the list on behalf of your members. That's what you were ‑‑ that is your position, right?
LISTNUM 1 \l 13561 MS MORRISSEY: The individual companies within our association would access the list on behalf of their representatives. There are a few companies that are part of our RESB dealers association umbrella group.
LISTNUM 1 \l 13562 COMMISSIONER CUGINI: And how many companies would that be?
LISTNUM 1 \l 13563 MS MORRISSEY: Four right now.
LISTNUM 1 \l 13564 COMMISSIONER CUGINI: So those four companies would access the list on behalf of their members?
LISTNUM 1 \l 13565 MS MORRISSEY: Correct.
LISTNUM 1 \l 13566 COMMISSIONER CUGINI: And how many members would each of those companies have?
LISTNUM 1 \l 13567 MS MORRISSEY: Hmm. Somewhere between five and 1500.
LISTNUM 1 \l 13568 COMMISSIONER CUGINI: Would you see that each of those companies would pay the same fee for accessing the list, given the different sizes of membership?
LISTNUM 1 \l 13569 MS MORRISSEY: Yeah, I think fee ‑‑ that is an interesting discussion as well. I think fee should really be a function of usage and scale.
LISTNUM 1 \l 13570 I think, you know, companies that are going to be making phone calls on the order of 5,000 calls a month versus somebody who is going to be making 500 calls a month should perhaps have a different fee structure.
LISTNUM 1 \l 13571 I believe also that how frequently one accesses the list, is there going to be an expectation that the list be accessed by individual companies or individuals on a weekly basis, bi‑weekly, monthly? Is there going to be a cost for how frequently one gets it?
LISTNUM 1 \l 13572 So I think the answer to your question is yes, I think it should vary by the scale of the organization and frequency of access and usage.
LISTNUM 1 \l 13573 COMMISSIONER CUGINI: On average, how many telemarketing campaigns would those four companies run on a yearly basis?
LISTNUM 1 \l 13574 MS MORRISSEY: That don't involve an explicit opt in? On a monthly basis we might as an organization across all four companies make 500 such phone calls, check about 500 such telephone numbers to verify that they were not on the list.
LISTNUM 1 \l 13575 COMMISSIONER CUGINI: To verify that they are not on the list?
LISTNUM 1 \l 13576 MS MORRISSEY: Yes, maybe 500 that fall under the referral category.
LISTNUM 1 \l 13577 COMMISSIONER CUGINI: Right.
LISTNUM 1 \l 13578 MS MORRISSEY: That would be what we would consider not explicit consent.
LISTNUM 1 \l 13579 COMMISSIONER CUGINI: Thank you very much. Thank you.
LISTNUM 1 \l 13580 THE CHAIRPERSON: Commissioner Duncan.
LISTNUM 1 \l 13581 COMMISSIONER DUNCAN: Sorry. Just to make sure that I have got this clear. I understood that the association would be scrubbing the list, not each individual company.
LISTNUM 1 \l 13582 MS MORRISSEY: No, the association would not scrub the list.
LISTNUM 1 \l 13583 MS. DEWAL: Each individual ‑‑
LISTNUM 1 \l 13584 MS MORRISSEY: Individual companies would be accessing the list, yes.
LISTNUM 1 \l 13585 COMMISSIONER DUNCAN: Okay, thank you.
LISTNUM 1 \l 13586 THE CHAIRPERSON: Could you provide us with the document that you use for the opt in to be contacted?
LISTNUM 1 \l 13587 MS MORRISSEY: Yes.
LISTNUM 1 \l 13588 THE CHAIRPERSON: Because you explicitly pointed out to us that it was some kind of a voluntary act on the part of the consumer. So if you could just deposit that with us we would appreciate it. Counsel?
LISTNUM 1 \l 13589 MR. MILLINGTON: No, I have nothing for this witness.
LISTNUM 1 \l 13590 THE CHAIRPERSON: Ms Morrissey, thank you very much for your presence. It was concise, it was clear and much appreciated.
LISTNUM 1 \l 13591 MS MORRISSEY: Thank you for allowing us to be here.
LISTNUM 1 \l 13592 THE CHAIRPERSON: Madam la secretaire.
LISTNUM 1 \l 13593 THE SECRETARY: We are calling Ms. Susan Copeland, Investment Dealers Association of Canada.
‑‑‑ Off‑the‑record discussion.
LISTNUM 1 \l 13594 MS. COPELAND: Good afternoon, my name is Susan Copeland and I am a director at the Investment Dealers Association of Canada, the industry association. And we want to thank you for giving us the opportunity to speak to the committee about the potential effects of Bill C37 on the Canadian investment sector.
LISTNUM 1 \l 13595 The IDA supports the intent of the bill and is pleased to make recommendations to help implement a cost efficient and clear, transparent and fair sets of regulations. Effective management of the implementation process is critical in order not to disrupt service to the public or undermine the efficiency of the Canadian capital markets.
LISTNUM 1 \l 13596 Before I begin my submissions I would just like to inform the committee that the Investment Dealers Association has recently undertaken a change in its structure since we made our written submissions.
LISTNUM 1 \l 13597 We've separated our dual mandate into two entities. There is now a securities regulator and an industry association, an independent industry association. And I am speaking to you on behalf of the industry association, not the regulator.
LISTNUM 1 \l 13598 The industry association represents the securities industry in Canada in respect of regulatory and public policy matters relating to the savings and investment process. One of our primary objectives is to assist policy makers to create well ‑‑ efficient and well functioning markets with a high standard of integrity, and that is why I am here today.
LISTNUM 1 \l 13599 Our members include more than 200 investment dealers, who play an essential role in the Canadian economy. They help raise capital for governments and businesses and help individual Canadians and institutions invest with confident in open and fair capital markets. Our member firms employ more than 37,000 people, in all provinces and abroad, and play a key role in our national and provincial economies.
LISTNUM 1 \l 13600 The IDA's interest in Bill C37 stems from the fact that telephone communication between investment advisors and their clients is a critical component of the savings and investment process. And as you are aware, during its consideration of Bill C37, Parliament was careful to establish the balance between preventing undue inconvenience and nuisance to Canadians from telemarketing and protecting the responsible use of the telephone for business purposes.
LISTNUM 1 \l 13601 As a result it read the existing business relationship. And that is primarily ‑‑ that is very important to the IDA members because that is where the primary telephone, telecommunication takes place because the advisors have to advise their existing clients of developments that affect their current or potential investments.
LISTNUM 1 \l 13602 So rather than being inconvenienced by these calls, these individuals really rely on and expect such calls from their advisors and, in fact, there is a duty on the advisors to inform their clients and make such calls.
LISTNUM 1 \l 13603 So having said that and having recognized that Parliament has put in that exemption that is so very important, we just want to ensure that that balance is maintained through the implementation of the rules that govern as the legislation and that ‑‑ in the public notice it says the do not call rules will not apply to those persons identified in the amended Act as being exempt.
LISTNUM 1 \l 13604 The importance of that to us is that the member firms that are exempt from the do not calls rules shouldn't be burdened to pay their required fees to maintain the do not call registry or otherwise be made subject to burdensome compliance or reporting rules because that would undermine the existing business relationship exemption and be impractical and undermine Parliament's clear intent.
LISTNUM 1 \l 13605 However, we do recognize that some of our members will ‑‑ may rely on telephone calls to build new client relationships and, of course, they should support the costs of the registry and pay fees proportionate to their use.
LISTNUM 1 \l 13606 In terms of setting up due diligence processes, et cetera, those who are exempt from the do not call rules, the Act requires them to maintain their own internal do not call list to ensure that no telecommunication is made to a person that has requested not to be called. Since the statutory definition of existing business relationships are who time limited, the act also implicitly requires business to keep track of the expiration of these business relationships with their customers.
LISTNUM 1 \l 13607 The IDA is submitting that the enforcement of such requirements should be done on a complaints basis rather than a resource intensive mandatory reporting or filing obligation.
LISTNUM 1 \l 13608 Under the complaints driven approach, a business would be responsible for implementing internal measures to ensure that it doesn't violate the act and the company would be free to choose measures that are effective and practical in its particular circumstances.
LISTNUM 1 \l 13609 We think the due diligence defence contained in the legislation is fair and it is an effective compliance tool. It provides incentive for organizations to create systems that enable them to demonstrate the exercise of appropriate diligence to prevent violations.
LISTNUM 1 \l 13610 If the systems are effective there will be few violations and the Commission can then focus its efforts on businesses that don't have adequate systems in place and are generating complaints as a result. It shouldn't, therefore, be necessary for the Commission to develop specific rules that proscribe precise procedures for maintenance of internal do not call lists.
LISTNUM 1 \l 13611 It is impractical to implement rigid, uniform rules across all sorts of different sectors of the industry, since the nature of business relationships between clients and businesses varies according to different sectors.
LISTNUM 1 \l 13612 If, however, the Commission decides there is some need for broad directions, which it may do to help out businesses ascertain whether they will be complying or not, we recommend that they take the form of non‑binding guidelines and best practises and, again, they should recognize the differences in business practises and client relationships across sectors.
LISTNUM 1 \l 13613 Turning to the issue of personal and family relationships and referrals and calls between businesses, we support those exemptions to be added. We believe that the intent of the legislation is to prevent Canadians from being subject to the inconvenience or nuisance of telemarketing, but not intended to prohibit or regulate communication between family members, friends and acquaintances or similarly from individuals who have been referred by clients that have an existing business relationship.
LISTNUM 1 \l 13614 The U.S. rules which have been discussed over the past couple of days do exempt calls from personal relationship ‑‑ people with personal relationships, members, friends, acquaintances and business to business calls are exempted as they ‑‑ it is defined as ‑‑ it only applies to residential subscribers.
LISTNUM 1 \l 13615 In summary, we urge that the Commission recognize the balance that Parliament has struck between undue inconvenience and nuisance to Canadians and protecting the responsible use of telecommunications for legitimate business purposes. And we hope that this exemption isn't frustrated by burdensome and costly implementation rules that may disrupt services to the public and undermine the efficiency of the capital markets.
LISTNUM 1 \l 13616 So we thank you for allowing us to participate in this proceeding and assist you in developing a practical balance model for the do not call regulatory framework. We won't be making a closing statement and, as such, the contents of this presentation and our written submission will stand as our position on this issue.
LISTNUM 1 \l 13617 THE CHAIRPERSON: Thank you very much, Ms. Copeland. Commissioner Duncan?
LISTNUM 1 \l 13618 COMMISSIONER DUNCAN: I understand from your brief and also from your comments today that you are representing 200 investment dealers?
LISTNUM 1 \l 13619 MS MORRISSEY: Um‑hum.
LISTNUM 1 \l 13620 COMMISSIONER DUNCAN: And in brief and again today you indicate that fees should reflect and be proportionate to the actual use of the list. In paragraph 9 you indicate, as you did here in your presentation too, that advisors and firms that are exempt by virtue of their statutory exemption from existing business relationships should not be required to pay the fees, not unreasonable in either instance. But I am just wondering what percent of the 200 members would be exempt?
LISTNUM 1 \l 13621 MS. COPELAND: Well, for the most part, in the investment ‑‑ in that process the businesses generated by ‑‑ or the way that they would get into the act at all is the business relationship. So most of them would be exempt just by virtue of the fact that they have existing business relationships.
LISTNUM 1 \l 13622 Some of the business is generated by referral, so to the extent that that is ‑‑ is created by a new exemption, that might pull them out too, but there may be some fences around it so you may need to have the ‑‑ they may need to pay into it, depending on how that is resolved.
LISTNUM 1 \l 13623 Again, there are a few brokers that start out that may be cold calling or using the phone. It's not a huge amount. I don't have figures for you, but it is generally not the way that business is done.
LISTNUM 1 \l 13624 But to the extent that brokers and investment dealers would be calling, not on the basis of a business ‑‑ an existing business relationship, we believe, of course, that is a cost of doing business, and they should be supporting the system by paying fees.
LISTNUM 1 \l 13625 COMMISSIONER DUNCAN: I guess I am not ‑‑ is it ‑‑ it seems to be going to be a bit of a problem, a little ambiguous, because sometimes you'll be making cold calls and sometimes you won't and many may never. So those ones would never be accessing the list.
LISTNUM 1 \l 13626 MS. COPELAND: There will be some that would never access the list, and they would maintain their compliance with the legislation by monitoring their existing business relationships very closely by, you know, making sure that after 18 months of no communication that, you know ‑‑ then if they do communicate then they will have to access the list again. Access the list.
LISTNUM 1 \l 13627 MS. DEWAL: So if business is slow and you decide in this particular month to do some cold calling, then ‑‑
LISTNUM 1 \l 13628 MS. COPELAND: Then they would definitely have to access the list and pay the fees accordingly, yes.
LISTNUM 1 \l 13629 COMMISSIONER DUNCAN: Just in that particular month, and then the next month there may not be any.
LISTNUM 1 \l 13630 MS. COPELAND: Yes.
LISTNUM 1 \l 13631 COMMISSIONER DUNCAN: That is what you are envisioning. I just wanted to be clear on that. What is the form of consumer consent that you take, that you get from people?
LISTNUM 1 \l 13632 MS. COPELAND: At this point I don't believe that there is a consent.
LISTNUM 1 \l 13633 COMMISSIONER DUNCAN: It's not necessary ‑‑
LISTNUM 1 \l 13634 MS. COPELAND: No.
LISTNUM 1 \l 13635 COMMISSIONER DUNCAN: ‑‑ in that nature of the business. And on your do not call lists, how long do you leave them on the list now?
LISTNUM 1 \l 13636 MS. COPELAND: On the ‑‑
LISTNUM 1 \l 13637 COMMISSIONER DUNCAN: Internal lists. Do you take them off?
LISTNUM 1 \l 13638 MS. COPELAND: Well, again, it is based on existing business relationships, so to the extent that someone is still your client, you have a responsibility and a duty to continue to call them. So ...
LISTNUM 1 \l 13639 COMMISSIONER DUNCAN: Do you have an internal do not call list, did you say?
LISTNUM 1 \l 13640 MS. COPELAND: As the association ‑‑ I don't believe many ‑‑ I have ‑‑ I honestly don't know. I can't speak for all of the investment dealers and whether they maintain that. That's sort of cold calling that would generate complaints that people don't want to be called.
LISTNUM 1 \l 13641 COMMISSIONER DUNCAN: So the rest of it is really ‑‑
LISTNUM 1 \l 13642 MS COPELAND: My expectation is that it doesn't generate complaints that would require a "do not call" list, but I would have to check that specifically.
LISTNUM 1 \l 13643 COMMISSIONER DUNCAN: Because of the existing business relationship exemption, almost everybody will be exempted from it.
LISTNUM 1 \l 13644 MS COPELAND: Except for the referral situation.
LISTNUM 1 \l 13645 COMMISSIONER DUNCAN: With respect to the other telemarketing rules, are your members required to comply with those at this point?
LISTNUM 1 \l 13646 MS COPELAND: In terms of the timing, et cetera?
LISTNUM 1 \l 13647 COMMISSIONER DUNCAN: Yes.
LISTNUM 1 \l 13648 MS COPELAND: Yes, they would be complying with that.
LISTNUM 1 \l 13649 COMMISSIONER DUNCAN: Those rules also require an internal list, but maybe it is not that significant, so ‑‑
LISTNUM 1 \l 13650 MS COPELAND: Again, that cold calling situation just doesn't happen very much.
LISTNUM 1 \l 13651 COMMISSIONER DUNCAN: All right.
LISTNUM 1 \l 13652 Those are my questions for now, Mr. Chairman.
LISTNUM 1 \l 13653 THE CHAIRPERSON: Thank you, Commissioner Duncan.
LISTNUM 1 \l 13654 Commissioner Langford.
LISTNUM 1 \l 13655 COMMISSIONER LANGFORD: I am hoping that you will be able to help me with something that came up here yesterday, which I simply didn't have a high enough IQ to get around. I couldn't figure it out.
LISTNUM 1 \l 13656 MS COPELAND: I hope that I can help you.
LISTNUM 1 \l 13657 COMMISSIONER LANGFORD: I need help.
LISTNUM 1 \l 13658 I don't understand ‑‑ though the lady from Atlanta was very patient, and she did her best yesterday, and she tried to explain it to me, I went home and I thought about it long and hard, and I don't understand why you would need an exemption for friends, family and acquaintances. I can't get my head around it.
LISTNUM 1 \l 13659 I mean, your mother is not going to rat you out for trying to sell her some investments, is she?
LISTNUM 1 \l 13660 MS COPELAND: To the extent that is true, I agree.
LISTNUM 1 \l 13661 I guess we were looking at the U.S. legislation, and it was put in there. It was deemed necessary.
LISTNUM 1 \l 13662 Sometimes these things don't become apparent until you test drive them.
LISTNUM 1 \l 13663 COMMISSIONER LANGFORD: We questioned her and I couldn't ‑‑
LISTNUM 1 \l 13664 She just seemed to think she needed it, that it was necessary.
LISTNUM 1 \l 13665 Is it something to do ‑‑ and I am fishing here ‑‑ with due diligence, that you want to give one course to everybody and it will cover everything?
LISTNUM 1 \l 13666 Either you know that your brother‑in‑law hates you or you don't. If he hates you, you are probably better not to call him, because ‑‑
LISTNUM 1 \l 13667 MS COPELAND: From a practical perspective, it may not be necessary perhaps. It is just a means of covering the waterfront.
LISTNUM 1 \l 13668 COMMISSIONER LANGFORD: Do you think you could live without it?
LISTNUM 1 \l 13669 MS COPELAND: The only time, I think, that it may come into effect is as we are getting back to the referral situation.
LISTNUM 1 \l 13670 For instance, if your brother refers someone to call you.
LISTNUM 1 \l 13671 COMMISSIONER LANGFORD: Yes, but we are moving to a second level here.
LISTNUM 1 \l 13672 MS COPELAND: Yes. He tells his broker, "Phone my brother‑in‑law ‑‑ "
LISTNUM 1 \l 13673 COMMISSIONER LANGFORD: Let's leave that one aside for a moment. What about just phoning family?
LISTNUM 1 \l 13674 Any problem there?
LISTNUM 1 \l 13675 MS COPELAND: I tend to agree.
LISTNUM 1 \l 13676 COMMISSIONER LANGFORD: All right.
LISTNUM 1 \l 13677 Now friends. Either they are a friend, or you are pushing the envelope and you deserve a slap on the wrist.
LISTNUM 1 \l 13678 That is my approach. I know who my friends are.
LISTNUM 1 \l 13679 I don't have as many as most people, but with a job like this they are hard to hang onto.
‑‑‑ Laughter / Rires
LISTNUM 1 \l 13680 MS COPELAND: Well, maybe I can't get my head around it either, but ‑‑
LISTNUM 1 \l 13681 Personally, I am not certain, but the bigger brains in the U.S. have deemed it ‑‑ they thought that there were circumstances where it was necessary to put it in their legislation, and their legislation seems to be successful, so...
LISTNUM 1 \l 13682 COMMISSIONER LANGFORD: Bigger brains in the U.S. thought they had found weapons of mass destruction in Iraq, too, so, you know...
‑‑‑ Laughter / Rires
LISTNUM 1 \l 13683 COMMISSIONER LANGFORD: We don't necessarily want to be guided by that size here.
LISTNUM 1 \l 13684 MS COPELAND: Fair enough.
LISTNUM 1 \l 13685 COMMISSIONER LANGFORD: All right.
LISTNUM 1 \l 13686 Now we get to referrals. Explain to me why a referral ‑‑
LISTNUM 1 \l 13687 You are going to have to help me here. Why is a referral for the person being referred any different from a cold call?
LISTNUM 1 \l 13688 I guess you say, "Your friend Harry thought I should call you."
LISTNUM 1 \l 13689 Is that the only difference?
LISTNUM 1 \l 13690 MS COPELAND: There is a nexus between the person who is being called and someone with whom they have a relationship. It is not somebody just picking your name out of the phone book. Somebody has given some thought that you might like to purchase a service, or that this broker, in my industry, could be of assistance to you.
LISTNUM 1 \l 13691 It is not somebody random who you don't know picking your name out; there has been some thought that you might benefit from the service, from someone who knows you either through a business relationship or a personal relationship.
LISTNUM 1 \l 13692 COMMISSIONER LANGFORD: Let's say that you and I are at an art gallery opening, or something like that. We are all sitting around with the de rigueur glass of bad plonk, and we are looking at the de rigueur bad abstracts, and we are chatting. We talk, and you are an investment dealer, and I'm not, but I have a brother. Somehow you elicit from me that I have a brother, my good old brother John. That's all you elicit from me.
LISTNUM 1 \l 13693 The next day you call my brother John and say, "Gee, I was talking to Stuart at the opening. He was saying how much he needs some professional advice, and I thought that you might too."
LISTNUM 1 \l 13694 In other words, you colour the conversation somewhat.
LISTNUM 1 \l 13695 I am using you only as an abstract notion here.
LISTNUM 1 \l 13696 My brother John makes a complaint. What is your defence?
LISTNUM 1 \l 13697 MS COPELAND: I agree that that type of situation could be a concern. To that extent, I spoke earlier about how you may want to build fences around the referral exemption for those types of situations, perhaps a consent mechanism where the person referring needs to get express consent.
LISTNUM 1 \l 13698 So you would have to get consent from your brother in order to refer.
LISTNUM 1 \l 13699 COMMISSIONER LANGFORD: Wouldn't it be better, rather than us trying to build this narrow exemption and build fences around it and build safeguards into it ‑‑ wouldn't it be better if your dealer simply found a different route to initiate that sort of contact?
LISTNUM 1 \l 13700 Send a letter to the person referred and say, "You have been referred to us. People thought you might enjoy us. Call us. Here is my name. Here is my number."
LISTNUM 1 \l 13701 Why would the onus be on us to try to tweak this system for something that is quite nebulous?
LISTNUM 1 \l 13702 You may feel that what I have said to you ‑‑ you may honestly feel that what I have said is a genuine invitation to call someone. The next person may not feel that at all. It is so open to individual interpretation that I see it leading to a lot of problems.
LISTNUM 1 \l 13703 MS COPELAND: I don't believe it does lead to a lot of problems. That's how business is done, to a large degree, right now, through referrals. I don't suspect that brokers just get your brother's first name and go poring through the phone book to call him without a bit more of a ‑‑ "Oh, you should call my brother," or something more direct in the way of a referral.
LISTNUM 1 \l 13704 It hasn't arisen as an abuse in our industry.
LISTNUM 1 \l 13705 COMMISSIONER LANGFORD: You haven't had any complaints.
LISTNUM 1 \l 13706 MS COPELAND: No, not for referral‑type calls.
LISTNUM 1 \l 13707 COMMISSIONER LANGFORD: Has anyone ever phoned and said, "Look, I am on your personal "do not call" list and one of your brokers called and said that my brother gave him the information"?
LISTNUM 1 \l 13708 MS COPELAND: I couldn't say that we have never ‑‑ I am not aware, but I couldn't say that we have never, or that our member firms have not.
LISTNUM 1 \l 13709 It would probably be directed more at the member firms in the IDA.
LISTNUM 1 \l 13710 COMMISSIONER LANGFORD: Yes, that's true.
LISTNUM 1 \l 13711 All right. Those are my questions.
LISTNUM 1 \l 13712 Thank you, Mr. Chair.
LISTNUM 1 \l 13713 THE CHAIRPERSON: Thank you, Commissioner Langford.
LISTNUM 1 \l 13714 Commissioner Cram.
LISTNUM 1 \l 13715 COMMISSIONER CRAM: Doesn't this concept of family, friends and acquaintances really come down to what the called party would reasonably expect in the circumstances?
LISTNUM 1 \l 13716 MS COPELAND: I agree, yes.
LISTNUM 1 \l 13717 COMMISSIONER CRAM: In the sense that, if I am looking at the terrible art and somebody comes up to me and talks to me and I give away the name of my brother, I find it very hard that my brother would reasonably expect that somebody would phone him out of the blue.
LISTNUM 1 \l 13718 MS COPELAND: To the extent that you feel justified in giving your brother's name, that is where we rely on the relationship between the callee and the personal ‑‑ whether it is a personal or a client relationship that you have with them. That is what the nexus would be.
LISTNUM 1 \l 13719 COMMISSIONER CRAM: If I had set it up with my brother, and I told my brother that you were going to call, and that sort of thing, he would reasonably expect it and wouldn't have a problem.
LISTNUM 1 \l 13720 MS COPELAND: Right. That's what we would expect. We wouldn't expect that you would be giving your brother's name out if you knew that he wouldn't enjoy being called.
LISTNUM 1 \l 13721 COMMISSIONER CRAM: So then he wouldn't make a complaint, would he?
LISTNUM 1 \l 13722 MS COPELAND: That's right.
LISTNUM 1 \l 13723 COMMISSIONER CRAM: So then there doesn't really seem to be a necessity to have this in. Because if it is complaint‑driven ‑‑
LISTNUM 1 \l 13724 MS COPELAND: To a degree. But, if it is complaint‑driven, why have any of the processes there? Why not just deal with the complaints? You don't need the legislation.
LISTNUM 1 \l 13725 COMMISSIONER CRAM: Yes, I would be happy without the legislation, because then there would be no existing business relationship.
LISTNUM 1 \l 13726 MS COPELAND: Yes. But that is sort of the road ‑‑ if you want to use that argument.
LISTNUM 1 \l 13727 COMMISSIONER CRAM: It sounds to me like you are asking for comfort, but it is really a question of fact, in the sense of what would be reasonably expected.
LISTNUM 1 \l 13728 MS COPELAND: That is true, but it also involves costs. If you are exempt, then you don't have to jump through as many due diligence procedures as you would if you weren't exempt. Then you would have to make sure that you had all of the procedures in place so that you wouldn't violate the list.
LISTNUM 1 \l 13729 But if you know that you are operating either through an existing business relationship, and you are tracking the time expiry, or you are operating on a referral exemption, and you are operating within the bounds of that, then ‑‑
LISTNUM 1 \l 13730 COMMISSIONER CRAM: So then you mean to say that you think that family, friends and acquaintances doesn't have the implicit qualifier on the basis that family, friends and acquaintances would reasonably expect, given your relationship, that you would call me?
LISTNUM 1 \l 13731 I mean that you could phone any family, friend or acquaintance?
LISTNUM 1 \l 13732 You meet somebody in the street and you can phone them tomorrow?
LISTNUM 1 \l 13733 MS COPELAND: You mean based on a referral?
LISTNUM 1 \l 13734 COMMISSIONER CRAM: Yes.
LISTNUM 1 \l 13735 MS COPELAND: Yes. You are not posting your brother's phone number randomly or giving it out to strangers, you are only doing that if you think that the service of the person you are speaking with is going to be of use.
LISTNUM 1 \l 13736 COMMISSIONER CRAM: All right. So you think that the U.S. exemption defining family member, friend or acquaintance ‑‑ the acquaintance includes referrals.
LISTNUM 1 \l 13737 MS COPELAND: No, I don't know that that includes referrals. I am saying that that exemption is helpful if referrals are added as an exemption.
LISTNUM 1 \l 13738 I am not trying to use that category for the referrals.
LISTNUM 1 \l 13739 COMMISSIONER CRAM: Oh. So we don't have to have a family member, friend or acquaintance, we just have to use the word "referrals".
LISTNUM 1 \l 13740 MS COPELAND: But in order to have that operate effectively, you need a referral from someone who has a relationship, like a family member, friend, acquaintance, or an existing business relationship.
LISTNUM 1 \l 13741 It is the platform through which the referral can come.
LISTNUM 1 \l 13742 COMMISSIONER CRAM: Have you looked at the way the U.S. deals with that exemption?
LISTNUM 1 \l 13743 MS COPELAND: They don't have a referral exemption.
LISTNUM 1 \l 13744 COMMISSIONER CRAM: No, but the exemption of family, friends and acquaintances?
LISTNUM 1 \l 13745 MS COPELAND: Only to the extent that I know it is family, friends and acquaintances. I don't know the details around the specifics of it.
LISTNUM 1 \l 13746 COMMISSIONER CRAM: In your "do not call" list, the one you keep internally, do you allow businesses to register?
LISTNUM 1 \l 13747 MS COPELAND: We don't have a "do not call" ‑‑ as the IDA.
LISTNUM 1 \l 13748 COMMISSIONER CRAM: All right. So you don't know what your member organizations do.
LISTNUM 1 \l 13749 MS COPELAND: No.
LISTNUM 1 \l 13750 COMMISSIONER CRAM: Thank you.
LISTNUM 1 \l 13751 THE CHAIRPERSON: Ms Copeland, thank you very much. It has been a pleasure.
LISTNUM 1 \l 13752 MS COPELAND: Thank you.
LISTNUM 1 \l 13753 THE CHAIRPERSON: Madam Secretary.
LISTNUM 1 \l 13754 THE SECRETARY: Thank you, Mr. Chair.
LISTNUM 1 \l 13755 The next participant is the Canadian Life and Health Insurance Association, Mr. Peter Goldthorpe.
PRESENTATION / PRÉSENTATION
LISTNUM 1 \l 13756 MR. GOLDTHORPE: Good afternoon. I am Peter Goldthorpe, director of marketplace regulation issues for the Canadian Life and Health Insurance Association.
LISTNUM 1 \l 13757 CLHIA is a trade association representing life and health insurance companies in Canada.
LISTNUM 1 \l 13758 Earlier today I circulated prepared remarks. In the interests of the lateness of the hour and those of you who have been sitting through this entire hearing, I think I will dispense with those prepared remarks.
LISTNUM 1 \l 13759 I do, however, want to make a couple of brief comments ‑‑
LISTNUM 1 \l 13760 THE CHAIRPERSON: Mr. Goldthorpe, I am not aware that those remarks have been distributed to us.
LISTNUM 1 \l 13761 It doesn't matter whether you choose to recapitulate them in their totality or in partiality, but the fact is, as far as I know, we don't have them.
LISTNUM 1 \l 13762 I'm sorry, we don't have them.
LISTNUM 1 \l 13763 In any event, I just want you to be clear that the remarks from which you are extracting are not, in full, available to us.
LISTNUM 1 \l 13764 MR. GOLDTHORPE: You are not reading along on anything that I am not following, so...
‑‑‑ Laughter / Rires
LISTNUM 1 \l 13765 THE CHAIRPERSON: Please feel free to give all or part.
LISTNUM 1 \l 13766 MR. GOLDTHORPE: I will be very brief, because I think there has been a lot of good discussion and I don't have a great deal to add to a lot of the points. However, I want to make a couple of specific points.
LISTNUM 1 \l 13767 We are very pleased to be participating both in this hearing and in the subcommittee process that the CRTC has that is looking at operational issues associated with a "do not call" list.
LISTNUM 1 \l 13768 Primerica, one of CLHIA's member companies, was here yesterday and spoke to you, and there was considerable discussion yesterday, which continued today, in the area of personal relationships. This is a very important issue for our industry, and there is little that I can add to what my colleagues at Primerica said yesterday.
LISTNUM 1 \l 13769 Commissioner Cram noted yesterday that there is a considerable grey area related to the matter of personal relationships and that it would be very difficult to define what constitutes a personal relationship. We agree. I think the best approach is the approach that my colleague from Primerica suggested yesterday, which is the approach of reverse onus. If a person who has been called has a complaint about the call, that individual can say, "There was no personal relationship," and then the burden of proof would be on the caller to demonstrate why there was a personal relationship.
LISTNUM 1 \l 13770 If there is a complaint threshold ‑‑ and we believe strongly that there should be a complaint threshold ‑‑ I think that it would not take very long to uncover any evidence of a telemarketer abusing the personal relationship status to conduct telemarketing calls, and that telemarketer could be dealt with, I think, very quickly, once the evidence was apparent that the personal relationship provision was being abused.
LISTNUM 1 \l 13771 In response to some of the discussion with the previous party on the need for clarification of this, I think that the need does not so much lie with the individuals who are doing the telemarketing. In our case, that would be the advisors. Rather, the need lies with the companies.
LISTNUM 1 \l 13772 Companies are increasingly concerned about reputational risk. They maintain detailed employee policy manuals, and they maintain detailed supervisory and compliance systems. They are forced to respect the letter of the law, not the spirit of the law.
LISTNUM 1 \l 13773 Absent any clarification about what the intent of these provisions is, companies would have no choice but to, as my colleague from Primerica said yesterday, tell their advisors that they are not entitled to call their mother or their brother or their best friends.
LISTNUM 1 \l 13774 That is the reason for having to have some clarification on what, between you and me, is obviously a common sense sort of situation.
LISTNUM 1 \l 13775 The CRTC has asked parties to comment on the need for guidelines, and the rest of my comments today will focus on some of those guidelines and some of the issues that could be addressed through guidelines.
LISTNUM 1 \l 13776 As I mentioned, we believe that it is important to have a complaint threshold. It is necessary because it is simply not cost effective to chase down each and every isolated infringement. Rather, we should be looking for what, I believe, has been called a pattern of abuse, and that is where there is a trend of obvious evidence that a telemarketer is infringing on an individual's privacy interests.
LISTNUM 1 \l 13777 That threshold should be established over a relatively short period of time. It is interesting that in the United States the FCC does not define the threshold.
LISTNUM 1 \l 13778 There are two reasons for setting a fairly brief threshold. The first is from a consumer perspective. They obviously want to have abuses ended as quickly as possible, so the shorter the threshold the better from that perspective.
LISTNUM 1 \l 13779 From the telemarketer's perspective, it is very difficult to defend against complaints that may have occurred six to eight months ago, or even two years ago. So the quicker you are aware of complaints and called upon to defend, the better your records will be. The better your recollection will be and more likely that you can accurately defend against the complaint.
LISTNUM 1 \l 13780 So the threshold, whatever it is, should be fairly brief.
LISTNUM 1 \l 13781 When the threshold is exceeded and there is a Notice of Violation issued, we would respectfully submit that that notice should not be publicly posted until the telemarketer has had a chance to make a defence.
LISTNUM 1 \l 13782 The reason for that is there are a number of bona fide defences that are not immediately transparent. Existing business relationship defence is a good example of that.
LISTNUM 1 \l 13783 So while the complaint may be valid insofar as the number was on the "do not call" list and the grace period had expired, the telemarketer may have been completely justified in making the call.
LISTNUM 1 \l 13784 Again, it would be exposing the telemarketer to significant reputational risk if Notices of Violation for complaints that weren't technically violations were made public knowledge.
LISTNUM 1 \l 13785 With respect to penalties, I suppose it is to state the obvious. But we do believe they should be incremental.
LISTNUM 1 \l 13786 With respect to telemarketer records, the CRTC did ask a question about this. We submit that there should not be any mandatory requirements for telemarketers to maintain records. As a matter of fact, any prudent telemarketer will understand that the only way they can defend themselves is to keep records.
LISTNUM 1 \l 13787 So I think that in most instances telemarketers will, out of self‑instincts of self‑preservation, keep records. They don't need to have it mandated.
LISTNUM 1 \l 13788 We certainly don't want the absence of records to be yet another violation.
LISTNUM 1 \l 13789 Finally, with respect to the 2004‑35 rules, yesterday you heard my colleague from Primerica outline the rules that create a problem for small businesses that are engaged in telemarketing. That is the unique confirmation number, the requirement to have a live operator and the requirement to have a toll free number.
LISTNUM 1 \l 13790 Those are the rules that we believe while they may have had an appropriateness two years ago before there was a national "do not call" list, I believe the objectives of the CRTC are going to be met and satisfied with the establishment of a national "do not call" list, and those additional enhancements to the internal "do not call" lists are not necessary at this point in time.
LISTNUM 1 \l 13791 That concludes my remarks. I would be happy to try to clarify any of those or any other issues that you may want to ask questions about.
LISTNUM 1 \l 13792 THE CHAIRPERSON: Thank you very much, Mr. Goldthorpe.
LISTNUM 1 \l 13793 Commissioner Duncan.
LISTNUM 1 \l 13794 COMMISSIONER DUNCAN: Good afternoon.
LISTNUM 1 \l 13795 We did get your remarks, just a little late, that's all.
LISTNUM 1 \l 13796 MR. GOLDTHORPE: Better late than never.
LISTNUM 1 \l 13797 COMMISSIONER DUNCAN: You got our attention. We were focused on what you were saying.
LISTNUM 1 \l 13798 MR. GOLDTHORPE: Yes.
LISTNUM 1 \l 13799 COMMISSIONER DUNCAN: With regard to the registration period, The Companies, as you did yourself, suggest that the number should remain on the list for three years.
LISTNUM 1 \l 13800 Actually, I think your recommendation is no more than three years.
LISTNUM 1 \l 13801 MR. GOLDTHORPE: That's right.
LISTNUM 1 \l 13802 COMMISSIONER DUNCAN: Given the cost involved in maintaining it and the suggestion that consumers might be annoyed or inconvenienced, confused, at having to re‑register, do you think there is some merit in the U.K. approach where the numbers are registered indefinitely?
LISTNUM 1 \l 13803 It is my understanding that the carriers will be able to automatically delete disconnected and re‑assigned numbers.
LISTNUM 1 \l 13804 MR. GOLDTHORPE: I think the provision for the carriers automatically deleting numbers provides substantial mitigation to the concern that we have, but I don't think it entirely mitigates that concern.
LISTNUM 1 \l 13805 In an earlier career I had some experience managing databases, and my experience is that regardless of how straightforward the management of the database appears, in practice it is incredibly complex and subject to all sorts of errors.
LISTNUM 1 \l 13806 I quite frankly don't believe you can maintain a database for a long period of time, extending decades, without having inevitable inaccuracies creep in.
LISTNUM 1 \l 13807 I think the period of time ‑‑ and we did recommend no more than three years. And that was based on average tenure in households. It may be as an empirical matter and cost‑benefit analysis you might be able to justify a longer period, particularly in light of carriers automatically removing numbers.
LISTNUM 1 \l 13808 I would submit that perhaps with the RFP process for the third party administrator, that could be an issue that we could get some advice from the people that are submitting proposals.
LISTNUM 1 \l 13809 COMMISSIONER DUNCAN: Thank you.
LISTNUM 1 \l 13810 You recommend a 60‑day grace period.
LISTNUM 1 \l 13811 Given the discussion even yesterday with Primerica where apparently the 31‑day grace period in the U.S. is working fine, are you receptive to changing your suggestion?
LISTNUM 1 \l 13812 MR. GOLDTHORPE: Yes, I am.
LISTNUM 1 \l 13813 COMMISSIONER DUNCAN: Thank you.
LISTNUM 1 \l 13814 With respect to consumer consent ‑‑ first of all, can I just back up a bit and ask you something.
LISTNUM 1 \l 13815 On your 66 licensed life agents ‑‑
LISTNUM 1 \l 13816 MR. GOLDTHORPE: Pardon me?
LISTNUM 1 \l 13817 COMMISSIONER DUNCAN: Sorry. You have 66,000 licensed agents. Is that correct?
LISTNUM 1 \l 13818 MR. GOLDTHORPE: Yes, approximately.
LISTNUM 1 \l 13819 COMMISSIONER DUNCAN: Many of them operate as small businesses and some as individual agents.
LISTNUM 1 \l 13820 MR. GOLDTHORPE: That is correct.
LISTNUM 1 \l 13821 COMMISSIONER DUNCAN: So they would be all commission based. Is that the idea?
LISTNUM 1 \l 13822 They would have their own little businesses?
LISTNUM 1 \l 13823 MR. GOLDTHORPE: I wouldn't want to say all of them, but probably 99.9 percent.
LISTNUM 1 \l 13824 COMMISSIONER DUNCAN: Are commission based?
LISTNUM 1 \l 13825 MR. GOLDTHORPE: Yes.
LISTNUM 1 \l 13826 COMMISSIONER DUNCAN: You indicate many of them employ manual processes.
LISTNUM 1 \l 13827 Are you going to scrub the list for these people, or how is that going to work?
LISTNUM 1 \l 13828 MR. GOLDTHORPE: I assume by me, you mean CLHIA.
LISTNUM 1 \l 13829 COMMISSIONER DUNCAN: Your association, yes.
LISTNUM 1 \l 13830 MR. GOLDTHORPE: No, we would not do that. Our membership is the life insurance companies and different life insurance companies have different business models.
LISTNUM 1 \l 13831 A number of the life insurance companies maintain their own call centres, and they would be having access to the list and scrubbing it for those employees in their call centres.
LISTNUM 1 \l 13832 Other companies have what we call a career agency system. Primerica is an example of a company with a career agency system.
LISTNUM 1 \l 13833 And by career agency, I mean the agents are exclusive agents for that company.
LISTNUM 1 \l 13834 Those companies with career agents would likely scrub the lists and circulate marketing telephone lists for their agents.
LISTNUM 1 \l 13835 Other companies ‑‑ and I suspect. I don't suspect, I know it's the majority of life agents are independent.
LISTNUM 1 \l 13836 Some of them work through what we call managing general agents, which is sort of an entity that manages a bunch of independent agents. And others operate basically on their own out of their houses.
LISTNUM 1 \l 13837 Some of the managing general agencies are very large and they might have that facility. In other cases, these independent agents would be initiating the telemarketing on the calls that they are doing on their own and would be responsible for accessing the "do not call" lists and making sure the numbers they were calling were okay to call.
LISTNUM 1 \l 13838 COMMISSIONER DUNCAN: So some of those people would then be making the investment, for example, that Contact New Brunswick was talking to this morning.
LISTNUM 1 \l 13839 MR. GOLDTHORPE: That is correct.
LISTNUM 1 \l 13840 COMMISSIONER DUNCAN: I suppose it is a hardship. It is a cost but it is a cost of doing business.
LISTNUM 1 \l 13841 MR. GOLDTHORPE: Yes. I think part of the concern ‑‑ and we have certainly had this discussion with the Operations Subcommittee ‑‑ is that there is a great deal of uncertainty right now. I am very pleased with some of the work that is being undertaken now to understand the universe better and how many telemarketers there are and how those potential costs will be shared, how many people are likely to go on to the "do not call" list.
LISTNUM 1 \l 13842 So we have a better idea of what sort of costs are going to be out there and how many people there are out there to share those costs.
LISTNUM 1 \l 13843 In the absence of that kind of information, we are really sort of speculating. And I guess human nature is to speculate on worst case scenarios.
LISTNUM 1 \l 13844 COMMISSIONER DUNCAN: When you are referring to costs in that light, you are thinking of the whole operation, are you?
LISTNUM 1 \l 13845 MR. GOLDTHORPE: Yes.
LISTNUM 1 \l 13846 COMMISSIONER DUNCAN: I am also thinking, because the Contact New Brunswick representative was talking about an individual agency; that his own personal experience ‑‑ because he had a telemarketing firm himself, although he was here representing an agency ‑‑ was that the capital investment was in the area of $25,000.
LISTNUM 1 \l 13847 MR. GOLDTHORPE: That is the first time I have heard that number. I have no reason to believe or disbelieve it.
LISTNUM 1 \l 13848 I am going to try to turn this down because it is distracting me. Thank you.
LISTNUM 1 \l 13849 COMMISSIONER DUNCAN: I will get closer to the microphone.
LISTNUM 1 \l 13850 I am just wondering, $25,000 for an individual, I thought that would be steep. And you haven't considered the cost from that end.
LISTNUM 1 \l 13851 MR. GOLDTHORPE: Well, certainly $25,000 for an independent life agent would be extremely steep. I would submit that if that is the price, it would put them out of business.
LISTNUM 1 \l 13852 COMMISSIONER DUNCAN: Yes. This gentleman was a telemarketing company. That was his job, so his scenario might be different.
LISTNUM 1 \l 13853 Do you have some idea what it might cost your ‑‑ you said you haven't given it any thought yet.
LISTNUM 1 \l 13854 MR. GOLDTHORPE: No, we don't.
LISTNUM 1 \l 13855 COMMISSIONER DUNCAN: Do you have any idea what the call blocker hardware costs?
LISTNUM 1 \l 13856 MR. GOLDTHORPE: No, I don't.
LISTNUM 1 \l 13857 COMMISSIONER DUNCAN: On the issue of consumer consent, can you explain to us how your members would record consumer consent, document it in the event that there was an investigation at some point.
LISTNUM 1 \l 13858 MR. GOLDTHORPE: Generally speaking, the life insurance companies encourage agents to maintain a client file and provide written documentation.
LISTNUM 1 \l 13859 I know that yesterday Advocis made a presentation. Advocis has a best practices manual and that is certainly one of the components of their best practices, is to maintain written documentation of all of the discussion that goes on during the transaction.
LISTNUM 1 \l 13860 I would think that there would be documentation in the client files.
LISTNUM 1 \l 13861 I think one of the concerns is that in the area of consent, and particularly for referrals, we don't have a concern with explicit consent. To go the next step and suggest that it should be explicit written consent is where it becomes problematic.
LISTNUM 1 \l 13862 I think the example that Commissioner Cram indicated yesterday about the cocktail party, it is kind of awkward to obtain written consent during the course of a casual conversation at a cocktail party, although it may be very clear that the individual is quite prepared to entertain a telephone call from the advisor within the next couple of days.
LISTNUM 1 \l 13863 So in that case the advisor might simply make a note in the file: "Met at a cocktail party; discussed X, Y and Z and plan to call in the next two days", or something like that.
LISTNUM 1 \l 13864 COMMISSIONER DUNCAN: Does your Association provide rules and guidelines, best practices, for the members? Or would that fall to the career agents?
LISTNUM 1 \l 13865 MR. GOLDTHORPE: Our members are life insurance companies, so we do have guidelines for life insurance companies.
LISTNUM 1 \l 13866 It is up to the life insurance companies to establish contractual relationships with their advisors and write the policy manuals that I was talking about for their advisors. We are not directly involved with the advisors that would be doing the telemarketing.
LISTNUM 1 \l 13867 COMMISSIONER DUNCAN: Thank you.
LISTNUM 1 \l 13868 That's it for my questions, right now at any rate; thank you.
LISTNUM 1 \l 13869 THE CHAIRPERSON: Mr. Langford.
LISTNUM 1 \l 13870 COMMISSIONER LANGFORD: Thank you.
LISTNUM 1 \l 13871 THE CHAIRPERSON: I'm sure you are going to hit gold this time.
LISTNUM 1 \l 13872 COMMISSIONER LANGFORD: I'm going to try it one more time. This could be my moment to say Eureka! But I doubt it.
LISTNUM 1 \l 13873 I am looking for another way to assess why I tend to think this is being made out ‑‑ it feels like it is being made out that the whole sense of friends, acquaintances, family, it sounds to me like it is a bigger problem; that it is being made to be a bigger problem than it could possibly be.
LISTNUM 1 \l 13874 I want to call on you again ‑‑ third time lucky, I hope ‑‑
LISTNUM 1 \l 13875 MR. GOLDTHORPE: Could I, just before you ask your question?
LISTNUM 1 \l 13876 COMMISSIONER LANGFORD: Sure.
LISTNUM 1 \l 13877 MR. GOLDTHORPE: I am entirely sympathetic with your sentiments.
LISTNUM 1 \l 13878 COMMISSIONER LANGFORD: Thank you. That puts you at odds with the rest of the people on this Panel.
‑‑‑ Laughter / Rires
LISTNUM 1 \l 13879 MR. GOLDTHORPE: Maybe I will retract that then ‑‑
LISTNUM 1 \l 13880 COMMISSIONER LANGFORD: If you want to go with the majority ‑‑
LISTNUM 1 \l 13881 MR. GOLDTHORPE: ‑‑ if things are going on a vote.
LISTNUM 1 \l 13882 COMMISSIONER LANGFORD: It seems almost as though in dealing with your telephone relationships it's as though there are no other possible relationships; that somehow we are so focused on the telephone it's as though nothing else exists.
LISTNUM 1 \l 13883 I am trying to think of a simple scenario here.
LISTNUM 1 \l 13884 One of your agents calls a brother‑in‑law and he puts in a complaint because he is on the "do not call" list and you don't want this to happen.
LISTNUM 1 \l 13885 MR. GOLDTHORPE: That's right.
LISTNUM 1 \l 13886 COMMISSIONER LANGFORD: Or you don't want to run into some rules, practical rules in your business that are so strict they wouldn't even allow you to call the brother‑in‑law.
LISTNUM 1 \l 13887 But it seems to me that, first of all, the simple way around this would be to just run your brother‑in‑law's phone number across your list. If he is not on the "do not call" list, anyone can call him.
LISTNUM 1 \l 13888 So in that way, you're in. Right?
LISTNUM 1 \l 13889 MR. GOLDTHORPE: That is correct.
LISTNUM 1 \l 13890 COMMISSIONER LANGFORD: If he is on the "do not call" list, you go visit him or you pick up the phone and say, "Hey, I notice you are on the do not call list. I was thinking of flogging you some insurance. If you are interested, call me."
LISTNUM 1 \l 13891 Or you phone your sister and say, "What's Joe thinking about insurance?"
LISTNUM 1 \l 13892 I mean, it seems there have to be other ways around this other than to create a new exemption.
LISTNUM 1 \l 13893 MR. GOLDTHORPE: I'm not sure that you could make a telephone call saying you intend to call to solicit tomorrow. That telephone call that you have just made would, I think, be reasonably interpreted as a solicitation call.
LISTNUM 1 \l 13894 I agree. And certainly in a complaint‑based system that we are envisioning, the likelihood that we are going ‑‑ I mean, if you are a telemarketer and you are calling your best friend and they are complaining, you have more problems than the "do not call" list.
LISTNUM 1 \l 13895 That's why I said I agree with your sentiment.
LISTNUM 1 \l 13896 The problem, as I said ‑‑ and I think that my colleague from Primerica talked about this yesterday when she used the example of the artificially low speed limits.
LISTNUM 1 \l 13897 If you set a standard that no one perceives as making sense, then you either invite disregard for the whole system and certainly ill will, and that sort of thing.
LISTNUM 1 \l 13898 The problem that life insurance companies face, it is a very strong, heavily regulated. The marketing and distribution of life insurance is very strongly regulated. Companies are required to maintain policies and procedures to provide adequate supervision and adequate training in the area of the marketing and distribution of insurance.
LISTNUM 1 \l 13899 They are required to maintain compliance systems.
LISTNUM 1 \l 13900 If you have a rule out there which says if the person is on the "do not call" list you can't call them, then that is the rule that the companies have to communicate to their advisors through their employee training programs and policy manuals.
LISTNUM 1 \l 13901 In some urban centres there are probably ways to get around using the telephone.
LISTNUM 1 \l 13902 If you are in a rural area in Saskatchewan and it's a 20 or 30 kilometre drive to your circle of friends, the telephone becomes a much more important means of cost‑effective communication.
LISTNUM 1 \l 13903 COMMISSIONER LANGFORD: Let's take the person at the cocktail party, and your note to file, "Met at cocktail party, okay to call."
LISTNUM 1 \l 13904 Surely you would be given a number to call or at least enough information to get the number and once again you could run that by your list and see whether it was on or off. If it is not on you are fine.
LISTNUM 1 \l 13905 MR. GOLDTHORPE: Yes.
LISTNUM 1 \l 13906 COMMISSIONER LANGFORD: If it is on, it seems to me still an inventive agent, an imaginative agent could find a way to get around that, particularly, as you said, in an urban setting. You could arrange to meet at this person's office. You could do it personally or wherever, but it seems to me that is not insurmountable.
LISTNUM 1 \l 13907 As for rural Saskatchewan, well, we've got the expert on that sitting right beside me here so she could guide you, but it seems to me that if you had a number of friends in one place and they were on the do not call list, it might be worth making a drive up there. You know, twenty or thirty kilometres is not the end of the world, even at today's gas prices.
LISTNUM 1 \l 13908 I just ‑‑ the problem is you are talking about being a heavily regulated industry, and though we are regulators, we are fairly heavily regulated by Parliament, and Parliament has just freshly spoken here and it seems that if there are alternatives, and not terribly difficult alternatives, to try to change what's before us or to try to somehow massage it so that we can extend it, you know, it is something we at least have to explore before we go back to Parliament and say, you know what, we can't do this. We need a change. We haven't even started and we need a change. It is a difficult hill to climb.
LISTNUM 1 \l 13909 Parliament has its own agenda and there is no knowing when that change might come through. And on the other hand, if we try to massage some other procedural element of the enabling legislation to sort of squeak in some sort of referral thing, you know, that may fail as well.
LISTNUM 1 \l 13910 MR. GOLDTHORPE: Well, with respect though, the senate did indicates in the commentary that they hoped that we would be able to find a way of dealing with the situation that ‑‑ of personal relationships that we did raise with the senate.
LISTNUM 1 \l 13911 So I agree that Parliament has spoken. We do have the letter of the law, but we also have the commentary from the senate suggesting that we try to figure out a way to handle this.
LISTNUM 1 \l 13912 As I said, the concern of the insurance companies is technical in nature and admittedly narrow in nature, but I believe that it is a legitimate concern.
LISTNUM 1 \l 13913 COMMISSIONER LANGFORD: If we didn't think it was legitimate, we wouldn't be spending this amount of time on it.
LISTNUM 1 \l 13914 MR. GOLDTHORPE: I understand that.
LISTNUM 1 \l 13915 COMMISSIONER LANGFORD: We'd just simply say Parliament has spoken, go away.
LISTNUM 1 \l 13916 MR. GOLDTHORPE: I understand that.
LISTNUM 1 \l 13917 COMMISSIONER LANGFORD: So we are trying our best.
LISTNUM 1 \l 13918 MR. GOLDTHORPE: I appreciate that.
LISTNUM 1 \l 13919 COMMISSIONER LANGFORD: But also looking at other ways. Those are my questions, thank you, Mr. Chair. And thank you, sir.
LISTNUM 1 \l 13920 THE CHAIRPERSON: Commissioner Cram.
LISTNUM 1 \l 13921 COMMISSIONER CRAM: Thank you. I think I heard you say don't make telemarketers keep records. They would be stupid not to, but don't tell them to. And don't make ‑‑‑
LISTNUM 1 \l 13922 MR. GOLDTHORPE: I think I said imprudent. I hope I said imprudent.
LISTNUM 1 \l 13923 COMMISSIONER CRAM: Yes. Yes, you probably did. I am paraphrasing.
LISTNUM 1 \l 13924 MR. GOLDTHORPE: That's okay.
LISTNUM 1 \l 13925 COMMISSIONER CRAM: There is NO such thing as a stupid telemarketer.
LISTNUM 1 \l 13926 MR. GOLDTHORPE: Or anyone.
LISTNUM 1 \l 13927 COMMISSIONER CRAM: Anyone, yes, strike that totally from the record. Anyway, I thought I heard you say don't make them keep records and don't make it a violation. And it's the second part that I'm wondering about. Why do you say not to make it a violation?
LISTNUM 1 \l 13928 MR. GOLDTHORPE: Don't make the failure to keep a record a violation.
LISTNUM 1 \l 13929 COMMISSIONER CRAM: And why would you think that?
LISTNUM 1 \l 13930 MR. GOLDTHORPE: In other words, don't make record keeping mandatory. See, if record keeping is mandatory and they don't have the records, then they have committed a violation.
LISTNUM 1 \l 13931 COMMISSIONER CRAM: Yes.
LISTNUM 1 \l 13932 MR. GOLDTHORPE: But if the record keeping is not mandatory, then there is no violation.
LISTNUM 1 \l 13933 COMMISSIONER CRAM: But it would seem to me that ‑‑
LISTNUM 1 \l 13934 MR. GOLDTHORPE: A violation of common sense, perhaps, but...
LISTNUM 1 \l 13935 COMMISSIONER CRAM: Yes. There would be ‑‑ but certainly not stupidity. There would be other uses to have those calling logs, and of course, you see, I am ‑‑ on the broadcast side we log every scintilla of ‑‑ it would seem to me that if on a particular day there were five complaints and we said let me see your logs, it would be very easy for us to confirm or deny, but it would also be very easy for us to see that those may not have been isolated incidents and we are looking at a bigger incidents than ‑‑ and I know this is going to get into complaints driven by, my lord, if my sister‑in‑law didn't complain and yet still was telemarketed, you are going to say that is not a breach of the rules.
LISTNUM 1 \l 13936 Is that where you are coming from? I know I am putting words in your mouth. I am sorry.
LISTNUM 1 \l 13937 MR. GOLDTHORPE: Yes. So let me take those words out of my mouth and try some other words. What I am suggesting is if there were five complaints in one day, the do not call list operator would have a record of those five complaints coming in.
LISTNUM 1 \l 13938 So they would already have the evidence of a pattern of abuse. They don't need the telemarketer's records to substantiate that. They have had the complaints come in on that day, so they have got the record that they need to establish that telephone calls are being made that are creating problems for consumers.
LISTNUM 1 \l 13939 Whether or not the telemarketer keeps records of those calls is not a problem for the consumer. It is a problem for the telemarketer because the telemarketer is not going to be able to defend him or herself if those complaints come in.
LISTNUM 1 \l 13940 The fact that the telemarketer has not kept any records, because that doesn't create a problem for the consumer, it shouldn't be treated as a violation.
LISTNUM 1 \l 13941 COMMISSIONER CRAM: And so then the powers of the delegate to require any records, et cetera, if we didn't require the keeping of a log we couldn't look at it at any time.
LISTNUM 1 \l 13942 MR. GOLDTHORPE: That's correct.
LISTNUM 1 \l 13943 COMMISSIONER CRAM: Because, again it is complaint based ‑‑
LISTNUM 1 \l 13944 MR. GOLDTHORPE: There would be nothing to look at.
LISTNUM 1 \l 13945 COMMISSIONER CRAM: And if we saw a serious problem by looking at the logs ‑‑ so in other words, ignorance is bliss, is that really where you are at?
LISTNUM 1 \l 13946 MR. GOLDTHORPE: With respect, I don't understand that comment. If the ‑‑ it seems to me that the CRTC's concern and the do not call list operator's concern is whether complaints are coming from consumers about a telemarketer.
LISTNUM 1 \l 13947 The complaints will be based on a call being placed and if there is a complaint, the telemarketer ‑‑ or the do not call list operator and the CRTC know that there is a complaint, they know that there is a cause of concern. Whether or not the telemarketer has a log seems to me totally irrelevant to whether consumers are being bothered by the telemarketers.
LISTNUM 1 \l 13948 That should be the concern of the CRTC and the do not call list operator.
LISTNUM 1 \l 13949 COMMISSIONER CRAM: Okay. So the idea is that the onus is totally on the consumer to complain?
LISTNUM 1 \l 13950 MR. GOLDTHORPE: Right.
LISTNUM 1 \l 13951 COMMISSIONER CRAM: And that the DNCL operator or us have no duty beyond dealing with the complaints themselves?
LISTNUM 1 \l 13952 MR. GOLDTHORPE: I certainly don't envision a system where the do not call list operator would be going out and auditing telemarketers if there was never any complaints from the consumers about telemarketers. I don't see any need to do spot audits of telemarketers to see if they are maintaining do not call lists.
LISTNUM 1 \l 13953 It would seem if you've got limited resources, your limited resources should be dedicated to investigating the complaints that are coming from consumers about calls that are reaching their houses, not auditing telemarketers that are not generating any complaints from consumers.
LISTNUM 1 \l 13954 COMMISSIONER CRAM: And how would a lack of logs impact on any due diligence? That would be the end of it? There would be no due diligence, I guess, eh?
LISTNUM 1 \l 13955 MR. GOLDTHORPE: Well, there'd certainly be very limited evidence of due diligence.
LISTNUM 1 \l 13956 COMMISSIONER CRAM: Um‑hum.
LISTNUM 1 \l 13957 MR. GOLDTHORPE: On the telemarketer's part.
LISTNUM 1 \l 13958 COMMISSIONER CRAM: Yes, thank you. Thank you, Mr. Chair.
LISTNUM 1 \l 13959 THE CHAIRPERSON: Before I let you go, I want to talk about this record keeping business as well. I've got the message on the prudent telemarketer. I understand that.
LISTNUM 1 \l 13960 In effect you are saying, you know, don't police common sense on the part of the actors when you have ‑‑ when you are seized of a complaint and have to deal with it. If the telemarketer hasn't maintained its records, you just do what you have to do. He's failed to provide a defence for himself.
LISTNUM 1 \l 13961 MR. GOLDTHORPE: Right.
LISTNUM 1 \l 13962 THE CHAIRPERSON: Do your member companies or member agents operate company or agent specific do not call lists?
LISTNUM 1 \l 13963 MR. GOLDTHORPE: I haven't surveyed all of the member companies to know whether all of them do. Some of them are not involved in telemarketing, so obviously they don't.
LISTNUM 1 \l 13964 We heard from one of my member companies yesterday, Primerica maintains one. I know that the ‑‑ a number of the companies with call centres have indicated and talked about their experiences maintaining do not call lists, so I think it is a widespread practice, but I couldn't vouch for ‑‑ as I said, I haven't surveyed my members on that issue.
LISTNUM 1 \l 13965 THE CHAIRPERSON: On the hypothesis that the Commission were to retain the position expressed by the number of parties, though not all parties, that it is appropriate that company specific do not call lists should be maintained ‑‑
LISTNUM 1 \l 13966 MR. GOLDTHORPE: Um‑hum.
LISTNUM 1 \l 13967 THE CHAIRPERSON: Would you agree that it would be logical for the Commission to not only require that they be maintained, but require that they be maintained in certain forms and certain availability because this, after all, is a circumstance in which the company has an incentive not to find its do not call list when someone complains about that kind of a violation.
LISTNUM 1 \l 13968 MR. GOLDTHORPE: I'm not sure I follow your question.
LISTNUM 1 \l 13969 THE CHAIRPERSON: Well, if a customer says, "I registered with Primerica."
LISTNUM 1 \l 13970 MR. GOLDTHORPE: Right.
LISTNUM 1 \l 13971 THE CHAIRPERSON: Because we know they are good citizens and have a list. And Primerica ‑‑ so we follow up with the complaint and say, gee, we don't have a list or we thought we had a list, we don't have a list, we can't find the list, the customer's name's not on the list.
LISTNUM 1 \l 13972 Wouldn't it ‑‑ and under your scenario if we had made no particular requirements except a general one to have a do not call list, how would we police that? You understand that in this case it is not in the interest of the telemarketer to maintain lists in a systematic and effective way.
LISTNUM 1 \l 13973 Wouldn't it be reasonable for us to make specific requirements of what that list would be and how it would be accessible and how rapidly it should be produced, et cetera, et cetera, in case of ‑‑ due to the complaints of that nature?
LISTNUM 1 \l 13974 MR. GOLDTHORPE: I see. And I think perhaps in the guidelines on defence you could outline the sort of documentation that you would expect to see that would be used to address ‑‑ address complaints and be used in an investigation.
LISTNUM 1 \l 13975 All I am suggesting is that we don't go the extra step and make the failure to keep that documentation ‑‑
LISTNUM 1 \l 13976 THE CHAIRPERSON: Ipso facto ‑‑‑
LISTNUM 1 \l 13977 MR. GOLDTHORPE: Yes, another defence, that's correct.
LISTNUM 1 \l 13978 THE CHAIRPERSON: Understood. Just exactly on that question of ‑‑ I am sorry. You just evoked a circumstance where ‑‑ sorry, tell me again what you just said to me.
‑‑‑ Laughter.
LISTNUM 1 \l 13979 THE CHAIRPERSON: My colleagues are really enjoying this.
LISTNUM 1 \l 13980 MR. GOLDTHORPE: You know, it is three‑thirty in the afternoon.
LISTNUM 1 \l 13981 THE CHAIRPERSON: Well, it is for both of us, I agree. But try to help me.
LISTNUM 1 \l 13982 MR. GOLDTHORPE: Yes. I think I said that if the Commission ‑‑ if the CRTC wanted to prepare a guidelines on defences.
LISTNUM 1 \l 13983 THE CHAIRPERSON: Oh, thank you.
LISTNUM 1 \l 13984 MR. GOLDTHORPE: It would. That was easy.
LISTNUM 1 \l 13985 THE CHAIRPERSON: Would a specification of a defence that said the caller had reasonable and appropriate grounds to think that he was getting ‑‑ he was calling a reference ‑‑ making ‑‑ he was calling a party to whom he had been referred by a friend or family member, would that constitute the kind of reassurance that your lawyers would need to instruct your people to train intelligently as opposed to against all common sense in the framework ‑‑ and I don't mean it is just yours, it is all large companies operating that way.
LISTNUM 1 \l 13986 MR. GOLDTHORPE: I am sorry, could you run that past me again?
LISTNUM 1 \l 13987 THE CHAIRPERSON: Yes. You have, in effect ‑‑ one option is that we could say to Parliament, well, you missed two or three things so we are going to exempt B to B, and we are going to exempt personal relationships.
LISTNUM 1 \l 13988 MR. GOLDTHORPE: Okay.
LISTNUM 1 \l 13989 THE CHAIRPERSON: That is one way of doing it, which would make the requirements that a number of people have asked us. Another ‑‑ in the case of personal relationships, because of the sort of ambiguity that we've all been struggling with, and I think you can perceive us as honestly struggling with it, as many of you are, would it ‑‑ would a solution be that it would be a defence or part of a defence that the calling party had, on the basis of ‑‑ had a reasonable expectation on the basis of ascertainable fact that he was, in fact, calling a friend or family member of a person who had provided the reference?
LISTNUM 1 \l 13990 MR. GOLDTHORPE: Absolutely. And I would ‑‑ there would be a guideline on ‑‑ I think that this whole matter could be addressed through the guideline on defence.
LISTNUM 1 \l 13991 THE CHAIRPERSON: That would capture for me ‑‑
LISTNUM 1 \l 13992 MR. GOLDTHORPE: Or the guideline on notices of violation, one or the other, but either of the ‑‑ either of those guidelines.
LISTNUM 1 \l 13993 THE CHAIRPERSON: Somewhere in the set of guidelines would provide a sufficient list ‑‑ because after all, the real issue we have here is not that there is going to be thousands of complaints, we all admit there won't be thousands of complaints.
LISTNUM 1 \l 13994 The real issue we have is to convince the lawyers, who are advising the trainers, to do something sensible in relation to guidance to your agents. That is fundamentally what we are talking about.
LISTNUM 1 \l 13995 MR. GOLDTHORPE: Absolutely.
LISTNUM 1 \l 13996 THE CHAIRPERSON: Thank you. Counsel?
LISTNUM 1 \l 13997 MR. MILLINGTON: I have nothing.
LISTNUM 1 \l 13998 THE CHAIRPERSON: Thank you very much, Mr. Goldthorpe.
LISTNUM 1 \l 13999 MR. GOLDTHORPE: My pleasure.
LISTNUM 1 \l 14000 THE CHAIRPERSON: Much appreciated. We will rise and see you again at ten minutes to four please.
‑‑‑ Upon recessing at 1535 / Suspension à 1535
‑‑‑ Upon resuming at 1550 / Reprise à 1550
LISTNUM 1 \l 14001 THE CHAIRPERSON: Order please. Alors, sil vous plait. Well, Mr. Watt, you are here and we are here and I am sure my CRTC staff will be available to us at some point, but we will start without them. Please begin.
PRESENTATION / PRÉSENTATION
LISTNUM 1 \l 14002 MR. WATT: I will. Mr. Chairman, Commissioners, CRTC staff and interested parties, my name is David Watt and I am vice‑president, regulatory economics with Rogers Communications, a large national telemarketer.
LISTNUM 1 \l 14003 I am pleased to have with me today on my right, Mike Redalaar, senior director of national direct sales for Rogers. Mike has eighteen years of telemarketing industry experience and has been actively involved in the telemarketing evolution from the pre‑computer infancy to the current high tech maturity.
LISTNUM 1 \l 14004 On my left I have Howard Slawner, director of regulatory. Howard is also serving as the chair of the CISC DNCL operations working group. And to Howard's left is Tiffany Shell, manager of economics.
LISTNUM 1 \l 14005 I am going to deviate from the written text that is before you. I am going to shorten up the first half quite substantially. Given the discussion of the last two days, it seems to us that we could be of most use if we were to go through in some detail how telemarketing operates within Rogers. To that end we have Michael here to go through that.
LISTNUM 1 \l 14006 So I will quickly zip through parts of the first and then we will move on to the heart of the matter.
LISTNUM 1 \l 14007 Dealing first with costs. The telemarketer or Rogers should assume its fair portion of the costs of a do not call list, however we do not believe that we should assume additional costs by virtue of being a telecommunications carrier.
LISTNUM 1 \l 14008 Implementation of a do not call list is a telemarketing consumer affairs issue, it is not a telecommunications carrier issue. If the costs of the DNCL were to be recovered through an increase in CRTC telecom fees or through an increase, as some parties have suggested, to telecommunications service rates charged to the customers, carriers and customers would be subsidizing the activities of telemarketers. In our view this would be wrong.
LISTNUM 1 \l 14009 With regard to a mandatory consumer opt‑in requirement, we believe it must be mandatory for the consumer to register themselves directly on the do not call list. There must be safeguards in place to ensure the phone number being registered does belong to the consumer or is one associated with the consumer. I take your point the telephone companies own the numbers.
LISTNUM 1 \l 14010 An example of this type of safeguard might be when a consumer calls a toll free number to register. They must place the call from the phone number to be registered. Similar safeguards could be put in place for internet registrations. It is imperative that the onus resides on the consumer to register and not on the telemarketer placing the call.
LISTNUM 1 \l 14011 With regard to voice casting, retrieving deposit of voice casting messages from wireless voice mail accounts results in economic consequences to the subscribers that don't exist for wire line customers.
LISTNUM 1 \l 14012 When they retrieve these messages they incur costs, sometimes substantial costs in terms of roaming and long distance charges, so aside from being a nuisance, there is an economic penalty. Rogers is applying to the Commission for a prohibition of cellular voice casting in hopes the Commission will agree. However, Rogers believes that including wireless phone numbers on the DNCL list would be an additional level of protection available to Canadian wireless customers.
LISTNUM 1 \l 14013 Now, turning to telemarketing, we heard some discussion this morning about a button, a DNCL button that could be pushed to have subscribers immediately eliminated from calling lists. We want to quite slowly go through our operations today to clearly explain that such a button doesn't currently exist at Rogers and that in the context of our complex marketing operations to implement that type of arrangement for both our internal do not call list and an external do not call list would be a very complex, expensive and time consuming proposition.
LISTNUM 1 \l 14014 We have ‑‑ we have currently been constructing a CRM, customer relationship management system now for slightly over five years and we think we are approaching the implementation of that on an integrated basis across our subscriber base. That is an indication as to how complex some of these systems are.
LISTNUM 1 \l 14015 Rogers is one of Canada's largest telemarketers and has a very complex operation. In any given month, we will have approximately 40 cold calling lists in the field being handled by ten different suppliers, one of them being our own internal operations, operating in 14 physical locations spread across eight different locations in Canada.
LISTNUM 1 \l 14016 We fine tune our resources to this allocation to the extent that we eliminate people in seats to the tune of one per day, it is that finely tuned. If we don't have the calls for that person for a day, they are not in the seat that day. Do I minimize this so that people have steady employment over the time frame, but it is a very tightly tuned operation.
LISTNUM 1 \l 14017 With that I am going to turn you over to Mike now. In preparation for that, you might want to detach the last page from our written remarks to see if ‑‑ sort of a graphical time scale as to what Mike is talking about.
LISTNUM 1 \l 14018 MR. REDELAAR: Thank you. As David indicated, today Rogers operates one of Canada's largest and most complex telemarketing operations. As you are very aware, the key operational activity relating to implementing a do not call list is the scrubbing of this list against our monthly lead allocation.
LISTNUM 1 \l 14019 So as I said, the key operational activity relating to implementing a do not call list is the scrubbing of the list against our monthly lead allocation. This ensures that a consumer is not contacted.
LISTNUM 1 \l 14020 Currently we contract a third party company to compete in many components of our list processing. This includes, but is not limited to, scrubbing against our do not call list from Rogers Wireless, Rogers Cable, Rogers Telecom and Fido, as well as the CMA do not call list.
LISTNUM 1 \l 14021 We then distribute these lists to both our internal and third party contracted call centres to the extent that David indicated, several locations and several lists throughout the country. The reason Rogers has requested a 60 day grace period is based on the following processes we adhere to today and that is detailed on the list to make it a little easier this late in the day.
LISTNUM 1 \l 14022 I will illustrate these processes using August as the calling month, and keep in mind that day one of this four stage process begins mid month of the month prior to calling, as you'll see a July date on the list in front of you.
LISTNUM 1 \l 14023 Stage 1 from July 15th to July 26th, our contracted supplier ‑‑ by the way, we use a company called Cornerstone to take all of this off our hands so I have one point of contact to do all our scrubbing, less room for error, much easier process.
LISTNUM 1 \l 14024 Our contracted supplier will obtain a list from brokers and scrub them against the multiple do not call lists previously mentioned. From stage 2, from July 27th to July 31st, lists are divided and sent to our internal and external telemarketing suppliers. Stage 3 the lists become active, so on August 1st to August 31st these lists are active and then pulled from production at the end of the month. Stage 4, from September 1st to September 7th, scheduled callbacks may continue.
LISTNUM 1 \l 14025 Based on the operational model I have just described, please note the time line to respect a do not call request can range from a minimum of one day, so if it was actually received on the 14th, the day before we do the scrub, we've caught it, it is out of the August list, to literally if the request comes just afterwards, we are now right up September 7th because it has made it into the August call list. So our range would be anywhere from 1 to 56 days to respect it in our current operating model.
LISTNUM 1 \l 14026 It is common practice for telemarketers, as in the case for Rogers, to initiate monthly calling based on calling campaigns starting on the first of the month. So there are lots of players out there who stick to this model.
LISTNUM 1 \l 14027 Keep in mind, however, that we require up to 17 days prior to the start of the campaign to prepare and up to seven days following a campaign to allow for callbacks. In order to maintain the telemarketing industry practice of utilizing monthly cycles, Rogers believes that you need to land on a thirty day or sixty day grace period.
LISTNUM 1 \l 14028 We've shown that a thirty day grace period is not possible from the perspective of a large national telemarketer, a sixty day grace period is the only viable alternative.
LISTNUM 1 \l 14029 The Canadian Marketing Association has shown support for this position in their comments, and I also believe the Bankers' Association yesterday is under the same model, although I missed the session.
LISTNUM 1 \l 14030 To force a thirty day period would force telemarketers into bi‑monthly operating cycles rather than the existing monthly cycles, which would substantially increase supplier costs. These costs will be in excess of what telemarketers are already expected to bear to implement the government's do not call initiative.
LISTNUM 1 \l 14031 To place excessive turnaround times on the multiple parties involved in Rogers telemarketing operations will increase the risk for error. This is why Roger believes the sixty day grace period should be implemented from the start. It is the most balanced decision for all parties involved that results in an efficient and cost effective method of respecting do not call requests from consumers.
LISTNUM 1 \l 14032 Mr. Chairman, Commissioners, CRTC staff and interested parties, I would like to thank you for your time today on behalf of the team and we are happy to answer any questions.
LISTNUM 1 \l 14033 THE CHAIRPERSON: Thank you, Mr. Redelaar, thank you, Mr. Watt. Commissioner Cugini, please.
LISTNUM 1 \l 14034 COMMISSIONER CUGINI: Good afternoon and thank you for this chart, because I do have to say that it has helped to answer quite a few of the questions that I had on the issue of the grace period. So we will definitely take it under advisement.
LISTNUM 1 \l 14035 It is quite clear as to why you believed the 60 day grace period is necessary. And just to that, I see your mike is on, if you have any final comments that you would like to make with regard to the 60 days please.
LISTNUM 1 \l 14036 MR. REDELAAR: It may be in anticipation of the question coming elsewhere. I think the question is going to be, what would be the impact of doing it in a less time or a more restrictive time restraint.
LISTNUM 1 \l 14037 I think the best way to answer that, it is very clear that I would have to find some way to scrub the lists while they are active. Once they are active I now have to involve numerous companies, numerous junior programmers. The cost would be exorbitant and, quite frankly, the room for error would be very much there.
LISTNUM 1 \l 14038 A perfect example I use is you have a junior programmer who is working on list 9, decides to go for a coffee. Now where was I, list nine or list 11? That is exactly how this will be implemented once it is out in the field.
LISTNUM 1 \l 14039 So for me it is absolutely critical that I get all that done in one point of control. So I hope I made that clear in the initiative we put forward.
LISTNUM 1 \l 14040 COMMISSIONER CUGINI: The third party call centres that you refer to, are all they all in Canada?
LISTNUM 1 \l 14041 MR. REDELAAR: They are.
LISTNUM 1 \l 14042 COMMISSIONER CUGINI: I am sorry, did you say you use just one?
LISTNUM 1 \l 14043 MR. REDELAAR: I use numerous.
LISTNUM 1 \l 14044 COMMISSIONER CUGINI: Numerous, and they are all in Canada?
LISTNUM 1 \l 14045 MR. REDELAAR: I use actually my existing infrastructure at Rogers and I use several Canadian‑based organizations for now.
LISTNUM 1 \l 14046 COMMISSIONER CUGINI: For now. So do you anticipate that some of them might be in the United States?
LISTNUM 1 \l 14047 MR. REDELAAR: I would suggest the current stress or the current financial model is pushing it to a more ‑‑ to a further destination. As an example, I get calls constantly to bring in overseas.
LISTNUM 1 \l 14048 COMMISSIONER CUGINI: Okay. So therefore you don't find it necessary to have symmetry with the current U.S. do not call list rules with regard to the grace period?
LISTNUM 1 \l 14049 MR. REDELAAR: Correct. Out of ‑‑ out of our internal preference of being Canadian based, I don't have any international ties at this point in time.
LISTNUM 1 \l 14050 COMMISSIONER CUGINI: Do your thirty party call centres, do you anticipate that there would be a need for them to access the national do not call list?
LISTNUM 1 \l 14051 MR. REDELAAR: The individual ones I farm the leads out to?
LISTNUM 1 \l 14052 COMMISSIONER CUGINI: Yes.
LISTNUM 1 \l 14053 MR. REDELAAR: I pray no. That is why I would like to keep it out of their hands. I would like the onus to be on either my organization or my one subcontracted to supplier to do all the scrub work, so that the onus on calling the right customers is taken out of the hands of my third party suppliers. That is my model today.
LISTNUM 1 \l 14054 MR. WATT: If I could just interject there, there might be some confusion between the multiple third party entities that are placing calls as opposed to the one entity which actually scrubs the lists which are then passed to the multiple entities.
LISTNUM 1 \l 14055 And Michael has argued strongly when I probed him on this to ‑‑ I like using multiple people to place the calls, but I only want one entity to scrub the list so that I have quality control over that list.
LISTNUM 1 \l 14056 COMMISSIONER CUGINI: And that is your subcontractor?
LISTNUM 1 \l 14057 MR. WATT: Correct.
LISTNUM 1 \l 14058 COMMISSIONER CUGINI: Would that subcontractor scrub the list for all of the Rogers companies?
LISTNUM 1 \l 14059 MR. REDELAAR: Absolutely.
LISTNUM 1 \l 14060 COMMISSIONER CUGINI: You said that there are ‑‑ there could be as many as forty calling ‑‑ call lists in any given month. Again, is that an aggregate number for all of the Rogers companies?
LISTNUM 1 \l 14061 MR. REDELAAR: Actually that was a bit of a mistake. There is 40 ongoing lists, but many of them would be excluded because many are existing customer lists. But there are on as much as 21 different cold calling lists spread amongst the entities that we subcontract.
LISTNUM 1 \l 14062 COMMISSIONER CUGINI: Do you have any idea how many names or numbers would be on those lists?
LISTNUM 1 \l 14063 MR. REDELAAR: Less and less every month to my stress, but I would say we are still ‑‑ it depends. As we introduce new products throughout the country that would open up a base that may not have been there when we have it, so it is ‑‑ I guess the best way to establish that is based on our customer base.
LISTNUM 1 \l 14064 So there are ‑‑ I assume ‑‑ not off the top of my head, maybe 20, 22 million households. I assume somebody knows that better than me. And we have five million customers.
LISTNUM 1 \l 14065 So take the remaining 17 million customers, slice them into 90 day cycles, you are looking at a potential of 6 million lead pool, slice and dice those the way you want, I would say we could potentially have 2.5 million leads out per month.
LISTNUM 1 \l 14066 COMMISSIONER CUGINI: We are just trying to get a sense of the magnitude.
LISTNUM 1 \l 14067 MR. REDELAAR: I understand.
LISTNUM 1 \l 14068 COMMISSIONER CUGINI: To couple that with what it would take to scrub a list. What it would take to manage such a list and then to scrub it.
LISTNUM 1 \l 14069 MR. REDELAAR: Right.
LISTNUM 1 \l 14070 COMMISSIONER CUGINI: So that is why I was just asking for that kind of information.
LISTNUM 1 \l 14071 MR. REDELAAR: Understood.
LISTNUM 1 \l 14072 MR. WATT: Mike, you were telling me earlier today, I think you know this number. The number of dialing or calling hours that you have in a given month.
LISTNUM 1 \l 14073 MR. REDELAAR: Sure. So within the Rogers Wireless cable, Fido entity and Rogers Telecom, cold calling and existing list calling, so up‑selling and cross selling, we would be in the entity of about 160 to 170,000 hours a month.
LISTNUM 1 \l 14074 COMMISSIONER CUGINI: Across all the entities?
LISTNUM 1 \l 14075 MR. REDELAAR: Across the entities of outbound calling.
LISTNUM 1 \l 14076 COMMISSIONER CUGINI: Do you place telemarketing calls to cell phone users?
LISTNUM 1 \l 14077 MR. REDELAAR: Absolutely not. Unless they have put it in the data base as their contact number.
LISTNUM 1 \l 14078 COMMISSIONER CUGINI: Okay.
LISTNUM 1 \l 14079 MR. REDELAAR: So it lies within the Rogers infrastructure as their main contact number as the world is going to potentially maybe get away from home phones and your cell phone is your only phone. If they put that in our database then yes, it would pop up to our existing customer calling on occasion. Not in the cold calling acquisition gathering list.
LISTNUM 1 \l 14080 COMMISSIONER CUGINI: So given your current structure, both with the group of companies, your subcontractor and your call centres, what is your preferred method of establishing a fee structure for the access of the do not call list?
LISTNUM 1 \l 14081 If I heard you correctly, what you said is that it could be Rogers or it could be the subcontractor that would access the list on behalf of the Rogers group of companies or a Rogers company who is conducting a telemarketing campaign at that time.
LISTNUM 1 \l 14082 MR. REDELAAR: Right.
LISTNUM 1 \l 14083 COMMISSIONER CUGINI: So what is your preference? Should it be based on number of campaigns run annually, monthly, weekly? Should it be based on the number of ‑‑ numbers that you would be contacting during the campaign? Give us your guidance on what you believe would be the best method.
LISTNUM 1 \l 14084 MR. WILKS: I am going to ask Howard Slawner to answer this from the Rogers perspective, and he has the broader perspective of the discussions within the CISC group.
LISTNUM 1 \l 14085 MR. SLAWNER: Yes, thank you. This is actually one of the issues we are addressing in the CISC operations group. I think different telemarketers are going to have different needs.
LISTNUM 1 \l 14086 I think some telemarketers will be able to take an annual subscription and be able to just pay an annual or monthly fee for basically an all you can eat kind of system. I think others would prefer having more of a usage based system where they just will get charged based upon how much they used.
LISTNUM 1 \l 14087 But these are some of the more operational issues that we need to address. We don't really currently have all the information, especially the number of telemarketers are going to use the list and how much usage there will be to kind of set fees yet. That is kind of the work that we are trying to plough through right now and it is some slow ploughing too, I am afraid. But I think our ‑‑
LISTNUM 1 \l 14088 MR. WATT: That is why we are here.
LISTNUM 1 \l 14089 MR. SLAWNER: Yes, that is why we are here. So I think there are a couple of alternatives. I think we are trying to pursue them from an operations standpoint, get to the nuts and bolts of it and hopefully we will be able to have some recommendations for the panel and for the consortium, if there is one, or whoever runs the ‑‑ or ministers the do not call list.
LISTNUM 1 \l 14090 COMMISSIONER CUGINI: Did you want to add to that?
LISTNUM 1 \l 14091 MR. REDELAAR: I can just tell you how it works with today with the CMA do not solicit list, which is the ‑‑ Cornerstone are again our contracted list processor pays the appropriate fees and of course it is billed back to the user, being me, therefore Rogers. So that is how it works today.
LISTNUM 1 \l 14092 COMMISSIONER CUGINI: And your current do not call list, you talked about safeguards for registration. How do you manage the Rogers do not call list now?
LISTNUM 1 \l 14093 MR. REDELAAR: The internal ‑‑
LISTNUM 1 \l 14094 COMMISSIONER CUGINI: The internal list.
LISTNUM 1 \l 14095 MR. REDELAAR: At all touch points they go back into our internal databases. Those databases are pulled and sent to Cornerstone again on a monthly basis so that they are updated, so that is part of the entire Cornerstone scrub before they get allocated and sent out to the suppliers.
LISTNUM 1 \l 14096 COMMISSIONER CUGINI: And do your customers or consumers receive verification that you have included them on your do not call list?
LISTNUM 1 \l 14097 MR. REDELAAR: No, it is just a confirmation ‑‑ we give them a verbal couple of lines that indicate what the next steps are. So we tell them what will happen.
LISTNUM 1 \l 14098 COMMISSIONER CUGINI: Do you think that it should be a requirement? In other words, should we build that into the do not call list rules that there should be verification? Some have made suggestions.
LISTNUM 1 \l 14099 MR. SLAWNER: I'll take this. Again, I just think it is a bit of an operations issue because in the CISC committees when we look at how feasible that is, what the cost is of doing that, I mean people propose things from mailing, like regular mail, Canada Post, all these are going to have costs, all these are going to require more people. And I think ‑‑ we don't even understand really the cost of having to do that.
LISTNUM 1 \l 14100 I believe in the States right now you can either go on line or call a 1‑800 number to discover whether or not you are, in fact, on the list. If you ask for confirmations, what's going to have to happen is we are going to need their names and addresses, there is more information we are collecting. You need their e‑mail addresses.
LISTNUM 1 \l 14101 So you have these privacy concerns and you have this confirmation concern and they are going to butt heads a little bit and, again, these are some things we are going to try to work out, but there is a give and take here between how much information do you want to collect from the person registering and whether or not you want a valid, feasible confirmation system.
LISTNUM 1 \l 14102 COMMISSIONER CUGINI: And what information do you collect now for your internal list?
LISTNUM 1 \l 14103 MR. REDELAAR: We actually have them flagged within our ‑‑ so we will actually capture the record and then that record will go within our care organization and a team data enters it and flags it as a Rogers do not solicit. So it actually lies there so that if marketing pulls a list they immediately scrub it and then we ‑‑ like we said, we update it for that last check point.
LISTNUM 1 \l 14104 So it is really a field within our infrastructure that says do not contact them on behalf of Rogers.
LISTNUM 1 \l 14105 COMMISSIONER CUGINI: Is that from both your existing customers and cold calls?
LISTNUM 1 \l 14106 MR. REDELAAR: Cold calling goes through the CMA do not solicit list. So Cornerstone secures the CMA do not solicit list prior to the July 15th scrub and wipes them out there, because obviously we don't have a database of cold calling.
LISTNUM 1 \l 14107 COMMISSIONER CUGINI: But if I am an existing Rogers customer and I get a telemarketing call from Rogers because there is a deal on high definition boxes, for example, and I say to you, look, I am a Rogers customer, I am a happy Rogers customer, if I want more from you I'll call you, put me on your do not call list.
LISTNUM 1 \l 14108 MR. REDELAAR: Right.
LISTNUM 1 \l 14109 COMMISSIONER CUGINI: Do you have that capability?
LISTNUM 1 \l 14110 MR. REDELAAR: Yes, so ‑‑ sorry, I missed your question the first time. You're right. If they absolutely call and say I don't want to hear from Rogers again, it goes to our database and to Cornerstone and all lists are scrubbed against it.
LISTNUM 1 \l 14111 I believe that answers that specific question. And then Cornerstone would make sure that the CMA ‑‑ so if they don't want to be contacted by anybody is out, is eliminated, and the internal do not solicit lists are all gathered and scrubbed so we don't contact them from a Rogers.
LISTNUM 1 \l 14112 So a lead cannot go to a supplier unless it is absolutely scrubbed against our do not solicit, aka Rogers or the CMA.
LISTNUM 1 \l 14113 COMMISSIONER CUGINI: So let me take it a step further and I say to you, and by the way, put me on every other Rogers do not call list.
LISTNUM 1 \l 14114 MR. REDELAAR: When on one, on all.
LISTNUM 1 \l 14115 COMMISSIONER CUGINI: When on one, on all?
LISTNUM 1 \l 14116 MR. REDELAAR: Yes.
LISTNUM 1 \l 14117 COMMISSIONER CUGINI: Okay. Then can I say except for Rogers Wireless?
LISTNUM 1 \l 14118 MR. REDELAAR: No.
‑‑‑ laughter.
LISTNUM 1 \l 14119 MR. REDELAAR: We don't actually have it. If you put on the Rogers do not call list, it extends to all the Rogers companies.
LISTNUM 1 \l 14120 MR. SLAWNER: I don't think I ever heard ‑‑ and I do take a lot of customer complaints personally because I fill out support and I hear them.
LISTNUM 1 \l 14121 COMMISSIONER CUGINI: Yes.
LISTNUM 1 \l 14122 MR. SLAWNER: I have never heard anybody say take me off your list, but don't take me off this. They either dislike Ted or don't ‑‑ or are a fan of Ted.
LISTNUM 1 \l 14123 MR. WATT: The one exception is you are not taken off the Blue Jay list.
‑‑‑ Laughter.
LISTNUM 1 \l 14124 COMMISSIONER CUGINI: How long do the names stay on the list?
LISTNUM 1 \l 14125 MR. REDELAAR: Within our existing infrastructure at Rogers, they stay on there indefinitely today, although it is in debate.
LISTNUM 1 \l 14126 COMMISSIONER CUGINI: Okay. So you are going to anticipate my next question I am sure, because I believe in your March submission you said that they should stay on for three years with a requirement for consumers to re‑register at that point.
LISTNUM 1 \l 14127 First part of that question is, of course, what do you see as the pitfalls of requiring a list to stay on indefinitely, similar to the UK model?
LISTNUM 1 \l 14128 MR. REDELAAR: Am I allowed to answer this? I guess not. I think the pitfalls again are that customers will forget that they are on the list. Numbers do get recycled. The person who registered will move and then their child will keep the number.
LISTNUM 1 \l 14129 I think that a periodic renewal period is logical. It gives ‑‑ people will cancel their phone numbers and I think that three year period just about is around the average time that a number will be used.
LISTNUM 1 \l 14130 So I think it is ‑‑ it is a very viable, logical, fair time frame.
LISTNUM 1 \l 14131 COMMISSIONER CUGINI: How often do people change numbers? I've had my same phone numbers for as long as I can remember.
LISTNUM 1 \l 14132 MR. SLAWNER: I myself have had at least six or seven, so...
LISTNUM 1 \l 14133 COMMISSIONER CUGINI: How will a customer be reminded or how should a customer be reminded that your three year expiry date is coming up, if you want to re‑register. In other words ‑‑
LISTNUM 1 \l 14134 MR. SLAWNER: It's something that we can definitely raise in the operations group as to whether or not we should build in a reminder system. Again a reminder system would be like a confirmation system. You'll ‑‑ you can either call or you'll need to mail or e‑mail and therefore you need to collect more information.
LISTNUM 1 \l 14135 I am not convinced yet that we actually need to have a reminder system. I guess what would happen, after three years they would get one call and they would re‑register, or you make it very clear when they registered in the first place that it does have a three year expiry.
LISTNUM 1 \l 14136 I don't think ‑‑ I mean it is something we can discuss in the operations group, but again, there is going to be cost issues, feasibility issues and we have to address them.
LISTNUM 1 \l 14137 MR. WATT: Just to add to that, I mean optimal would be to obviously find a way to remind them, otherwise they are going to call the complaints line, register a complaint, and it is going to drive up costs, but what is the optimal way of doing that when we are struggling to, A, find a definition and, B, find somebody to pay for this entire entity?
LISTNUM 1 \l 14138 So wonderful concept to remind them. How do we build it, how do we pay for it? And that is a struggle.
LISTNUM 1 \l 14139 COMMISSIONER CUGINI: Do you currently use ADADs for your telemarketing campaigns?
LISTNUM 1 \l 14140 MR. REDELAAR: I do not.
LISTNUM 1 \l 14141 MR. WATT: Howard does, so he can ‑‑ so he can explain.
LISTNUM 1 \l 14142 MR. SLAWNER: We use ADADs, but we do not use ADADs for solicitation purposes.
LISTNUM 1 \l 14143 COMMISSIONER CUGINI: For what, I am sorry?
LISTNUM 1 \l 14144 MR. SLAWNER: Solicitation to market. We only use ADADs as permitted by the CRTC's rules on ADADs. The overwhelming majority of ADAD calls are actually collections. They are just automatic reminders that you are X days past due, please make a payment as soon as possible.
LISTNUM 1 \l 14145 The only other real time we ever use an ADAD is for prepaid phones. If your minutes are about to expire we will send the message, just a reminder to use them, and those are the only two circumstances that we will do it.
LISTNUM 1 \l 14146 We don't send promotional campaigns or here's a new phone deal for you. It is basically ‑‑ the overwhelming majority are for collections, just past due reminders.
LISTNUM 1 \l 14147 COMMISSIONER CUGINI: And voice casting?
LISTNUM 1 \l 14148 MR. SLAWNER: No, we do not voice cast.
LISTNUM 1 \l 14149 COMMISSIONER CUGINI: As a telemarketer you do not use voice casting on either wireless or wire line in?
LISTNUM 1 \l 14150 MR. SLAWNER: No, I don't believe so. No, I am pretty sure.
LISTNUM 1 \l 14151 COMMISSIONER CUGINI: Okay. Mr. Chairman, those are all my questions. Thank you.
LISTNUM 1 \l 14152 THE CHAIRPERSON: Thank you. I just have a couple of questions and then Commissioner Cram has questions and there may be others. Mr. Slawner, you are the chairman of the operations subcommittee.
LISTNUM 1 \l 14153 MR. SLAWNER: Yes, I am.
LISTNUM 1 \l 14154 THE CHAIRPERSON: I get very nervous when I hear someone in that very eminent position speaking as if ‑‑ the period of time that a name is going to be on the list has some relationship to the rapidity with which phone companies circulate numbers.
LISTNUM 1 \l 14155 It seems to me very clear that by the time you are finished, the telcos, including your own, are going to be making periodic 30, 60 day submissions to the database saying these numbers are no longer active.
LISTNUM 1 \l 14156 MR. SLAWNER: We will definitely look into that. I mean that's going to be one of the topics of discussion to say whether or not carriers can, in fact, supply lists of disconnected phone numbers and we will definitely look into it, absolutely.
LISTNUM 1 \l 14157 THE CHAIRPERSON: Yeah. I mean I guess my question about how long a name should be on the list is premised on the idea that modern technology might somehow be capable of doing that. I mean if we have the whole discussion on the amount of time people are going to be based on the list on the assumptions the telephone companies can't tell us when companies ‑‑ when numbers are circulating out, I think we do indeed have a serious discussion to have.
LISTNUM 1 \l 14158 But it doesn't seem to me that is a reasonable basis on which to have the discussion.
LISTNUM 1 \l 14159 MR. SLAWNER: No, it is a very reasonable position and it is definitely one of the things we will tackle.
LISTNUM 1 \l 14160 We will take a look into how do we as carriers provide that information and look into the possibility of it. It is just ‑‑ again, it is one of those nuts and bolts issues that we have to look into.
LISTNUM 1 \l 14161 THE CHAIRPERSON: Mr. Redelaar, how will I explain to the Canadian public that the Canadian Bankers Association and the Canadian Marketing Association and Rogers in its vast and various incarnations cannot meet a grace period that has been operating in the United States for four years with hundreds and hundreds of telemarketers?
LISTNUM 1 \l 14162 MR. REDELAAR: It is a great question we debated with it as well. Wonderful. I am going to answer that twofold. The one is I've made a career out of signing up for something I can accomplish and I am concerned that if we put aggressive time lines, as I suggested and, based on technology today, I have to put the onus in a junior programmer mid‑month to do a scrub, I am setting myself up for failure.
LISTNUM 1 \l 14163 So if I am overriding marketing ‑‑ and I can see you are not buying it ‑‑ philosophy, it would be under‑promise, over‑deliver. From a ‑‑
LISTNUM 1 \l 14164 COMMISSIONER LANGFORD: That's the way he looks when he is enthusiastic.
‑‑‑ Laughter / Rires
LISTNUM 1 \l 14165 MR. REDELAAR: Then I pity his wife.
‑‑‑ Laughter / Rires
LISTNUM 1 \l 14166 COMMISSIONER LANGFORD: We all do.
LISTNUM 1 \l 14167 MR. REDELAAR: "That was not a Rogers' statement," he is going to say.
LISTNUM 1 \l 14168 MR. WATT: As you can see, we didn't bring our professional witnesses.
‑‑‑ Laughter / Rires
LISTNUM 1 \l 14169 MR. REDELAAR: The real answer is, I would love to have a real‑time virtual system that linked the "do not call" list to my databases that linked directly to my telemarketing suppliers' diallers so that I could knock it out in real time.
LISTNUM 1 \l 14170 I would love to. It doesn't exist. I think it is something we would all like to move to in the future. People speak to it, but it is not financially feasible, and, excuse my ignorance, but I don't even know if it exists today.
LISTNUM 1 \l 14171 Second, there is one major point that a lot of people have not addressed ‑‑ and I was not here yesterday. In the first zero to, let's say, six months, we anticipate that there will be a lot of people putting their name on the "do not solicit" list. Agreed.
LISTNUM 1 \l 14172 My process is, take the leads, subdivide them, allocate resources, and put those leads out to a supplier. If all of a sudden 50 percent of those leads are wiped out throughout the month, I now do not have enough leads to support the resources I allocated. I am now laying people off. And, in our industry, they are going home without pay.
LISTNUM 1 \l 14173 So that upfront scrub process, which we haven't found a way to fix today, is actually driving the resources to support those leads as I lie them out. If those resources dry out mid‑month, those people don't have work.
LISTNUM 1 \l 14174 That is the huge inhibitor for us right now to adhering to the 30 days.
LISTNUM 1 \l 14175 THE CHAIRPERSON: So there are two answers. The first is, you don't know what I will say to the public on the general question of why the Americans can do it more quickly than you can. But you do have a policy for the first six months, which is that we should be reasonable.
LISTNUM 1 \l 14176 That's what you are saying. I am not trying to put you in a corner, but, fundamentally, that is what you said to me.
LISTNUM 1 \l 14177 MR. REDELAAR: I agree that it is a very difficult positioning statement. I would love to have a better solution out there, so that I could ensure I get it right.
LISTNUM 1 \l 14178 My bigger fear, to reiterate ‑‑ and it is not going to help your cause ‑‑ is that, at least, I will get it done correctly.
LISTNUM 1 \l 14179 So I will be committing to a timeline that I will adhere to, and I promise you, with one source of scrubbing, I will get it right.
LISTNUM 1 \l 14180 MR. WATT: The only thing that I would add is ‑‑ and it does not speak directly to the question, but it is related closely enough ‑‑ that is, when you reduce from 60 days to 30 days, as Mike has already said, it adds immensely to the cost.
LISTNUM 1 \l 14181 You might think that you are going to scrub twice a month instead of once a month, so you will double the cost. No, it has to then go out into the field, and the cost will be more than doubled.
LISTNUM 1 \l 14182 Someone might say, "That's okay. A doubling of costs is a fairly good trade‑off to get a list that is in half the timeframe," but that is not really the benefit you are getting. You are getting the benefit of reducing the time from 60 days to 30 days for the incremental people added in that month. The vast proportion of the ‑‑ whatever ‑‑ say there are 2 million numbers on the list, they will be on that list and they will be benefiting, but the cost will have doubled on an overall basis to improve the situation for the incremental customers coming in in that month, cutting their time in half.
LISTNUM 1 \l 14183 So it is, maybe, not as good an economic trade‑off as it might seem at first.
LISTNUM 1 \l 14184 When we spoke about it earlier today ‑‑ Mike has not spoken directly with the large American operations to know precisely how they do their telemarketing and what they had to modify in order to accommodate the 30 days. That might be something in the intervening time period that we could do. We could see if we could contact some of the companies that we have dealt with in the States to see if they would be willing to share some of that information with us.
LISTNUM 1 \l 14185 THE CHAIRPERSON: Thank you for the information about the first six months, because I think it is relevant and something that we should be cognizant of.
LISTNUM 1 \l 14186 For the rest, it is sort of ‑‑ the Americans can do it, but we can't. That is what you are telling me.
LISTNUM 1 \l 14187 I suggest to you, respectfully, that it is going to be a very hard sell. You must understand that it is going to be extremely difficult for the CRTC to shoulder that particular explanatory burden, unless I have something a little more concrete than what I have heard.
LISTNUM 1 \l 14188 It is very, very simple. You are saying that notwithstanding ‑‑ and not just you, but the CBA and CMA ‑‑ notwithstanding the relatively satisfactory functioning of an American piece of legislation, with 30 days, it takes us 60 days. That is a real hard sell.
LISTNUM 1 \l 14189 MR. WATT: I certainly understand your predicament.
LISTNUM 1 \l 14190 The other issue that we would raise ‑‑ and, frankly, I don't think that this should be the determining consideration, but it is a consideration ‑‑ that is, there was a substantial sum of money paid by the U.S. government to enable the establishment of the list.
LISTNUM 1 \l 14191 I think you would probably say, "That was establishing the list ‑‑ "
LISTNUM 1 \l 14192 THE CHAIRPERSON: That is what I would say, yes.
LISTNUM 1 \l 14193 MR. WATT: It seems to me that the issue is that your internal operations have to change, and that would be your cost consideration.
LISTNUM 1 \l 14194 I would presume that there was some efficient sharing of the connection cost between the DNC list and the companies. We don't know the ins and outs of that, but it certainly would be a consideration.
LISTNUM 1 \l 14195 THE CHAIRPERSON: Mr. Watt, are you seriously saying that you think part of the first appropriation by the FTC was used to finance the connection costs between the various telemarketer databases and the DNCL?
LISTNUM 1 \l 14196 MR. WATT: No, I am not saying that specifically. I assume that the first allocation went to, obviously, the design and the fundamental building of it.
LISTNUM 1 \l 14197 However, there are significant costs in order to connect to that system, and I am assuming that that system was designed in such a fashion, and constructed, and, in part, paid for by the government in order to make it the most economical ‑‑
LISTNUM 1 \l 14198 THE CHAIRPERSON: I am terribly tempted to call one of the people, who is not intending to appear, so that she could tell us the facts on that.
LISTNUM 1 \l 14199 It seems to me a vanishingly small likelihood that the FTC was financing private sector compliance with the list, but we will leave it there.
LISTNUM 1 \l 14200 Commissioner Cram.
COMMISSIONER CRAM: Thank you.
LISTNUM 1 \l 14201 I want to clarify one thing. In your initial March brief you wanted, it seems to me, us both to prohibit telemarketing calls to wireless and to allow them to go on the list. At least, that is the way I read what you wrote.
LISTNUM 1 \l 14202 But now, I heard you today, Mr. Watt, say: Just allow them to go on the "do not call" list.
LISTNUM 1 \l 14203 MR. WATT: No, we still wanted the application that we filed earlier to be approved ‑‑
LISTNUM 1 \l 14204 COMMISSIONER CRAM: But that's voicecasting.
LISTNUM 1 \l 14205 MR. WATT: Voicecasting, yes.
LISTNUM 1 \l 14206 COMMISSIONER CRAM: I am talking about any telemarketing.
LISTNUM 1 \l 14207 If I understood you correctly, in your March brief ‑‑ maybe I misread it. There is always that possibility.
LISTNUM 1 \l 14208 No, you just want it prohibitive of voicecasting, and then registering on the DNCL. All right.
LISTNUM 1 \l 14209 On voicecasting, you will recall the last decision we made on the expedited file, with Infolink, I think, in Bell. In that case, the evidence at the expedited hearing was that, to date, to that time, Infolink could only access the platform of Bell.
LISTNUM 1 \l 14210 It appears that the voicecaster can now get to your platform.
LISTNUM 1 \l 14211 Is that correct?
LISTNUM 1 \l 14212 MR. SLAWNER: Yes, that is correct.
LISTNUM 1 \l 14213 We have received several complaints from customers who have received voicecasting.
LISTNUM 1 \l 14214 COMMISSIONER CRAM: Are you aware of any other platforms that they may have been able to access?
LISTNUM 1 \l 14215 MR. SLAWNER: No, I haven't researched that. I just understand that they have been able to access our voicemail system, and I would assume that they could access others.
LISTNUM 1 \l 14216 Most of the voicemail systems are pretty similar.
LISTNUM 1 \l 14217 COMMISSIONER CRAM: All right.
LISTNUM 1 \l 14218 I want to go back to the 30 days. Is this your present process?
LISTNUM 1 \l 14219 MR. REDELAAR: Correct.
LISTNUM 1 \l 14220 COMMISSIONER CRAM: I am looking at the present rules, which are the old rules, the pre‑2004 decision, and the rules seem to say that, on internal "do not call" lists, names and numbers must be entered on the "do not call" list within 30 days of a request.
LISTNUM 1 \l 14221 MR. REDELAAR: Yes. What happens is, we do not send to our own customers two months in a row.
LISTNUM 1 \l 14222 If you are on a telemarketing calling list in January, you will not be on the February list. That way we always comply with that 30‑day rule.
LISTNUM 1 \l 14223 COMMISSIONER CRAM: That's how you do it. All right.
LISTNUM 1 \l 14224 Do I understand that ‑‑ and I am looking at this ‑‑ every month, or every second month now, you scrub the list ‑‑ which, in my mind, means the added CMA numbers and the added Rogers numbers.
LISTNUM 1 \l 14225 Is that what scrubbing really means?
LISTNUM 1 \l 14226 MR. REDELAAR: Every month ‑‑ you were correct the first time, because we do this on the 15th of every month for the following month's list; and, yes, every month we scrub it against the most updated "do not solicit" list from the CMA.
LISTNUM 1 \l 14227 COMMISSIONER CRAM: But you don't have to go through the list in its entirety, you just have to go through the additions, don't you?
LISTNUM 1 \l 14228 MR. REDELAAR: I wish it was that simplistic, but, actually ‑‑ and I think this comes back to the Chairperson's point ‑‑ you are looking for a reason why we cannot facilitate this.
LISTNUM 1 \l 14229 Sitting through Howard's and the CISC group's ‑‑ and this is not meant to be an aggressive statement, but you are asking me to adhere to a process that hasn't been defined yet.
LISTNUM 1 \l 14230 Maybe there is technology or there are processes out there so that I can go directly to my suppliers and do the monthly scrubs. That does not exist today, certainly within the CMA guidelines, or their list. What we do is, we actually get an updated list every month. So we are starting from scratch every month.
LISTNUM 1 \l 14231 COMMISSIONER CRAM: So you compare to see if Abigail Andrew is still on the list, or whatever, the number ‑‑
LISTNUM 1 \l 14232 MR. REDELAAR: We would take the list ‑‑ and I am speaking a little bit out of my scope of expertise here, because it is such a natural process for us that I haven't addressed it in many years.
LISTNUM 1 \l 14233 We would take the entire entity on a monthly basis, which is, again, why I leave that cornerstone, so I don't have to have that entire entity going to all of my suppliers.
LISTNUM 1 \l 14234 They would take that entire entity, and every list that comes in, through the purchase list, or even our internal "do not solicit" list, we would then start from scratch and take all of the lists that we plan to use this month and scrub it between the 15th and the 26th.
LISTNUM 1 \l 14235 It is a constant ‑‑ it is numerous ‑‑ take all of the individual lists and scrub them against the external and the internal "do not call" lists.
LISTNUM 1 \l 14236 So we are starting from scratch every month.
LISTNUM 1 \l 14237 COMMISSIONER CRAM: Every month.
LISTNUM 1 \l 14238 MR. REDELAAR: Yes.
LISTNUM 1 \l 14239 COMMISSIONER CRAM: Surely there has to be something more efficient than that.
LISTNUM 1 \l 14240 MR. REDELAAR: I sure hope so.
LISTNUM 1 \l 14241 But, as we say that, the discussions in the committee group are that they don't even want to give us access to the lists.
LISTNUM 1 \l 14242 So are we now going to have to send them in and have them scrubbed?
LISTNUM 1 \l 14243 MR. SLAWNER: No. That was the suggestion of some of the parties on the call. That was not the decision.
LISTNUM 1 \l 14244 MR. REDELAAR: All right. I thought we were here to address all of the suggestions.
LISTNUM 1 \l 14245 THE CHAIRPERSON: At this stage it is Mr. Slawner who is responsible. You know that.
‑‑‑ Laughter / Rires
LISTNUM 1 \l 14246 MR. REDELAAR: We don't sit closely together at the office.
LISTNUM 1 \l 14247 COMMISSIONER CRAM: I take it that you didn't take the opportunity to have a little talk with Mr. DesBrisay after he was here?
LISTNUM 1 \l 14248 MR. REDELAAR: No.
LISTNUM 1 \l 14249 COMMISSIONER CRAM: And I take it that you haven't taken the opportunity, before coming here suggesting 60 days, to talk to any of your American counterparts to find out how they do comply.
LISTNUM 1 \l 14250 MR. REDELAAR: Unfortunately, as we stated earlier ‑‑ and as much as I feel like I am taking a beating here ‑‑ you are correct.
LISTNUM 1 \l 14251 COMMISSIONER CRAM: Yes, you are taking a beating all right.
‑‑‑ Laughter / Rires
LISTNUM 1 \l 14252 COMMISSIONER CRAM: On your internal "do not call" list, do you include business? Do you allow businesses to register?
LISTNUM 1 \l 14253 MR. REDELAAR: We actually do allow businesses to register on our Rogers "do not solicit" list.
LISTNUM 1 \l 14254 COMMISSIONER CRAM: Has that impacted your business in a material way?
LISTNUM 1 \l 14255 MR. REDELAAR: It has not.
LISTNUM 1 \l 14256 COMMISSIONER CRAM: Thank you.
LISTNUM 1 \l 14257 Those are my questions.
LISTNUM 1 \l 14258 THE CHAIRPERSON: Commissioner Duncan.
LISTNUM 1 \l 14259 COMMISSIONER DUNCAN: I would like to pick up on Mr. Watt's point that perhaps you could contact a company or companies in the U.S. that are your equivalent size, to have some preliminary discussion, as you mentioned, and maybe undertake to give us back that information, to see how it might influence your thoughts.
LISTNUM 1 \l 14260 We have been asking for undertakings to be submitted within the next eight to ten days.
LISTNUM 1 \l 14261 Would that be reasonable to ask of you?
LISTNUM 1 \l 14262 MR. REDELAAR: I believe we had the same recommendation in the working groups, to actually find out.
LISTNUM 1 \l 14263 Howard?
LISTNUM 1 \l 14264 MR. SLAWNER: We will undertake within ten days to provide you with an answer. We will speak with some of our American counterparts to see if we can determine that.
LISTNUM 1 \l 14265 COMMISSIONER DUNCAN: At least some idea, because there is no point in wasting all kinds of time on 60 if we can meet the 31 and it is practical to do so.
LISTNUM 1 \l 14266 MR. SLAWNER: Yes, we will definitely take that undertaking, speak with them and get back to you.
LISTNUM 1 \l 14267 COMMISSIONER DUNCAN: I was just trying to understand, on the Rogers list, as Commissioner Cugini was asking you, if I asked to be put on a "do not call" list, how does that work with getting the list scrubbed once a month?
LISTNUM 1 \l 14268 I don't quite understand how that goes together.
LISTNUM 1 \l 14269 MR. REDELAAR: Your question is, it adheres to the same process, so, therefore, we must be missing the window.
LISTNUM 1 \l 14270 How we actually don't miss the window is, we never call the same customer two months in a row.
LISTNUM 1 \l 14271 COMMISSIONER DUNCAN: Actually, you are giving me more credit than I probably deserve.
LISTNUM 1 \l 14272 The list that you are going to get from ‑‑ of course, you don't have that at this point.
LISTNUM 1 \l 14273 The list you are scrubbing against ‑‑
LISTNUM 1 \l 14274 MR. REDELAAR: I am going to call two lists. I am going to call our existing customers and I am going to call cold‑callers.
LISTNUM 1 \l 14275 COMMISSIONER DUNCAN: And you are scrubbing your internal Rogers list against those proposed lists.
LISTNUM 1 \l 14276 Do I have it right?
LISTNUM 1 \l 14277 MR. REDELAAR: Exactly.
LISTNUM 1 \l 14278 COMMISSIONER DUNCAN: That's fine. Thank you.
LISTNUM 1 \l 14279 THE CHAIRPERSON: Commissioner Langford.
LISTNUM 1 \l 14280 COMMISSIONER LANGFORD: I might as well kick you while you are down.
LISTNUM 1 \l 14281 I'm just getting Woodhead ready for tomorrow.
‑‑‑ Laughter / Rires
LISTNUM 1 \l 14282 COMMISSIONER LANGFORD: I want to ask, first of all, a question on your understanding of what the future might look like.
LISTNUM 1 \l 14283 Right now you have your own internal Rogers list, but you are also scrubbing the CMA, as dictated by the CMA list.
LISTNUM 1 \l 14284 Once there is a national "do not call" list, can you drop the CMA list?
LISTNUM 1 \l 14285 MR. REDELAAR: That's a good question. It is the first time it has been posed.
LISTNUM 1 \l 14286 Absolutely. I mean, are they not ‑‑
LISTNUM 1 \l 14287 COMMISSIONER LANGFORD: I don't see the point of it.
LISTNUM 1 \l 14288 MR. REDELAAR: They are fully redundant.
LISTNUM 1 \l 14289 COMMISSIONER LANGFORD: All right. So now we have saved you some time.
LISTNUM 1 \l 14290 MR. REDELAAR: Can I retract my answer?
‑‑‑ Laughter / Rires
LISTNUM 1 \l 14291 COMMISSIONER LANGFORD: You can, but I will treat it with a certain amount of scepticism.
LISTNUM 1 \l 14292 I would like to push Commissioner Duncan's ‑‑ or attempt to get you to agree to have me push Commissioner Duncan's request for an undertaking a bit further.
LISTNUM 1 \l 14293 In light of the ground we have been able to cover today ‑‑ and I have huge sympathy. You have come here as the good Samaritans, but there is a lot of precedent going back to Biblical times of what happens to good Samaritans. It doesn't always work out for them.
LISTNUM 1 \l 14294 You have come here to instruct us and to give us your processes and the best understanding you can, and we are trying to perhaps push you a little. But I think what we are actually trying to do is push our own understanding.
LISTNUM 1 \l 14295 I think, as Chairman French said yesterday, it is now or never for us. This is the process and we have to understand it.
LISTNUM 1 \l 14296 I don't want you to agree to this if there is some real problem to it, but maybe we could work on something of what I am looking at, and you can add to it.
LISTNUM 1 \l 14297 Could we take the kind of general undertaking you have already given to study the American process and see what you can do with it a step further and ask you to recreate something like this, if possible?
LISTNUM 1 \l 14298 Even if you can't do it. Even if the end is: This is what we would have to do to do it in 31 days, and we can't for the following reasons.
LISTNUM 1 \l 14299 Or: This is what we would have to do. We can do it, but it would mean a 40 percent increase in our costs, or something.
LISTNUM 1 \l 14300 Something that would give us a really hard understanding, finally.
LISTNUM 1 \l 14301 I guess that basically what I am coming down to is, the more clearly you can recreate this on a 31‑day basis, the better. Even if it needs the proviso built on what one of you said, and I forget, saying: Maybe the first six months will be a horror show. We can't do it then, but we can click in. We can have some milestones, or something like that.
LISTNUM 1 \l 14302 That's good too.
LISTNUM 1 \l 14303 We are looking for some practical advice, because we have people who have come before us ‑‑ for example, the Consumers' Association ‑‑ and they have studied this to the best of their ability, and their first notion was: seven days.
LISTNUM 1 \l 14304 Looking at it harder, trying to put some water in their wine, they have moved to 30 or 31, and they can live with it for awhile. They would still prefer seven, because it mirrors our fax regulations.
LISTNUM 1 \l 14305 I think that what I have heard here over two days is a lot of struggling over this.
LISTNUM 1 \l 14306 You have been the good Samaritans. You have come here and you have given us something that we can analyze and study and come to grips with.
LISTNUM 1 \l 14307 Would it be fair to ask you to go back and see what you can do with the Americans?
LISTNUM 1 \l 14308 I know it would be some work for you to look at it, but it may pay dividends somewhere down the line as a new matrix somewhere.
LISTNUM 1 \l 14309 Would that be a fair thing to ask you to undertake to do in the next ten days or two weeks?
LISTNUM 1 \l 14310 MR. WATT: I will take the first shot at it, and then I will pass you to Mike.
LISTNUM 1 \l 14311 We are certainly willing to give it our best effort. Having said that, we have to find an American company that wants to share the details of their operation with us. I don't know whether we know one of those.
LISTNUM 1 \l 14312 We used to have a close relationship with one of them, an ownership position, but they subsequently have been bought by another party.
LISTNUM 1 \l 14313 So we are somewhat ‑‑ notwithstanding my earlier undertaking, we are groping a little bit in the dark. We hope we can find a company that would do that.
LISTNUM 1 \l 14314 If we do find a company that would do that, we would certainly be willing to compare what they do to what we do and try to determine what the incremental costs would be.
LISTNUM 1 \l 14315 COMMISSIONER LANGFORD: The man sitting in sartorial splendour right behind you has some contacts in the United States through the insurance industry. He might be able to put you onto somebody, if I could suggest that.
LISTNUM 1 \l 14316 MR. WATT: We could certainly speak to him afterwards.
LISTNUM 1 \l 14317 I can't see whether he is nodding or vigorously shaking his head at the current time.
‑‑‑ Laughter / Rires
LISTNUM 1 \l 14318 COMMISSIONER LANGFORD: He hasn't left the room. Put it that way.
LISTNUM 1 \l 14319 MR. WATT: I think that is pretty much what we could commit to today.
LISTNUM 1 \l 14320 MR. REDELAAR: I would like to reiterate a couple of points.
LISTNUM 1 \l 14321 I know you said that I wasn't allowed to retract my answer, but you asked that if the CMA goes away, and this one comes in, would it save me time.
LISTNUM 1 \l 14322 I erroneously answered yes. It is not a saving of time, it is just a change of one task to another.
LISTNUM 1 \l 14323 So I am retracting my statement. It was made in mistake.
LISTNUM 1 \l 14324 COMMISSIONER LANGFORD: But you are not adding a third list, you are still with two.
LISTNUM 1 \l 14325 MR. REDELAAR: Exactly.
LISTNUM 1 \l 14326 COMMISSIONER LANGFORD: One may be a bit bigger than the other one used to be, but still...
LISTNUM 1 \l 14327 MR. REDELAAR: Exactly. It will be. There is no question.
LISTNUM 1 \l 14328 Then, the second point is, to define a 31‑day process really comes ‑‑ and, again, our mistake for not really taking the time to understand the U.S. model. I am not sure how we will approach that, but we will approach it.
LISTNUM 1 \l 14329 But until we have a pure definition of what is going to be provided, it really does come down ‑‑ and I can't emphasize it enough ‑‑ it comes down to taking the onus from my one subcontractor supplier that does database management for a living, and moving it into a bunch of suppliers that do call centre telemarketing for a living.
LISTNUM 1 \l 14330 That is the true stress of moving from a 60 to a 30. That is what I would need to understand in the American model.
LISTNUM 1 \l 14331 COMMISSIONER LANGFORD: We hear you, and we are not asking for this research to be done in affidavit form or anything like that. But if you can get back to us with something, I think it could only be helpful, particularly in light of the confusion that we are facing, the sort of comprehension barrier we are facing, simply with a doubling of time here on the north side of the 49th.
LISTNUM 1 \l 14332 Those are my questions. Thank you, Mr. Chair.
LISTNUM 1 \l 14333 Thank you, gentlemen and ma'am.
LISTNUM 1 \l 14334 THE CHAIRPERSON: Thank you, Commissioner Langford.
LISTNUM 1 \l 14335 Commissioner Duncan.
LISTNUM 1 \l 14336 COMMISSIONER DUNCAN: I have a few more questions on this.
LISTNUM 1 \l 14337 You are doing 40 lists at one time, approximately.
LISTNUM 1 \l 14338 I am sure that you have probably looked at this, but I am wondering, looking at the lists, if they were broken into ‑‑ just for discussion ‑‑ 10 lists at a time, how many days could you save from each step?
LISTNUM 1 \l 14339 Then, if you backed up your callback activity into the last week of the month, would that be a reasonable thought?
LISTNUM 1 \l 14340 MR. REDELAAR: I also looked at opportunities to shorten the window. The struggle with the upfront list processing is that they are very mutually exclusive events.
LISTNUM 1 \l 14341 First you need to get the lists in. Then you need to scrub them from the "do not call" list. Then you need to scrub them from the Rogers list. Then, once you have your base, your real analytics begin in our enormous world.
LISTNUM 1 \l 14342 Then you are really saying: Okay, this is our entity. That entity now has to be ‑‑ there is usually some kind of predictive modelling or something in place to bring it down to useable works.
LISTNUM 1 \l 14343 Then, once it is a final entity, it is: Okay, how do we align the resources of the major players out there and say, "Okay, take 110,000 of these. Put them here. Take this and this."
LISTNUM 1 \l 14344 So even though it looks like ‑‑ it is a long timeframe, and it really is a lot of work to take a list, scrub it, and then ‑‑
LISTNUM 1 \l 14345 The one point I missed is, now we also have to scrub it against everybody we called in the last month, because we don't call two months concurrent.
LISTNUM 1 \l 14346 Sometimes we don't call within a 60‑day period, based on the aggressive nature of the call, if it is more cold calling.
LISTNUM 1 \l 14347 So all of those rules, unfortunately, really do restrict us, unless ‑‑ if we can get the CRM database in, it will allow us to do many of the logic points here in one flash, instead of scrubbing against scrubbing against scrubbing.
LISTNUM 1 \l 14348 That is where we want to go to. So there is certainly a potential to shorten that window, and we would love to, because it handicaps even my world by not doing it.
LISTNUM 1 \l 14349 Everything we can do to handicap ‑‑ but unfortunately those timelines are needed today.
LISTNUM 1 \l 14350 COMMISSIONER DUNCAN: Which database was it that you were referring to getting in that would influence it?
LISTNUM 1 \l 14351 MR. REDELAAR: We are creating an internal ‑‑
LISTNUM 1 \l 14352 COMMISSIONER DUNCAN: Oh, your new ‑‑
LISTNUM 1 \l 14353 MR. REDELAAR: Yes, that will literally allow you to do a set of queries at once, as opposed to one query at a time. That will certainly shorten that upfront cycle.
LISTNUM 1 \l 14354 That is where we need to be.
LISTNUM 1 \l 14355 Unfortunately, not to knock our IT team, we have been working on it for five and a half years.
LISTNUM 1 \l 14356 COMMISSIONER DUNCAN: Do you think, in the next six to twelve months, that might be available to you? Or is that the wrong department?
LISTNUM 1 \l 14357 MR. REDELAAR: Are you asking me about the project ‑‑
LISTNUM 1 \l 14358 COMMISSIONER DUNCAN: We have noted that answer.
LISTNUM 1 \l 14359 MR. REDELAAR: Yes. Is it the project plan, or is it my comfort level in the project plan being adhered to?
LISTNUM 1 \l 14360 Yes, we are making strides, there is no question.
LISTNUM 1 \l 14361 COMMISSIONER DUNCAN: Thank you.
LISTNUM 1 \l 14362 THE CHAIRPERSON: Counsel.
LISTNUM 1 \l 14363 MR. MILLINGTON: Thank you.
LISTNUM 1 \l 14364 The bad news is that I have a bunch of questions, but the good news is that none of them have to do with the implementation period of 30 days or 60 days.
LISTNUM 1 \l 14365 First of all, you indicated in your remarks this afternoon that you do put businesses on your own internal "do not call" list.
LISTNUM 1 \l 14366 Is that correct?
LISTNUM 1 \l 14367 MR. SLAWNER: Yes, we do.
LISTNUM 1 \l 14368 MR. MILLINGTON: And yet, in your paper of March 27th, you advocate that businesses not be subject to the "do not call" list.
LISTNUM 1 \l 14369 I am wondering why you would put them on your own list, and how you would reconcile the inconsistency?
LISTNUM 1 \l 14370 MR. SLAWNER: I don't think that it is actually inconsistent. Businesses are very different from consumers. I think that the outcry for a national "do not call" list which basically is a prohibition on contacting businesses has never been made.
LISTNUM 1 \l 14371 I think that it is ill‑advisable to create a "do not call" list for businesses, but I think that it is actually complementary ‑‑ that our internal list is complementary to the national list.
LISTNUM 1 \l 14372 So if a company really does not wish Rogers to contact them, if they are cancelled on our internal list, I still don't believe that they should go on a national "do not call" list.
LISTNUM 1 \l 14373 One, I don't think that businesses have been calling for this, and I think the impact would be far different than it is when you contact the consumer at home during dinner.
LISTNUM 1 \l 14374 MR. REDELAAR: I could actually make that more simplistic for you.
LISTNUM 1 \l 14375 At the end of the day, if somebody calls you and says, "Please don't have anybody from Rogers call me," it is your natural instinct to take them off the list. It is goodwill. Why wouldn't you want to do that.
LISTNUM 1 \l 14376 That is a very different process than allowing people to literally remove themselves from all calling by just saying, "I heard this piece of advertising, and I am just going to remove myself."
LISTNUM 1 \l 14377 The ramifications of both of those entities are very different.
LISTNUM 1 \l 14378 MR. MILLINGTON: But aren't you assuming that the business owner who says, "I want to go on the national "do not call" list," is somehow not aware of the fact that they are opting out entirely from telemarketing?
LISTNUM 1 \l 14379 Because I think what you are saying is, when you specifically say, "I don't want to go on your "do not call" list," you have identified a specific organization and you say, "I am happy to be telemarketed by everybody, save and except for Rogers," or whomever you have contacted.
LISTNUM 1 \l 14380 But couldn't the business owner say, just as easily, "I don't want to be telemarketed, period, and I want to go on the national "do not call" list. I don't care if it is Rogers or Bell or Joe's Dry Cleaning, I don't want to be there. I don't want to be telemarketed."
LISTNUM 1 \l 14381 MR. REDELAAR: Yes.
LISTNUM 1 \l 14382 MR. MILLINGTON: Why isn't that as valid a decision as it is in respect of your own individual organization?
LISTNUM 1 \l 14383 MR. WATT: When they have spoken to us, we will take them off. We think that is the appropriate thing to do.
LISTNUM 1 \l 14384 For many of the reasons that other people have expressed today, we don't think that a national "do not call" list for businesses is necessary or desirable. There would be tremendous implications, we think, for the development of commerce. We do not believe that it is as intrusive to a business as it is to a consumer. They are being phoned in their place of business, they are not being phoned at dinnertime, et cetera.
LISTNUM 1 \l 14385 We believe that if businesses are that disrupted by the telemarketing they receive, they will place themselves on the individual "do not call" lists of the business organizations that are phoning them.
LISTNUM 1 \l 14386 MR. REDELAAR: To add, I think we would be creating an issue that just doesn't exist. We are literally suggesting to the business community that this is a problem, and from somebody who personally handles a lot of customer issues, they are not business issues. And I have been doing it for 18 years.
LISTNUM 1 \l 14387 MR. MILLINGTON: But the fact that some businesses have contacted you and asked to be put on your "do not call" list is proof that, in fact, it is an issue for some businesses.
LISTNUM 1 \l 14388 MR. REDELAAR: I disagree. That is a Rogers issue. They now have a Rogers discomfort. That is not a telemarketing discomfort.
LISTNUM 1 \l 14389 They have some kind of relationship stress with Rogers and have asked to be removed from Rogers calling.
LISTNUM 1 \l 14390 To me, that is a separate entity.
LISTNUM 1 \l 14391 MR. MILLINGTON: So you are going to parse out that the guy who goes on the Rogers "do not call" list is all about Rogers and not about telemarketing.
LISTNUM 1 \l 14392 MR. REDELAAR: In the few experiences that I have had with businesses, it is frustration with Rogers in some way, not receiving phone calls.
LISTNUM 1 \l 14393 MR. MILLINGTON: All right.
LISTNUM 1 \l 14394 Has Rogers ever put itself on a "do not call" list for any other company?
LISTNUM 1 \l 14395 MR. WATT: No one on this panel would be aware of that.
‑‑‑ Laughter / Rires
LISTNUM 1 \l 14396 MR. WATT: Whether our purchasing department has done that, I don't know.
LISTNUM 1 \l 14397 MR. MILLINGTON: Could you undertake to get back to us on that?
LISTNUM 1 \l 14398 MR. WATT: Certainly we can do that.
LISTNUM 1 \l 14399 MR. MILLINGTON: As a follow‑up to the business telemarketing, your products, at least on the cellular side, are some of the few products that are marketed to both businesses and consumers.
LISTNUM 1 \l 14400 We were, in the last couple of days, talking about ‑‑ if we were to entertain a carve‑out for business‑to‑business and elaborate on some guidelines around business‑to‑business telemarketing, and we wanted to look at that, we were trying to figure out ‑‑ there are, clearly, some products and services which are consumer oriented and would be easily identifiable, and there would be some at the other end that would be very business‑oriented products. I am thinking of tires for Caterpillar vehicles. That is not a consumer item.
LISTNUM 1 \l 14401 But your product line, particularly on the cellular side, and your mobile products, fits into both camps quite clearly, and you have big customer bases on both sides.
LISTNUM 1 \l 14402 Do you have anything that you could offer up to us in terms of guidelines with respect to telemarketing to businesses, if we were to develop those guidelines, that would somehow help us in framing how we would treat those two constituencies differently?
LISTNUM 1 \l 14403 If you were suggesting to us that we should carve out businesses, how do we deal with the size of the business, and what kind of rules, and so on, would be applicable to businesses in telemarketing that would differentiate them from consumer telemarketing?
LISTNUM 1 \l 14404 You don't have to have them this moment. If you want to get back to us on that ‑‑
LISTNUM 1 \l 14405 MR. SLAWNER: I'm sorry, I am not quite clear on what we are supposed to provide you.
LISTNUM 1 \l 14406 MR. MILLINGTON: If, theoretically, we wanted to come up with a regime that would allow ‑‑
LISTNUM 1 \l 14407 At this point in time we are saying that telemarketing is available to businesses. If you want to say that the "do not call" lists, and certain provisions under the Act, apply to telemarketing to businesses ‑‑ and you are not in favour of that.
LISTNUM 1 \l 14408 So if we were to go down that road and somehow develop a set of guidelines that would remove businesses from the prohibition, what would those guidelines be?
LISTNUM 1 \l 14409 MR. WATT: Frankly, we don't think that we are a particularly qualified entity to give you any further advice on that.
LISTNUM 1 \l 14410 In light of the other undertaking that we have provided, we think that we might be biting off more than we could chew.
LISTNUM 1 \l 14411 MR. MILLINGTON: All right.
LISTNUM 1 \l 14412 Also in your March document you indicated that only the telemarketing organizations should be held accountable for the DNCL rules, and that the companies that retain the telemarketing companies should not be, and you make reference to the fact that many of the contract telemarketers are large, sophisticated enterprises and they should bear the responsibility for compliance with the rules.
LISTNUM 1 \l 14413 Could you give us a bit more depth as to why you think that the companies that actually contract with those telemarketers should not also be liable?
LISTNUM 1 \l 14414 In the case, for example, where a telemarketing organization flaunts the rules, and our end perhaps is not a particularly substantial organization, and sort of can rise in many forms and variations, and can basically avoid ‑‑
LISTNUM 1 \l 14415 It would be hard for us to sanction, because they don't really ‑‑ they are not in the environment long enough for us to really regulate.
LISTNUM 1 \l 14416 Some companies could avoid discipline, let's say, or sanctions, simply by using these kinds of telemarketing organizations that are not really viable.
LISTNUM 1 \l 14417 MR. SLAWNER: I think that any liability or responsibility for breaching a rule or making a violation should lie with who was responsible for the violation.
LISTNUM 1 \l 14418 For example, we like to keep our list central to us. So if we made a mistake when we did the creation of a list in scrubbing, then I can understand how the responsibility would lie with the seller, if we provided the list.
LISTNUM 1 \l 14419 However, I am sure that in many cases there would be a telemarketer who would say to another organization, "We will telemarket for you," and they would break all the rules, and they wouldn't follow DNCL, and the seller would be ignorant of these facts.
LISTNUM 1 \l 14420 I think that a lot of these telemarketers do have the sophistication to take responsibility if they go ahead and break the rules.
LISTNUM 1 \l 14421 I think it is very hard to start blaming a seller who is unaware of the activities of a third party that they hire, especially when that third party probably has more experience in telemarketing than they do.
LISTNUM 1 \l 14422 MR. MILLINGTON: But perhaps the seller is seeking out telemarketers who they know will break the rules.
LISTNUM 1 \l 14423 Maybe there are telemarketers out there that are going to play fast and loose, and there are sellers out there who want to use that specific type of telemarketer.
LISTNUM 1 \l 14424 If there is no ability to reach through the telemarketer to the selling organization, then does that not remove a significant form of sanction from the whole regime?
LISTNUM 1 \l 14425 MR. SLAWNER: There will always be unscrupulous organizations and people out there. I still find it very hard to hold an organization responsible that takes all of the steps to comply with the rules, and unfortunately, for whatever reason, a third party that they contracted with decided that they wanted to save money and would not comply with the "do not call" list.
LISTNUM 1 \l 14426 To look at the worst case scenario of somebody who is trying to avoid the rules by hiring intentionally a shady organization, I don't think it would reflect on the industry very well.
LISTNUM 1 \l 14427 MR. MILLINGTON: All right.
LISTNUM 1 \l 14428 I want some clarification on the point with respect to the inclusion of wireless phone numbers on the Canadian DNCL.
LISTNUM 1 \l 14429 Are you suggesting that, de facto, right out of the gate, all wireless numbers go in there?
LISTNUM 1 \l 14430 MR. SLAWNER: No, not at all. If someone wants to register their wireless phone number on the DNCL, it should be accepted. It should not be excluded.
LISTNUM 1 \l 14431 MR. MILLINGTON: All right. Thank you.
LISTNUM 1 \l 14432 Those are my questions.
LISTNUM 1 \l 14433 THE CHAIRPERSON: I think that concludes ‑‑ are there any more undertakings you wish to raise with Rogers, madame le secrétaire, s'il vous plaît?
LISTNUM 1 \l 14434 THE SECRETARY: No.
LISTNUM 1 \l 14435 THE CHAIRPERSON: Mr. Watt, and fellow panel members, thank you very much. It's been very helpful. We appreciate your coming here and responding so frankly and weathering the storm so elegantly.
LISTNUM 1 \l 14436 Thank you.
LISTNUM 1 \l 14437 MR. WATT: Thank you very much.
LISTNUM 1 \l 14438 THE CHAIRPERSON: Do we have Mr. Obermeyer or Mr. Gahan here?
LISTNUM 1 \l 14439 Right. I think we will proceed to hear which of the two, first or second, Mr. Obermeyer or Mr. Gahan?
LISTNUM 1 \l 14440 Great, Mr. Obermeyer, we will hear you next.
‑‑‑ Pause
LISTNUM 1 \l 14441 THE CHAIRPERSON: Mr. Obermeyer, as you may have noticed, the normal course of proceedings is that you would take up to 10 minutes to make a preliminary statement, and then we will ask you questions and try to explore with you the issues that concern you.
LISTNUM 1 \l 14442 If that suits you, please, feel free to go ahead.
LISTNUM 1 \l 14443 MR. OBERMEYER: Sounds good to me. I was expecting maybe a whistle or a dropping of a button or something.
‑‑‑ Laughter
LISTNUM 1 \l 14444 THE CHAIRPERSON: No. Well, Commissioner Langford does some good imitations, but we won't subject you to them.
LISTNUM 1 \l 14445 COMMISSIONER LANGFORD: If you will allow me, though, I could do an imitation of an adviser. It won't come out of your time.
LISTNUM 1 \l 14446 This looks very much like what we have already got in written form, just quickly glancing at it, and if it is, I just want you to know it doesn't stop you from reading it again, but it's already on the record. What we have is already on the record, so if you want to read it again, that's fine, we will have it on the record twice. But if you want to just go through it and emphasize and work with it as a kind of a presentation plan, that can be effective, as well.
LISTNUM 1 \l 14447 MR. OBERMEYER: I would like to do so.
LISTNUM 1 \l 14448 I might ask, before we start the official record of this proceeding, that my personal name not appear in relation to these comments.
LISTNUM 1 \l 14449 I have made that request on several occasions on the past, and my reason for doing so is not that I wish to remain anonymous, not that I wish not to be associated with these comments by this Commission, but that I wish to remain protected from retribution, which has, in fact, already begun.
LISTNUM 1 \l 14450 THE CHAIRPERSON: Well, Mr. Obermeyer, I guess I will have to ask counsel, cause I don't think there's anyone on this panel who's in a position to advise you in that regard. It seems to me unlikely that we can give such a guarantee.
LISTNUM 1 \l 14451 MR. MILLINGTON: Well, I think that it's kind of the water is already under that bridge. You are here, your name is out, it's on the public record, and I don't see how anyone can come before a public proceeding of this type and make a presentation, in fact ‑‑ either in writing prior to this ‑‑ without having your name being associated with the presentation.
PRESENTATION / PRÉSENTATION
LISTNUM 1 \l 14452 MR. OBERMEYER: I suppose that is your answer. Okay, I will begin.
LISTNUM 1 \l 14453 I'm not going to read my little introduction, which talks about why I am here and who I claim to be representing. I think everyone's quite familiar with that piece. I would like to state why I'm taking the trouble to be here.
LISTNUM 1 \l 14454 We are participating in this proceeding in the hope that the CRTC will build an effective system to curtail unwanted telemarketing as quickly and inexpensively as possible, as directed by Bill C‑37. We hope that the result will be self‑sustaining and not require funding from the people of Canada, through the federal government, or any other level of government.
LISTNUM 1 \l 14455 Let's take a second to establish some facts for the record. All those who enjoy receiving telemarketing calls who are present in this room, please, raise your hands now?
LISTNUM 1 \l 14456 Let the record show that there were two hands raised, one in jest.
LISTNUM 1 \l 14457 Of those who have raised their hands, how many undertake to reveal their home and cell phone numbers by legibly writing them on a piece of paper and delivering them to me within the next five minutes to be read into the public record?
LISTNUM 1 \l 14458 Let the record show that out of 48 people in the room, zero hands remain raised.
LISTNUM 1 \l 14459 Let's talk about the success criteria for this endeavour. Our definition ‑‑ oh, by the way, I assume that means I'm now speaking for everyone in this room. Congratulations, and welcome to the 97 percent.
LISTNUM 1 \l 14460 Our definition of a successful DNCL is one which would enable any Canadian citizen to permanently stop all unwanted telemarketing calls to their home with less than five minutes of effort at no cost to the subscriber and with no possibility of retribution by the telemarketing industry.
LISTNUM 1 \l 14461 Every single telephone subscriber in Canada must be given the choice of being protected by the DNCL. Every single Canadian must be able to register for the protection of the DNCL without risk of their confidential information being revealed by the CRTC or their agent.
LISTNUM 1 \l 14462 Why the DNCL shall never be downloaded to a telemarketer. Bill C‑37 states that the Commission shall be permitted to prevent undue inconvenience from nuisance, giving due regard to freedom of expression.
LISTNUM 1 \l 14463 Our freedom to express our wishes with regard to the undue convenience or nuisance of unwanted telemarketing must not be limited by the technical or procedural implementation of the DNCL. A subscriber's telephone number is confidential information.
LISTNUM 1 \l 14464 Obvious examples include unlisted numbers, cell phone numbers, emergency telephone numbers, health facilities. The numbers of the people in this room are considered personal and confidential by every member who is present in this room, bar none. They have all agreed.
LISTNUM 1 \l 14465 If a subscriber must reveal confidential information, including their telephone number, to the CRTC or its agent to enable that subscriber to participate in the protection of the DNCL, then this confidential information must never be revealed to anyone. In particular, a registered subscriber's telephone number must never be provided to any telemarketer by the DNCL operator.
LISTNUM 1 \l 14466 Now, I'm using some fairly strong words there, words like "shall" and "must", because I truly believe that to comply with Bill C‑37 that's the only way to do it. You have got to keep our numbers secret.
LISTNUM 1 \l 14467 Cost‑recovery implications of a downloadable DNCL. Once downloaded, a copy of the DNCL could be easily shared amongst unscrupulous telemarketers, much as a downloaded MP3 file or files have been shared in the past through programs such as Napster.
LISTNUM 1 \l 14468 Telemarketers can easily share the downloaded DNCL files, and this would remove their incentive to pay for the use of the DNCL. Telemarketers could easily aggregate their use of the DNCL and avoid paying their fair share of the costs. We have reason to believe that some unscrupulous organizations may then offer a grey or, if the CRTC chooses to regulate it, a black market in DNCL aggregation services.
LISTNUM 1 \l 14469 How many registered users of the USA's FTC DNCL actually pay for their usage and how many telemarketers are actually using the FTC DNC information?
LISTNUM 1 \l 14470 We suggest that the definitive answer to the first of these two questions should be easily obtainable from the FTC DNC registry operator, and we request that the answer be provided to the DOWG and entered into the official record.
LISTNUM 1 \l 14471 We would hope that the number of telemarketers who actually use the FTC DNC registry information would be equal to the number of non‑exempt telemarketers in the USA. We suspect, however, that this is not the case. We note that the USA's FTC DNC registry reported large financial losses in its first year of operation.
LISTNUM 1 \l 14472 Why numbers registered on the DNCL shall never expire. The stated intent of Bill C‑37 is to prevent undue inconvenience or nuisance. We respectfully submit that the undue inconvenience and nuisance Bill C‑37 refers to is the inconvenience and nuisance experienced by telephone subscribers when they receive unwanted marketing calls.
LISTNUM 1 \l 14473 Just a clarification of the way we read Bill C‑37. If registrations are allowed to expire and the DNCL is provided as a downloadable file of any kind, including the proprietary, highly proprietary, commercial format suggested by some parties, it would be a trivial matter for anyone with access to a computer to automatically compare successive copies of the DNCL file and extract lists of expired numbers.
LISTNUM 1 \l 14474 This would put the CRTC into the embarrassing position of having provided the telemarketers with convenient and uncontrolled access to a list of numbers which may be called. Again, we respectfully submit that the intent of Bill C‑37 is that the CRTC create a "do not call" list.
LISTNUM 1 \l 14475 Demanding that we comply with a piece of legislation should not really even be necessary. We demand that a telemarketing industry lobbyist not be allowed to pervert ‑‑ not subvert, but pervert ‑‑ in our words, the DNCL into a "do call" list. If the CRTC allows this to happen, it would be exactly the opposite of what the Bill C‑37 intends.
LISTNUM 1 \l 14476 What happens if the CRTC proceeds with the downloadable‑file approach to the DNCL? We have contributed to the DOWG a detailed calculation of hidden mandatory costs to telemarketers. The hidden cost of every business in Canada being required to obtain a computer, sufficient proprietary software and internet connection is initially $4 billion, based on about 2,500 bucks per business ‑‑ I have heard a $25,000 figure today, so I'm off by a factor of 10. Make it $4 billion, whatever ‑‑ with ongoing annual costs of $500 million. And, of course, that would scale appropriately based on new information.
LISTNUM 1 \l 14477 No dispute of these figures has yet been made at DOWG meetings ‑‑ well, I will strike that last bit, there is better information now. It's $25,000 per business times 2 million businesses. Do the math.
LISTNUM 1 \l 14478 Telemarketers will have every incentive to defray these costs by avoiding proper payment to the DNCL operator. Canadian's confidential information will be leaked to telemarketers by the CRTC. Enforcement will become very problematic.
LISTNUM 1 \l 14479 How to do it once and do it right, please? Telemarketing industry lobbyists typically defend telemarketing as freedom of speech. We submit that their right to punch stops exactly where our noses begin. Telemarketers have no right whatsoever to use any equipment which subscribers own, in other words, our telephones or telephone service that a subscriber pays for, to intrude into the subscriber's home against the subscriber's wishes.
LISTNUM 1 \l 14480 THE SECRETARY: Mr. Obermeyer, you have one minute left.
LISTNUM 1 \l 14481 MR. OBERMEYER: We are more adamant in this assertion if we have explicitly directed them to refrain from doing so. There is an exceptionally straightforward solution to balancing the peace and privacy of the subscriber with the freedom of expression of the telemarketer. The DNCL shall be offered as a national DNCL service. The DNCL should accept small lists of numbers from telemarketers, and then indicate which ones are permitted for that telemarketer to call, and for what purpose and period of time that permission is given.
LISTNUM 1 \l 14482 The national DNCL service may be readily constructed using non‑proprietary technologies and delivered through IVR for low‑volume, web browser for medium volume or web service for high‑volume, automated usage.
LISTNUM 1 \l 14483 Telemarketing is possibly defensible, but only to willing subscribers. Unwanted telemarketing is completely indefensible. It does not create meaningful employment, but instead diminishes the value of our lives, as well as the lives of those who are paid to place the unwanted telemarketing calls.
LISTNUM 1 \l 14484 If you were to add up all the time Canadians spend each year fielding these intrusive useless sales pitches, it's about 87 entire human lifetimes per year. The effects are defused over our population, but that makes it no less disgusting.
LISTNUM 1 \l 14485 Please do not stand by again while the telemarketing industry lobbyists run amuck, defining the rules for the CRTC and turning the legislation inside out. The CRTC does not report to the corporations.
LISTNUM 1 \l 14486 We would ask now that you picture a mother or father holding their baby and trying to prepare something to eat after a long day of work, picture another baby sleeping peacefully, et cetera, et cetera, then the phone rings. Bedlam.
LISTNUM 1 \l 14487 I would ask now for a moment of silence, in respect of those 87 Canadian lifetimes, entire lifetimes, birth to death, on average, about 73 years, 87 of them, per year, being wasted on an ongoing basis.
LISTNUM 1 \l 14488 Moment of silence done. Thank you for listening.
LISTNUM 1 \l 14489 THE CHAIRPERSON: Thank you, Mr. Obermeyer, for taking the trouble to be with us and to raise these issues.
LISTNUM 1 \l 14490 Commissioner Cram.
LISTNUM 1 \l 14491 COMMISSIONER CRAM: Thank you, Mr. Obermeyer. Thank you for coming.
LISTNUM 1 \l 14492 I have been in this business for a good number of years and I know there are a lot of acronyms in telecom, but what is DOWG, I'm sorry?
LISTNUM 1 \l 14493 MR. OBERMEYER: Oh, that's the DNCL, which is the "do not call" list ‑‑
LISTNUM 1 \l 14494 COMMISSIONER CRAM: Yeah.
LISTNUM 1 \l 14495 MR. OBERMEYER: ‑‑ Operations Working Group.
LISTNUM 1 \l 14496 THE CHAIRPERSON: CISC.
LISTNUM 1 \l 14497 COMMISSIONER CRAM: Oh, CISC. Okay.
LISTNUM 1 \l 14498 MR. OBERMEYER: Okay.
LISTNUM 1 \l 14499 COMMISSIONER CRAM: That's the acronym we use. You know, we have got 900 acronyms and, you know...
LISTNUM 1 \l 14500 COMMISSIONER LANGFORD: That's the way you spell "dog", isn't it?
LISTNUM 1 \l 14501 COMMISSIONER CRAM: Yeah.
LISTNUM 1 \l 14502 COMMISSIONER LANGFORD: You see, I use the TLAs, three‑letter acronyms. These four‑letter ones are tough to get my head around.
LISTNUM 1 \l 14503 COMMISSIONER CRAM: Okay.
LISTNUM 1 \l 14504 So I start with your paragraph 13, and your idea is that ‑‑ and I will call them the DNC operator ‑‑ starts with all of the phone numbers in Canada, right, and you want the whole thing reversed. Is that where we are coming from, that if you don't want your number released, the DNC operator would block, and if you have given explicit written confirmation, the DNC operator would give "do call" lists to people? Is that the structure you are looking at?
LISTNUM 1 \l 14505 MR. OBERMEYER: No. And I think, actually, that's a line of thinking which has been maybe perpetrated on us by previous implementations by other countries.
LISTNUM 1 \l 14506 I'm not proposing that all the telephone numbers in Canada, at least in this specific contribution, start off as being "do not call". What I'm proposing is that, if I choose to put my unlisted telephone number into the "do not call" list, a place where I would think an unlisted telephone number has every right to appear, that the CRTC should not then turn around and deliver my unlisted telephone number to a telemarketer as a number not to call.
LISTNUM 1 \l 14507 It's kinda like, "Here it is. Here it is. Don't call it. Don't call it". Does that make sense?
LISTNUM 1 \l 14508 COMMISSIONER CRAM: Yes, I see. And the same with cell phones that aren't in directories?
LISTNUM 1 \l 14509 MR. OBERMEYER: Absolutely. And the same with the personal telephone numbers of every person in this room. We all seem to agree that a telephone number, in some context, can represent a piece of confidential private information, depending on the other information that it's associated with. That determines the context.
LISTNUM 1 \l 14510 COMMISSIONER CRAM: Okay, so let's take that a little step further. Say I have a cell phone ‑‑ or you have a cell phone, and you file the number of the cell phone with the "do not call" list, and it's not a ported number so we don't have to worry about it having originally been in a wireline, how do we then ensure that it won't be called if it's not released to the telemarketers?
LISTNUM 1 \l 14511 MR. OBERMEYER: That's an excellent question, and it really points out the difference in what I would describe as archaic legacy systems, which are built using old technology that rely on many synchronized databases, versus a modern implementation of a database system, a transactional database system.
LISTNUM 1 \l 14512 So what I would propose as a method of operation is that the list itself would contain the phone numbers, the list is kept inside the DNCL operator database as proprietary and secret information, and we sell ‑‑ or the DNCL operator sells to telemarketers approval or disapproval to call a particular number that the telemarketer submits.
LISTNUM 1 \l 14513 COMMISSIONER CRAM: Oh, so Rogers would then say, "Here's my list" and, essentially, the "do not call" operator would scrub it for them, is that what you are really coming down to?
LISTNUM 1 \l 14514 MR. OBERMEYER: I don't like the term "lists". I prefer to think of it as number by number, the telemarketer asking permission of the DNCL operator as to whether they can call that number.
LISTNUM 1 \l 14515 If they choose to do that in an automated way that gets them answers on multiple numbers in a single transaction, and if the DNCL operator is instructed to provide that, that sounds like a convenient way to run a business.
LISTNUM 1 \l 14516 In fact, I would point out that I heard in a previous line of questioning that the FTC DNC registry actually provides that kind of automated service to telemarketers already, as something called a web service.
LISTNUM 1 \l 14517 COMMISSIONER CRAM: Oh, okay.
LISTNUM 1 \l 14518 MR. OBERMEYER: They provide that to the larger operators. Their implementation might be slightly different from what I'm proposing.
LISTNUM 1 \l 14519 COMMISSIONER CRAM: All right, they provide it to the larger operators, that's right ‑‑
LISTNUM 1 \l 14520 MR. OBERMEYER: Yeah, that's right, that's right.
LISTNUM 1 \l 14521 COMMISSIONER CRAM: ‑‑ and there was a fair cost to it, wasn't there? I think they said something ‑‑
LISTNUM 1 \l 14522 MR. OBERMEYER: I'm not an expert on the FTC's ‑‑
LISTNUM 1 \l 14523 COMMISSIONER CRAM: Yeah, somebody said there was a fair cost.
LISTNUM 1 \l 14524 MR. OBERMEYER: ‑‑ implementation.
LISTNUM 1 \l 14525 COMMISSIONER CRAM: Yeah. M'hm. Yeah.
LISTNUM 1 \l 14526 Okay. Now ‑‑
LISTNUM 1 \l 14527 MR. OBERMEYER: If I might, I would point ‑‑ if you don't mind the interruption?
LISTNUM 1 \l 14528 COMMISSIONER CRAM: No, no, go ahead.
LISTNUM 1 \l 14529 MR. OBERMEYER: I would like to clarify the cost question.
LISTNUM 1 \l 14530 I'm proposing ‑‑ or rather we are proposing at least three ways to make that DNCL service available. The one we have discussed so far is a highly automated, bulk‑number approval, which could be a machine‑to‑machine transaction, so there's not even a human involved.
LISTNUM 1 \l 14531 A second way might be through a simple website. So anybody in this room could open up their laptop computer, go to the CRTC website, key in a single telephone number, and a get a red light or a green light, "Can I call that number of not?".
LISTNUM 1 \l 14532 If they would like to receive from the DNCL operator a confirmation code, which would allow the telemarketer to prove that they have permission to call that number, that would be a service that they should be willing to pay for.
LISTNUM 1 \l 14533 And note that in one stroke now we have taken care of a couple of different problems, one problem being giving the telemarketer permission or denying that permission to call a number, the second problem being the consumer finding out whether or not their number's on the list. Okay?
LISTNUM 1 \l 14534 So we have now got a web service, highly automated, bulk transactions, lots of numbers going back and forth, machine‑to‑machine communication and real time, we have got a web paper that a telemarketer could go to, and the third way would be an integrated voice response system. The cost of that should be quite minimal, actually, because, presumably, it's not too much to ask that a telemarketer have access to a telephone.
LISTNUM 1 \l 14535 COMMISSIONER CRAM: And you get a "yes" or a "no".
LISTNUM 1 \l 14536 MR. OBERMEYER: You get a "yes" or a "no". You call up 1‑800‑CRTC DNCL ‑‑ too many digits, but that's okay ‑‑ you key in the number that you would like to call, and it says either "yea" or "nay", you can do it okay or you can't. If ‑‑
LISTNUM 1 \l 14537 COMMISSIONER CRAM: You could probably get a verification number the same way.
LISTNUM 1 \l 14538 MR. OBERMEYER: Through an IVR system? I would suspect that with the combined might of all the interested parties at this proceeding and all of the corporate resources they have to draw on, I'm sure we could figure out a way to work out a billing system for that and also provide a confirmation number directly through an IVR system, absolutely.
LISTNUM 1 \l 14539 So what that does is it levels the playing field and ensures that, no matter how large or small a telemarketer is, they would all have equal access to the list.
LISTNUM 1 \l 14540 And if they don't really need to depend on having a confirmation number, say, people who do low‑volume transactions or people who already comply with the intent of the rules and don't expect complaints, maybe they could just use it for free, using the same mechanism that an individual subscriber would use to check their number: just go on a web page, key in the number, 10 digits, boom, "yes" or "no", on the list or not. Done.
LISTNUM 1 \l 14541 If they have a confirmation number, think about the defence that represents for a telemarketer. Think about the effect that would have on the number of complaints that you would have in a given year.
LISTNUM 1 \l 14542 Do you think a subscriber is going to complain if a telemarketer calls up and the subscribers says, "Hey, why are you calling me?", and the telemarketer says, "Well, I have confirmation number 2006‑123456789 from the DNCL operator that says I can call you. If you would like to fight it, I will provide this information to the CRTC".
LISTNUM 1 \l 14543 They will absolutely be able to investigate your complaint because they will already have the facts recorded in the audit trail of the transactional database system that doled out that confirmation number to begin with.
LISTNUM 1 \l 14544 The CRTC or the DNCL operator will already know the name of the telemarketer, the name of the party they are calling on behalf of, the account number of the telemarketer, billing information for the telemarketer, the time of the approval for the call, the calling number, the call‑ed number, et cetera.
LISTNUM 1 \l 14545 That will form something called a confirmation record, which is easily retrievable if you have the confirmation number. That's what databases do. They are very good at it.
LISTNUM 1 \l 14546 The information actually transmitted to the telemarketer, then, think about it, think about Martha's Window Washing, okay? It may be a little company that wants to place 10 calls, the minimum required of them to participate in a system. That requires them to download the DNCL.
LISTNUM 1 \l 14547 I have heard some people say, "Yeah, let's make it an area code". Okay, anybody ever seen the Toronto telephone book? It's more or less the 416 area code. So now Martha's Window Cleaning, I will say a two‑person operation, has to obtain a computer, get regular internet access, because they will be required to look at that list ever 30 days, download, I would guess, in the neighbourhood of 135 megabytes of information through their internet connection ‑‑ I don't know if there's any technical people in the room here, but they had better have a pretty good internet connection to be able to download an area code worth of numbers, or say if there's only half of the people subscribe to the DNCL half an area code worth, okay, that's a lot of numbers, that's a lot of information.
LISTNUM 1 \l 14548 That information that's been proposed by some of the members of the DOWG working group ‑‑ sorry for the redundancy ‑‑ that information would arrive in the form of what? A commercial proprietary spreadsheet, has been suggested. XXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXX. Strike that from the record.
LISTNUM 1 \l 14549 Why on earth would we require Martha to go out and buy a computer, a high‑speed internet connection, to be able to get, in a practical way, to that large mass of information, proprietary software to open the file, some kind of software to be able to scrub that file against her own list of 10 numbers she wants to call?
LISTNUM 1 \l 14550 I don't understand how they could possibly comply with a methodology like that without incurring some form of cost. Multiply that cost by, I heard the number today, 2 million business entities in Canada. Let's say, I will give you a break, a thousand bucks times 2 million is $2 billion of hidden costs, if you insist that the DNCL be a downloadable file.
LISTNUM 1 \l 14551 COMMISSIONER CRAM: Moving on ‑‑ and I do see your concerns in paragraph 14 and 15 ‑‑ what I'm trying to figure out is the black market in paragraph 16. What do you mean "if regulated a black market"?
LISTNUM 1 \l 14552 MR. OBERMEYER: Okay. An example would be satellite transmissions of television programs. There is something called a grey market in that ‑‑
LISTNUM 1 \l 14553 COMMISSIONER CRAM: Yeah.
LISTNUM 1 \l 14554 MR. OBERMEYER: ‑‑ because there's an absence of regulation and some people have chosen to put satellite dishes on their homes and pull in signals from satellites that they have not paid for. In the absence of regulation, that's called a grey market.
LISTNUM 1 \l 14555 If you put regulations on that market and someone still transgresses and, potentially, maybe retransmits those programs to somebody else for money, then that would be defined as a black market, at least in our opinion.
LISTNUM 1 \l 14556 COMMISSIONER CRAM: Okay. M'hm.
LISTNUM 1 \l 14557 And you do realize that the U.S. ‑‑ and I think it's been proposed by several parties here ‑‑ are talking about some of your concerns being addressed as violations of the rules. This bit about sharing, because, of course, the viability of the whole "do not call" list would be gone if there was an allowance to share, and some of the other issues you were talking about, they would, in all probability, be considered as violations of the rules, and then subject to the administrative monetary policies.
LISTNUM 1 \l 14558 MR. OBERMEYER: Exactly. And I agree fully that you could, in fact, try to regulate it. If you choose to do so, I wish you luck, and I would rate your chances of success as roughly equal to the chances of the music industry controlling in any effective way the sharing of MP3 files.
LISTNUM 1 \l 14559 Once that list is downloaded to somebody's computer, there is no technical barrier, no reasonable technical barrier, to that person making an illicit copy and passing it along to someone else for free or for money, or money's worth.
LISTNUM 1 \l 14560 COMMISSIONER CRAM: M'hm. And that's why, then, you are suggesting the reverse, the yes/no concept?
LISTNUM 1 \l 14561 MR. OBERMEYER: That's only one reason that I'm suggesting the yes/no concept. Other reasons include making the investigation of any particular complaint a trivial matter if the telemarketer has followed the rules.
LISTNUM 1 \l 14562 The FTC DNC registry, I have heard a number quoted of 90,000 complaints per month. I would define that as an abject failure to implement a system. The cost of investigating 90,000 complaints per month, how much would it cost to investigate one complaint? I would guess on the order of maybe $100. That's $9 million a month they are spending investigating complaints.
LISTNUM 1 \l 14563 Wow, that's more than the cost of providing a robust system that would allow the complaints to be dismissed out‑of‑hand, if the telemarketer has, in fact, followed the rules and has a confirmation number to prove it. Okay?
LISTNUM 1 \l 14564 So let's get back to Martha and her window‑cleaning service. Instead of downloading the Toronto telephone directory, or half of it ‑‑ let's rip it in half, we are all strong people, we can do that ‑‑downloading half of that telephone directory, instead she downloads, how many digits, 14 digits, 2006‑123456789, that's 20 bytes of information, as opposed to 135 megabytes as the minimum to make her first call.
LISTNUM 1 \l 14565 That's an extraordinary difference. I don't know if you are familiar with bytes and megabytes and all that, I would imagine some people have a passing familiarity with them, but if we were to stack up the amount of information as, say, pennies on this desk, one telephone number or one byte of information being a penny, and put it there, I would invite anyone to calculate out the height of a stack of pennies 135 megabytes tall, or say 70, to take half of that number. On the other hand, put two cents on the desk. That's what Martha wants to download, two‑cents worth of information, not something that reaches probably to the stratosphere.
LISTNUM 1 \l 14566 COMMISSIONER CRAM: Thank you very much, Mr. Obermeyer. Thank you.
LISTNUM 1 \l 14567 THE CHAIRPERSON: Thank you very much, Mr. Obermeyer.
LISTNUM 1 \l 14568 Commissioner Langford.
LISTNUM 1 \l 14569 COMMISSIONER LANGFORD: I just have a question on one other line of your submission, your original submission, and that's on penalties.
LISTNUM 1 \l 14570 I'm wondering about zero‑tolerance, and I'm kind of wondering about the Marthas of the world, but we heard yesterday, I don't think you were here, but we did hear yesterday from some representatives of charities who are concerned about the reach of the whole "do not call" kind of violation problem, two reasonably naive but well‑intended soccer moms, summer camp people, people who are freely giving of their time in the neighbourhood to help their children or some cause, and inadvertently, completely inadvertently, discover they are telemarketers in some way.
LISTNUM 1 \l 14571 Do you really want to go to a zero‑tolerance model when you kind of consider that aspect of it? We are not talking about Rogers, that we just listened to here, we are talking about, you know, somebody from Cornerbrooke, Newfoundland, I think was the example we got yesterday.
LISTNUM 1 \l 14572 MR. OBERMEYER: Yeah. I have a lot of sympathy for charities, a lot of sympathy. The telemarketing, the commercial telemarketing industry has soured the milk because they have abused the current rules so flagrantly for so long and with so little enforcement to cause them to reconsider, charities have now been lumped in with them and forced to defend themselves from this, I can't think of a better word than "madness".
LISTNUM 1 \l 14573 What has commercial telemarketing done to the good will of our communities? Think about that. What has it done to the good will of the people who are trying to cook their dinner and may have been willing at some point in time to make a donation to a charity, but they have been so badgered by giant corporations, by professional telemarketers, that they just are out of patience?
LISTNUM 1 \l 14574 I can point to at least one example which has developed an immunity to charities calling on the telephone, and I'm right here. That's my one example. I'm sure there are others.
LISTNUM 1 \l 14575 COMMISSIONER LANGFORD: But in terms of just a penalty situation, you know, a financial penalty, we have never had in Canada before the power to levy monetary penalties. Parliament has finally almost given that to us. We have to wait for the rules to be proclaimed, but they are there.
LISTNUM 1 \l 14576 Wouldn't it make sense to have some sort of time to allow that to sort of work through the system and see if it has any salutary effects before we create a situation where some reasonably naive but well‑intended group, who may make a hundred neighbourhood calls, gets nailed?
LISTNUM 1 \l 14577 MR. OBERMEYER: Absolutely, and I would not criticize any efforts to do so. I have softened my position considerably on the zero‑tolerance thing. I can see the need for using some commonsense here. And commonsense appears to be something that has been sorely lacking this entire endeavour.
LISTNUM 1 \l 14578 I have made a personal project to stop ‑‑ or to try to stop one single telephone from ringing off the hook at dinnertime. One telephone. Over the past 10 years, I have recorded ‑‑ well, adding in today, over 400 hours of effort for one subscriber to stop commercial telemarketing to one telephone. I have not yet been successful.
LISTNUM 1 \l 14579 I'm sure you could imagine that I might be a little bit frustrated. I'm sure you could imagine that, in the attempt to stop one telephone from ringing, I have had several unpleasant communications with some of the large corporations in this country, some unapologetic large corporations which have continued to place calls, and, in fact, in some cases have stepped up the number of calls that they place to my number because they have found a loophole, an exemption, that they can place those calls under. So, yeah, I'm a little frustrated.
LISTNUM 1 \l 14580 Yes, I am softening my stance on the zero‑tolerance and I think if the people in this room were to set aside their roles, set aside the organizations they represent, and stop and think honestly to themselves, wouldn't it be better if we could all just talk about this over a beer, as a bunch of responsible rationale people, and come to some middle ground with a robust, simple system that can be implemented with readily available technologies that are non‑proprietary and do not demand a huge investment on the part of a telemarketer to participate. That's what we are after.
LISTNUM 1 \l 14581 COMMISSIONER LANGFORD: Thank you very much.
LISTNUM 1 \l 14582 That's my question, Mr. Chair.
LISTNUM 1 \l 14583 THE CHAIRPERSON: Mr. Obermeyer, thank you very much. We appreciate the effort you have made and the clarity of your position, and it will certainly remain in our minds.
LISTNUM 1 \l 14584 Thank you.
LISTNUM 1 \l 14585 We will start again tomorrow at 9 o'clock with the companies.
LISTNUM 1 \l 14586 Madame le secrétaire?
LISTNUM 1 \l 14587 THE SECRETARY: I was just wondering if Mr. Gahan was in the room, but...
LISTNUM 1 \l 14588 THE CHAIRPERSON: Oh, is Mr. Gahan in the room? He didn't indicate he was before. I presume he hasn't arrived since.
LISTNUM 1 \l 14589 THE SECRETARY: Okay.
LISTNUM 1 \l 14590 THE CHAIRPERSON: No.
LISTNUM 1 \l 14591 Thank you very much. Nine o'clock tomorrow.
‑‑‑ Whereupon the hearing adjourned at 1740, to resume
on Thursday, May 4, 2006 at 0900 / L'audience
est ajournée à 1740, pour reprendre le jeudi
4 mai 2006 à 0900
REPORTERS
_____________________ _____________________
Marc Bolduc Lynda Johansson
_____________________ _____________________
Sue Villeneuve Fiona Potvin
_____________________ _____________________
Madeleine Matte Sandy Kelloway
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