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 4, 2006          Le 4 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 4, 2006          Le 4 mai 2006

TABLE DES MATIÈRES / TABLE OF CONTENTS

   PAGE / PARA

Presentation by The Companies    689 / 4597

    Questions by the Commission   773 / 5127

Closing Statement by Mark Obermeyer    820 / 5438

Closing Statement by Canadian Life and     826 / 5471

  Health Insurance Association

Closing Statement by Consumer's Association  827 / 5479

  of Canada

Closing Statement by Primerica    829 / 5493

Closing Statement by Association of Fundraising  830 / 5501

  Professionals

Gatineau, Quebec / Gatineau (Québec)

‑‑‑ Upon resuming on Thursday, May 4, 2006

    at 0900 / L'audience reprend le jeudi

    4 mai 2006 à 0900

LISTNUM 1 \l 1 \s 45924592     THE CHAIRPERSON:  Order, please.

LISTNUM 1 \l 14593     Madame la Secrétaire.

LISTNUM 1 \l 14594     LA SECRÉTAIRE:  Merci, monsieur le Président.

LISTNUM 1 \l 14595     Nous avons maintenant The Companies.

LISTNUM 1 \l 14596     Mr. Drew McArthur, please introduce your panel.

PRESENTATION / PRÉSENTATION

LISTNUM 1 \l 14597     MR. McARTHUR:  Good morning, Mr. Chairman, Members of the Commission.

LISTNUM 1 \l 14598     My name is Drew McArthur.  I am the Vice‑President of Corporate Affairs at TELUS Communications.

LISTNUM 1 \l 14599     On my right is Ted Woodhead, TELUS Regulatory Services.

LISTNUM 1 \l 14600     On my left of our co‑presenters today are:  Scott Collyer, Director Local Access, Bell Canada: David Palmer, Director, Regulatory Matters, Bell Canada; Jenny Crowe, Counsel, Regulatory Affairs at MTS Allstream; and Bill Abbott, Senior Counsel, Regulatory Law, Bell Canada.

LISTNUM 1 \l 14601     In addition to the companies represented here on the panel before you, our submissions to you today are made on behalf of Aliant, Northern Tel, Northwestel, SaskTel and Télébec.

LISTNUM 1 \l 14602     THE CHAIRPERSON:  Mr. McArthur, just for your information, it is our understanding ‑‑ and I mention it also to remind the Secretary ‑‑ that you are not constrained by the 10‑minute rule.

LISTNUM 1 \l 14603     MR. McARTHUR:  Thank you very much.

LISTNUM 1 \l 14604     THE CHAIRPERSON:  I know you won't go on forever, but we don't want you to be warned and we don't want you to feel unduly constrained.

LISTNUM 1 \l 14605     MR. McARTHUR:  Thank you.

LISTNUM 1 \l 14606     The Companies are active telemarketers and, as such, we are pleased to have this opportunity to outline our views as telemarketers with respect to the task of establishing a national "do not call" framework in finalizing the telemarketing rules.

LISTNUM 1 \l 14607     I will begin our presentation with an overview of The Companies' key concern regarding customer awareness.

LISTNUM 1 \l 14608     Scott Collyer will then address the concerns relative to the cost of implementing the DNCL framework, and Jenny Crowe will conclude the presentation with a discussion of the principles that should guide the implementation of the DNCL.

LISTNUM 1 \l 14609     The panel will then be available to respond to the Commission's questions.

LISTNUM 1 \l 14610     This is one of those regulatory proceedings that stands out because of its significance to both consumers and business.  It is about reshaping the relationship consumers have with business and by allowing consumers to take better control of the telemarketing calls they receive.  It is also about managing the public's expectations regarding the opportunities and limitations of the DNCL framework.

LISTNUM 1 \l 14611     The Companies lead their oral presentation with a topic of public awareness because of the key role that awareness and communication will play in the ultimate success or failure of the DNCL framework.

LISTNUM 1 \l 14612     Why should The Companies, as telemarketers, care whether the national DNCL framework succeeds or fails?

LISTNUM 1 \l 14613     If the DNCL succeeds, it will be good for consumers and telemarketers, but if it fails, or if it is not communicated properly there is a risk of elevated consumer confusion and a potential negative reaction against the telemarketers, the Commission and the federal government.  Thus we have a collective interest to make sure the awareness campaign is managed effectively and that all parties are consistent with their messaging.

LISTNUM 1 \l 14614     To this end, The Companies have proposed in their submissions in this proceeding that the information regarding the DNCL framework and the telemarketing rules be made available on a national DNCL website that is accessible through links from the Industry Canada and the CRTC websites and through a 1‑800 number made available for consumers to request information to be sent to them.

LISTNUM 1 \l 14615     The Companies have further proposed that information describing how to register on the DNCL and how to file a complaint against a telemarketer be made available to each Canadian household and business operating in Canada.

LISTNUM 1 \l 14616     Finally, The Companies propose that free sources of publicity, such as television and radio news, be used to maximize public awareness.  The Companies have made specific recommendations as to the type of information that should be conveyed and some of the means of conveyance.

LISTNUM 1 \l 14617     These are set out in detail in our submission dated March 27, 2006, as well as in our CISC contributions.

LISTNUM 1 \l 14618     There is significant agreement among the parties to this proceeding that a multi‑faceted public awareness campaign is necessary and that the awareness campaign not be limited to DNCL in its operations but also include information regarding telemarketing rules.

LISTNUM 1 \l 14619     Where there is less agreement is who should be responsible for the public awareness campaign and its related costs.

LISTNUM 1 \l 14620     We are here today because we profoundly believe that the responsibility of communicating information as complex as the DNCL and telemarketing rules and procedures to such an extensive audience should not be the primary responsibility of the telecommunications service providers as originally envisioned by the Commission in Telecom Decision 2004‑35.

LISTNUM 1 \l 14621     In this respect The Companies believe that the creation of a national DNCL is a regulatory response to the activities of telemarketers and that the responsibility to educate the public should rest with the parties whose activities give rise to the DNCL regime, namely the telemarketers.

LISTNUM 1 \l 14622     The Companies further believe the federal government, having mandated the regime, also has a key role to play in educating the public.

LISTNUM 1 \l 14623     For more discussion on the role of the federal government in a mandated DNCL regime, I will pass the floor to Scott Collyer.

LISTNUM 1 \l 14624     MR. COLLYER:  Thank you.

LISTNUM 1 \l 14625     Good morning.

LISTNUM 1 \l 14626     Designing an appropriate cost recovery scheme for the DNCL process is another critical success factor.

LISTNUM 1 \l 14627     As Drew noted, most parties to the proceeding agree that the primary source of funding should be the parties whose activities drive these costs, namely the telemarketers, and we agree with that.  It is the telemarketing industry whose actions are to be regulated.

LISTNUM 1 \l 14628     It is therefore appropriate that this industry be the primary source of recovery of these costs.

LISTNUM 1 \l 14629     However, we also share the view expressed by a number of parties to the proceeding that the DNCL is a federal government initiative intended to benefit Canadian consumers.  It therefore is entirely reasonable to expect the government to play a key role in the implementation and funding of such a project.

LISTNUM 1 \l 14630     In Public Notice 2006‑4 the Commission implicitly suggests that the DNCL operator would be self‑sustaining financially with a business model that requires the operator to assume significant financial risks.  The list operator would be responsible for the costs of establishing and administering the DNCL, as well as the costs related to investigating breaches of the telemarketing rules.

LISTNUM 1 \l 14631     The Companies are deeply concerned that both this financial model and the expectation that the entire DNCL regime would be self‑sustaining financially are simply unrealistic from a business case perspective.

LISTNUM 1 \l 14632     First, let's consider the costs that will be incurred with the DNCL.

LISTNUM 1 \l 14633     As I mentioned before, there are specific costs to be incurred by the operator, but there are also other costs whose recovery needs need to be part of the overall system:  one, the Commission's own incremental costs to the administration; consortium costs, if applicable; and finally, third party costs, if applicable.

LISTNUM 1 \l 14634     I will discuss each of these in turn.

LISTNUM 1 \l 14635     The CRTC announced in the public notice that its own incremental costs of conducting this proceeding and implementing and enforcing the DNCL would be recovered only from the regulated telecom carriers.

LISTNUM 1 \l 14636     As companies who engage from time to time in telemarketing, The Companies fully expect to pay their fair share of costs associated with the DNCL process.  However, recovering the Commission's incremental costs associated with regulating telemarketing activities solely from regulated carriers is, in The Companies' view, highly inappropriate and is fundamentally bad public policy.

LISTNUM 1 \l 14637     The regulated telephone companies are not the parties giving rise to these costs, nor are they the beneficiaries of the telemarketing and DNCL rules.  Nor are they the sole suppliers of telecom services to the telemarketing industry.

LISTNUM 1 \l 14638     Indeed, the casual relationship would be just as strong as if the Commission had announced in the public notice that it would recover its costs associated with the DNCL through its broadcasting fees.

LISTNUM 1 \l 14639     It would be much more appropriate for the Commission's costs to also be funded from the broader telemarketing industry.  In fact, this approach would be consistent with Treasury Board's policy guidelines with respect to cost recovery.

LISTNUM 1 \l 14640     The Commission has expressed the view that a consortium would be the preferred vehicle through which the DNCL operator would be engaged.  If this approach is ultimately adopted, there would also be consortium costs to be recovered.  By the same logic, these costs would also be primarily recovered from the telemarketing industry.

LISTNUM 1 \l 14641     Certain third parties have asked as part of the DNCL implementation to take on functions in support of the DNCL regime.  One specific example is that some parties have proposed that telephone companies modify their systems to establish a data feed to the DNCL operator of all telephone numbers that are disconnected from service.  This information would be used to scrub the DNCL of numbers that are no longer in use.

LISTNUM 1 \l 14642     This specific case has been accepted by the Commission at this point, but if it is, parties who would be incurring one‑time and ongoing costs to support the DNCL should also be eligible to recover those costs through the DNCL cost recovery plan.

LISTNUM 1 \l 14643     In sum, we have the DNCL operators' costs, the Commission costs and, if applicable, those of the consortium and of a third party, all of which in principle should be recovered from the Canadian telemarketing industry.

LISTNUM 1 \l 14644     Is this a realistic model?

LISTNUM 1 \l 14645     The Gottlieb Report prepared for the Commission in 2005 estimates that the annual costs of the DNCL to range from 5.6 to $6.7 million.  This includes estimates for all but the third party costs.  There are also system start‑up costs which the Gottlieb Report puts at between 6.3 and $7.6 million.

LISTNUM 1 \l 14646     We are not intending to debate the reasonableness of these numbers in this forum for today's purposes.  We are only observing that this is a significant price tag.

LISTNUM 1 \l 14647     The Companies are deeply concerned that the vision of a financially self‑sustaining DNCL process might not be realistic and that the cost recovery exercises will lead to, first, shortfalls in cost recovery by the DNCL operator and/or widespread non‑compliance by telemarketers in light of the level of fees necessary to be fully cost recovery.

LISTNUM 1 \l 14648     This is a concern with respect to recovering the recurring costs, as well as the initial start‑up costs for the DNCL system.

LISTNUM 1 \l 14649     Moreover, we are not convinced that a DNCL operator will be found that will be willing to assume the substantial financial risks associated with this uncertainty and the degree to which funding will materialize, most particularly due to the unknown level of demand that will be used to establish its rates.

LISTNUM 1 \l 14650     Unlike most Commission proceedings, it is this case that there is no single entity or well‑defined group of entities that will be underwriting DNCL costs.  This is a function that the Commission foresees will be contracted out to a third party provider, probably a private sector entity that will quite reasonably expect to recover its own costs and earn a reasonable return on its investment.

LISTNUM 1 \l 14651     If the many parties to this proceeding, including The Companies, expect the costs turn out to be at a level that the telemarketing industry cannot support, it is our opinion that the success of the DNCL regime is at risk.

LISTNUM 1 \l 14652     As I noted earlier, The Companies are quite prepared to contribute their fair share to these costs as responsible members of the telemarketing industry.  However, with respect, the responsibility lies with the Commission and the federal government to ensure that the financial viability of this government initiative to better regulate telemarketing activity so that the benefits of the DNCL can be delivered to all Canadians.

LISTNUM 1 \l 14653     The Companies encourage the Commission to seek a greater degree of involvement in the federal government and the DNCL implementation process, both in terms of ensuring that the Commission has the resources to properly oversee the implementation of the DNCL and providing sufficient funding from general revenues to support that process.

LISTNUM 1 \l 14654     This step is urgently required, in our respectful view, to give the DNCL process a fighting chance for success.

LISTNUM 1 \l 14655     I will now pass to Jenny Crowe.

LISTNUM 1 \l 14656     MS CROWE:  Thank you.

LISTNUM 1 \l 14657     We have used our time this morning to highlight a few issues that we feel are pivotal to the success of a national "do not call" list.

LISTNUM 1 \l 14658     First, the need for an effective and consistent consumer awareness campaign that informs the public about the opportunities and the limitations of a national "do not call" list.

LISTNUM 1 \l 14659     Second, our view that the costs of operating a "do not call" list are appropriately recovered from those that drive the need for the list and those that benefit from the list: telemarketers and the general public.

LISTNUM 1 \l 14660     And finally, our concerns that the federal government should be playing an active role in this initiative, both in terms of funding and as a key stakeholder in the "do not call" list regime.

LISTNUM 1 \l 14661     There are a few simple principles that underlie our positions.

LISTNUM 1 \l 14662     First, the new rules should be symmetrically applied to all players involved in telemarketing, using only the minimal elements of regulation needed to ensure the effective and efficient operation of the "do not call" list.

LISTNUM 1 \l 14663     Second, although we have not focused on the issue of enforcement in this presentation, we submit that enforcement activities, including the handling of complaints, investigations and applications, must be dealt with in a timely manner.  While deadlines and time limits must of course guarantee the procedural rights of the affected parties, timely enforcement of the rules is essential to ensure that telemarketers adhere to the national "do not call" list and telemarketing rules and that the general public can place its confidence in the national "do not call" list.

LISTNUM 1 \l 14664     Finally, and most importantly, we submit that the Commission must be mindful of the costs in developing, implementing and enforcing a national "do not call" list.  These costs must be incurred prudently and monitored carefully.

LISTNUM 1 \l 14665     If the system becomes too complex, the costs risk exceeding what the telemarketing industry can reasonably tolerate and the entire "do not call" framework risks failure.

LISTNUM 1 \l 14666     A simple straightforward "do not call" list framework that is easy to use stands the best chance of keeping costs in check and of delivering the most effective service to the general public.

LISTNUM 1 \l 14667     Thank you for this opportunity to speak this morning.  We would be pleased to answer any questions you may have.

LISTNUM 1 \l 14668     THE CHAIRPERSON:  Thank you very much, both for the presentation and for the very thorough written submission which is of great use to the Commission.

LISTNUM 1 \l 14669     Commissioner Duncan.

LISTNUM 1 \l 14670     COMMISSIONER DUNCAN:  Good morning.

LISTNUM 1 \l 14671     I think that your comments are certainly excellent here this morning, and they carry through from your presentation.

LISTNUM 1 \l 14672     I think that we all agree with you that it is critical to manage the public's expectation and that it is important with respect to the cost of that awareness campaign and that it be done adequately so that the public doesn't over‑expect, if I can use that word, what is being delivered.

LISTNUM 1 \l 14673     I think the whole issue of cost is obviously critical.  I think at this point we are dealing with the hand that we have been dealt with, and I think probably the Chairman later on in his remarks may have some more comments with respect to the Commission and the dealings with Industry Canada to arrange for more funds and the likelihood of getting those funds and the timeliness of them, because issue at this point is getting this up and running.

LISTNUM 1 \l 14674     Obviously it has to be done correctly.  We all want it to succeed.  Everybody has a vested interest in seeing that it does.  You point that out very well here in your remarks this morning.

LISTNUM 1 \l 14675     So we can talk about that too over the point of time of our discussion.

LISTNUM 1 \l 14676     Also, I think the Chairman will address the federal government's involvement to this point and what he sees it would be ongoing.

LISTNUM 1 \l 14677     I will start with the questions that I have here.

LISTNUM 1 \l 14678     The first question relates to the comment that you make that the framework and regulations be implemented symmetrically ‑‑ we take that point ‑‑ and using only the minimal elements of regulations needed to achieve the social policy objectives relative to telemarketing.

LISTNUM 1 \l 14679     You mentioned that this morning in your opening remarks, so that is obviously key to you.

LISTNUM 1 \l 14680     I wonder if you would elaborate on what you would consider minimal elements of regulation, what you are contemplating when you make that statement.

LISTNUM 1 \l 14681     MR. WOODHEAD:  If I understand your question correctly in terms of enforcement, I guess our position is that there is an element of proportionality here.  It is almost a cautionary tale.

LISTNUM 1 \l 14682     The statutory scheme that is laid out provides for significant monetary penalties.  What we are saying is that that is what it is, but the Commission has a long history of having a remedial toolbox, if you will, that falls far short of monetary penalties.

LISTNUM 1 \l 14683     It is really just encouraging the Commission, in developing its guidelines, to be mindful of the fact that there are thresholds.  There are different levels of severity of transgressing or contravening the "do not call" list rules and the telemarketing rules.

LISTNUM 1 \l 14684     We spent a lot of time going through procedural rights where there are serious transgressions versus the procedural rights that might pertain to less serious transgressions.  I think that is all we are trying to say: is to encourage you, in your deliberations in developing these guidelines, to be aware of this proportionality point.

LISTNUM 1 \l 14685     MS CROWE:  If I could just expand ‑‑

LISTNUM 1 \l 14686     COMMISSIONER DUNCAN:  Sure.

LISTNUM 1 \l 14687     MS CROWE:  ‑‑ more generally in developing the rules, our comment that the rules should be symmetrically applied to all players and there should be the minimal elements of regulation, it ties into the whole idea of keeping it as simple as possible and restraining the costs.

LISTNUM 1 \l 14688     If we start creating rules just for the sake of capturing any circumstance that possibly we could ever think of, you just end up with an overly complex system where the public doesn't know what to expect and costs have a risk of getting out of control.

LISTNUM 1 \l 14689     COMMISSIONER DUNCAN:  I take your point.  That is very helpful.

LISTNUM 1 \l 14690     So keep it simple.

LISTNUM 1 \l 14691     MS CROWE:  That's the message, yes.

LISTNUM 1 \l 14692     COMMISSIONER DUNCAN:  Don't over regulate it; thank you.

LISTNUM 1 \l 14693     RCI in their submission have stated that the "do not call" list rule should only apply to consumers and should not prevent telemarketers from contacting businesses.

LISTNUM 1 \l 14694     As you acknowledge in your presentation, you are large telemarketers.

LISTNUM 1 \l 14695     I am just wondering what your view is on that.

LISTNUM 1 \l 14696     MR. COLLYER:  We would actually support RCI's position.

LISTNUM 1 \l 14697     I think for interest again of keeping it simple, if a business were to enrol to the DNCL and put their number on the list, there would be no sort of up‑front check or validation to determine whether or not the number was a wireless number or a wireline number from the consumer segment or the business segment.  We would just accept the number.

LISTNUM 1 \l 14698     Any consumer service provider ‑‑ I will say the Weed Man, looking to spray your lawn in the spring ‑‑

LISTNUM 1 \l 14699     I guess you can't do that in Ottawa, so maybe I could use a better example.

‑‑‑ Laughter / Rires

LISTNUM 1 \l 14700     MR. COLLYER:  Work with me here.

LISTNUM 1 \l 14701     If the business number were on that list with the merge/purge, with the DNCL, it would be culled from that telemarketer's list.

LISTNUM 1 \l 14702     What we would propose is that, for business‑to‑business marketing, where I am working for Rico Photocopiers and I want to knock on the door of the Commission's procurement officer and set up a meeting with him, that would not be considered a telemarketing call for the purpose of regulation.

LISTNUM 1 \l 14703     COMMISSIONER DUNCAN:  So, really, it would only come into play ‑‑ and, as I am sure you have gotten the impression, we are reluctant to establish any more exemptions ‑‑ it would really come into play in the assessment of violations or the determination of violations.

LISTNUM 1 \l 14704     MR. COLLYER:  Exactly.  Or the definition of what is telemarketing.

LISTNUM 1 \l 14705     Perhaps we would go and look at the definition of telemarketing and just say that it is a call to a consumer, rather than a call to a business.

LISTNUM 1 \l 14706     And given the fact that we have a three‑year review period built into this, perhaps we decide that we under‑regulate now and see if this emerges as an issue, and then, in three years' time, we sit back and have a second sober thought and propose what might be appropriate then, or not.

LISTNUM 1 \l 14707     COMMISSIONER DUNCAN:  That is certainly reasonable and follows along, I think, as well, with your suggestion of minimal regulation.

LISTNUM 1 \l 14708     MR. COLLYER:  Less is more.

LISTNUM 1 \l 14709     COMMISSIONER DUNCAN:  Yes.

LISTNUM 1 \l 14710     In discussing the length of time that the number should remain on the list, you proposed three years.  We have been asking the other parties about the cost that would be involved in re‑registering consumers after the three‑year mark or the five‑year mark.

LISTNUM 1 \l 14711     You mentioned it in your comments this morning, and it was actually a question I have.  It is, obviously, technically possible for the carriers to match up the numbers and eliminate the disconnected and the reassigned numbers.

LISTNUM 1 \l 14712     Given that that is possible, and the list should be fairly accurate, I would like to think, would you agree that perhaps we should do what the U.K. has done and leave the consumer numbers on the lists indefinitely?

LISTNUM 1 \l 14713     MR. COLLYER:  I don't think so.  I will be honest, I am sort of ‑‑ I don't know what I am.  I lie in among wolves here, because I am the marketing person sitting among my regulatory counterparts ‑‑

LISTNUM 1 \l 14714     COMMISSIONER DUNCAN:  Stand up and be counted.

LISTNUM 1 \l 14715     MR. COLLYER:  ‑‑ so I am a bit out of sorts this morning.

LISTNUM 1 \l 14716     From a marketing perspective, certainly three years is a long time.

LISTNUM 1 \l 14717     For those of you in the Commission who know me, you may know that I have a consumer long distance background, particularly within the international long distance marketplace.

LISTNUM 1 \l 14718     The way rates are changing and price plans are changing and the benefits that we are able to provide to consumers are changing, what a customer may have said no to three years ago, they very much might be prepared to say yes to today.

LISTNUM 1 \l 14719     We actually have on our own "do not call" lists at Bell Canada a three‑year moratorium, and we have actually started calling customers once they have passed that three years, and, actually, we have a very surprising success rate.  Probably about 85 percent of customers consent for us to continue to call them, just because that much time has passed and the offer that we are providing to them is relevant.

LISTNUM 1 \l 14720     COMMISSIONER DUNCAN:  If I could interrupt you for a second ‑‑ this is very interesting.

LISTNUM 1 \l 14721     When you call, do you start out by saying, "Your registry on our internal list has expired," or do you just start out with an offer?

LISTNUM 1 \l 14722     MR. COLLYER:  No, absolutely.  We acknowledge the fact that some time ago you were placed on a "do not call" list here at Bell Canada, and we respect that.  It has a three‑year lifespan, and we would like to talk to you, because a lot of things have happened in the three years since we haven't talked to you.

LISTNUM 1 \l 14723     About 85 percent of customers actually consent to the call and remain on our telemarketing lists.

LISTNUM 1 \l 14724     The other 15 percent, for the most part ‑‑ I mean, no one is nasty.  No tele‑terrorists.  They politely decline and say, "Hi.  Can I re‑register for another three years," and we will do that on the spot.

LISTNUM 1 \l 14725     COMMISSIONER DUNCAN:  Excellent.  Thank you.

LISTNUM 1 \l 14726     I have a few questions with respect to specific things in your written submission.  I just want some clarification.

LISTNUM 1 \l 14727     In paragraph 24, regarding registration in the national "do not call" database, you suggested an automated process via a toll‑free number or over the Internet.  I am wondering if you considered the need for an operator‑assisted option.

‑‑‑ Pause / Pause

LISTNUM 1 \l 14728     MR. COLLYER:  As has just been whispered in my ear, it is in play at CISC right now, and cost is a consideration.

LISTNUM 1 \l 14729     Obviously, with my little spiel about cost, that is something that we are obviously looking at trying to contain.

LISTNUM 1 \l 14730     COMMISSIONER DUNCAN:  Would you agree that it is something that is likely going to have to be an unavoidable cost?

LISTNUM 1 \l 14731     Maybe you want to wait until you finish your discussions at CISC, but ‑‑

LISTNUM 1 \l 14732     MR. COLLYER:  It is on the table.

LISTNUM 1 \l 14733     We keep the registration quite simple.  We are proposing for it just to be the telephone number.  Really, you can see it being accomplished in a 45‑second IVR introduction, where the recorded message says, "Select English; select French" ‑‑ an introduction with an instruction as to what to do, enter in your telephone number, it is confirmed back to you, and that is the call.

LISTNUM 1 \l 14734     COMMISSIONER DUNCAN:  I know that it seems very simple, I just think that there are consumers out there who might be intimidated by it ‑‑

LISTNUM 1 \l 14735     MR. COLLYER:  Yes.

LISTNUM 1 \l 14736     COMMISSIONER DUNCAN:  ‑‑ and who like the comfort of talking to a person.

LISTNUM 1 \l 14737     Although, everybody is getting conditioned to deal with the other.

LISTNUM 1 \l 14738     In paragraph 27 you indicate that all information regarding the registrant should be destroyed when the telephone number is removed from the "do not call" database.

LISTNUM 1 \l 14739     I was wondering if you think we need a delay period equal to the number of days allowed for filing a complaint before we delete that information.

LISTNUM 1 \l 14740     I am assuming that the information would have the ‑‑

LISTNUM 1 \l 14741     You don't disagree with that?

LISTNUM 1 \l 14742     MR. COLLYER:  Yes, I think that is entirely reasonable.

LISTNUM 1 \l 14743     I think, really, our concern is that we just don't want to have big, giant data farms of telephone numbers that are no longer valid or relevant.

LISTNUM 1 \l 14744     COMMISSIONER DUNCAN:  On my next point you will probably give the same answer, then, because ‑‑ well, maybe not.

LISTNUM 1 \l 14745     In paragraph 28 you suggest that the registration system should incorporate the capability of listed persons and organizations to update their information and de‑list themselves at any time.

LISTNUM 1 \l 14746     Again I am thinking, just so we have the information necessary, an audit trail, in the event of a complaint, or an investigation, that we should allow some time.

LISTNUM 1 \l 14747     You don't disagree?

LISTNUM 1 \l 14748     MR. COLLYER:  No, that is perfectly reasonable.

LISTNUM 1 \l 14749     COMMISSIONER DUNCAN:  Thank you.

LISTNUM 1 \l 14750     At paragraph 47 you indicate your support ‑‑ and you have emphasized that again here today ‑‑ in the interests of regulatory symmetry, for the continuation of the requirement on all telemarketers to identify the person or organization on whose behalf the call is being made at the beginning of the call.

LISTNUM 1 \l 14751     You indicate that you support that.  As your reference, you mention section 41.7 and the requirement that it places on exempted parties to identify both the purpose of the call and the name of the organization on whose behalf they are calling.

LISTNUM 1 \l 14752     But in your paragraph 46 you only refer to the requirement to identify the person, not the purpose.

LISTNUM 1 \l 14753     Was that just an oversight?  Are you in agreement that they should both be the same?

LISTNUM 1 \l 14754     MR. PALMER:  I think the distinction in paragraph 46 is that we are talking about the current Commission requirements, which say that you identify who is calling.  There is not a specific Commission requirement today to identify the purpose of the call, as distinct from the legislation that will be coming into effect.

LISTNUM 1 \l 14755     COMMISSIONER DUNCAN:  So then you would support, in making the call, that the person identify the purpose of the call at the beginning?

LISTNUM 1 \l 14756     MR. PALMER:  Absolutely.

LISTNUM 1 \l 14757     COMMISSIONER DUNCAN:  Thank you.

LISTNUM 1 \l 14758     THE CHAIRPERSON:  For the record, the answer was in the affirmative.

LISTNUM 1 \l 14759     COMMISSIONER DUNCAN:  You indicate in your submission at paragraph 52 that the provision of contact numbers should be given only on request.  That all seems reasonable, that whole discussion, but I wondered if you felt that the number given should be toll‑free.  You didn't address that.

LISTNUM 1 \l 14760     MR. COLLYER:  It is our best practice at Bell Canada.  That is what we already do, and I think we could certainly align with that.

LISTNUM 1 \l 14761     COMMISSIONER DUNCAN:  The next point, with respect to the emergency lines ‑‑ and I may not have understood the technical implications of this, but at any rate, at paragraph 83 you made what I thought was a strong case for ensuring that the "do not call" list is capable of including entire NPA NXX codes in the "do not call" list, as required.

LISTNUM 1 \l 14762     You end by proposing that this capability would be available on an optional basis.  That sort of left me with the impression that maybe it wasn't all that important.

LISTNUM 1 \l 14763     I am wondering, if the cost and complexity to include this functionality is high, would you agree that it could be dispensed with?

LISTNUM 1 \l 14764     MR. COLLYER:  I think, really, what we were trying to get at here is that, as telcos, we reserve blocks of numbers or ranges of numbers or specific NPA NXX combinations as conversion numbers or backdoor numbers to get into emergency service providers.  We have these banks of telephone numbers.

LISTNUM 1 \l 14765     I think what we are looking at here is just a way, with the DNCL, to add them to the list and block them off en masse.  Whether we do that serially, one after another, or we develop a system that can block out an entire NPA NXX combination, I think that really comes down to CISC and actually deciding whether this is going to be bigger than a bread basket and smaller than a Volvo.

LISTNUM 1 \l 14766     COMMISSIONER DUNCAN:  Smaller than...?

LISTNUM 1 \l 14767     MR. COLLYER:  A Volvo.

‑‑‑ Laughter / Rires

LISTNUM 1 \l 14768     MR. COLLYER:  I don't want to use the gun registry here at all.

LISTNUM 1 \l 14769     COMMISSIONER DUNCAN:  No.  Thanks very much.

LISTNUM 1 \l 14770     You would like the flexibility built in.  That is your point, and you are obviously not expecting it to break the bank to do it.

LISTNUM 1 \l 14771     MR. COLLYER:  No.

LISTNUM 1 \l 14772     COMMISSIONER DUNCAN:  At paragraph 33 of your submission you recommend that the data in the national database should be available on the most disaggregated means possible in order to facilitate the operation of regionally and locally based businesses.

LISTNUM 1 \l 14773     I am wondering if you have any other ideas, any other suggestions, on ways in which smaller operators could be accommodated to ensure their viability.

LISTNUM 1 \l 14774     Here I am thinking of a usage‑based fee structure, possibly tiered, to apply lower access fees to companies below a specified gross income level.

LISTNUM 1 \l 14775     You may have some other ideas, or not agree with that one.

LISTNUM 1 \l 14776     MR. COLLYER:  I think that is quite reasonable.

LISTNUM 1 \l 14777     One of the other submissions that was brought forward yesterday by Mr. Obermeyer, which I thought was quite interesting, was the number of records that are being cleaned in terms of the size of the telemarketing list.

LISTNUM 1 \l 14778     I don't know how you would police that, if you are giving us access to the DNCL data itself and we are doing our own merge purging.

LISTNUM 1 \l 14779     I think that a scalable fee structure based on either the size of the company that is making the calls or the size of the culling that they are doing is entirely relevant.

LISTNUM 1 \l 14780     COMMISSIONER DUNCAN:  Could I get you to go back, because I was very interested in his comments yesterday, too.  Could you explain that again?

LISTNUM 1 \l 14781     MR. COLLYER:  One of the points that he was bringing forward, which I found quite interesting ‑‑ I don't think it is workable, but I find it very interesting ‑‑ is that the telemarketers submit their lists to the DNCL operator, the operator does the expunging for the telemarketer, and then hands back the clean list.

LISTNUM 1 \l 14782     That way you actually see how many records the telemarketer is actually putting forward.

LISTNUM 1 \l 14783     If you wanted to go on a fee per record basis, that seems to be a very logical way to do it.

LISTNUM 1 \l 14784     I just don't think, in terms of trying to keep it simple, and complexity, and everything else, that that would be feasible.

LISTNUM 1 \l 14785     You heard Rogers yesterday saying that they are making in the order of 2.5 million telemarketing calls a month, which quite surprised me.

LISTNUM 1 \l 14786     You look at us as a series of telephone companies here, and we are probably making that and a little bit more, and we are just a small wedge of the industry.

LISTNUM 1 \l 14787     I don't personally think that that would be workable.

LISTNUM 1 \l 14788     COMMISSIONER DUNCAN:  Thank you.  I am sure that CISC will be dealing with all of this stuff anyway, but thank you very much.

LISTNUM 1 \l 14789     Do you agree with the CMA's position that telemarketers should be able to contact a consumer by telephone if the marketer has received a consumer consent to do so, even if he or she is on the "do not call" list?

LISTNUM 1 \l 14790     We have been asking this question about the others, so I would ask you to also include what you consider to be consumer consent.

LISTNUM 1 \l 14791     MR. COLLYER:  I think that if we have express consent from a consumer, that should be allowed, and valuable.

LISTNUM 1 \l 14792     In terms of recorded forms of express consent, the Commission has a series of valid forms that they have mandated to us as carriers.  I think that any or all of those would be entirely appropriate.

LISTNUM 1 \l 14793     COMMISSIONER DUNCAN:  We did hear from some of the parties, I think, that they thought it might be unreasonable to always have written express consent.

LISTNUM 1 \l 14794     MR. COLLYER:  The challenge with written express consent ‑‑ and I certainly find this in my office ‑‑ is, where do you store all of this stuff.

LISTNUM 1 \l 14795     And how do you access all of this stuff on a reasonable basis.

LISTNUM 1 \l 14796     Just given the fact that we are very much trying to move to electronic and Internet and IVR, if there are ways of positively identifying the user and recording their consent and storing it electronically, I would much prefer to do that, rather than keeping track of pieces of paper.

LISTNUM 1 \l 14797     COMMISSIONER DUNCAN:  Of course, the big thing is, as the Chairman mentioned yesterday, because the process is going to be complaint driven, if there is no issue, it will not even come up on the radar screen.

LISTNUM 1 \l 14798     MR. PALMER:  If I could add to Scott's comment, the Commission has approved, in the past, non‑written forms of express consent with respect to, for example, the disclosure of confidential customer information.

LISTNUM 1 \l 14799     So that suite of mechanisms, we think, would be appropriate in this context, as well.

LISTNUM 1 \l 14800     COMMISSIONER DUNCAN:  I'm sorry, the microphones are kind of ‑‑

LISTNUM 1 \l 14801     THE CHAIRPERSON:  He was saying that the Commission has, in the past, accepted unwritten forms of consent, such as in the additional usage for personal information.

LISTNUM 1 \l 14802     That is not the happiest example, by the way, but, in any event, the point has been taken.

LISTNUM 1 \l 14803     COMMISSIONER DUNCAN:  Thank you.  I will discuss that further with you later, so that I can get the details.

LISTNUM 1 \l 14804     MR. McARTHUR:  I would add that if the consent you are considering for this purpose is related to the "do not call" list, I think that is quite different from the consent of disclosure of confidential customer information.

LISTNUM 1 \l 14805     COMMISSIONER DUNCAN:  No, I think the consent was specifically with respect to overriding the "do not call" list registration.

LISTNUM 1 \l 14806     MR. McARTHUR:  In that context, since it is related to the "do not call" list registry, it may not be aligned with the regime around confidential customer information but take into account the sensitivity which may be different in the "do not call" list regime, and therefore other terms of consent, such as are available under PIPEDA, might be the appropriate level of consent.

LISTNUM 1 \l 14807     COMMISSIONER DUNCAN:  Available under...?

LISTNUM 1 \l 14808     MR. McARTHUR:  Under PIPEDA.

LISTNUM 1 \l 14809     COMMISSIONER DUNCAN:  Yes, all right.  Thank you.

LISTNUM 1 \l 14810     MR. McARTHUR:  The federal privacy legislation.

LISTNUM 1 \l 14811     COMMISSIONER DUNCAN:  Yes.

LISTNUM 1 \l 14812     I am having trouble hearing, I'm sorry.

LISTNUM 1 \l 14813     Thank you.

LISTNUM 1 \l 14814     I am going back to your submission again, because there was a little ambiguity and I would like to have it clarified.

LISTNUM 1 \l 14815     I will give you a chance to turn to the paragraphs now.

LISTNUM 1 \l 14816     At paragraph 72 you indicate that telemarketing agencies should not be required to maintain their own "do not call" list.  Instead, the rules should clearly identify that it is the organization on whose behalf the calls are being made or the fax is being sent that is responsible for adhering to the requirements related to both the national "do not call" list and individual "do not call" lists.

LISTNUM 1 \l 14817     Then, at paragraph 133, you state that:

"Undoubtedly, the telemarketing rules must apply to individual telemarketers who conduct telemarketing in Canada on behalf of an organization."

LISTNUM 1 \l 14818     Could you clarify your position with respect to whether it is the telemarketers, the company engaging the telemarketers, or both, who should be responsible for complying with the rules?

LISTNUM 1 \l 14819     MR. WOODHEAD:  Paragraph 133 is simply a recital of the legislation which establishes it.

LISTNUM 1 \l 14820     We have set out there, in section 72.02, vicarious liability.

LISTNUM 1 \l 14821     I think that it applies, actually, to both the organization on behalf of whom, and to the telemarketer.  The telemarketer has to comply, as well, with the rules.

LISTNUM 1 \l 14822     COMMISSIONER DUNCAN:  So both is your position.

LISTNUM 1 \l 14823     MR. WOODHEAD:  Yes, both.

LISTNUM 1 \l 14824     COMMISSIONER DUNCAN:  Thank you.

LISTNUM 1 \l 14825     THE CHAIRPERSON:  Actually, if I have understood correctly, Mr. Woodhead, your position is that this is what the law says.

LISTNUM 1 \l 14826     MR. WOODHEAD:  This is what the law says, yes.

LISTNUM 1 \l 14827     COMMISSIONER DUNCAN:  And that is your position, as well?

LISTNUM 1 \l 14828     MR. WOODHEAD:  That's correct.

LISTNUM 1 \l 14829     COMMISSIONER DUNCAN:  Obviously, you are not going to skirt the law, but...

LISTNUM 1 \l 14830     MR. WOODHEAD:  No.  That bus has left the station.

‑‑‑ Laughter / Rires

LISTNUM 1 \l 14831     COMMISSIONER DUNCAN:  At the time of filing your initial submission you indicated that you didn't have sufficient data to conclude that consumers considered voicecasting calls to be a problem.  However, you did indicate that to reduce the possibility of voicecasting emerging as a significant consumer issue, they should not be allowed ‑‑ or that the "do not call" list rule should apply.

LISTNUM 1 \l 14832     I am just wondering if you have any more data since your filing that might support that, anything more.

LISTNUM 1 \l 14833     MR. COLLYER:  No.  No.  The position stands.

LISTNUM 1 \l 14834     COMMISSIONER DUNCAN:  Yes, that is good.  We were just looking for more substance, that is all.

LISTNUM 1 \l 14835     If two companies that have an existing business relationship market jointly and one company has an existing business relationship with a customer, should that existing business relationship extend to the company that doesn't have an existing relationship with the customer?

LISTNUM 1 \l 14836     MR. WOODHEAD:  Could you repeat that again?

LISTNUM 1 \l 14837     THE CHAIRPERSON:  It is you and Air Canada, and the question is, if Air Canada has a business relationship with the customer but you do not, should you be permitted to assume ‑‑ because you have made a formal joint marketing proposal, should you be capable of assuming that business relationship with Air Canada?

LISTNUM 1 \l 14838     Is it transferable to you by means of a contract or of some sort of formal agreement which could be shown to us subsequently if there were a complaint?

LISTNUM 1 \l 14839     MS CROWE:  I think ‑‑

LISTNUM 1 \l 14840     MR. WOODHEAD:  I am not sure I have a clean answer to that.  I will just try and throw out a couple ‑‑ it is a good scenario and perhaps Drew might want to comment on this after I try and butcher it.

‑‑‑ Laughter / Rires

LISTNUM 1 \l 14841     MR. WOODHEAD:  Air Canada is a good one because it runs an affinity program with all kinds of partners, as you point out, joint marketing efforts through its Aeroplan subsidiary and I believe there was a privacy case, which is why I will defer to Drew on this, before the Privacy Commissioner.

LISTNUM 1 \l 14842     In an example ‑‑ it is not cleancut because in an example like that, people that sign up for Aeroplan, you know, sort of ‑‑ it is assumed that they accept that there are these partnership arrangements.  So in some ‑‑

LISTNUM 1 \l 14843     I think you would have to take each case on its facts and try and assess, and again, it would come to the enforcement part where you are trying to make a decision about that.  In some cases it may be reasonable, in other cases it may not, and it would be up to you to make those determinations.

LISTNUM 1 \l 14844     I mean there are other examples as well, I think, where ‑‑ and this is embedded in PIPEDA the sort of group of companies notion.  It is in examples where ‑‑ you know, our companies have a variety of subsidiaries under one brand, be it Mobility, be it whatever.

LISTNUM 1 \l 14845     I mean Rogers, just for an example, use Rogers.  There is Rogers Cable, Rogers this, Rogers that, but it is all branded under one, and I think that those ‑‑ in circumstances where there are clear linkages and where you are under some sort of common brand or affinity program, that should probably ‑‑ it should at least instruct what the Commission would ultimately do at the adjudication phase.

LISTNUM 1 \l 14846     COMMISSIONER DUNCAN:  I think that is a reasonable recommendation.

LISTNUM 1 \l 14847     MR. WOODHEAD:  Yes.

LISTNUM 1 \l 14848     MR. McARTHUR:  If I could just add to that.

LISTNUM 1 \l 14849     COMMISSIONER DUNCAN:  Sure.

LISTNUM 1 \l 14850     MR. McARTHUR:  I think it may be in the interest of simplicity for the Commission to resist determining all the potential permutations of what business relationships may be appropriate, and although it is not necessary helpful for business based on a complaint‑based system such as we have under the federal privacy regime, it does give business guidance when complaints arise and rulings are determined as to whether or not perhaps a business affinity relationship was reasonable under the circumstances.

LISTNUM 1 \l 14851     Those words "reasonable under the circumstances," of course, are in that legislation but I think the Commission would be well advised to keep it as simple as possible and perhaps make those determinations on complaint‑based situations, acknowledging, of course, that at the same time a complaint‑based‑driven system is often driven for means other than perhaps being offside with DNCL rules as opposed to a customer situation that Rogers commented on yesterday.

LISTNUM 1 \l 14852     COMMISSIONER DUNCAN:  Thank you.

LISTNUM 1 \l 14853     THE CHAIRPERSON:  I just note, Mr. McArthur that we have been very specifically asked to address all of those kinds of detailed questions by a number of other people who have appeared before us.

LISTNUM 1 \l 14854     COMMISSIONER DUNCAN:  Just carrying that further, if we take an example of two companies that have an existing business relationship and market jointly and one is a charity, exempt as a charity because it qualifies under the Income Tax Act, should that exemption apply to the other party under the DNCL rules?

LISTNUM 1 \l 14855     MR. McARTHUR:  I don't think we have an opinion on that.

LISTNUM 1 \l 14856     COMMISSIONER DUNCAN:  That is fine, thank you.

LISTNUM 1 \l 14857     At paragraph 26 of your submission, you indicate clearly there:

"...no longer remains any technical impediment to fulfilling the requirement that display the numbers."

(As read)

LISTNUM 1 \l 14858     What cost would a telemarketer face in upgrading the services that do not have technical impediments to displaying dollar information?

LISTNUM 1 \l 14859     MR. WOODHEAD:  I occasionally play a technical guy on TV.

‑‑‑ Laughter / Rires

LISTNUM 1 \l 14860     COMMISSIONER DUNCAN:  So there will be a new movie ‑‑

‑‑‑ Laughter / Rires

LISTNUM 1 \l 14861     MR. WOODHEAD:  Yes, I am McGyver.  I have this pen and you should see what it can do.

‑‑‑ Laughter / Rires

LISTNUM 1 \l 14862     MR. WOODHEAD:  The standard message set ‑‑ like you are asking whether a telemarketer would ‑‑ there would be a technical impediment to them delivering the number and caller identification to a consumer or customer?

LISTNUM 1 \l 14863     COMMISSIONER DUNCAN:  Exactly, yes.  Yes.

LISTNUM 1 \l 14864     MR. WOODHEAD:  Someone else may want to correct me here but the standard message set that is delivered by all telephone companies includes the Annie and the alley, the number and caller identification information.

LISTNUM 1 \l 14865     COMMISSIONER DUNCAN:  Yes.

LISTNUM 1 \l 14866     MR. WOODHEAD:  The Commission has mandated that as part of the technical interconnection standards and we all deliver it.

LISTNUM 1 \l 14867     There are certain examples, I believe, where that is compromised, and I don't want to ‑‑ I mean everybody is trunc‑side interconnected largely.

LISTNUM 1 \l 14868     There are some still line‑side interconnected where that information wouldn't be passed on and there are certain circumstances where the caller is behind ‑‑ this is going back ‑‑ a key system or a private branch exchange where there are many phones behind one central switchboard number.

LISTNUM 1 \l 14869     So yes, it is possible that that could be a problem but the vast majority of times, like 99 per cent of the time, you are going to pass the standard message set and it will show up on the consumer's phone line.

LISTNUM 1 \l 14870     I am sorry but that is basically ‑‑

LISTNUM 1 \l 14871     COMMISSIONER DUNCAN:  So the current reads ‑‑ I don't know is this is the exact wording but at any rate it says that:

"Both voice and fax telemarketing state that a call must display the originating telephone number of another number where the telemarketer can be reached except where number display is not available for technical reasons."

(As read)

LISTNUM 1 \l 14872     So it probably should remain worded that way because there is some possible exception or just ‑‑

LISTNUM 1 \l 14873     MR. WOODHEAD:  That is right.  There are ‑‑ it is not a large number of cases but there should be some out for "I just can't deliver that information" or they can't ‑‑ I am sorry, the telemarketer can't deliver that information.

LISTNUM 1 \l 14874     COMMISSIONER DUNCAN:  And, of course, that could also be dealt with ‑‑ if we have the same rule, we could always build that into the guidelines if we were assessing a complaint?

LISTNUM 1 \l 14875     MR. WOODHEAD:  Correct.

LISTNUM 1 \l 14876     COMMISSIONER DUNCAN:  Thanks.

LISTNUM 1 \l 14877     MR. PALMER:  If I could just add to Mr. Woodhead's comment though.

LISTNUM 1 \l 14878     I think we looked at the U.S. example as well where the telemarketing rules in the U.S. do not allow that kind of exception.  We understand the logic being that there are widely available interconnection arrangements that telemarketers can use so that this information is delivered with every call.

LISTNUM 1 \l 14879     I think the suggestion in our comments was that the Commission should consider taking away that exception so that telemarketers can't hide behind one of these odd technical cases and thereby not be readily traced.

LISTNUM 1 \l 14880     COMMISSIONER DUNCAN:  That is very helpful, thank you.

LISTNUM 1 \l 14881     You recommended:

"The Commission not require telemarketers to have live answering staff in place during business hours for the purpose of seller‑specific internal do not call list registries and to handle complaints as the cost may be prohibitive."  (As read)

LISTNUM 1 \l 14882     Instead, you recommended:

"The Commission mandate the requirement that telemarketers have in place adequately scaled equipment and facilities to record requests to be delisted."

LISTNUM 1 \l 14883     I just wonder if you would explain what "adequately scaled equipment and facilities" would be need to record requests to be registered or delisted and to handle complaints and how such a system would work.

LISTNUM 1 \l 14884     MR. PALMER:  I think here we are talking about the scale of the telemarketing operation.  If you are, you know, Mom and Bob's Telemarketing Services and you have got 20 reps and 20 desks, you know, chances are your receptionist can actually take care of that or a voicemailbox can take care of that.

LISTNUM 1 \l 14885     But if you are a large, sophisticated telemarketer ‑‑ and Bell Canada is a really good example of this.  We actually use a number that actually terminates inbound and a live answer centre from 8:00 in the morning till 9:30 at night where we are telemarketing just because of the volumes of calls and callbacks that we get.

LISTNUM 1 \l 14886     Because of actually the call display requirement, sometimes we are calling, we don't get people at home, they see the number on their display and they actually want to find out who it was that was trying to track them down during the day.  So we do that.

LISTNUM 1 \l 14887     So our position here is that we just think based on the size of the telemarketer that they have the appropriate ability to answer and/or record those requests for DNCL because I think, you know, we have all run into instances where we have called back a telemarketing callback number and ended up in a voicemailbox which invariably was full.

LISTNUM 1 \l 14888     There is nothing more maddening than to try and return a call and leave a message and "this voicemail box is full."  So what we are trying to do is ask to have the direction that the telemarketer actually is able to actually answer those calls.

LISTNUM 1 \l 14889     COMMISSIONER DUNCAN:  Just on that point, when you call ‑‑ when you are doing telemarketing and you call, what would show up on my phone, just your phone number or Bell or the company you are calling from or are you only calling for your own services?

LISTNUM 1 \l 14890     MR. COLLYER:  Well actually depending on what services you subscribe to at home, if you subscribe to number display only, then you would only get the 1‑800 number.  Otherwise, it would be 1‑800 and Bell Canada.

LISTNUM 1 \l 14891     COMMISSIONER DUNCAN:  Okay, because I do get names but sometimes I think I get calls where I only get a number.

LISTNUM 1 \l 14892     MR. COLLYER:  Actually, depending ‑‑ I am assuming you ‑‑

LISTNUM 1 \l 14893     COMMISSIONER DUNCAN:  I am an Aliant customer.

LISTNUM 1 \l 14894     MR. COLLYER:  Oh, you are an Aliant customer.

LISTNUM 1 \l 14895     COMMISSIONER DUNCAN:  Yes.

LISTNUM 1 \l 14896     MR. COLLYER:  Okay.  I can't speak to Aliant's technology but if it is similar to how we run at Bell ‑‑ to what Ted was saying ‑‑ on the record that is being sent or on the information that is being sent with the call, the number is there, and then we actually, while the call is being placed to your home or ringing at your home, go out to another database and match the number with the name and then bring the name into the call.

LISTNUM 1 \l 14897     So sometimes you are very fast to answer the phone.

LISTNUM 1 \l 14898     COMMISSIONER DUNCAN:  Yes.

‑‑‑ Laughter / Rires

LISTNUM 1 \l 14899     MR. COLLYER:  I am not sure ‑‑ we will leave you with that.

LISTNUM 1 \l 14900     You will actually pick up before the name display is actually provided to you and in some cases, you know, database congestion or what have you, we just aren't technically able to provide you with a name at that time or in some cases there isn't a name associated with the telephone number from which the call is being made.

LISTNUM 1 \l 14901     COMMISSIONER DUNCAN:  Okay.  So a telemarketer could leave a message on my phone and I would have a number and no name; is that not likely?

LISTNUM 1 \l 14902     MR. COLLYER:  Unlikely potentially.

LISTNUM 1 \l 14903     COMMISSIONER DUNCAN:  Yes, thank you.

LISTNUM 1 \l 14904     With respect to a company‑specific do not call request made during voice telemarketing calls, you agree with the Commission's finding in 2004‑35 that the do not call request should be processed at the time of the call, with one amendment, that:

"The telemarketer should be permitted to validate that the do not call request is made by an authorized member of the household or business in question."  (As read)

LISTNUM 1 \l 14905     I am just wondering how long you thought that should be allowed to validate that and if you couldn't ‑‑ well first, I guess I would like to know how you would anticipate what process it would be to validate it.

LISTNUM 1 \l 14906     MR. COLLYER:  Well, in the case of Bell Canada, when we are talking with a customer, we will actually create a service order on their profile, placing the telemarketing restriction on profile.  Anytime that we amend the customer's profile, we have to make sure that we are speaking with an authorized decision‑maker for the account.  So ‑‑

LISTNUM 1 \l 14907     COMMISSIONER DUNCAN:  So right on the call, you would do it?

LISTNUM 1 \l 14908     MR. COLLYER:  Yes, I am sorry, it is done live on the call.

LISTNUM 1 \l 14909     COMMISSIONER DUNCAN:  Oh, it is.  So there is no delay then?

LISTNUM 1 \l 14910     MR. COLLYER:  No, no.

LISTNUM 1 \l 14911     COMMISSIONER DUNCAN:  Thank you.

LISTNUM 1 \l 14912     MR. COLLYER:  I just verify who it is that you say you are and we have a friendly little chat and then we put you on an exclusion.

LISTNUM 1 \l 14913     COMMISSIONER DUNCAN:  Thank you.

LISTNUM 1 \l 14914     The Canadian Life and Health Insurance Association proposed that complaints should be registered within 14 days and then we have sort of at the opposite extreme, I guess, the CMA‑proposed 60 days for registering complaints.

LISTNUM 1 \l 14915     Do you have a view on the number of days that should be?

LISTNUM 1 \l 14916     MR. McARTHUR:  We have no opinion in terms of the time frame.

LISTNUM 1 \l 14917     COMMISSIONER DUNCAN:  I noticed some people made the argument that it should be sooner than later because people's memories were ‑‑ would you agree with that?

LISTNUM 1 \l 14918     MR. COLLYER:  It is common sense.

LISTNUM 1 \l 14919     COMMISSIONER DUNCAN:  Yes.

LISTNUM 1 \l 14920     MR. COLLYER:  Yes.  I don't think that I am going to receive a telemarketing call and then go on vacation and then, you know, remember to call back six weeks later ‑‑

LISTNUM 1 \l 14921     COMMISSIONER DUNCAN:  And complain.

LISTNUM 1 \l 14922     MR. COLLYER:  ‑‑ after I come back.  Yes.

‑‑‑ Laughter / Rires

LISTNUM 1 \l 14923     COMMISSIONER DUNCAN:  Okay.  All right.

LISTNUM 1 \l 14924     MR. COLLYER:  I have a better union.

‑‑‑ Laughter / Rires

LISTNUM 1 \l 14925     COMMISSIONER DUNCAN:  If the do not call list operator is mandated to investigate violations to telemarketing rules outside of the do not call list rules ‑‑ so that would be the other telemarketing rules ‑‑ or for exempt parties ‑‑ the other telemarketing rules as well ‑‑ how should he be compensated?

LISTNUM 1 \l 14926     MR. McARTHUR:  I am sorry, can you repeat the question please?

LISTNUM 1 \l 14927     COMMISSIONER DUNCAN:  Sure.

LISTNUM 1 \l 14928     If the do not call list operator is mandated to investigate violations of the telemarketing rules outside of the do not call list rules, so the other telemarketing rules, or maybe they would be the other rules as they apply to exempt parties as well, how should he be compensated?

LISTNUM 1 \l 14929     Because he is going to be compensated, at a minimum, for the do not call list registry through the fees or however that is determined.

LISTNUM 1 \l 14930     But how do you think he should be compensated for this factor?  The exempt parties, for example, may not even be paying a fee.

LISTNUM 1 \l 14931     MR. McARTHUR:  One moment.

LISTNUM 1 \l 14932     COMMISSIONER DUNCAN:  Sure.

LISTNUM 1 \l 14933     MR. WOODHEAD:  Okay.  So if ‑‑ I think the short answer is that they would have to be compensated by the same means as the people that are, you know, causing the issue, through recurring fees.  However you spread it out across all telemarketers, whatever, it would have to come out of that recurring fee or cost recovery.

LISTNUM 1 \l 14934     COMMISSIONER DUNCAN:  Because we weren't, for example ‑‑ and that is not to say we won't but ‑‑ contemplating that the exempt parties would pay a fee but maybe we would have a rate table that ‑‑

LISTNUM 1 \l 14935     MR. WOODHEAD:  Oh, okay.

LISTNUM 1 \l 14936     COMMISSIONER DUNCAN:  Maybe we would have a separate rate table that would apply to an exempt party in those circumstances.

LISTNUM 1 \l 14937     MR. WOODHEAD:  The issues of cost recovery are ‑‑ that will be a struggle.  You are talking now ‑‑ I am sorry because I think I misunderstood in part.  Now, you are talking about where exempt parties violate the telemarketing rules ‑‑

LISTNUM 1 \l 14938     COMMISSIONER DUNCAN:  The other rules.

LISTNUM 1 \l 14939     MR. WOODHEAD:  ‑‑ at large ‑‑

LISTNUM 1 \l 14940     COMMISSIONER DUNCAN:  Yes.

LISTNUM 1 \l 14941     MR. WOODHEAD:  ‑‑ other than the do not call list rules?

LISTNUM 1 \l 14942     COMMISSIONER DUNCAN:  Yes.  Mm‑hmm.  Because we ‑‑

LISTNUM 1 \l 14943     MR. WOODHEAD:  I suppose you could say that the do not call list ‑‑ I mean I could throw out to you that the do not call list operator doesn't do that, that that just remains resident ‑‑

LISTNUM 1 \l 14944     COMMISSIONER DUNCAN:  Well, that is an option.

LISTNUM 1 \l 14945     MR. WOODHEAD:  ‑‑ with the Commission, which would ‑‑ in the keep it simple thing gets you out of having to deal with the cost recovery for a particular kind of complaint and the Commission's base budget and its fee regime and so forth would accommodate that.

LISTNUM 1 \l 14946     COMMISSIONER DUNCAN:  Thank you, that is fine.

LISTNUM 1 \l 14947     I will ask you this.  I don't know if it is likely that you would have an answer and don't feel like you have to answer it if you don't.

LISTNUM 1 \l 14948     But Contact New Brunswick, their big concern was how much it was going to cost a small operator.  I debated marking this question off but I thought you would have ‑‑ as a supplier of equipment and telephony services, what would you estimate the cost would be for a new business or a business that hadn't previously been required to adhere to the do not call list to set up?

LISTNUM 1 \l 14949     We heard some discussion yesterday about ‑‑ the Contact New Brunswick representative actually mentioned $25,000 was his experience.  He was also a telemarketer for the hardware and software.  Do you have an idea what ‑‑

LISTNUM 1 \l 14950     MR. McARTHUR:  I was a bit unclear as to the reference made by Contact New Brunswick because it seemed to me he was thinking if he was an operations individual in his organization, to make a call to someone, he would have to screen those calls using the system whether or not that call was a telemarketing call.  I was a bit confused by his information.

LISTNUM 1 \l 14951     Again, in the  interest of simplicity, I would think in that case it just be left to the reasonableness of the circumstances and up to the determination of the small business what worked for them, and they may want to work without paper driven lists, likely not feasible in the realm, so it may be just the set‑up of being able to down load an appropriate set of numbers in their particular market‑ place.  And I am thinking more of a small business who is just setting up doing some minor calling.

LISTNUM 1 \l 14952     So, again, no comment on the specific costs and that be left up to the business case of the individual putting together the proposal.

LISTNUM 1 \l 14953     COMMISSIONER DUNCAN:  Thank you.  This goes back to the costs and how we are going to cover the bill, but in paragraph 51 of the Public Notice, the Commission noted and you've touched on this already, of course, noted that it proposes to use its normal budgetarian cost recovery process to fund the additional costs associated with the DNCL.  That's in paragraph 51 of the Public Notice.

LISTNUM 1 \l 14954     This would entail charging those telecom carriers that are subject to fees as we discussed earlier, as you mentioned.

LISTNUM 1 \l 14955     The Commission has reviewed all the comments received from interested parties regarding the funding of the costs and the comments received from the companies indicate that the costs of regulation whenever possible, should be borne by the parties whose activities give rise to the costs.

LISTNUM 1 \l 14956     Specifically, it was suggested that the CRTC find a mechanism to charge telemarketers for these additional costs.  The Commission continues to examine all funding options.  However, that being said, we have to move things forward.

LISTNUM 1 \l 14957     To recover our costs, what would you think if the CRTC were to consider allowing the filing of a tariff which would permit Telcos to recover the additional CRTC fees associated with the do not call list from telemarketers.

LISTNUM 1 \l 14958     MR. McARTHUR:  If I understand correctly, you are proposing then ‑‑ your question relates to the CRTC being able to charge a tariff or the Telcos to apply to the Commission for approval of a tariff that it could then charge to telemarketers?

LISTNUM 1 \l 14959     COMMISSIONER DUNCAN:  Exactly.

LISTNUM 1 \l 14960     MR. McARTHUR:  For recovery of fee.  My initial response to that is that it's a difficult workable situation.

LISTNUM 1 \l 14961     Again, it is the ‑‑ given that it would be the requirement to use the DNCL to operate a telemarketing entity, it would be much preferable to have those who give rise to telemarketing through that mechanism and accessing the list, to be the ones who would pay for the information in order to carry out the DNCL guidelines.

LISTNUM 1 \l 14962     Putting the Telcos in the position that a tax collector and remitter is probably not a preferred position from our perspective.

LISTNUM 1 \l 14963     MR. PALMER:  If I could just add to Mr. McArthur's comment as well, two top of mind challenges occurred to me as well.

LISTNUM 1 \l 14964     First of the Telcos are not the only suppliers to telemarketers as we heard, for example, from the gentleman from Contact New Brunswick who uses NIPE service for his telef. needs, not sure how you touch those people.  And again, going back to the DNCL or access in the DNCL as your focal point for collecting the fees I think is probably a little bit cleaner.

LISTNUM 1 \l 14965     The second issue that again top of mind strike me is I don't think as Telcos we necessarily know when one of our customer buying services from us is going to be using that service for telemarketing.

LISTNUM 1 \l 14966     Telemarketing isn't a specific class of service or there is no unique services that we provide to telemarketers, so like just identifying the players could be a challenge.

LISTNUM 1 \l 14967     MR. WOODHEAD:  Sorry; the specifics of it are ‑‑ to follow on Dave's point ‑‑ you have resellers who don't file tariffs.

LISTNUM 1 \l 14968     COMMISSIONER DUNCAN:  Right.

LISTNUM 1 \l 14969     MR. WOODHEAD:  So, that's a downstream use of a facility that we have no idea of what that person is doing with it.

LISTNUM 1 \l 14970     It also touches on as with CLECs that don't have tariffs of that sort.  They have inter‑connection tariff.   So. you would need to deal with that because as Dave points out, we have no way of knowing what I ‑‑ somebody orders up a DS‑0 or a T‑1 or something and we have no idea what they are doing with it.

LISTNUM 1 \l 14971     COMMISSIONER DUNCAN:  Thank you.

LISTNUM 1 \l 14972     THE CHAIRMAN:  Just to follow on that first point.  You've made very compelling arguments in that parameter and we appreciate them.  The question was never whether there should be no cost to telemarketers to access the bank.

LISTNUM 1 \l 14973     The question applies to those costs which at the moment appear to be in a kind of legal limbo, that is to say the costs that the Commission occasions in the start‑up and continuing operation and the recovery of that portion of the total costs, but that doesn't mean that the ‑‑ it doesn't again say in anyway the points you've made.

LISTNUM 1 \l 14974     But in that regard, let's suppose that the commission found itself in an awkward position and we could discuss it more, but just while we are on it, once suggestion I think it was from Shaw, was that the contributions or the incremental contribution by carriers in the current budgeting relationship of fee pay, fee relationship we have, could be regarded as a credit against draw‑downs for the telemarketing operations of the companies and I just wonder whether you would have any interest at all in that or whether you think it's at all feasible or maybe there are some other compelling arguments against it.

LISTNUM 1 \l 14975     MR. WOODHEAD:  I don't think we've had an opportunity to sort of think that through.  But just so I understand because I would like to think it through, and I wasn't here to hear what Shaw said, so ‑‑

LISTNUM 1 \l 14976     THE CHAIRMAN:  They weren't here; it's in their written submission.

LISTNUM 1 \l 14977     MR. WOODHEAD:  It's basically a set‑up against our fees otherwise payable.  Is that ‑‑

LISTNUM 1 \l 14978     THE CHAIRMAN:  Yes.

LISTNUM 1 \l 14979     MR. WOODHEAD:  I think we need to think that through.

LISTNUM 1 \l 14980     THE CHAIRMAN:  It was in Shaw's written submission.  They didn't appear before us.

LISTNUM 1 \l 14981     COMMISSIONER DUNCAN:  Would you like to take an undertaking to submit your comments on that, then?  It would be useful to have that, I think.

LISTNUM 1 \l 14982     MR. WOODHEAD:  I can take an undertaking, I guess.  We'll have to think it through.

LISTNUM 1 \l 14983     COMMISSIONER DUNCAN:  No, no.  I appreciate that, that's good.

LISTNUM 1 \l 14984     In your submission at paragraph 31, you make some detailed recommendations with regards to conditions that must be satisfied before a party is granted access to the do not call list, which I thought were excellent.

LISTNUM 1 \l 14985     I am just wondering in the instance of third party providers such as call centres, ad agencies, call brokers, if they should be allowed to access the system on behalf of another party in order to scrub the list, if that access should be granted and how it should be controlled?

LISTNUM 1 \l 14986     I would expect your recommendation is that they would have to at least sign a similar undertaking as to what you are suggesting other parties would, but ‑‑

LISTNUM 1 \l 14987     MR. COLLYER:  We would agree with that.  I mean ‑‑ Bell Canada, I mean and then I think most of the companies here, we actually do most of our own, you know, list preparation and scrabbling it and marge projecting and everything else and we send the list out to our in‑house providers or to our out‑source providers.

LISTNUM 1 \l 14988     You know, other operations, other operators may actually decide to out‑source all of that and I mean, we've heard from Rogers yesterday, saying that they were using a third party vendor, so I think that makes complete sense.

LISTNUM 1 \l 14989     COMMISSIONER DUNCAN:  Just to clarify, I just want to make sure I understood.  You only telemarket your own services at this point?  You don't telemarket for any other companies?

LISTNUM 1 \l 14990     MR. COLLYER:  No, no.

LISTNUM 1 \l 14991     COMMISSIONER DUNCAN:  And this is my last question ‑‑ two of them actually.  The Union des consommateurs suggested that the Commission should require telephone service providers to distribute four times a year an insert with the information on the do not call list rules, the exemptions, the complaint process and that the information should also be provided in the white pages.

LISTNUM 1 \l 14992     Could we have your comments on whether you think that's practical?

LISTNUM 1 \l 14993     MR. COLLYER:  Excuse me.  I think, dealing with the white pages first, we are, as companies, all worried about deforesting the planet and in printing these books, if we could accommodate it with our, you know, changing page counts and rearranging some of the other mandatory messages that we have got there, I think that's reasonable.

LISTNUM 1 \l 14994     We certainly are, you know, worried to adding to page count and particularly as well, I mean, the directory is, you know, less and less becoming a relevant communication vehicle as more companies or, you know, customers are using on‑line services like Canada 411.

LISTNUM 1 \l 14995     I mean, personally, I am actually responsible for a relationship with WPG and Directories and as the product sponsor, I can't tell you within the last two years when I have looked at a directory other than perhaps the glance for the terms of service on occasion.

LISTNUM 1 \l 14996     With respect to bill stuffers, again it's probably a low impact communication vehicle.  Our hope would be that we have got something, you know, broader out there that has more noise.  I think one of the things that we can do and I think you have seen us do this with respect to local competition and local competition awareness is the short information message that we put on the bill and there is actually a mandatory Commission message that's on there right now talking about local competition and directing customers to visit the Commission's web site and the fact sheet with respect to local competition that's there, that might be more appropriate.

LISTNUM 1 \l 14997     COMMISSIONER DUNCAN:  Thank you.

LISTNUM 1 \l 14998     MR. COLLYER:  Yes.  Interestingly again, it saves... saves papers.

LISTNUM 1 \l 14999     COMMISSIONER DUNCAN:  No and I appreciate.  Those are all helpful comments.

LISTNUM 1 \l 15000     With regards to the presentation yesterday by the Consumer's Association, how would you like to respond to their statement or how would you respond to their statement that ‑‑ and maybe I'll just quote it exactly because I don't want to misstate it.  I am sure you heard it.  They said :

"Let it never be forgotten that residential rate payers paid for the building of the networks over which telemarketers now exercise their dubious trade calls..."

LISTNUM 1 \l 15001     ‑‑ and you don't have to comment on that part.

‑‑‑ Laughter / Rires

"... calls therefore to fund the do not call list from subscribers constitute double taking from rate payers and are unjustified, the do not call list should never cost the residential subscriber a penny."

LISTNUM 1 \l 15002     And I would like to give you a chance go comment if you are interested in commenting on that.

LISTNUM 1 \l 15003     MR. McARTHUR:  So, can we really comment on the first part then?

‑‑‑ Laughter / Rires

LISTNUM 1 \l 15004     MR. McARTHUR:  As we pointed out in our submissions, there is the cost of consumer awareness which should be, as we have indicated, a much broader with the engagement of the federal government and other stay colder parties, as it relates to the telecommunications infrastructure again, we don't control the telecommunications infrastructure that is used by telemarketers.

LISTNUM 1 \l 15005     In fact, it was Contact New Brunswick that said yesterday that they were a fully IP‑based telecommunications operation.  So, I don't think that rings through in today's market‑place for the tools available to telemarketers for processing their trade.

LISTNUM 1 \l 15006     COMMISSIONER DUNCAN:  Thank you.  Those are my questions, Mr. Chairman.

LISTNUM 1 \l 15007     THE CHAIRMAN:  Mr. Langford.

LISTNUM 1 \l 15008     COMMISSIONER LANGFORD:  Thank you, Mr. Chair.

LISTNUM 1 \l 15009     I wanted to concentrate on enforcement and perhaps respond to Ms Crowe's call for timely enforcement, but before I do this, just a couple of little clean‑up questions in my own mind, having listened to your exchange with Commissioner Duncan, and having read some of the other submissions and heard some of the other submissions made earlier to us in the last couple of days.

LISTNUM 1 \l 15010     The first one is about just a general idea of who could act as an operator.  There are ‑‑ in any number of submissions there is a notion that there could be a conflict, that almost anybody that... they are not specific, but they sort of tend to say almost anybody we can think of that you could name is an operator, would be in a conflict of interest because they are in other aspects a telemarketing one assumes or whatever.

LISTNUM 1 \l 15011     Who do you think, in your knowledge of this subject, which you people have been batting around in various commissions for a lot longer than most, who comes to top of mind as sort of possible candidates to be an operator, to be the operator of the do not call list?  Who could do that?

LISTNUM 1 \l 15012     MR. WOODHEAD:  I mean, the usual suspects, EDS, CGI, IBM, some other firm that has some database experience that wants to get a return investment for doing the investigations.  I mean it could be any number of people.

LISTNUM 1 \l 15013     I mean, in the other kinds of databases that have been set up, we have had huge back in the mist of time, Lockheed Martin was interested in the LNP database.

LISTNUM 1 \l 15014     The portable contribution database is done by a small Ottawa accounting firm that it will have some sort of Excel spreadsheet on steroids.  It depends, you know ‑‑

LISTNUM 1 \l 15015     COMMISSIONER LANGFORD:  Well, let's take the Welch's example, the Welch's accounting firm in Ottawa that's doing the contribution and they seem to be doing a fine job, we don't hear any complaints about it.  But then, they also have to be policemen, so then we move into a whole other world.

LISTNUM 1 \l 15016     I mean, even in your own submission in paragraph 97, you say :

"The role of the DNCL operator, simply stated, is to manage the DNCL database, investigate complaints and issue notices."

LISTNUM 1 \l 15017     So, they administer and they police and then I guess we go in for the kill at the end, hand out the penalties, anything from warnings and hugs and whatever and counselling to ‑‑ short of capital punishment, I suppose, depending on who you listen to.

LISTNUM 1 \l 15018     So, any ideas there as to who could fill?  I mean, we talk about this thing as though we all know who we have in mind, but who do you have in mind?

LISTNUM 1 \l 15019     MR. WOODHEAD:  I mean, I take your point.  I don't think it's that big a deal.

LISTNUM 1 \l 15020     I had ‑‑ like in a previous incarnation, I had ‑‑ was involved with a private sector firm that actually investigated Human Rights complaints.  It's this firm that would go out and set up this data base and then establish this investigation function, would go and it would do a business case, it would say, you know: is there money in this for me, and they would, you know, go and hire people who would be proper investigators.

LISTNUM 1 \l 15021     There is ‑‑ you know, it would be, you know, people out of investigation programs, communications, I don't know, but somebody would just compile this, these resources, be they technical and human.  There would be, you know, they would set up a process and away you go and that's basically it.

LISTNUM 1 \l 15022     COMMISSIONER LANGFORD:  Terrifying, isn't it?  Set up a process and away you go, get somebody from the community calling.  Thank you, Mr. Woodhead, that really helps.

LISTNUM 1 \l 15023     I am going to move right along now.  I think we have exhausted the well.

LISTNUM 1 \l 15024     MR. WOODHEAD:  Well, we are not.  I mean, in fairness, we are not investigating war crimes here.  It's a contravention of a pretty simple rule when you read the statute.

LISTNUM 1 \l 15025     COMMISSIONER LANGFORD:  Well, we'll get to that simple process in a moment.

LISTNUM 1 \l 15026     But assuming we have to fall out, and it's just another general question that I thought, you know, in your kind of analysis of this over the year, you might have given some thought to, assuming we have to find this person or create this institution or whatever that has to be created, that's one aspect of this.

LISTNUM 1 \l 15027     I also noticed in your submission and I don't have every paragraph numbered, but any number of times in your submission you say: well, this is appropriate to send of to a CISC committee and have a look at, so that strikes me as more processes that are going on and perhaps rightly so, no complaints.  It's just I note that that is a kind of a solution offered up by your written submission in any number of places.

LISTNUM 1 \l 15028     My question then is: with so much yet to do by us, by CISC, by some operator that has got to be born, how long do you people think it will be if we move as smartly as we can before this thing is up and running and running reasonably smoothly?  Have you given that any thought?

‑‑‑ Laughter / Rires

LISTNUM 1 \l 15029     COMMISSIONER LANGFORD:  Somebody say something; this head shaking doesn't come out well on the tape recorder.

LISTNUM 1 \l 15030     MR. McARTHUR:  I think it's fair to say that we have, in our context, put forward the submissions and recommendations on how it should work, not how long it will take to do.  So, we have not given thought to that.

LISTNUM 1 \l 15031     COMMISSIONER LANGFORD:  Come on, Mr. Woodhead, secretly in your heart, you have given this some thought.

‑‑‑ Laughter / Rires

LISTNUM 1 \l 15032     COMMISSIONER LANGFORD:  Let the record show that Mr. Woodhead has no idea.  All right.  Then we are going to go to enforcement and I think I wrote down correctly what you've said and you are probably reading it anyway, but so it's somewhere on the record, but Ms Crowe you talked about timely enforcement of the rules is essential and, you know, but for those in ancient start chambers who could argue with that, but ‑‑ and I don't say this as a criticism.  In fact, I enjoyed reading this long discussion of common law defences, although I was rather sad not to find drunkenness and automatism there.  But I enjoyed reading it.  It was a like a trip down memory lane.

LISTNUM 1 \l 15033     But it did bother me in one way, because what it seemed to be is a kind of smorgasbord for defence lawyers looking for a way to either pad their bills, defend their clients, or both.

LISTNUM 1 \l 15034     How do you get a timely system, which in my mind I kind of thought of as our expedited process that we have in place now at the Commission, if this truly is available?

LISTNUM 1 \l 15035     Can you give me a sense from your own position of how much of what you have offered us here as a kind of Ph.D. in common law defences might actually be thrown on the table in a violation?

LISTNUM 1 \l 15036     MR. WOODHEAD:  The whole, the twenty pages we spent on the enforcement section ‑‑ which I am glad you enjoyed ‑‑ was to try and give a sense of a continuum or progressive discipline.

LISTNUM 1 \l 15037     I think there would be a triage of a lot of these complaints that would be dealt with incredibly swiftly.  I take your point when you read this section that that smorgasbord of common law defences and the due diligence defence that is enshrined within the actual legislation, those are ‑‑ and it goes to the question I first answered of Commissioner Duncan.  It's this proportionality thing.

LISTNUM 1 \l 15038     There will be, or there could be potentially, a contravention that is continuing and premeditated, wilful, deliberate ‑‑ or at least that's the allegation ‑‑ and where that telemarketer or organization would be subject to considerable monetary penalties.

LISTNUM 1 \l 15039     What we are saying here is that that becomes quasi criminal in nature and that procedural rights have to be afforded.  That is basically it.

LISTNUM 1 \l 15040     But the vast number, at least in our estimation of these things, will be of the sort of consequential variety.  There may be a due diligence defence.

LISTNUM 1 \l 15041     I think that the Commission has the ability to deal with those very swiftly, aside from procedural rights out in this ‑‑ well, I think we do.

LISTNUM 1 \l 15042     COMMISSIONER LANGFORD:  I agree with you in theory, but the problem as I see it ‑‑ and again it's not a criticism of what you have put in front of us.  What you have put in front of us is wonderful and educating.

LISTNUM 1 \l 15043     The problem is that what it seems to indicate is that if all of this truly is available under the heading of common law defences, we've lost control of our process here.  Arguably, we lose control of our processes.

LISTNUM 1 \l 15044     MR. McARTHUR:  If I could draw the analogy to a complaint under the federal privacy legislation, officially there are approximately 350‑or‑so complaints that have been adjudicated by the Privacy Commissioner.