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    Canada's Do-Not-Hesitate-To-Call List

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    Sunday September 11, 2005
    Appeared in the Toronto Star on September 12, 2005 as Tired of Junk Phone Calls? Call Industry Minister
    Appeared in the Ottawa Citizen on September 15, 2005 as Kowtowing to Telemarketers

    In a scene that unfolds in millions of homes each day, dinner is interrupted by an unsolicited telemarketing call.  Some Canadians immediately hang up, while others wait patiently for the marketer' s speech to conclude.  No matter the response, virtually everyone finds the calls invasive, disruptive, time consuming, and incredibly annoying.

    Several years ago, the United States introduced legislation designed to curb unwanted telemarketing calls.  A statutory “do not call” list was created allowing individuals to place their phone number on a list that, with limited exceptions, marketers were forbidden from calling.  Since failure to abide by the wishes of those listed carries significant penalties, the U.S. approach has proven remarkably successful with more than 90 million numbers now registered.

    Having observed the U.S. system with envy, Ottawa' s introduction last December of Bill C-37, which creates a Canadian do-not-call list, drew near-universal praise -- even the Canadian Marketing Association welcomed the bill.

    The bill established the broad framework necessary for a do-not-call list, including the statutory powers needed to create the list and penalties for non-compliance. The Canadian Radio-television and Telecommunications Commission, Canada' s telecom regulator, was asked to develop the specific details in a public consultation once the bill became law.

    Following its introduction, Bill C-37 was referred to the Standing Committee on Industry, Natural Resources, Science and Technology for review.  Months later, the amended bill is virtually unrecognizable, as intense lobbying has transformed the do-not-call list into the do-not-hesitate-to-call list.  

    Rather than leaving the specific exemptions to an open public consultation, the committee introduced several changes to the bill that dramatically reduces its effectiveness.  These include exceptions for charities, political parties, polling companies, and businesses with existing business relationships. While it may come as little surprise to find politicians protecting their own ability to make unsolicited telemarketing calls, the inclusion of the existing business relationship exception is particularly damaging as it renders the do-not-call list practically useless.  

    The existing business relationship provision will allow businesses to contact former customers for up to a year and a half after their last communication or contract (notwithstanding the inclusion of their phone number on the do-not-call list).  Moreover, even a simple inquiry will give businesses a six-month window to ignore the presence of the number on the do-not-call list.  

    Canadians may register their phone numbers on the do-not-call list, but it is readily apparent that the avalanche of nightly calls is likely to continue unabated. For example, under the revised rules, if you spend one night in a hotel, the hotel chain can call you for the next 18 months, even if you register your phone number on the do-not-call list.  Similarly, if you call a long-distance provider for information about their latest plan, they can call you for the next six months.  All of this is in addition to the blanket exception for charitable calls, calls from political parties, and polling company calls seeking participation in surveys.

    Supporters of the do-not-hesitate-to-call list argue that the Canadian exceptions mirror those found in the U.S.  Although it is true that the U.S. has created some similar exceptions, the Canadian exceptions go much further than their U.S counterparts.  For instance, the exception period for a mere inquiry is twice as long in Canada as it is in the U.S.

    Moreover, supporters of the amended proposal note that telemarketers will be required to maintain company-specific internal do-not-call lists so that Canadians can request no further phone calls on an individual company basis.  They neglect to mention, however, that this merely restates current law, since federal privacy legislation clearly allows anyone to opt-out of further marketing communication.  Experience has shown that company-specific do-not-call lists do not work, since few Canadians can opt-out of all their marketing calls, much less monitor appropriate compliance.

    Not only is the new Bill C-37 a disappointing departure from the government' s prior commitment to an effective do-not-call list, the committee hearings were also particularly embarrassing.  While the bill is ostensibly designed to protect consumers, the committee refused to hear from consumer groups.  Instead, with notable exception of government officials and the Privacy Commissioner of Canada (whose advice was largely ignored), the committee limited its hearings to a steady stream of marketing and charitable groups.

    In fact, those same groups are eying further exceptions once the bill makes its way to the Senate.  Despite the fact that Canada is years behind the U.S. in creating a do-not-call list, some argue that the government has hurried the process and failed to sound out Canadians on the issue.  Others point to the need to exempt an additional 80,000 not-for-profit organizations that are not directly covered by any of the bill' s exceptions.

    Since Bill C-37 has not yet become law, it is not too late to restore an effective do-not-call approach by reversing the committee' s proposed do-not-hesitate-to call list.  The time has come for Canadians to speak out on the issue by delivering a few unsolicited calls of their own to Industry Minister David Emerson and their local Member of Parliament.

    Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.


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