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CRTC Says iOptOut.ca Requests “Valid and Should be Honoured”

My weekly technology law column (Toronto Star version, Ottawa Citizen version, homepage version) builds on the CRTC's announcement last week that the national do-not-call registry (DNC) will be operational by September 30th.  I report that the CRTC also recently affirmed the ability for Canadians to use third-party websites – particularly iOptOut.ca – to opt-out telemarketing calls from organizations that are currently exempt under the law.

Last March, I established iOptOut.ca, a website that enables Canadians to opt-out of many exempted organizations with a few easy clicks at no cost. Visitors to the site are asked to enter their phone number (and email address if they wish) and to indicate their calling preferences for nearly 150 organizations. The public reaction has been extremely supportive.  Since its launch, the site has sent out millions of opt-out requests on behalf of tens of thousands of Canadians. The reaction from several leading associations has been less enthusiastic.  Within weeks of its debut, both the Canadian Marketing Association and the Canadian Bankers Association sent letters to CRTC Chair Konrad von Finckenstein complaining about the service and seeking support for their position that requests generated from the site were invalid.  In fact, the CMA sent a notice to its members stating that "it is the view of the Association that members need not honour do-not-call requests that originate from the organization in question."

Von Finckenstein recently responded to the letters (CMA letter, CBA letter – posted with CRTC permission) with an unequivocal rejection of the complaints, providing a clear indication that failure to honour the opt-out requests could lead to significant penalties (companies face penalties of up to $15,000 per violation under the law).  
The response begins by noting that the DNC rules require "all telemarketers to maintain internal do-not-call lists and to abide by consumers' requests not be called" and that "there is no prohibition on consumers making such a request through a third party." The response also dismisses concerns of false registrations and affirms that "a consumer can make a do not call request to an organization even though the consumer does not have an existing business relationship with that organization."

Having established that consumers have the right to opt-out in a manner consistent with iOptOut.ca, the von Finckenstein response concludes that "to the extent that these requests are sent to organizations that engage in telemarketing, and that are therefore subject to the rules regarding do not call lists, these requests would be in compliance with the Act and the current Unsolicited Telecommunications Rules as outlined above. In short, on the basis of the facts as I understand them and have stated above, I consider that do not call requests made through iOptOut are valid and should be honoured."

The CRTC response sends a strong signal of its determination to fully enforce the DNC.  The CMA and CBA may not like Canadians' newfound ability to stop telemarketing calls through the DNC and iOptout.ca, but the law – and the CRTC – says that they're going to have to live with it.     

8 Comments

  1. Tough Noogies
    The CMA and CBA should just Get Over It. People who are motivated enough even to use an automated service like iOptOut are just NOT going to buy anything. What we’re doing is saving them a lot of money by helping to improve the quality of their lists. Telemarketing Darwinism in action.

  2. Reality and Enforceability
    Seriously though, what is the enforceability of this DNC registry? So let’s say I register with the national DNC and iopt-out registries (I have in fact done the latter). Some time after Sept. 30 I get a telemarketing call. Obviously this is in violation and subject to penalty, but how do I file a complaint and more importantly, how do I know who I am complaining about?

    I could simply ask the person who called me the name of the company they work for. Are they really going to tell me? I doubt it. More likely they will have been instructed to either lie or simply hang up.

    Could I use the Caller-ID that came with the call? Increasingly, no. In this age of VOIP and the ability for the end user to send whatever they want for their Caller-ID, I frequently get a string of 0s or “anonymous”.

    Can I file a complaint along the lines of “I got a call on such-and-such a date at such-and-such a time but they didn’t identify themselves” and will the body behind the DNC in fact investigate that, obtaining required court orders to compel my phone provider to release un-maskable (i.e. ANI which I understand is not subject to falsification) call routing information in order to find the perpetrator?

    And then what happens when the actual telemarketer is an offshore organization not subject to Canadian rules? They might be acting on behalf of a Canadian organization but would be under no (legal or otherwise) obligation to report which organization. Or maybe it’s not even a Canadian organization, but a US organization working in the Canadian market. What then? Are they really going to accept a penalty imposed by the Canadian DNC registry?

    The concept of a DNC registry sounds great, but given the above, is it actually going to work as we might hope it will?

  3. Figure it Out Einstein
    “Seriously though, what is the enforceability of this DNC registry? So let’s say I register with the national DNC and iopt-out registries (I have in fact done the latter). Some time after Sept. 30 I get a telemarketing call. Obviously this is in violation and subject to penalty, but how do I file a complaint and more importantly, how do I know who I am complaining about? ”

    You complain to the Office of the Privacy Commissioner.

    How do you know who you are complaining about? Well… let’s see. Companies call you because they would like to sell you something. To sell you something they would need to tell you who they are and what they are selling. Otherwise the concept of telemarketing doesn’t exactly work when someone calls and can’t tell you who they are and why they are calling. If someone is calling on behalf of another company, you complain about the company who’s product is being sold, it will be investigated and the appropriate person will be fined.

    It’s not rocket science.

  4. Glen Merrick says:

    Reality and Enforcability
    And then what happens when the actual telemarketer is an offshore organization not subject to Canadian rules? They might be acting on behalf of a Canadian organization but would be under no (legal or otherwise) obligation to report which organization. Or maybe it’s not even a Canadian organization, but a US organization working in the Canadian market. What then? Are they really going to accept a penalty imposed by the Canadian DNC registry?

    1. If acting on behalf of a Canadian company, it is more likely that the company handed the telemarketers the list, as such the Canadian company could be held liable as it was they that should be maintaining a no-contact list.
    2. If a US organization is working in a Canadian market they are still held to Canadian Law and can be charged under it. The US has similar legislation that will slap down telemarketers who are mis-behaving.

  5. They\ll bypass it
    I don\’t like the CRTC at all i should say i hate them but i must say that for once they do their job but I also think that Glen Merrick raise a good point here the only thing telemarketers company will have to do is to
    call from another country and only have a distributor in canada that way
    the company itself won\’t be touched by canadian laws and the distributor is only a contract wich distribute wich doesn\’t break the law at all

  6. An Albertan says:

    They\ll bypass it?
    All I can say is, c’mon and phone me, I dare you…

  7. Site still down
    When will this site be back up. The last time it showed if I remember correctly February or March, that time came and went. Now when I try to get onto the site,low and behold it says back up in July. Well, yoooohooooo folks it’s SEPTEMBER and still nothing. What the hell is going on!!!!

  8. Site still down
    Any idea if it’s ever coming back? Did the CMA and CBA buy it?