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Canada's Do-Not-Hesitate-To-Call List, from Michael Geist

Canada's Do-Not-Hesitate-To-Call List, from Michael Geist
Canada's Do-Not-Hesitate-To-Call List, from Michael Geist




-------- Original Message --------
Subject: Canada's Do-Not-Hesitate-To-Call List
Date: Mon, 12 Sep 2005 07:01:03 -0400
From: Michael Geist  
To: Declan McCullagh  
References: <430DF8FB.7010908@well.com> 

Declan,

Of possible interest to Politech -- my weekly Lawbytes column (posted
below) focuses on efforts to establish a do-not-call list in Canada.
I argue that the current bill has been amended beyond recognition,
transforming the do-not-call list into the do-not-hesitate-to-call
list.   While the original bill envisioned a blanket list with public
consultations on potential exceptions, the revised bill, established
without consulting consumer groups, creates a wide range of
exceptions for politicians, charities, polling companies, and
businesses.

Toronto Star version at
 

Freely available hyperlinked version at
 

MG

Michael Geist
September 12, 2005

CANADA'S "DO-NOT-HESITATE-TO-CALL" LIST

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.

-- 
**********************************************************************
Professor Michael A. Geist
Canada Research Chair in Internet and E-commerce Law
University of Ottawa, Faculty of Law
57 Louis Pasteur St., Ottawa, Ontario, K1N 6N5
Tel: 613-562-5800, x3319     Fax: 613-562-5124
mgeist@pobox.com http://www.michaelgeist.ca 
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