Canada: National "Do Not Call" Registry To Launch September 30, 2008

After a number of years of discussion and planning, the National Do Not Call ("DNC") registry will be launched by the Canadian Radio-television and Telecommunications Commission ("CRTC") at the end of this month. Amendments to the Telecommunications Act were passed in 2005 that provided for the creation of a National DNC List, and empowered the CRTC to impose administrative monetary penalties ("AMPs") where telemarketers call numbers that have been registered on the National DNC List.

Overview Of The National DNC Registry

The CRTC's Unsolicited Telecommunications Rules (the "Rules") apply to all unsolicited calls for the purpose of solicitation, which is defined as the sale or promotion of a product or service or the solicitation of money or money's worth. The Rules do not apply to calls for other purposes, such as service calls, account collection calls or calls to conduct market surveys.

Any telephone number in Canada can be registered; a landline, wireless, fax, VOIP or satellite telephone number. There is no charge to the consumer to register. The registry will be updated within 24 hours, however telemarketers have a 31-day grace period to update their own calling lists. Registrations will remain in effect for 3 years, at which point the consumer must re-register.

A consumer's express consent to receive telemarketing calls will override a listing on the National DNC List. This consent may be provided orally or in writing, but in the event of a complaint the onus is on the telemarketer to demonstrate consent, e.g. by a check-box on a form, or by a written record of a telephone conversation. The consumer's name and number must be recorded as the consent applies only to that person, and not to the household. Personal referrals do not qualify as express consent. Where telemarketing calls are made to numbers that are registered on the National DNC List, more than 31 days after registration, AMPs can be awarded, of up to $1,500 per violation for individual violators and up to $15,000 per violation for corporations.

Each separate legal entity that makes telemarketing calls must register (at no charge), and where it makes non-exempt calls, it must also subscribe to the National DNC List. Subscription fees vary, depending on the time frame and the number of area codes that are required for a particular marketing campaign; the fee for a full year subscription to all Canadian area codes is $11,280. Each separate legal entity must register and obtain a subscription; affiliates may not share registrations or subscriptions. Where a telemarketing agency is hired, the agent may rely upon the client's registration and subscription, but the client remains liable for any breach of the Rules.

Exempt Calls

In response to lobbying efforts by politicians and others, the Telecom Act amendments contained a number of exemptions. Telemarketing calls made by or on behalf of registered political parties, nomination and leadership contestants, charities that are registered under the Income Tax Act and calls to solicit subscriptions to general-circulation newspapers are all exempt and can be made to numbers on the National DNC List. In addition, calls can be made where there is an "existing business relationship", created by the purchase or lease of products or services within 18 months prior to the call or within 6 months of a customer's inquiry or application. This exemption applies only to the entity having the business relationship, and is not extended to its corporate affiliates. Finally, the CRTC's Decision 2007-48 created an exemption for telemarketing to businesses. Even where only exempt calls are made, organizations must maintain their own individual DNC lists, honour consumers' requests not to be called and identify the purpose of their call at the beginning of each call.

A consumer's DNC request may be made through a third party, such as a family member or an independent organization. "Ioptout.ca" was established in March 2008 to facilitate DNC requests to organizations that make exempt calls, such as charities and newspapers. Although organizations such as the Canadian Marketing Association questioned the status of this service, the Chair of the CRTC has confirmed that DNC requests submitted via ioptout.ca are valid and should be honoured.

Launch

September 30, 2008 is the start date for registrations by consumers and by telemarketers. A dedicated site, at http://www.lnnte-dncl.gc.ca, will be available for registration on that date. Numbers can also be registered using a toll free number, 866 580 3625. Allowing for the 31-day grace period, violations could take place for calls to registered numbers that are made after October 31, 2008.

Additional Information

The complete Unsolicited Telecommunications Rules are available as the Appendix to Telecom Decision 2008-6, available on the CRTC's web site: http://www.crtc.gc.ca/archive/ENG/Decisions/2008/dt2008-6.htm#m1

The CRTC's September 9, 2008 press release, "Countdown to the National DNCL Launch: Three Weeks to Go" is available on its web site at : http://www.crtc.gc.ca/eng/NEWS/RELEASES/2008/r080909a.htm. That document includes links to "Key facts" documents for telemarketers, exempt telemarketers and consumers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.