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National Do Not Call List

By: Alan D. Litwack, Corporate/Commercial Partner and Melissa J. McCready, Student-at-Law, Minden Gross LLP, a member of MERITAS Law Firms Worldwide.

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The National Do Not Call List (the “DNC List”) came into effect on September 30, 2008, allowing consumers to reduce unwanted telemarketing calls by registering their cellular, home phone or fax numbers.  Telemarketers are now prohibited from contacting the phone numbers registered on the National DNC List.  The Canadian Radio-television and Telecommunications Commission (CRTC) also has new enforcement powers to ensure telemarketers comply with the Rules.

 

1.  Who do the Rules apply to?

The CRTC’s new Unsolicited Telecommunications Rules[1] (the “Rules”) apply to anyone making unsolicited calls to consumers.  A telemarketer is defined as a “person that conducts telemarketing either on their own behalf or on behalf of one or more other persons.”  Telemarketing refers to the use of a phone or fax to make unsolicited telecommunications for the purpose of solicitation.  Solicitation means “the selling or promoting of a product or service, or the soliciting of money or money’s worth, whether directly or indirectly and whether on behalf of another person.” This definition catches more than those we would perceive as a classic telemarketer.

For example, if you make calls to previous or existing customers to let them know about a sale or a new product or service you are offering, you are considered a telemarketer under the Rules.  You are also considered a telemarketer if you make calls by or on behalf of charities requesting donations.

 

2.  How are unsolicited telecommunications restricted by the Rules?

The CRTC’s Unsolicited Telecommunications Rules contain three sets of rules: the National DNC List Rules, the Telemarketing Rules, and the Automatic Dialing-Announcing Device (ADAD) Rules.

The chart below summarizes three different categories of unsolicited telecommunications and the applicable rules with which a person making these communications must comply.

 

Category of Unsolicited Telecommunication	Applicable Unsolicited Telecommunications Rules
	National DNC List Rules	Telemarketing Rules	ADAD Rules
Category 1: Non-Telemarketing Communications Calls made to consumers (who may or may not be listed on the National DNC List) solely for the purpose of: ·         Emergencies; ·         Account collection; ·         Surveys of the general public or public opinion polls; and ·         Market research.	N/A	N/A	P
Category 2: Exempt Telemarketing Communications Calls made to consumers (who may or may not be listed on the National DNC List) by or on behalf of certain organizations or made for certain purposes, such as: ·         Registered charities raising funds; ·         Newspapers selling subscriptions; ·         Political parties and candidates; ·         Calls to a consumer who has an existing business relationship with the organization and has: o        Purchased, leased or rented a product or service from the telemarketer in the last 18 months; o        Entered into a written contract with a telemarketer for a service that is still in effect or expired within the last 18 months; and/or o        Made an inquiry or has submitted an application to a telemarketer about a product or service within the last 6 months; ·         Calls to a consumer who has given express consent to be called. Express consent includes: o        The consumer’s permission to be called on a written, electronic or online form; or o        The consumer’s verbal permission; ·         Calls to a consumer who has a personal relationship with the person calling; and ·         Calls to business consumers.	N/A	P	P
Category 3: Regular Telemarketing Communications Includes any types of telecommunications not listed in Category 1 or 2 that are made for the purpose of selling or promoting a product or service, or requesting donations	P	P	P

 

3.  Summary of Unsolicited Telecommunications Rules

1. National DNC List Rules

Regular telemarketers that are not exempt from the National DNC List Rules (Category 3) are prohibited from calling any telephone number once the number is registered on the National DNC List for more than 31 days.  If a person or organization is a client of a telemarketer,[2] that client must make all reasonable efforts to ensure that the Unsolicited Telecommunications Rules are followed.  For example, the client should enter into an agreement with the telemarketer that requires the telemarketer to follow and comply with the Unsolicited Telecommunications Rules.

 Telemarketers and the clients of telemarketers must subscribe to the National DNC List, pay applicable subscription fees and keep proof of their compliance for 3 years, as set out in the Rules.  Telemarketers must also ensure that they use a version of the National DNC List that is no less than 31 days old.

2. Telemarketing Rules

Registration:  All telemarketers and clients of telemarketers must register with and provide information to the National DNC List before the telemarketer initiates any telemarketing calls. Registration can be completed online at https://www.lnnte-dncl.gc.ca and takes approximately 10 to 30 minutes. To register, the telemarketer or client must provide contact information, a description of the telemarketing activities, and the business name and telephone number that will be displayed during telemarketing activities.  Registration must be completed annually and is free for Exempt Telemarketers (Category 2).  Regular Telemarketers (Category 3) are also able to register for free, but are required to pay the applicable subscription fee to receive the National DNC List.

The registration requirement includes all telemarketers, even those who need not comply with the National DNC List Rules, such as a telemarketer who is advising regular customers of a sale.  Most businesses should therefore register out of caution.

Internal Do Not Call Lists:   All telemarketers and clients of telemarketers are required to keep their own internal Do Not Call Lists, even if a telemarketer is making an exempt call (Category 2).  Consumers can ask to be placed on the telemarketer’s internal do not call list, and the request must be processed within 31 days.  If the telemarketer is calling on behalf of a client, the telemarketer must ensure the consumer is added to the client’s internal do not call list within 31 days.  Do not call requests must be respected for 3 years and 31 days.

Calling Hours:  A telemarketer is permitted to contact consumers only between the hours of 9:00 am to 9:30pm Monday to Friday and 10:00am to 6:00pm on Saturday and Sunday.  Telemarketers must also follow any applicable provincial legislation that further restricts the hours when telecommunications can occur.  This restriction applies to Categories 2 and 3.

Identification of Telemarketer or Client of Telemarketer:  A telemarketer must identify the purpose of the call as well as the person on whose behalf the call is being made.  Upon request by the consumer, a telemarketer must provide a toll-free or local phone number that allows the consumer to access an employee or representative of the telemarketer, as well as a mailing address for the telemarketer.

Additional Rules:  The Telemarketing Rules outline further limitations regarding the phone number displayed when a telemarketer contacts a consumer, the ability of telemarketers to sequentially or randomly dial consumers, and the ability of telemarketers to use predictive dialing devices.[3]

3. ADAD Rules

Automatic Dialing and Announcing Devices (ADADs) dial telephone numbers automatically and deliver a pre-recorded message.  ADADs cannot be used to sell or promote a product or service unless a consumer has expressly consented to be called by them in one of the means of consent expressly set out in the Unsolicited Telecommunications Rules.  Generally these devices are only permitted to be used for the purpose of non-telemarketing communications (Category 1), such as for appointment reminders or thank you calls.  These permitted calls are still subject to the restrictions set out in the Unsolicited Telecommunications Rules and include calling hour limitations, the display of the originating phone number and a prohibition on sequential dialing.[4]

 

4.  Compliance and Enforceability

Canadian consumers can file a complaint about suspected violations of the Rules and the CRTC will investigate.  The CRTC can penalize telemarketers in violation of the Unsolicited Telecommunications Rules and can levy penalties of up to $1,500 for an individual and up to $15,000 for a corporation, for each violation.  These penalties are considered a debt and can be recovered in the Federal Court.

 

5.  Alternative Marketing Opportunities

It will be interesting to see if telemarketers shift their marketing efforts to the use of email (not that there is any current shortage of spam mail) as unsolicited emails are not caught by these restrictions.  Similarly, business and others who may be caught by the Unsolicited Telecommunications Rules can avoid the possible application of the restrictions by communicating by email and not telephone or fax.