The CRTC twitterfeed made the bold announcement about an investigation under the Do Not Call List (“DNCL”) rules:
#CRTC investigates the Conservative Party of Canada’s internal do-not-call-list practices. #DNCL crtc.gc.ca/eng/archive/20…
— CRTCeng (@CRTCeng) September 6, 2012
Uh oh! At first, one might sense that going after the Conservative Party of Canada (“CPC”) would serve to balance the $5000 fine levied two weeks ago against the Guelph Liberal Association.
Such high profile cases can help draw attention to the rules, perhaps serving as a way to encourage greater compliance with the Unsolicited Telecommunications Rules. It is reminiscent of the CRTC reaching settlements with Canada’s three largest wireless carriers (TELUS, Bell and Rogers) under the rules back in 2010 and 2011.
After all, the latest report from the CRTC says that nearly 11 million lines are registered on the National Do Not Call List and the Commission receives about 15,000 complaints per month.
The letter from the CRTC observes that complaints have been filed against the Party for 4 years now. It might be expected that at least some complaints have been somewhat politically partisan in nature. The CRTC’s present concern is described as follows:
In response to our Request for Information letter dated 18 June 2012, you advised that the practice of the CPC has been to maintain two IDNCLs, one for calls made for solicitation purposes and the other for calls made for non-solicitation purposes such as outreach to, or identification of, Canadians. In our view, the facts of our recent investigation revealed that confusion is created by the following two practices by the CPC:
• this maintenance of two IDNCLs, and
• the lack of clarity in scripts authorized by you for calling purposes.
The letter from the CRTC goes on to say
… these practices do not meet the requisites of subsection 41.7(4) of the Act, which refers to the maintenance of a single internal do not call list to ensure that no further unsolicited telecommunications, whether made for the purpose of solicitation or not, are received by the call recipient
Reading this, you might think that the CRTC has landed the big fish – the governing political party – as a showcase for future prosecutions under the Do Not Call List rules. Even better, the release of the letter was on the same day that the CRTC released its three year work plan, which highlights DNCL enforcement under one of its 3 key pillars: “Protect”, enhancing the interests of Canadians by promoting compliance.
But the Conservative Party case is not so clear cut.
One of the problems is that the language of Section 41.7(4) does not really refer to a “single internal do not call list.” The Act says:
Every person or organization that, by virtue of subsection (1), is exempt from the application of an order made by the Commission that imposes a prohibition or requirement under section 41 shall maintain their own do not call list and shall ensure that no telecommunication is made on their behalf to any person who has requested that they receive no telecommunication made on behalf of that person or organization.
Does the singular expression “call list” mean “single internal call list” and preclude the possibility of two lists?
Do all Canadians who ask a political party to stop soliciting for money actually have the intention of asking that party to stop calling for all other purposes?
I may not want to donate to the party, but I don’t mind getting calls to hear about political platforms or get invited to a barbecue. Having multiple databases, or options within a single database, might provide a better opportunity for Canadians to identify their do not call preferences.
In any case, those of us who listened to the parliamentary committee debates on the DNCL heard the MPs express the belief that their political calls would not be stifled by this legislation.
Under the CRTC’s Unsolicited Telecommunications Rules, virtually all references are to Telemarketing type calls, a term defined as: the use of telecommunications facilities to make unsolicited telecommunications for the purpose of solicitation. Was it the intent of Parliamentarians for these rules to be applied for calls that are not for the purpose of solicitation? “Solicitation” is also a defined term, meaning 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 includes solicitation of donations by or on behalf of charitable organizations.
As I tweeted, the great thing about politicians getting caught in the DNCL web is that our Cabinet and Parliamentarians will get to see the administrative burden they have imposed on businesses for compliance.
Just wait until they get first hand lessons about anti-spam rules.