Industry Committee on Oct. 7th, 2009

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

So then the second part of my question is this. And I'm not prejudging this; I'll have to go away and think about how I feel about it. The second part of the relationship is that customer and prospect relationship--so now the relationship between you and Brian, in your example. I think the way this change is made refers to you guys as having to have a personal or family relationship but not a business relationship; it doesn't use the word “business relationship”.

[Philip Palmer]

No, it does not.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

So you couldn't refer someone with whom you have a business relationship?

[Philip Palmer]

Yes, you can. The answer to that is simply that you can take advantage of the conspicuous publication provisions or the giving of the business card type of thing so that in the business context it is easier to draw the situations in which--

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

It could be assumed that if you have a business relationship you have a personal relationship. Is that fair enough?

[Philip Palmer]

That's very fair to say as well.

[André Leduc]

Based on the way it's drafted, you don't, because it's just a discussion you had. You don't have a personal or family relationship or an existing business relationship. You don't really have a relationship of any kind, outside of the phone discussion you had with this person.

The answer to a specific case like that is to just tell the brother to buy the season tickets.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

If what we're trying to capture is the spirit of referrals, as it was articulated by the witnesses who were before the committee, I want to make sure I'm clear about what we're trying to do here so we can go back and think about it in that context.

[André Leduc]

To be honest, we wanted to make allowances for it but were afraid of putting this type of thing in the bill. On the idea behind the breadth and scope of it, you have to think of this as a balloon. If we keep poking holes in it, at some point it's going to explode. The whole idea behind the referral issue is to allow for legitimate contact, where there's an existing business relationship or family relationship, without allowing me to refer 250,000 of my friends. We're trying to say that we should consider something for referrals, but we have to put it in a type of box to make sure we're not poking a big hole in it.

[The Chair, Conservative, Michael Chong]

Thank you, Mr. Lake and Mr. Leduc.

Madam Coady.

[Siobhan Coady, Liberal, St. John's South—Mount Pearl, NL]

Thank you very much.

I have a couple of quick questions, and one that might take you a little longer to answer. The quick question is about the unsubscribed requests.

A number of witnesses who came before us asked for the opt-out period to be increased from 10 days to 31 days. If you look at the bankers' submission, they said the CRTC's unsolicited telecommunications rules provide a 31-day timeframe. Others have said they have a 31-day marketing cycle and it's very difficult to do it in 10 days.

Would you comment, please?

[André Leduc]

The biggest difference between telemarketing and e-mailing is that there's a two-step process for telemarketing. If I'm on the phone with somebody and they tell me to never call again, I have to write down their name and input it into the computer. In 99 cases out of 100, if I send an e-mail to 100 of your friends and somebody asks to be taken off the list, it's a click of a button. For most larger enterprises this is automated through their websites.

So we don't think this is overly onerous. It should be done without delay, and that's the way the legislation is drafted. In any event, it should take no longer than 10 business days, as we've drafted it. Regardless of the size of the enterprise, we don't think it's overly onerous to be responsible with your e-mail contact list versus your telephone contact list.

[Siobhan Coady, Liberal, St. John's South—Mount Pearl, NL]

The bankers also talked about the Telecommunications Act. Their concern was access to information, because documents may be produced and then kept by government agencies, particularly the CRTC. They're concerned that under the Access to Information Act information might be transferred to others. They suggest that the bill be amended to specifically protect the information from disclosure by the CRTC, in response to an access to information request.

Would you comment?

[Philip Palmer]

There are certain exemptions within the Access to Information Act on materials that are used for judicial or investigative purposes. I can't say that we've done a full analysis of how broad those exceptions might be. We did not provide in this for a sweeping exemption of this material from the Access to Information Act. It is something we'd be prepared to look at or entertain, because there is legitimate reason for concern in some circumstances. I think most of the information before the CRTC would be on transmission data and be horribly uninteresting.

[The Chair, Conservative, Michael Chong]

Madam Coady, that might be a good Liberal amendment to bring forward by next Wednesday.

Go ahead.

[Siobhan Coady, Liberal, St. John's South—Mount Pearl, NL]

The other question is on the national do-not-call list. As you know, section 86 of the bill, if proclaimed into force, will repeal sections 41.2 to 41.7 of the Telecommunications Act, which basically authorize the establishment of that list. There are those who have been before us asking why we're putting that in this bill. We understand it's so there can be some modification to the list framework to allow future flexibility.

Could you comment on whether there are issues? Witnesses have told us that if there are issues with the do-not-call list or if administrative changes need to be made, maybe we should do that under the list and not in the legislation.

[Philip Palmer]

The main motivator here is that technologically we are getting true convergence. That is, voice is digitized. Skype and other applications like that now mean that spam travels not just by mail. Telemarketing is not just done on telephones. They're converging. They're using the same media, the same technology. Our concern is that any valid distinction between telemarketing and spamming will cease sometime in the next few years. It was a matter of ensuring that the tools were available, when that moment came, to switch regimes.

Now, the aspect of it that has come up—and I've listened to and heard those discussions—is that the government has always said it would not bring this into force on day one; it would be proclaimed later, if at all. But it does allow the government to respond to a situation where there is a collapse, for instance, of the do-not-call mechanisms. The do-not-call list is maintained by a private company. If it's unprofitable for it to do so, it might terminate that contract. The CRTC doesn't have the money to maintain that.

[The Chair, Conservative, Michael Chong]

Thank you, Mr. Palmer.

Mr. Wallace.

[Mike Wallace, Conservative, Burlington, ON]

Thank you, Chair. I'll share some of my time with Mr. Warkentin. I have really only one question.

I thought the bells weren't coming until 5:30.

Anyway, I appreciate the parliamentary secretary's discussion on referrals. In my view, as long as he's selling tickets and he says his brother gave my name in the e-mail he sent, I'm satisfied with that, or whatever the wording needs to be.

I just want to be clear when you make the change to conspicuously publishing the e-mail address. I used to be in the sales business. I used to sell racking systems to those IT guys who are sitting at the end of the table here. If I look up their website, I find their e-mail address. It's published on their website. I send them an e-mail saying, “Hey, I have this racking system that you might be interested in.” There's nothing illegal with that in this system. As long as it's published and it's out there, I'm entitled from a business standpoint to chase that potential client. Is that not correct? Is that what this means when you say “conspicuously”?

[Philip Palmer]

That is essentially true, with the caveat that the e-mail you send has to relate to their business or their functions. For instance--

[Mike Wallace, Conservative, Burlington, ON]

Right. So I can't sell him Viagra just because he works in the IT department.

[Philip Palmer]

That's right. He might need it, but you can't do it.

[Mike Wallace, Conservative, Burlington, ON]

I won't tell you what I send to the lawyers.

That was my question, so I'll give the rest of my time to Mr. Warkentin.

[Chris Warkentin, Conservative, Peace River, AB]

Thank you, Mr. Wallace, for giving me some of your time.

In terms of pre-existing business relationships, I want to talk about implied consent. As we move from the regime as it is now, where all e-mails are fine and where a realtor might be able to correspond with past clients on any given day and no matter how long it was since they made the last transaction, a lot of realtors and car salesmen--anybody who actually is engaging in a type of business where a relationship has a long period of time before there would be a necessity for a business transaction to take place again--are very concerned about, number one, trying to get something more than implied consent at this point. Up until now, of course, they've been able to operate simply on implied rather than explicit consent. Was there any consideration to making a longer phase-in period for certain types of people, especially in situations where they have this type of relationship?

My concern is that we're going after the whole group of people in any business, but I don't think the average person is really concerned about the spam that piles up from past realtors or past car salesmen—and maybe there are people who get frustrated by that. I wonder if there has been any consideration given, because I am concerned about how this might impact these folks.

[André Leduc]

We did consider it, but before we put anything forward in the legislation we also considered the adverse. Let's say that instead of an 18-month existing business relationship, we set it at 36 months. Two years ago, I was a Bell customer. If we stretch this out too far, it's going to allow Bell to contact every customer who they pretty much know went to Rogers, because that's the main competition, and send out, under the existing business relationship, commercial electronic messages in an attempt to lure back their customers.

We looked at those periods. That was really the reason. It was for the legitimate folks, such as car salesmen, real estate agents, and insurance salesmen, who might be caught off guard by this legislation. That's what the 36-month transitional period is for. As long as they can prove that they had an existing business relationship previously, they have the first three years of this act to contact those individuals and say, “I was your car salesman” or “I was your insurance broker”. Where they don't have that ongoing business relationship, they can go back and ask if you mind their contacting you again in the future; and if you say yes, well, that's good enough. That's express consent.