NOVEMBER 23, 2016
MRIA A LETTER TO THE CRTC SECRETARY GENERAL - CRTC POLICY 2016-442
The CRTC is taking a number of steps to address complaints it is receiving in response to robocalls and caller ID spoofing.
On November 7, the Commission published CRTC Policy 2016-442, which looked at the services available for Canadians to reduce the number of unsolicited and illegitimate calls they receive. A key finding by the Commission was that an insufficient number of options are available to consumers. The CRTC estimates that 45% of the complaints they receive through the Do-Not-Call registry involved an element of illegitimate caller ID spoofing. As a result, the CRTC has asked telephone service providers to report back with call blocking and screening proposals.
On November 24, MRIA sent a letter to the CRTC Secretary General, outlining its position regarding Policy 2016-442. In this letter, we emphasize the need to ensure that legitimate market and survey research calls continue to reach Canadians unimpeded. We also propose that telephone service providers could access the Registration System to assist them in differentiating legitimate calls (i.e., researchers) from illegitimate ones.
March 24, 2016
On March 21, 2016, the CRTC released a long-awaited Decision relating, in part, to the use of incentives.
The Decision (Compliance and Enforcement Decision CRTC 2016-107) is a partial win for the survey research industry in that the Commission officially recognized that incentives are a legitimate practice in research. It also states that they are permissible as long as the sole purpose is to incent participation in a specific survey.
MRIA has long been seeking clarity on the use of incentives after the CRTC launched investigations into two member firms, questioning whether incentives constituted a solicitation, thereby triggering various telemarketing requirements. Concerned with its recent attention on survey research firms, MRIA lobbied the federal Commission to have them reconsider this newly broadened interpretation of 'solicitation'.
Although the Decision imposes certain restrictions on the use of incentives (such as the offer of gift certificates from the client or sponsor of a survey), we understand that the CRTC was heavily influenced by MRIA's intervention and advocacy efforts, leading Commission staff to acknowledge the importance of incentives in a research project.
Decision 2016-107 is the result of an official application filed in the fall of 2014 by MRIA member Probit, requesting that the Commission consider amending its regulations to exclude survey research from a number of requirements intended mostly for telemarketers. MRIA also submitted a brief in support of Probit's request (attached).
Specifically, Probit was requesting the amendment of two provisions in the Unsolicited Telecommunications Rules ('UTRs') — the regulatory framework that applies to all calls to Canadians (live and IVR), and which includes the National Do Not Call Rules.
The CRTC concluded that to allow the amendments, it ran the risk of creating a loophole for telemarketers to use exemptions already in place for survey research. Although the Commission ended up denying Probit's application, the positive outcome is that the Commission used the opportunity to clarify what they consider to be legitimate uses of incentives. Specifically, the Decision states that:
Incentives are a legitimate practice used by the market research industry;
Incentives are permissible as long as the sole purpose is to incent participation in a specific survey;
Researchers should exercise caution when offering incentives, to ensure that what they offer does not alter the context of a call or online invitation; i.e., that the call/online invitation cannot be seen as unduly promoting a product or service.
The CRTC also outlined a number of 'contextual factors' that researchers should consider when offering incentives, namely:
- The quantum or financial value of the incentive;
- Whether the incentive is directly related or connected to products or services offered by the surveyor, or a client or sponsor who commissioned the survey;
- Whether the incentive is similar to any typical promotional activities of the surveyor or client, such as free estimates from a home contractor;
- Whether the incentive would tend to draw the participant to the place of business of the surveyor or client, such as maintenance checks from an auto-repair business;
- Whether the incentive is offered to all participants, or only to those giving certain responses;
- Whether the incentive is tied to participation in a specific survey, or to general or future participation in activities that may only incidentally or potentially include a survey; and
- The general nature and tone of the messaging that informs the participant of the incentive.
While the parameters provided do not appear to be not overly prescriptive, they are also open to interpretation. As a next step, MRIA will be seeking a meeting with the CRTC to obtain a better understanding of the Decision and its implications for the industry.
We encourage members to send MRIA any specific questions, scenarios or examples of the use of incentives, so that we can discuss with the Commission how the 'contextual factors' outlined in the Decision are to be considered and applied against actual industry practices.
MRIA's efforts to advocate on behalf of the industry are ongoing. We will keep members apprised of our communications with the CRTC on this important file.
October 29, 2015
October 29, 2015, Toronto—MRIA sent Prime Minister Justin Trudeau a letter today encouraging him to reinstate the long mandatory form questionnaire in time for the 2016 national Census.
MRIA took the opportunity to congratulate Mr. Trudeau on being elected Canada's 23rd Prime Minister. It also reminded him of his electoral promise to 'immediately restore the long-form census'. While the new Liberal Government has made its intentions clear regarding the need for accurate and reliable data through the census, it has not yet provided details about how and when the long-form will be reinstated. MRIA's letter offers support and encouragement to the new government to act quickly to adopt the necessary measures in time for the 2016 Census, please click here to review the letter in full.
MRIA also commended the new government's stated intention to bring back to government a renewed respect for data and research-based evidence, and provided Mr. Trudeau with a copy of MRIA's study entitled The Use of Research-Based Evidence in Public Policy in Canada. A key finding from the Study was that participants, which included a prominent group of policy experts and thought leaders, urged the federal government to make better use of public opinion research to inform policy development and decision-making. In keeping with this, MRIA's letter brings to Mr. Trudeau's attention the fact that spending on public opinion research by the federal government had been cut from a high of $31.4 million in 2006-07 to a low of $4.3 million in 2012-13, an 80 per cent decline.
MRIA has called on the federal government to reverse its decision to cut expenditures on opinion research since these were first instituted in February 2008. MRIA has also publically advocated for the reinstatement of the mandatory census since its elimination in 2010.
October 2nd, 2015
CRTC Consultations: "Empowering Canadians to protect themselves from unsolicited and illegitimate telemarketing calls.”
Notice of Consultation CRTC 2015-333: The CRTC has launched consultations to obtain a better understanding of the technical solutions (such as call blocking technology) offered to help Canadians manage unsolicited telecommunications and illegitimate telemarketing calls.
The CRTC has indicated that, as a result of this proceeding, it may choose to impose new requirements on telecommunications service providers that provide services to residential customers. Given recent regulatory decisions in the US regarding call-block technologies, it can be anticipated that the CRTC may wish to follow suit and look to encourage the deployment of call-blocking solutions in Canada.
MRIA members that have concerns about the possibility of impending technology solutions such as call-blocking services should consider participating in these proceedings. Note that MRIA is available to assist members in the preparation of submissions. Subject to member interest, MRIA may also chose to submit a brief on behalf of the industry.
Specifically, the CRTC is seeking:
- information regarding available technical solutions that Canadians may leverage to protect themselves from unsolicited and illegitimate telemarketing calls;
- comments on the use, effectiveness, and limitations of available solutions, particularly in relation to more vulnerable groups of Canadians; and
- to learn more about any barriers, including legal or regulatory prohibitions, to the adoption of existing solutions or to the implementation of new and innovative solutions (e.g. call-blocking, user reporting).
Background: Since the National Do Not Call List was launched in 2008, the Commission has received 900,000 complaints related to unsolicited and illegitimate telemarketing calls, 40 per cent of which involve an element of illegitimate Caller ID spoofing. In 2014 alone, the Commission received more than 116,000 complaints.
The consultation process follows on recent decisions in June of 2015 by the Federal Communications Commission in the US that expanded consumer protections against unwanted robocalls and spam texts. As part of these decisions, the FCC also affirmed consumers’ rights to control the calls they receive, and made clear that telephone companies face no legal barriers in providing call-blocking services to their customers.
How to Participate: Members that wish to participate in the proceedings have until October 16, 2015, to submit comments to Karl MacIsaac (firstname.lastname@example.org). More detailed information on the proceedings and the options to participate can be found at:
September 9th, 2015
New ruling by the US's Federal Communication Commission (FCC) has expanded existing restrictions on the use of autodialing technology to contact cell phones.
- Restrictions on the use of autodialer calls have been in place in the US since 1991. The Telephone Consumer Protection Act (TCPA) and the Commission’s implementing rules require prior express consent for prerecorded telemarketing calls to residential telephones and any robocall to a wireless telephone number. Prior express consent for cell phone calls must be in writing if the message is telemarketing, but can be either oral or written if the call is informational.
- A new Declaratory Ruling and Order by the FCC, which came into effect on July 10, broadens the definition of 'autodialers' to include most dialing equipment. Note that the new rules do not apply to calls made to landline phones and that there are no exemptions for research calls.
- The TCPA defines 'automatic telephone dialing system' as “equipment which has the capacity to: (a) store or produce telephone numbers to be called, using a random or sequential number generator; and (b) dial such numbers."
- The new Ruling takes the definition further by clarifying that equipment can be deemed an autodialer if it has the 'capacity' to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial such numbers.
- Under this expanded definition, the equipment used to send Internet-to-phone text messages now counts as an autodialer, and therefore text communications require express prior consent from the receiving respondent (whether sent via a mobile app, phone, or an Internet service). The Commission also speculated that smart phones would likely be captured by the new definition.
- The Commission also found that different equipment and software can be combined to form an autodialer, and that separate entities combining services to provide such functionality does not alter this. The fact that "individual pieces of equipment and software might be separately owned does not change this analysis."
- The new Ruling also sheds light on whose consent is required when making calls to cell phones, clarifying that "the TCPA requires the consent not of the intended recipient of a call, but of the current subscriber." As such, 'dialing accidents' (where cell numbers for which express prior consent does not exist are called using an autodialer) are not an effective legal defense.
- The FCC also clarified that callers have a "one-call-before-liability standard" for autodialer calls to cell phone numbers that have been reassigned to new users, whether or not the caller learns of that reassignment. Essentially, where a caller believes to have consent to make a call, and calls a number that has been reassigned, the caller will not be held liable for that first call, but will be penalized for any calls thereafter.
- Penalties run from $500 to $1,500 per violating call. The law also includes a right of private action, which in the US, has led to TCPA class actions.
- The Commission also left the door open for call-blocking options, concluding that nothing in the Communications Act or the implementing rules prohibits carriers or service providers from implementing consumer-initiated call-blocking technology that can help consumers stop unwanted robocalls. This clarification could have future implications for response rates.
- Note that CASRO and MRA have filed a motion to intervene in a court case against the new telephone rules. In the motion, the associations contend that the expanded definition of autodialer “must be clarified to focus on the current capacity to generate and dial random or sequential numbers, and/or clarified to exclude calls that involve human intervention in the dialing.” They are also seeking relief from class action litigation over reassigned cell phone numbers.
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