Archive for the 'Telemarketing' Category
Earlier this week, the federal CRTC announced that it has taken sweeping enforcement steps against 85 companies for breaching Canada’s telemarketing rules.
In making the announcement, the CRTC said:
“Today, the Canadian Radio-television and Telecommunications Commission (CRTC) concluded a five-month investigation and took enforcement action against 85 companies for breaking the telemarketing rules. This investigation marks the latest step in the CRTC’s efforts, using a variety of enforcement strategies, to reduce unwanted calls made to Canadians.
The CRTC issued citations to 74 telemarketers who had failed to register with the National Do Not Call List operator or subscribe to the National Do Not Call List. Notices of violation were issued to an additional 11 companies for more significant breaches. Administrative monetary penalties totalling $41,000 were imposed on those 11 companies. In setting the penalty amounts, the CRTC recognized that many of these telemarketers are small businesses.”
According to the CRTC, it has imposed penalties of $2.1 million to date.
Under Canada’s National Do Not Call List (“DNCL”) rules, established under the federal Telecommunications Act, consumers may register their residential, wireless, fax or VoIP telephone numbers to reduce the number of telemarketing calls received. Registrations are valid for five years and become effective 31 days after registration (consumers must periodically renew their registrations before expiry).
On March 23, 2012, the CRTC announced that it had imposed a $24,000 administrative monetary penalty against Quebec telemarketing company Les Aliments S.R.C. Inc. for calling consumers registered on the National Do Not Call List (DNCL) and failure to pay registration fees to the National DNCL operator.
Under the Unsolicited Telecommunications Rules, telemarketers are prohibited from calling consumers registered on the DNCL (unless express consent has been obtained). The Rules also require telemarketers to be registered on the National DNCL and pay registration fees to the National DNCL operator.
Les Aliments took the position that the Rules had not been violated regarding calls to one complainant because it had an existing business relationship (the Rules do not apply to telemarketing where there is an existing business relationship, as defined) and should be acquitted of other violations because it acted in good faith and exercised due diligence (a due diligence defence exists under the Telecommunications Act).
Telemarketing Update: CRTC Refuses to Vary Do Not Call List Penalty Imposed on Telemarketing Company
On February 13, 2012, the CRTC denied an application by Les Distributions Triple A Inc. (“Triple A”) to review an earlier decision imposing a $6,000 administrative monetary penalty (“AMP”).
In the earlier decision, the Commission imposed a total $6,000 AMP for violations of the Unsolicited Telecommunications Rules, in relation to calls to consumers registered on the National Do Not Call List (“DNCL”) and for failing to pay applicable DNCL subscription fees.
Triple A sought to have the earlier decision annulled on several grounds, including that it only initiates calls for market research and the AMP imposed was a substantial amount for a small business.
In reviewing Triple A’s application, the Commission considered the criteria for reviewing, rescinding or varying Commission decisions, relying on Telecom Public Notice 98-6 to find that applicants must show that there is a “substantial doubt as to the correctness” of the original decision due to, for example, an error in law in fact, a fundamental change in circumstances or facts or a failure to consider a basic principle raised in the original proceeding (or a new principle arising from the decision).
On February 15, 2012, an $18,000 “administrative monetary penalty” or “AMP” was imposed by the CRTC on a British Columbia telemarketing company, Imperial Data Supply Corp. (“Imperial”).
The Commission found that six telemarketing calls were made to consumers that were (or should) have been on Imperial’s internal do not call list, violating the Unsolicited Telecommunications Rules, and that six fax telemarketing calls were made without being registered with the Do Not Call List.
The CRTC has the legislative authority to impose AMPs on any telemarketer that violates the Unsolicited Telecommunications Rules. The maximum penalty for a violation is $1,500 (for individuals) and $15,000 (for corporations). Violations that continue for more than a day are separate violations.
In making the decision, the Commission also considered whether Imperial had established a due diligence defense (subsection 72.1(1) of the Telecommunications Act provides a defense for a person in a proceeding relating to a violation to show that they exercised due diligence to prevent the violation) and whether the amount of the AMP imposed was reasonable.
In rejecting Imperial’s due diligence defense, the CRTC found that while it made submissions regarding the occurrence of periodic errors, and took the position that they were not systematic, it had failed to submit any evidence of reasonable steps or business practices to prevent the violations. The CRTC also pointed to notifications by Commission staff for Imperial to renew its registration and its continuation to make telemarketing calls after the expiration of its registration.
With respect to the amount of the AMP, the CRTC noted that the financial health of a company is not a relevant factor in determining whether to impose (or reduce) a penalty and refused to reduce the AMP imposed in this case. The Commission pointed to, among other things, evidence of notifications of Imperial’s obligations to maintain an internal do not call list under the Unsolicited Telecommunications Rules and its failure to do so.
____________________
For more information about our regulatory law services contact: contact
For more regulatory law updates follow us on Twitter: @CanadaAttorney
CANADIAN CASL (ANTI-SPAM LAW) PRECEDENTS
Do you need a precedent or checklist
to comply with CASL (Canadian anti-spam law)?
We offer Canadian anti-spam law (CASL) precedents and checklists to help electronic marketers comply with CASL. These include checklists and precedents for express consent requests (including on behalf of third parties), sender identification information, unsubscribe mechanisms, business related exemptions and types of implied consent and documenting consent and scrubbing distribution lists. We also offer a CASL corporate compliance program. For more information or to order, see: Anti-Spam (CASL) Precedents/Forms. If you would like to discuss CASL legal advice or for other advertising or marketing in Canada, including contests/sweepstakes, contact us: contact.
************
February 19, 2012
In December 2010 Canada’s new anti-spam legislation was passed (the “Anti-spam Act”) which will, when it comes into force, be one of the strictest anti-spam regimes in the world (see: Anti-spam Act). Canada had been criticized prior to its passage as being the only G8 nation without stand-alone anti-spam legislation. In general, the Anti-spam Act will require express or implied consent for the sending of “commercial electronic messages” and will also impose certain form (i.e., disclosure) and opt-out (i.e., unsubscribe) requirements.
The CBC reported last week that a Montreal-based telemarketing company, which has been accused of defrauding thousands of small businesses in relation to an alleged invoice scheme for never ordered office supplies, is still making calls (see: Montreal Telemarketers in Fraud Case Still Making Calls).
According to the CBC:
“Express Transaction Services Inc. (ETS) and some affiliated companies face several charges under the federal Competition Act and Criminal Code, following an investigation and police raids at its Montreal facilities in 2007.
In fall 2011, the company was charged with fraud and violation under the federal Competition Act.
Several individuals linked to the companies also face charges of deceptive telemarketing and misleading representations under the Competition Act, and criminal fraud charges.
The Competition Bureau said ETS purposely sent out products to businesses even if they were never ordered. ETS then had its call centre make repeated phone calls to retrieve payment.
According to the bureau, the scheme made more than $170 million between 2001 and 2007. The federal Anti-Fraud Centre said thousands of victims were affected.
CBC News has learned that ETS continues to operate out of its Montreal offices, and small businesses across Canada are still receiving phone calls from the company.”
TELEMARKETING LAWS IN CANADA
COMPETITION ACT
The federal Competition Act makes it criminal offences to engage in deceptive telemarketing or to engage in telemarketing unless certain disclosure under the Competition Act is made.
The Interactive Advertising Bureau of Canada (IAB) will be holding a series of marketing courses across Canada in March and April 2012:
The past year has been a busy and eventful one for Canadian advertising and marketing law. Recent developments since 2010 span most key areas including the application of the “general misleading advertising” provisions of the Competition Act, the use of disclaimers, social media, e-mail marketing, performance claims and telemarketing.
At the same time, new legislation has been introduced that will impact how companies market in Canada, most notably the new federal anti-spam legislation (Bill C-28), and new cross-border enforcement initiatives were announced including a new international do-not-call enforcement network co-chaired by the CRTC.
These developments mean that it remains important for companies to effectively and efficiently navigate through Canadian advertising and marketing rules. Some of the more interesting and noteworthy developments in 2010 and 2011 are discussed below.
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
