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Canadian Regulator Maintains Express Consent Requirement for Autodialed Telemarketing Calls and Revises Existing Autodialer Rules

03 April 2014
The Canadian Marketing Association (CMA) did not get the relief it sought this week when the Canadian Radio-television and Telecommunications Commission (CRTC) issued a Compliance and Enforcement Regulatory Policy decision denying the CMA’s request that telemarketers be allowed to place calls using an automatic dialing-announcing device (ADAD) without express consent, as long as there is an existing business relationship with the called party.  The CRTC affirmed its existing rule, which requires callers to obtain express consent from Canadians before making any telemarketing ADAD call.  As discussed below, the CRTC also revised several of its existing rules regarding both telemarketing and non-telemarketing ADAD calls.
Canadian Regulator Maintains Express Consent Requirement for Autodialed Telemarketing Calls and Revises Existing Autodialer Rules

As background, the definition of an ADAD is different in Canada than in the U.S.  While the Federal Communications Commission’s regulations define an “automatic telephone dialing system” for purposes of the Telephone Consumer Protection Act (TCPA) as “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial such numbers,” an ADAD under Canadian law is limited to automatic dialing equipment that is used alone or in conjunction with other equipment “to convey a pre-recorded or synthesized voice message” to a telephone number.

The CRTC’s regulations for the Canadian Do-Not-Call (DNC) List include an exemption for non-automatically dialed telemarketing calls made based on an existing business relationship.  In seeking to extend this exemption to ADAD calls, CMA had argued that advances in ADAD technology, and in particular the ability of a call recipient to connect directly to a live agent during a call and to automatically opt-out by registering the called number on the telemarketer’s internal DNC List, justified lifting the express consent requirement.  The CRTC rejected this argument, concluding that the greater efficiency of ADAD-generated calls could encourage increased telemarketing calls.

Although framed as an affirmation of the CRTC’s existing rules, the decision also imposes several new obligations on both telemarketing and non-solicitation calls to Canadian telephone numbers.  Callers using ADADs to make a non-telemarketing call must now briefly identify the purpose of the call at the beginning of the communication.  Callers placing either a telemarketing or non-telemarketing call using an ADAD were already required to provide contact information including a telephone number and postal address during the call.  The CRTC’s decision gives callers the option of substituting an e-mail address for a postal address, and it now requires the caller to ensure that this contact information remains valid for a minimum of 60 days.  Finally, the CRTC shortened the grace period by which a telemarketer must add a telephone number to its internal DNC List at the request of a call recipient from 31 days to just 14 days.  The change to the administrative grace period takes effect June 30, 2014; the other changes are already in effect.

Hogan Lovells has a TCPA Working Group that includes 20 litigation, FCC/communications, and privacy lawyers with substantial experience in the TCPA, and we have advised and litigated on a wide variety of TCPA and outbound calling issues.  For more information, please visit www.hoganlovells.com/tcpa.

Mark W. Brennan

Mark W. Brennan,

Washington, D.C.

Deborah Broderson

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