Federal Cabinet Rejects Appeal By Charities Regarding Do Not Call List
(Feb. 2, 2009) Canada’s federal cabinet has rejected a joint petition filed by AFP and Imagine Canada that would have exempted charities from red tape and fees associated with the new National Do Not Call list.
The decision does not provide any reasons but simply states that the Governor-in-Council declines to rescind, vary or send back the decision of the Canadian Radio-television and Telecommunications Commission (CRTC).
With this issue now determined, there are three important actions that charities in Canada are required to undertake under the do not call list regime.
(The following is not intended to be legal or other professional advice and should be considered as information only. Please review the statutory provisions in detail and ensure that your board is aware of the new provisions and the obligations of your organization under the act.)
1. Register with the National Do Not Call List operator: Charities that carry out telemarketing activities as defined in the Telecommunications Act are required to register with the National Do Not Call List (DNCL) Operator. Charities are “exempt organizations” under the national regime. This means that Canadians who wish to prohibit telemarketing calls from charities must contact those charities directly and cannot do so through the public list operator.
Nevertheless, the CRTC has provided that exempt organizations that engage in telemarketing, including charities, must register with the national DNCL operator. The public policy rationale is that the DNCL operator wants to include in its registry all organizations that carry out telemarketing activities, including exempt organizations (AFP believes this rationale is neither clear nor effective, and this was one of the objections raised in the petition). The obligation to register with the operator took effect in September 2008. The failure to register can expose organizations, whether exempt or otherwise, to fines and penalties.
2. Pay fees to the National Do Not Call List investigator: The national regime provides for both an operator and an investigator. The investigative body must be distinct from the operator. At present, the CRTC has decided to administer the role of investigator, rather than engaging a third party, and has waived these fees while it is doing so. Therefore, there are no fees to be paid at this time but fees may be implemented in the near future. Presumably, the CRTC will provide notice to all registrants when fees are implemented. Charities and all other exempt organizations must, therefore, both register with the DNCL operator as set out it item 1 above and must pay fees to the Investigative body once these fees come into effect.
3. Establish and maintain a private do not call list: While charities are exempt organizations for the purpose of the national list, the Act requires that they maintain private do not call lists. In particular, Canadians are entitled to call specific charities and require the charity to add the caller to the charity’s own do not call list. The charity must maintain and comply with its list or is subject to investigation and penalties under the act.
To review the DNCL statutory provisions, go to “Unsolicited Communications”-Sections 41.2 -41.7 under Part III of the of the Telecommunications Act found here.
The CRTC also posts information on the DNCL on its site, including to the above link, at www.crtc.ca.
Many thanks to more than 30 organizations who filed letters of support for the petition and, above all, to Imagine Canada, who collaborated on the preparation and filing of the petition.
For background on the CRTC changes and AFP’s advocacy efforts in this area, please click here.