Proceedings of the Standing Senate Committee on
Transport and Communications
Issue 23 - Evidence - November 22, 2005
OTTAWA, Tuesday, November 22, 2005
The Standing Senate Committee on Transport and Communications, to which was referred Bill C-37, to amend the Telecommunications Act, met this day at 9:35 a.m. to give clause-by-clause consideration to the bill.
Senator Joan Fraser (Chairman) in the chair.
[English]
The Chairman: Honourable senators, welcome to this session of the Standing Senate Committee on Transport and Communications. We are meeting today to consider Bill C-37, to amend the Telecommunications Act and to conduct clause-by-clause consideration of the bill.
Honourable senators should have received a letter from Rick DesBrisay, president RainMaker Call Centres; a letter from Allen Futerman, who appeared before us last week; a letter from Richard French of the Canadian Radio- television and Telecommunications Commission clarifying the transcript of his testimony — the transcript is being adjusted; and a letter from Jerry Pickard, Parliamentary Secretary to the Minister of Industry, responding to questions that were raised when he appeared before us last week.
Does anyone have any questions?
Senator Tkachuk: I circulated a letter. I am sure everybody has read it. However, I have a couple of amendments. As the bill is returning to the House, anyway, and I know it is an important bill — we on this side support it in principle, as well — most of the calls that would be considered nuisance calls by the general public are being allowed anyway. The estimates are that anywhere between 65 to 80 per cent, depending on who you listen to, are calls made by the four exempted groups.
On the issue that the exemptions will be there and that to delete them may go against the wishes of the House, I am acting on the presumption that since they allow exemptions, that they could allow more, since they have already accepted in principle that in certain cases exemptions are a good thing. Therefore, we may wish to consider a couple.
The Chairman: Perhaps you could give us a brief indication of what you plan to do. When we get to clause-by-clause consideration of the bill, then you will propose your specific amendments, I assume.
Senator Tkachuk: When we go to clause by clause, they are right at the beginning; clause 1 and 2 are the amendments. One is on the $15,000 penalty. If you will remember, we were not clear and it was not made clear, but when you look at the bill it is clear that it is per call. It was not the intent of the drafters or the government to do that, but that is what they did.
We have an amendment here to change it to an administrative monetary penalty of up to $1,500 in the case of an individual and up to $15,000 in the case of a corporation. We drew this up last night and we have the French version as well. We have copies for everyone.
The second amendment is that we had a number of witnesses talk about referrals and family. In the case of an insurance person not being able to phone a cousin, it seems ridiculous to me considering we have full exemptions for the newspaper business and for political parties. We have an amendment to clause 1 on page 3 in regard to business relationships. I will pass that out. The amendment is not that complicated, but when you read it, you should have it before you, rather than me reading it to you. I think it would make more sense. You could then compare it to the bill. The essence is that the amendment would allow those calls to be made, which are business referrals. To me it makes sense and since the House has accepted the principle of referrals, that is why this amendment is placed before you.
The Chairman: While the amendments are circulated, I will note that the options that we have before us, familiar to all senators, are to adopt the bill without amendment, to amend the bill and report it back to the Senate with amendments, or to attach observations to our report back to the Senate of the amended or unamended bill.
As you rightly observed, Senator Tkachuk, there is one amendment that we know for sure we will make.
Senator Tkachuk: Do we have a copy of that one?
The Chairman: We do. The amendment is about to be distributed. It is somewhat artificial for me to talk about whether we will report back without amendment, but I remind honourable senators that there is also the tool available to us of observations. I would not be surprised if some observations seemed like a good idea.
Senator Tkachuk: To those who have copies, the amendment on the referrals is on page 3, and the amendment on the penalties is on page 5.
The Chairman: We do not have those yet.
Senator Tkachuk: Whenever they say a ``technical amendment,'' what does that mean?
The Chairman: That is the amendment to insert the Senate. As the bill now stands the minister must table the annual report only in the House of Commons. As you know, it is standard practice in the Senate when we get a reference to such procedures to ensure that the Senate is included. I do not have the English version of that amendment, but it would require the report to be tabled in each house of Parliament. That is one talked about last week in committee.
Before we proceed to clause-by-clause review, at which point we can have formal debate if we wish, does anyone wish to make any comments or ask Senator Tkachuk any questions about his proposals?
This is a most uncustomary way of proceeding, but I think it is actually more effective in this particular case. If you wish to speak to Senator Tkachuk about what his amendment will do right now, go ahead. It is much more collegial.
Senator Cordy: The financial amendment I understand clearly. I have not gone through the same process as the rest of the committee, but the amendment does not tell me what you mean. Could you explain it?
Senator Tkachuk: The amendment would allow a personal relationship referral, family or a direct referral. If I am hired as an insurance person, I may wish to call all my relatives first. That practice is not abnormal in the business. This amendment would allow that to happen, rather than restricting those people.
As well, if a person wishes to, even if it is a relative, they can put their name on a do-not-call list, but allow the calls to be made.
Senator Cordy: An existing personal relationship would be a relative or a friend?
Senator Tkachuk: The existing personal relationship is what is in the bill now. If you are a Visa card holder, they may phone you to sell insurance. That is already in the bill. This amendment extends it to family and friends, basically family.
Senator Tardif: Senator Tkachuk, a definition of personal relationship could be interpreted in many ways. There is no definition here. Would that not increase the number of exemptions? Therefore, a greater number of people would be exempted.
Senator Tkachuk: This is not universal, as it is with political parties. I am not a lawyer, but my assumption would be that personal relationship would be clearly understood. I would know them; I would have to be referred to or related to them. It would be personal as opposed to impersonal; that is all the amendment does. It adds that to what is already an existing personal relationship, which is business to business. We do not even have business to business in here, which is odd, too. I cannot understand that. Nonetheless, I do not like this bill, but I am trying to make the best of it. It is a terrible piece of work. There should be no exemptions at all.
The Chairman: A personal relationship would have to be defined by the CRTC.
Senator Tkachuk: I am sure it would be defined in regulation. That is probably what they will do.
The Chairman: Subparagraph (iii) in your amendment could be vast.
Senator Tkachuk: Existing personal or business relationship is already in there.
The Chairman: My Visa company is allowed to call me, but if it is also allowed to give my name to a company with which I do not do business, Acme Widgets Company, does that open up a large can of worms?
Senator Tkachuk: I do not think it does. To me it is limited. There would have to be a referral of some kind by one company to another.
The Chairman: The amendment says, ``Whose name has been provided'': We are right back into selling subscription lists.
Senator Tkachuk: Let us go through the amendment: ``whose name has been provided to the person making the telecommunication, or the person or organization on whose behalf the telecommunication is made, by a person or organization that has an existing... relationship.'' In other words, I can refer Senator Johnson, but it is not to sell a mailing list.
Senator Cordy: That is your intent, but my reading of it is somebody can sell their list to somebody else.
Senator Tkachuk: Let us go to the U.S. version of the bill from the Federal Communications Commission. In determining whether a telemarketer is considered a friend or acquaintance of a consumer, it will look at, among other things, whether a reasonable consumer would expect calls from such a person because they have a close or firsthand relationship. That is what this amendment tries to do.
To me, referrals in the case of insurance and family are the way to do business.
Senator Tardif: I worry about this part because I think this broad exemption could lead to a potential for abuse. For example, a referral could enable the sharing of mailing lists among related firms.
I know we will look at this in a three-year review. Are these the kinds of things that could be sorted out over the three-year period and be reviewed, depending on how it was implemented and how it is carried out? I worry about this particular amendment.
Senator Tkachuk: In no way does it imply mailing lists or anything like that. It does not even read that way. It is clear: ``whose name has been provided to a person making the telecommunication or the person or organization on whose behalf the telecommunication is made.''
If I talk to someone and they refer someone else, whether a person or organization, then I can phone them. That is all the amendment states.
Senator Tardif: Somebody could think they had a relationship with me, and I might see it otherwise. Somebody might say they know me and would put me on a list as a referral.
Senator Tkachuk: I repeat: ``who has not made a do not call request in respect of the person or organization on whose behalf the telecommunication is made.'' Although you are my cousin, you can tell me that you do not want anyone to phone me. It protects you.
Senator Tardif: I would still get the original call.
Senator Tkachuk: You are still open to a fine. It is no different than any other part of this bill. It is no different than newspapers.
The Chairman: I think we are repeating ourselves here. I propose, therefore, that we proceed.
When an amendment is proposed, there is further opportunity for debate on that amendment. With your agreement, I propose we proceed to clause-by-clause review.
Honourable senators, is it agreed that the committee proceed to clause-by-clause consideration of Bill C-37, An Act to amend the Telecommunications Act?
Hon. Senators: Agreed.
The Chairman: Opposed? Carried.
[Translation]
Shall the title stand postponed? Is it agreed or not? You have to say yes.
Hon. Senators: Agreed.
[English]
Carried. Shall clause 1 carry?
[Translation]
Senator Tardif: I would like to move an amendment. That Bill C-37 be amended by replacing line 28, on page 2, with the following:
The Minister shall cause a copy of the report referred to in subsection (1) to be laid before each House of Parliament on any of the
The Chairman: Senator Tardif proposes that Bill C-37, in clause 1, be amended by replacing line 28, on page 2, with the following:
before each House of Parliament on any of the
[English]
The Chairman: A proposal that Bill C-37 and clause 1 be amended by replacing line 28 on page 2 with the following: ``before each House of Parliament on any of the.''
[Translation]
Are there any questions or comments?
[English]
All in favour?
Hon. Senators: Agreed.
The Chairman: Opposed? Carried.
[Translation]
Are there any further amendments to clause 1?
[English]
Senator Tkachuk: With regards to referrals, you have it in front of you:
That Bill C-37 be amended in clause 1, on page 3, by replacing lines 5 to 9 with the following:
(ii) with whom the person making the telecommunication, or the person on whose behalf the telecommunication is made, has an existing personal relationship, and,
(iii) whose name has been provided to the person making the telecommunication, or the person or organization on whose behalf the telecommunication is made, by a person or organization that has an existing business or personal relationship with the person to whom the telecommunication is made, and who has not made a do not call request in respect of the person or organization on whose behalf the telecommunication is made.
I repeat that this in no way implies that you can sell a mailing list. It is clear that the person must have an existing personal or business relationship with the person they refer, and selling a mailing list would not qualify.
The person making the call would be susceptible to a fine, as anybody else would be, if they made a call from a mailing list.
The Chairman: Any other questions or comments from honourable senators?
Senator Tardif: I repeat my concerns about the fact that there is a potential for abuse there. I think the exemption is too broad in that case. I think it goes beyond the intent.
Senator Tkachuk: How is it broad? Where does it say something that it does not say?
Senator Tardif: It is in the names that are being provided and one's definition of a personal relationship. It is very broad.
The Chairman: I think the questions arise not in the first portion of proposed subparagraph (iii) but in the second portion where you suggest that the name can be provided by any person or organization that has an existing personal or business relationship with a person. That is my bank; that is my Visa card; that is my landlord.
Senator Tkachuk: No, you already have that. It is already in the bill.
The Chairman: No, my bank, my Visa or my landlord can call me directly but cannot give my name to a third unrelated party with whom I have no business relationship, to call me. What you suggest here would allow them to do that.
Senator Tkachuk: No, it would not. I beg to differ. The U.S. Federal Communications Commission, whose regulations were used as a model for this bill, according to government testimony, has this exemption in their bill and they have not had any problems with it. I do not see why that is a problem.
The Chairman: Any other comments on this amendment before we pass to the vote?
Senator Tkachuk: I would like this to pass. Maybe we could go with the first part and take the second part out.
The Chairman: Do you mean, strike subparagraph (iii)?
Senator Tkachuk: Strike subparagraph (iii), and keep subparagraph (ii).
The Chairman: Are you moving that as an amendment to your amendment?
Senator Tkachuk: I move that as an amendment to an amendment, so that would take away the concern.
The Chairman: Therefore we would be left with the existing personal relationship. This then raises the last two lines: ``and who has not made a do not call...''
I do not think you need those last two lines.
Are they currently in the bill?
To clarify, Senator Tkachuk, I think what you propose now is that your amendment would begin on line 5, and it would read:
business relationship,
(ii) with whom the person making the telecommunication, or the person on whose behalf the telecommunication is made, has an existing personal relationship, and
(iii) who has not made a do not call request,
Senator Tkachuk: That is correct. I so move. Do we do the amendment first?
The Chairman: We accept Senator Tkachuk's amendment to his amendment, so now we pass to the vote on his amendment.
All in favour of the amendment?
All opposed?
We have a large number of non-voting senators.
Let me ask these questions again.
Senator Tkachuk: That is what happens when you have so many of them on that side: they leave it to everyone else.
The Chairman: They are all polite.
All in favour of the amendment as amended?
Senator Tkachuk: I thought it passed. Senator, it passed.
The Chairman: No, we had a tie vote actually, because Senator Dawson and Senator Tardif voted against, and you two voted for.
Senator Tkachuk: Senator Tardif voted after the fact. He was the only one who voted.
The Chairman: No, no.
Senator Tkachuk: Just a minute. You cannot have two votes because you do not win the first one, chairman.
The Chairman: She had her hand up.
Senator Tkachuk: I did not see her hand up until after.
The Chairman: A tie vote fails. I am doing you a favour by clarifying this procedure since there were four senators present who did not vote. I am doing you a favour by giving everyone the opportunity to vote.
Senator Tkachuk: How do you vote, Madam Chair?
The Chairman: On this one I do not vote. The chair does not have to vote. If we have a roll call vote I will vote.
Senator Tkachuk: The amendment would fall then.
The Chairman: I do not know. I do not know how my four colleagues will vote.
Senator Tkachuk: Okay.
The Chairman: We are in agreement to do this thing properly.
All in favour of the amendment, as amended, will please say ``aye'' and raise their hands?
All opposed to the amendment, as amended, will please raise their hands?
Senator Tkachuk: Chairman, I would like it recorded that there was a vote that was two to two, and I believe it was two to one, that Senator Tardif raised her hand after the fact. Everyone else abstained and you decided not to vote. I think that should be clear.
The Chairman: Do you wish to have a roll call vote, Senator Tkachuk?
Senator Tkachuk: Yes.
The Chairman: Fine, the clerk will call the role.
Till Heyde, Clerk of the Committee: The Honourable Senator Fraser.
Senator Fraser: Opposed.
Mr. Heyde: The Honourable Senator Chaput.
Senator Chaput: Opposed.
Mr. Heyde: The Honourable Senator Cordy.
Senator Cordy: Opposed.
Mr. Heyde: The Honourable Senator Dawson.
Senator Dawson: Opposed.
Mr. Heyde: The Honourable Senator Hubley.
Senator Hubley: Opposed.
Mr. Heyde: The Honourable Senator Johnson.
Senator Johnson: In favour.
Mr. Heyde: The Honourable Senator Merchant.
Senator Merchant: Opposed.
Senator Tardif: The Honourable Senator Tardif.
Senator Tardif: Opposed.
Mr. Heyde: The Honourable Senator Tkachuk.
Senator Tkachuk: In favour.
Mr. Heyde: Yeas, 2; nays, 7; abstentions, nil.
The Chairman: I declare the amendment defeated.
Are there any other amendments that anyone wishes to pose to clause 1?
Senator Tkachuk: Wait a minute. That was an amendment to the amendment, right?
The Chairman: No, we voted on the amendment.
We had accepted your friendly amendment to your own amendment, so we were voting on your amendment as amended, that is, confined for the personal relationship.
Senator Tkachuk: Therefore the amendment was passed to the amendment.
The Chairman: Then the amendment itself was defeated.
Senator Johnson: That is what they were voting on. That is what you were voting on.
Senator Tkachuk: Okay, fine. I thought we had already dealt with the other one.
The Chairman: He was in favour of it all.
Senator Tkachuk: Yes.
The Chairman: Are there any further amendments to clause 1 of this bill that anyone would like to propose? No.
Shall clause 1, as amended, carry? All in favour?
Hon. Senators: Agreed.
The Chairman: All opposed? Carried.
Shall clause 2 carry?
Senator Tkachuk: I have an amendment, which you have before you, in clause 2, on page 5, replacing lines 13 to 17. Right now it reads:
commits the violation is liable
(a) in the case of an individual, to an administrative monetary penalty of $1,500; or
(b) in the case of a corporation, to an administrative monetary penalty of $15,000.
I would change it to:
commits the violation is liable
(a) in the case of an individual, to an administrative monetary penalty of up to $1,500; or
(b) in the case of a corporation, to an administrative monetary penalty of up to $15,000.
It would clarify it.
The Chairman: Questions or comments?
Senator Tardif: This is a good amendment and I would support it.
Senator Tkachuk: Thank you, senator.
The Chairman: All in favour of the amendment? In this case I am voting, Senator Tkachuk.
All opposed?
Carried.
Shall clause 2, as amended, carry? All in favour?
Opposed?
Carried.
Shall clause 2.1 carry? Agreed?
Hon. Senators: Agreed.
The Chairman: Shall clause 3 carry? All in favour?
Hon. Senators: Agreed.
The Chairman: Opposed?
Carried. Shall the title carry? All in favour?
Hon. Senators: Agreed.
The Chairman: Opposed? Carried.
Shall the bill, as amended, carry?
Hon. Senators: Agreed.
The Chairman: Before I ask you to instruct me to report the bill to the Senate, let me ask you, senators, if you want to attach observations to this bill?
There are a number of stages yet to come. The CRTC will hold its public consultation and drafting regulations, assuming this bill becomes law. A three-year review is built into it. Do we want to feed in any observations to that process, or do we want to send the bill on as is?
Senator Tkachuk: In relation to this bill, it was strange that we got a call from New Brunswick Customer Contact Centre Industry Association and they had not been requested to make their views known. I told them they could send a letter, which they did, and they bring up some serious issues, such as business-to-business phone calls.
Before I was a senator I was a small businessman. I do not know how you can exempt business-to-business if you exempt all these other people because that is how a person starts. You make phone calls and they are cold calls, because you do not have any business relationship with anyone: you are starting a new business. This bill was passed with undue attention. We should make clear that it was strange that parliamentarians did not do the consulting but left the consulting — which is a political act that affects the business that they are legislating — up to the CRTC, which we then followed in the Senate. Parliamentarians did not consult them directly in the House of Commons. We did the same thing. I find it appalling that it is left up to the CRTC to do the consulting and the political hard work on something that should have been passed. I think we should say that.
The Chairman: I sense from what you are saying that there may be room for observations to be made. Observations will be in a draft report and we normally go in camera to consider draft reports. I wanted to get a sense of the meeting and which way we were going. Therefore, I will conclude the formal clause-by-clause portion of the meeting and then we can go in camera to consider that report.
Shall I report the bill to the Senate, as amended? All in favour?
Hon. Senators: Agreed.
The Chairman: Opposed?
It is agreed, and I shall do that this afternoon.
I now ask members of the public to leave the room, with thanks to all the officials who were hanging in, in case we needed them. We are grateful to you.
I ask committee members to stay put, with their staff.
The committee continued in camera.