Federal Do-Not-Call Legislation

Background

In November 2005, the Federal Government enacted new legislation that created a national 'do-not-call' list in Canada. The list will be administered by the Canada Radio-television and Telecommunications Commission (CRTC) and will be launched by September 30, 2008. Under the new legislation, citizens can add their names for free to the Do Not Call List. Organizations wishing to contact individuals by telephone will have to first remove any names that appear on the national do-not-call list.

Registered charities are exempt from these rules, along with political parties, polling firms when they are not selling a product or services, and a limited number of other types of organizations. However, registered charities that make telephone solicitation calls have to keep their own do not call lists. All nonprofit organizations that are not registered charities will be subject to the new rules. Further information on the National Do Not Call List is available on the CRTC website.

February 2009 Update

Federal Government Rejects Appeal by Charities
The Federal Government has considered and rejected a joint Petition to Cabinet filed by Imagine Canada and the Association of Fundraising Professionals (AFP) asking Cabinet to overturn or send back for reconsideration a decision of the Canadian Radio-television and Telecommunications Commission (CRTC) that affects charities under the new national Do Not Call List (DNCL).

Related Information

Association of Fundraising Professionals (AFP)
The Association of Fundraising Professionals (AFP) reports that the experience of U.S. charities with the American do-not-call list indicate that charities must be sensitive to the public's desire for privacy. AFP President and CEO Paulette V. Maehara, CFRE, CAE notes that “Canadian charities must be prepared to educate the public and their donors about the list and what they already do to protect privacy. Simply ignoring the list and donor expectations is not the way to go.”

Imagine Canada
Imagine Canada offers the following three important actions that charities 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 who telemarketer, including charities, must register with the National DNCL operator. The public policy rational is that the DNCL operator wants to include in its registry all organizations that carry out telemarketing activities, including exempt organizations (if this does not make sense to you, we can only agree, as 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 payable at this time. Presumably, the CRTC will provide notice to all registrants when fees become payable. Charities and all other exempt organizations must, therefore, both register with the DNCL Operator effective last September 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.

Government Information

To review the DNCL statutory provisions, go to “Unsolicited Communications” -- Sections 41.2 --41.7 under Part III of the of the Telecommunications Act. The CRTC also posts information on the DNCL on its site.