Authored by Martha Buyer.
Let’s not beat around the bush: no one likes to be telemarketed. While it doesn’t matter which side of the U.S. Canadian border, telemarketing calls are a nuisance at any time of the day or night. As increasing numbers of people migrate away from traditional landlines, telemarketing calls can not only be annoying, but costly as well. Each country has its own rules and processes, but the bottom line is that both the U.S. and Canada have taken significant steps to reduce and manage telemarketing practices, in an effort to curb misuse while permitting proper access to individual consumers.
"...both the U.S. and Canada have taken significant steps to reduce and manage telemarketing practices..."
While the Canadian rules found in the Canadian Anti-Spam Legislation (CASL) differ from American rules (Telecommunications Consumer Protection Act or TCPA), both are focused on consumers, although there are some significant differences which warrant careful consideration. Even the introduction to the Canadian law speaks volumes: “An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities...” My read of this is that telemarketing attempts are looked upon with disfavor. What’s most interesting is that this law is not ancient—last updates were made in 2023.
Where the TCPA in the U.S. covers phone calls and text messages for marketing purposes, under the CASL, the target of the regulation is “commercial electronic messages,” or CEMs. In the U.S., particularly after new rules took effect on April 11, 2025, prior written consent is required for marketing calls and texts to mobile devices. What’s new is that the process for revoking consent to contact, either by text or call, must be as simple and basic as the process of signing up to receive those messages in the first place. In Canada, consumers must provide consent to receive commercial electronic messages, but the language is less clear and thus more expansive.
"...new rules took effect on April 11, 2025..."
Fines for violations of CASL are capped at $10 million, while in the U.S., fines are not capped. Further, individuals with Canadian phone numbers who receive spam messages have no private right of action against those who may violate CASL rules, while in the U.S., individuals do. It’s some of these suits that have led to an American-based, knowledgeable plaintiffs’ bar that lies in wait, salivating after the opportunity to go after those who disregard TCPA obligations. Those plaintiffs’ attorneys have often prevailed.
"...violations of CASL are capped at $10 million, while in the U.S., fines are not capped."
Canada’s National Telecommunications Do Not Call List defines two types of telemarketers —“regular” and “exempt.” “Regular” telemarketers are “those who make calls or send faxes to sell or promote a product or service, or to request donations. Regular telemarketers are exempt where they have an existing commercial relationship with consumers.” According to the CRTC’s website, a “regular telemarketer” uses “telecommunications technologies to make telemarketing calls or send faxes to consumers for the purpose of solicitation (the act of selling or promoting a product or service or requesting money or equivalent directly or indirectly, for oneself or for another party), or if the regular telemarketer i) hires a third-party agency to make telemarketing calls or send faxes on your behalf; ii) Both the entity hiring the third party and the agency itself must follow the Unsolicited Telecommunications Rules, and iii) calls made for the purpose of market research, polls or surveys are not considered telemarketing calls.
Exempt telemarketers include registered charities, newspapers looking for subscriptions, political parties and their candidates, as well as organizations that conduct market research, polls and surveys. Lastly, companies whose activities are limited to making telemarketing calls including faxes to consumers (the word “consumers” is important here, because it applies to individuals, not corporate consumers) with whom they have an existing business relationship. The existing business relationship is defined as a company with whom a consumer has purchased, leased or rented a product or service from the company in the past 18 months, a consumer who has in his/her/their possession a written contract with the company for a service that is still in effect or has expired within the last 18 months, and/or a consumer who has made an inquiry or has submitted an application to the company about a product or service within the last six months.
While a telemarketer may consider itself to be exempt, its responsibilities to maintain its own internal do not call list, which must be scrubbed periodically, must still be maintained. For more details, please see Part II of the Unsolicited Telecommunications Rules and the Telecommunications Act.
Both countries have do-not-call lists which must be updated on a regularly scheduled basis (think 30 days, although this may be different in different jurisdictions) so that callers who have legitimately asked to be removed from those lists can be removed with relative promptness.
"...lead generation business[es] must also be sure that [their] practices... are compliant with existing rules..."
The telemarketing industry is made up of more than those who make calls directly, but also includes those who purchase lists from third parties. Individuals who run the lead generation business must also be sure that the practices that drive their businesses, and which they sell to their own customers are compliant with existing rules as well. However, because of the multiple layers between those who own, sell/distribute or manage the leads and those who purchase them, there are many opportunities for compliance to “fall through the cracks” between those layers of applications.
In the current regulatory environment which at least on the U.S. side is a bit volatile, there are several recommendations for keeping both current and compliant with rules and regulations governing telemarketing practices on both sides of the border.
"This approach applies as much to AI agents as human ones."
First, it’s critical to remain knowledgeable about the current state of the law. Easier said than done, of course, but always a good path. With respect to agents who are both making and receiving calls, scripts governing content must be easily modified to accommodate new rules and evolving practices. This approach applies as much to AI agents as human ones. Being compliant today is no guarantee of compliance tomorrow, and the cost of non-compliance can be very great, in both time and money. If an entity is purchasing leads, or using its own, the rules remain the same. But the more layers between the entity making outbound calls, whether as leads or current customers, call content and administration must remain consistent and lawful.
"Being compliant today is no guarantee of compliance tomorrow..."
In the U.S., businesses must align with the updated rules starting April 2025, with full enforcement set to begin by June 2025. Preparations include internal audits, upgrading consent systems, staff training, and adopting robust compliance technologies.
Managing TCPA and CASL compliance is challenging as a result of the complexity of the rules and regulations currently in place. Consideration must also be given to rules to come that will be driven by changing market conditions and legal obligations.
The primary takeaway is clear: whether operating in the U.S. or Canada, businesses must stay informed and proactive in adapting to evolving telemarketing regulations, as failure to comply can result in significant legal penalties and financial and reputational consequences. Ongoing diligence, clear consent protocols, and regular internal and external reviews are essential to navigating the complex and shifting landscape of telemarketing compliance.
Martha Buyer is an attorney whose work has been largely limited to the practice of communications technology law. She provides a wide range of communications technology consulting and legal services, primarily geared to broadband deployment, and supports corporate end-users' work with carriers and equipment and service providers.
