By: Jaime Mantilla Compte.
There is a general feeling that one of the "positive" consequences of the quarantine ordered by the Ecuadorian Government since March 16, 2020, following the pandemic of the new coronavirus Covid-19, is the decrease in calls to offer products or services, known as telemarketing.
Ecuador is a country that has experienced in recent years an excessive increase in this type of calls, text messages and e-mails to offer products or services to potential customers who in most cases have not shown interest in them and have not even provided their contact information, phone number, cell phone or e-mail.
The reason, well it is a country with no culture of respect for the use of personal data, which is a consequence of the lack of appropriate regulations to prevent its unauthorized treatment.
Thus, the emergency situation has generated a widespread idea that call centers have been unable to work due to the government decision suspending on-site work for non-essential services, which, although could have a certain incidence, may not be the main reason for the decrease of those annoying calls, since marketing services through call centers are rather a clear example of those services that can be provided remotely.
What could be happening is that companies are already preparing for the application of Resolution 2020-00074 issued on February 20, 2020 by the Telecommunications Regulation and Control Agency (ARCOTEL for its initials in Spanish), which establishes the “Proceeding for the Implementation of the Policy to Transparent the Identification of the Caller in the Calls to the Subscribers, Clients or Users of the Advanced Mobile Service”.
The purpose of this resolution, published on March 18, 2020 in the Official Registry No. 164, is to implement an identification policy for calls to users of the Advanced Mobile Service (AMS) for informational, commercial, advertising or proselytizing purposes so that citizens are able to choose to receive them or not.
This proceeding is applicable to AMS providers and to persons and corporations in all sectors, and will be mandatory for entities in the financial sector within 90 days from the publication of the resolution in the official registry and in 120 days for the rest of the entities.
Among the provisions established by the aforementioned resolution for the identification of the callers are:
Calls can only be made to those users of the AMS who have given their prior and express authorization, in accordance with the Technical Standard ARCOTEL-2017-0143 of March 15, 2017 (RO. 982 of April 11, 2017). Obtaining prior and express authorization will be the responsibility of the caller.
Calls must come from previously identified numbers of the caller, for which AMS providers will implement the necessary technological mechanisms that allow this identification.
AMS providers, persons and corporations from all sectors must identify and send to ARCOTEL a unique number that groups all the numbers from their own or external call centers, or from persons or corporations who market their services, so that users can fully identify this number when receiving their calls.
The identification of calls will be made with a unique identifier name per sector as follows:
Banks, Cooperatives, Credit Cards and Insurance: Identifier "FINANCE"
Tourist Activity, offer of packages, trips, airlines and other similar: Identifier: “TOURISM”.
Sale of various products (for personal use, food, books, furniture, real estate and other related): Identifier: "SALE"
Proselytizing: Identifier "PROSELITISM".
Advanced Mobile Service Providers: identifier for each service provider.
Calls cannot be made from numbers that have not been previously identified.
Informative calls regarding the services that a user has contracted previously but that do not imply a commercial or advertising nature, won´t have to comply with these requirements.
In addition, this resolution establishes the possibility for the users that receive the calls to present a direct claim to the person or corporation making the call if the number is not identified according to the abovementioned guidelines or to raise a complaint to ARCOTEL who, if applicable, may order the AMS to suspend the number and terminate the contractual relationship for the provision of services.
As the resolution itself points out in one of its transitional provisions, there is a pending task for ARCOTEL, which is to establish a similar proceeding regarding commercial, advertising and proselytizing text messages, as a complement to the provisions of the ARCOTEL Technical Standard ARCOTEL-2017-0143.
Also, the Personal Data Protection Law presented by the Executive Branch on September 19, 2019 is still pending of analysis and approval by the National Assembly, which will finally allow the implementation of an effective protection, treatment and security regime of personal data in the country.
In any case, the publication of Resolution 2020-00074 by ARCOTEL is a good start to reduce the excessive telemarketing in Ecuador and to effectively respect the will of users of advanced mobile service regarding the calls they want to receive or not.
Furthermore, it is important that the people, as data holders, are observant to demand the compliance of current regulations by sending claims or complaints when they receive calls that are not adequately identified and even more, to request the elimination of their data from the databases, according to their constitutional rights.
Falconi Puig Abogados