Is this a good time? ACMA turns the screws on telemarketers

By Philippa Hore.

Key Points:
The Australian Communications and Media Authority has issued a new industry standard to regulate when telemarketing and research calls can be made, what information must be provided to call recipients and when calls must be terminated. Meanwhile, the views of telemarketers are being sought in relation to how they will be charged to "wash" their calling lists against the numbers on the Do Not Call Register.

More details have emerged about how the Do Not Call Scheme will operate. After consultation with various stakeholders, including the telemarketing industry and the general public, ACMA has now released a new industry standard to govern the ways that telemarketing and research can be made. The Telecommunications (Do Not Call Register) (Telemarketing and Research Calls) Industry Standard 2007 will come into effect when the Do Not Call Register commences operation (currently expected to be on 31 May 2007).

Background

As we explained in June last year, Australian Communications and Media Authority ("ACMA") is setting up a Do Not Call Register for people to opt out of receiving unsolicited telemarketing calls. Once the Register becomes operational, it will generally be illegal to make a telemarketing or research call to a number that is listed on the Register.

The Act also requires ACMA to develop a compulsory industry standard to regulate "legitimate" telemarketing and research calls, that is:

• calls made to telephone numbers not listed on the Register; and
• calls made by organisations exempted from the prohibition on calling numbers listed on the Register (including charities, religious organisations, government bodies, registered political parties and independent members of Parliament).

Telemarketing calls and research calls

The Standard imposes minimum standards on all telemarketing calls made to an Australian number to advertise, offer or promote goods, services, business opportunities, interests in land or investments, or to solicit donations. It's crucial to remember that this Standard applies to telemarketing and research calls to numbers that are not on the Do Not Call Register, or to calls that are exempt - if you comply with the Standard but still call a number on the Do Not Call Register, you'll have a problem.

Slightly different restrictions are placed on "research calls", which are calls made to conduct opinion polling or to carry out survey based research.

When can calls be made?

Unless prior consent has been provided by the telephone account holder, telemarketers and researchers must not make or attempt to make:

• a research call before 9am or after 8.30pm on weekdays;
• a telemarketing call before 9am or after 8pm on weekdays;
• any call before 9am or after 5pm on Saturday; or
• any call on a Sunday or any of the seven listed national public holidays.

If a more stringent restriction is imposed by a state or territory law however, that more stringent restriction will prevail.

What information must telemarketers provide?

Callers must disclose their given name and the purpose of their call as soon as the call commences. If the call is not a research call, the name of the person who caused the call to be made must also be disclosed immediately (in the case of research calls, this information must still be provided before the end of the call).

Other information must be provided immediately upon request, including:

• the call operator's full name or staff identifier;
• the name and contact details of the call operator's employer; and
• the name and contact details of a person responsible for dealing with consumer complaints about the call operator or the caller.

From 1 July 2007, call operators will also be required to divulge, within 30 days of a request:

• the source from which the caller obtained the recipient's telephone number and information; and
• if applicable, the name of the person for whom the call is intended.

Leave me alone! Call termination and caller ID

If the call recipient asks for the call to be terminated or otherwise indicates that they do not want the call to continue, the Standard requires that the call operator must immediately end the call. A call must also be immediately terminated if the call operator realises that the call recipient is not at their usual residential address and that their current location places them outside of allowable calling times.

Telemarketing and research callers will not be able to hide behind "private number" displays either, as the Standard requires that calling line identification must be enabled at the time a call is made or attempted to be made.

Who will pay for the Register and how?

The cost of the Register is being shared by the Federal Government and the telemarketing industry. Originally it was estimated that the Government would contribute over $17M and the telemarketing industry would contribute $15.9M over four years. Surprisingly, the costs for the Register have been lower than expected and the maximum cost to be recovered from the telemarketing industry has now been reduced to $11.4M. The industry contribution will be made by way of access fees paid to "wash" call lists against the telephone numbers listed on the Register.

ACMA has just released a discussion paper and invited industry submissions on two possible access fee pricing options. Under both options, access seekers will be able to wash up to 500 numbers a year against the Register without paying a fee. Access seekers that wash more numbers than this will pay an annual subscription fee, based on the quantity of numbers the access seeker expects to submit annually (there will be four subscription categories). A charge will apply for numbers submitted in excess of the estimated quantity.

The two options proposed by ACMA are:

• Option 1 - imposes industry costs of $2.85 million each year and aims to recoup the entire $11.4 million over four years.
• Option 2 - gradually increases the industry costs each year (starting at $0.86M and building to $2.37M) and aims to build up to full cost recovery arrangements over the four years. Under this option, only $6.6M will be recouped from the industry in the first four years.

It seems a no brainer that the telemarketing industry will favour Option 2, but whether ACMA will as well is another question. Once the fee structure has been established and the Register has been operating for 12 months, ACMA will review the access fees and actual cost recovery.

ACMA is also seeking comments on other aspects of the proposed approach to Register access, including the appropriateness of allowing 500 numbers to be washed for free each year.

Submissions can be emailed to donotcalltaskforce@acma.gov.au and must be received by Thursday 5 April 2007.

Proposed timeframe

It is expected that the fee structure for access to the Register will be finalised by 26 April 2007. Access seekers will be able to set up accounts with the Register operator by 15 May 2007 and commence submitting lists to the Register operator for "washing" by 25 May. The rules prohibiting telemarketers from calling numbers on the Register are expected to commence on 31 May 2007.

This seems a very tight timeframe given the amount of work yet to be done.

We will continue to keep you informed of developments.

For further information, please contact Philippa Hore.