Australian Regulatory Compliance Review

ACMA launches first Do Not Call Register investigation

The Australian Communications and Media Authority (ACMA) has instigated its first formal investigation under the Do Not Call Register Act 2006, which established the Do Not Call Register for Australian consumers. ACMA will investigate Lifestyle Dynamics following numerous complaints from people listed on the Register about continuing to receive calls from the company.

Lifestyle Dynamics is the subject of a large number of consumer complaints (over 90) despite repeated written warnings to the company from ACMA.

Telemarketing Standards varied

On 29 May 2007, ACMA varied the Telecommunications (Do Not Call Register) (Telemarketing and Research Calls) Industry Standard 2007 effective from 31 May 2007 to allow research calls to be made on Sundays between 9.00 am and 5.00 pm.

Telemarketing calls are still prohibited on Sundays under the standard.

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Do Not Call Register commences

The Do Not Call Register came into effect at midnight on 31 May 2007.

According to the Minister “At 9am today (31 May), the total number of registrations was 1,012,813. The register has been taking more than 20,000 registrations per day.”

Senator Coonan also said that more than 44,500,000 numbers had been checked, or ‘washed’, against those listed on the register, following the start of the list washing service on 25 May. A total of 355 businesses have opened accounts with the register.

Do Not Call Register telephone registrations open

Consumers can now register on the Do Not Call Register by telephoning 1300 792 958.

Do Not Call Register attracts consumer interest

According to Senator Helen Coonan, as at 10 May online registrations on the Do Not Call Register were over 530,000, just one week after pre-registrations opened on 3 May.

Telephone registrations are scheduled to open on 22 May.

The Do Not Call Register will begin operation on 31 May. From that date, it will generally be unlawful to make telemarketing calls to numbers on the Register.

From 25 May, telemarketers will be able to submit their calling lists to the Register operator for checking against the register before the scheme commences.

Postal applications are downloadable from the Do Not Call Register website (www.donotcall.gov.au) and will be available from Australia Post outlets from 15 May.

The initial online registration problems have been blamed on verification procedures (Australian IT).

Do Not Call Register opens for consumer registration

In anticipation of a 31 May 2007 start date, the Do Not Call Register has started accepting consumer registrations.

Individuals will be able to register their numbers either online at https://www.donotcall.gov.au/or by post. Telephone registrations will be available soon.

Only the relevant account holder for the telephone number being listed, or someone nominated by the account holder can register the number.

Only Australian telephone numbers used primarily for private and domestic purposes can be listed on the Do Not Call Register. These include fixed (or landline) numbers, mobile phone numbers and voice over internet protocol (VoIP) numbers.

Businesses will not be able to register their numbers. Fax numbers will also not be accepted.

Individuals will not have to pay to register their telephone numbers.

Registration will only last for three years. You will need to contact the Do Not Call Register to re-register if you wish to continue your listing after this time. You can remove your registration at any time.

The legislation applies irrespective of where the call originates. Telemarketers operating outside Australia will face the same penalties as telemarketers operating within the country, if they call a number on Australia’s Do Not Call Register.

You can learn more about the register under frequently asked questions.

UPDATE 21 May: telephone registrations open

Do Not Call Register Index

Do Not Call Register: telemarketing standards explained for businesses

The Do Not Call Register is expected to be operational by 31 May 2007.

For a business, the core obligation is not to make an unsolicited telemarketing call to a number on the Register and ensure that any agreements you make to outsource telemarketing comply with the Act (Sections 11 and 12).

If a number is not on the Register, a business may call it provided the business (or its provider) complies with the telemarketing standards.

What's a telemarketing call?

A telemarketing call is a voice call to a telephone number, where, having regard to:

(a) the content of the call; and
(b) the presentational aspects of the call; and
(c) the content that can be obtained using the telephone numbers, URLs or contact information (if any) mentioned in the call; and
(d) if the telephone number from which the call is made is disclosed to the recipient (whether by calling line identification or otherwise)—the content (if any) that can be obtained by calling that telephone number;
it would be concluded that the purpose, or one of the purposes, of the call is:
(e) to offer to supply goods or services; or
(f) to advertise or promote goods or services; or
(g) to advertise or promote a supplier, or prospective supplier, of goods or services; or
(h) to offer to supply land or an interest in land; or
(i) to advertise or promote land or an interest in land; or
(j) to advertise or promote a supplier, or prospective supplier, of land or an interest in land; or
(k) to offer to provide a business opportunity or investment opportunity; or
(l) to advertise or promote a business opportunity or investment opportunity; or
(m) to advertise or promote a provider, or prospective provider, of a business opportunity or investment opportunity; or
(n) to solicit donations; or
(o) a purpose specified in the regulations.

The Regulations exclude the following from the definition of a telemarketing call:

• product recall calls;  
• fault rectification calls;  
• appointment rescheduling calls;  
• appointment reminder calls;  
• calls relating to payments;  
• solicited calls (eg returning a call for information); and  
• calls not answered by the person to whom the call is made.

Schedule 1 of the Act defines designated telemarketing calls which are also exempt from the prohibition in section 11 (but not the telemarketing standards). These are calls made by Government bodies, religious organisations and charities, political parties, independent members of parliament, candidates and educational institutions.

Even if a telephone number is not registered on the Do Not Call Register, telemarketers will have to comply with the new Telemarketing Standard.

The standard applies to:

• all telemarketing calls made to an Australian number to offer, advertise or promote goods, services, interests in land, business opportunities or investments, or to solicit donations
• all research calls to conduct opinion polling and to carry out standard questionnaire-based research, and        
• calls made for the above purposes by public interest entities (such as charities, registered political parties, and religious organisations) who are exempt from the general prohibition on calling numbers listed on the Do Not Call Register when making specific types of telemarketing calls.

The standard establishes minimum standards in four main areas:

        1. The standard provides clear and enforceable rules including restrictions on hours of calling. A caller must not make or attempt to make:

• a telemarketing call on a weekday before 9 am or after 8 pm        
• a research call on a weekday before 9 am or after 8.30 pm        
• a telemarketing or research call on a Saturday before 9 am or after 5 pm        
• a telemarketing or research call on Sunday or a nationally recognised public holiday.        

        2. Under the standard, contact information and the purpose of the call must be provided by the person making a telemarketing call as well as revealing, on request, the source from which the caller obtained the telephone number.

        3. The standard requires the caller to terminate the call where the call recipient asks for the call to be terminated or otherwise indicates that he or she does not want the call to continue.       

4. The caller is also required to ensure that calling line identification is enabled at the time that the caller makes or attempts to make a call

Resources

Do Not Call Register update

ACMA has been engaged in consultation on steps necessary for the Do Not Call Register to be fully operational by 31 May 2007.

The latest discussion paper relates to the cost of access to the Register by telemarketers.

It will generally be unlawful to make telemarketing calls to numbers placed on the Register.  However, the Act allows persons (such as telemarketers) to submit their contact lists to the Register Operator for checking against the Register.  Upon submission of the list and payment of the appropriate fee (if any), the Register Operator must inform the access seeker which of the numbers in their list (if any) are, or are not, on the Register. This process of ‘washing’ contact lists will assist telemarketers to comply with the Act when it commences.

Do Not Call Register Act

The Do Not Call Register is still being set up. (Here's the Do Not Call Register Act 2006).

ACMA's Home Page and the  Privacy Commissioner's Do Not Call Register page give useful updates.

National telemarketing standards

The Australian Communications and Media Authority has commenced the development of a national standard for the telemarketing industry with the release of a discussion paper.

The standard will form an important part of the Do Not Call Register Scheme which will regulate unsolicited telemarketing calls.

This standard is intended to establish minimum standards for all telemarketers, such as the hours in the day when telemarketers are allowed to make calls, as well as the kind of information they are obliged to divulge about themselves and the organisation they represent.

ACMA is inviting comments from consumers and industry about the development of the industry standard by close of business, Friday 8 September 2006.

ACMA setting up Do Not Call Register

The Australian Communications and Media Authority (ACMA) has announced it is setting up a Do Not Call Register to protect individuals from unsolicited telemarketing phone calls. The Register will allow people to opt out of receiving such calls. There will be no cost for submitting a telephone number to the Register.

The Register is expected to be up and running in 2007. ACMA is currently drafting an implementation plan for its introduction.

ACMA is also setting minimum national contact standards to regulate telemarketing calls. These standards will cover permitted calling hours, minimum information requirements and termination of calls.

The standards will apply to all telemarketers, including organisations that are exempted from the Do Not Call Register arrangements.

Do Not Call Register Bills passed by Senate

The Do Not Call Register Bills have been passed by the Senate.

The Bills are now waiting Assent. The are not expected to commence until early 2007.

National telemarketing standards and the Do Not Call Register explained

The Do Not Call Register (Consequential Amendments) Bill 2006 accompanies the Do Not Call Register Bill 2006. It will provide for the Australian Communications and Media Authority (ACMA) to make national standards which will regulate aspects of the making of telemarketing calls.

Currently, telemarketers operate under a number of different rules established by industry bodies on a voluntary basis, State and Territory laws, as well as some Commonwealth legislation. A national legislative framework for telemarketing would provide a single regulatory framework for the telemarketing industry and to consumers. The national standards would apply to all telemarketers, including those organisations which are exempt from the prohibition on making unsolicited telemarketing calls. The standards are expected to be in force from early 2007.

The Do Not Call Register

The Do Not Call Register Bill provides for the establishment of a Do Not Call Register. The Register would be kept by ACMA or outsourced to a third party who would operate the Register on behalf of the ACMA. It provides a system whereby individuals can register their home and mobile numbers on the Register.

A telephone number is eligible to be entered on the Do Not Call  Register if:
(a) it is an Australian number; and
(b) it is used or maintained exclusively or primarily for private or  domestic purposes; and
(c) it is not used or maintained exclusively for transmitting  and/or receiving faxes.

Registration of a telephone number on the Do Not Call  Register remains in force for 3 years at a time.

Telemarketers who wish to make telemarketing calls will in effect be required to check their calling lists against the numbers registered on the Do Not Call Register to ensure that they do not contact numbers of individuals who have opted out of receiving telemarketing calls.

Complaints relating to the Do Not Call Register and breaches of the Bill can be made to the ACMA. ACMA will have the power to take out injunctions or seek civil penalties against offenders.

What is a telemarketing call?
Telemarketing calls are voice calls made with the purpose to offer, supply, provide, advertise or promote goods or services for land or an interest in land; or a business opportunity or investment opportunity; or to solicit donations. Telemarketing calls include messages for which the commercial/marketing element may be a secondary purpose, not necessarily the primary purpose of the call, such as calls which may be primarily designed to gauge customer satisfaction, but have a secondary purpose of soliciting sales.

The key principle is that unsolicited telemarketing calls must not be made to a number registered on the Do Not Call Register without consent. However "designated marketing calls" will be permitted.

What is consent?
Consent means:
(a) express consent; or
(b) consent that can reasonably be inferred from:
(i) the conduct; and
(ii) the business and other relationships;
of the individual or organisation concerned.

How long does consent last for? If:
(a) express consent is given; and
(b) the consent is not expressed to be for a specified period or for an indefinite period;
the consent is taken to have been withdrawn at the end of the period of 3 months beginning on the day on which the consent was  given.

Consent may not be inferred from the publication of a telephone number.

What is "a designated telemarketing call "?
A designated telemarketing call is exempt from the restrictions. Calls by a government body, a religious organisation, a charity or charitable institution, Political parties, independent members of parliament, candidates and educational institutions may be exempt in certain circumstances.

More background