Submission

6 September 2006

Industry Standard for the Making of Telemarketing Calls

Below is EFA's submission to the Australian Communications and Media Authority in response to the Discussion Paper on an Industry Standard for the Making of Telemarketing Calls.

Contents:

1. Introduction
2. Principles for Guiding the Development of the Standard
3. Time at which Telemarketers can Contact Consumers
4. Provision of Contact Information
   1. Single Purpose Calls
   2. Dual or Multiple Purpose Calls
5. Termination of Telemarketing Calls
6. Calling Line Identification
7. Other Issues
8. References
9. About EFA

1. Introduction

This submission is provided in response to the ACMA Discussion Paper concerning an Industry Standard for the Making of Telemarketing Calls^[1] to be made as required by the Do Not Call Register (Consequential Amendments) Act 2006^[2].

2. Principles for Guiding the Development of the Standard

EFA considers it should be borne in mind, in developing the industry standard, that the forthcoming establishment of a Do Not Call Register will not of itself adequately arrest the level of level of dissatisfaction within the community about telemarketing activities. It will not do so because too many types of organisations are exempt from compliance (i.e. charities/charitable institutions, government bodies, registered political parties, nominated political candidates, religious organisations, and educational institutions). It is quite clear from submissions to the DCITA Do Not Call inquiry^[3] that many people are equally annoyed and inconvenienced by calls from persons seeking donations, etc, as they are by calls seeking to sell goods and services.

Hence, it is essential that the industry standard restrict the activities of organisations that will be exempt from compliance to a greater extent than currently exists under current State/Territory legislation, including by prohibiting calls during evening meal hours.

3. Time at which Telemarketers can Contact Consumers

EFA submits that organisations should only be permitted to make or attempt to make telemarketing calls:

• between 8 am and 6 pm Mondays to Fridays and between 9am and 2pm Saturdays (local times at the called party's location); and that
• no calls be permitted to be made on a Sunday, New Years Day, Australia Day, Christmas Day, Boxing Day, Good Friday, Easter Monday or ANZAC Day; and
• in the case of calls to geographic (fixed line) telephone numbers, no calls be permitted to be made on any State/Territory Government gazetted public holiday applicable to the same location as the call termination point of a geographic telephone number to which a telemarketing call could otherwise be made.

EFA considers the proposed 6 pm weekday restriction is appropriate because it is quite clear from submissions to the DCITA Do Not Call inquiry that families and individuals are especially aggravated and inconvenienced by telemarketing calls during evening meal times, and when they are attempting to put young children to bed and/or when calls are likely to wake children up.

While people will have the option to place their number on the Do Not Call Register, this will not provide sufficient relief from unwanted calls during meal times because too many types of organisations will be exempt from compliance (i.e. charities or charitable institutions, government bodies, registered political parties, nominated political candidates, religious organisations, and educational institutions) and therefore such organisations would be able to continue calling during evening meal times unless this is prohibited by the industry standard.

In addition, EFA considers it will be somewhat risky to place mobile phone numbers and silent/unlisted numbers (i.e. numbers that are not in the public telephone directory) on the DNC Register due to a risk that such data could be inadvertently disclosed, and/or be obtained and used illegally (as recognised in the Explanatory Memorandum^[4] to the Do Not Call Register Act 2006 (Cth)^[5]). The risk of improper access to and use of information in databases has recently been further highlighted by the sacking of Centrelink staff over privacy breaches^[6]. Hence we submit that people with such numbers should have the option of choosing whether to place their number on the DNC Register or choosing not do so in the knowledge that at least they will not receive telemarketing calls (e.g. resulting from random or sequential number dialling) during evening meal hours nor during other non-permitted times.

We believe that if telemarketing calls continue to be permitted to be made after 6 pm on weekdays, even more people will decide to register their number on the DNC Register than may otherwise be the case. In our view, the telemarketing industry is likely to find that more numbers remain available to them to call if they concede that calls after 6 pm are especially unpopular and accept a prohibition on calls after 6 pm.

We note that some telemarketing advocates claim that if people do not want to take a call during meal times they can simply not answer the phone. EFA considers this approach to be totally inappropriate because for many people it is not practical to fail to answer the telephone because the call may be from a loved one in trouble. Furthermore, even though there will be a requirement for telemarketers to send calling line identity, this does not solve the problem because, even if the called party has a calling number display ("CND") facility (i.e. they can afford to pay for the CND service and the more expensive handset), a call from a loved one in trouble may originate from a number the called party does not recognise. Therefore they would need to answer the phone anyway, and potentially find it is a telemarketing call.

4. Provision of Contact Information

4.1 Single Purpose Calls

1. Promptly at the commencement of a call, (i.e. before any sales pitch is given and before any charitable solicitation is made), the caller must provide the following information to the called party, and repeat the information if requested to do so by the called party at any time:
   1. the name of the organisation calling, or if it is an agency/contractor/bureau organisation calling on behalf of a client organisation, the name of the client organisation.
      
      This information must enable the called party to know the registered business/company name of the organisation in order to contact the organisation or lodge a complaint, etc. Organisations must not be permitted to merely provide some general term, that may be used by more than one business, such as "the broadband center". In this regard, for example, on 17 August 2006 an EFA Board member received a call to an unlisted number from a person claiming to be from "the broadband center". The called party found it necessary to ask three questions before the name of a business (in this instance, Telstra) was extracted from the caller. The called party then said "So this is a Telstra telemarketing call is it?" to which the caller replied yes. However, there are indications on Internet web chat forums that such calls may not always in fact be from Telstra but from one or more resellers of Telstra's services. Hence, the industry standard must require callers to provide the registered business name of the organisation with which a called party would contract, or to which money would be directly paid by the called party, if they accepted the goods/services etc being offered, or made the donation solicited, by the caller.
      
      Furthermore, if the registered business name is not listed in the public telephone directory, nor available through directory assistance, organisations should be required to also advise the business name that is so listed/available.
   2. the name of the individual (e.g. employee) making the call.
      
      This is necessary to enable the called party to lodge a complaint with the organisation, or regulatory bodies, in the event that the caller/employee does not comply with relevant law, industry standard, industry code, or for any other reason (e.g. unacceptable behaviour). It is unacceptable that some calling centre employees seek to be anonymous especially when they are calling a person whose name, address and telephone number they know.
   3. a brief description of the purpose of the call e.g. "this is a telemarketing call", or "this is a sales call", or "this call is to seek a donation", or "this is a market research call". Such a description must be truthful and not misleading, for example, callers must not be permitted to say that "this is a courtesy call" or "this is market research call" when the call is, or is also, a telemarketing call (see also sub-section "Dual or Multiple Purpose Calls" later herein).
      
      The above information is necessary to enable the called party to promptly terminate the call if they so wish without having to listen to a spiel, or ask a number of questions, before the purpose of the call becomes obvious.
   4. if calling from outside Australia, the country from which the caller is calling.
      
      This information is necessary to enable the called party to know whether any personal or other information they provide will be being disclosed to a person/organisation outside Australia and possibly in a country with no, or inadequate, consumer protection and/or privacy protection legislation.
2. At any time during the call, on request of the called party, the caller must provide the following information:
   1. the street address (not a P.O. Box number) and phone number of the organisation referred to Item 1(a) above;
   2. if it is an agency/contractor/bureau organisation calling on behalf of a client organisation, the name of the agency/contractor/bureau organisation and its street address and phone number;
      
      The contact details referred to in 2(a) and (b) above must be suitable for use by the called party to seek to exercise a right^[7] under the Privacy Act 1988 (Cth)^[8] (NPP 2.1) not to receive any more direct marketing communications from the organisation and/or to make a complaint to the organisation or regulatory bodies, etc.
      
      The telephone number must be a fixed line number (not a mobile number because these attract higher call charges) and must not be a number that results in charges higher than the standard national rate for calls made to the number (e.g. it must not be a premium rate number, etc). Furthermore, the telephone number must be one that enables a caller to speak to a live operator during, at least, normal business hours and calls to the number must not be permitted to be used as an opportunity to market to persons who call the number.
      
      The contact details must be required to be provided during the call. In this regard, EFA is aware that some industry codes of practice contain provisions to the effect that if the contact details cannot be provided at the time of the request then the organisation can provide this information some time in the next 30 days. This is completely unacceptable. There is no legitimate reason for telemarketers not to have this information available for provision on request of called parties during a telemarketing call.
   3. the name of the person at the organisation who is responsible for handling complaints about telemarketing calls;
      
      This information must be able to be provided during the call.
   4. the source from which the organisation (or client organisation as applicable) obtained the telephone number of the called party.
      
      This information is necessary for the same reason as 2(a) and (b) above. If this information cannot be provided during the call, it must be provided within 14 days.

4.2 Dual or Multiple Purpose Calls

All of the requirements set out under "Single Purpose Calls" above must also apply to dual or multiple purpose calls, that is, including the requirement to promptly state that the call is a telemarketing call etc.

For example, a telemarketer might call a consumer to ascertain whether he or she is satisfied with a previous purchase with the intention of moving into a sales pitch if the consumer is satisfied. Since the telemarketer plans to make a sales pitch in at least some of the calls (the telemarketer plans to end the call if the consumer is not satisfied), the four disclosures referred to above must be made promptly at the commencement of the call and before inquiring about customer satisfaction. Furthermore, the required brief description of the call must not be permitted to be similar to "this is a customer satisfaction call". The description must state that it is a telemarketing call, or sales call, etc (although the telemarketer could choose to say, for example, "this is a telemarketing and customer satisfaction call").

Similarly, calls having the purpose of soliciting a donation combined with for example, a prize promotion, must promptly disclose that purpose of the call is to solicit a donation. Callers must not be permitted to say only that the purpose of the call is to give the person a chance to win a prize.

5. Termination of Telemarketing Calls

The caller must:

• terminate the call promptly after a called party states they are not interested or otherwise indicates that they wish the call to be terminated;
• release the called party's telephone line within five seconds of the called party hanging up or otherwise indicating that he or she requires the caller to release the line.

The above requirements are necessary because many individuals are uncomfortable about hanging up on telemarketers because they feel to do so is rude, notwithstanding that the caller interrupted and inconvenienced them with an unsolicited marketing call.

6. Calling Line Identification

EFA notes that the legislative requirement is for calling line identification to be enabled, not merely that callers refrain from blocking the transmission of calling line identification information.

The industry standard should therefore require callers to ensure that calling line identification information is transmitted to the called party's telephone service, that is, it should prohibit the use of any telephone service that, for technical or any other reasons, is incapable of transmitting calling line identification to the called party's telephone service. It is our understanding that all landline and mobile calls originating in Australia are capable of transmitting calling line identification information and that some, perhaps all, VOIP services are capable of transmitting calling line identification information including to telephone services terminating on the Australian PSTN. Accordingly the use by telemarketers of any service that is not capable of transmitting such information should be prohibited.

In relation to calls originating in overseas countries, EFA recognises that it is possible that not all telecommunications networks in all countries may have calling line identification capabilities. Nevertheless, we consider that organisations with a presence in Australia (i.e. that can be subject to Australian Government regulation) that choose to use overseas calling centres to make calls to Australian numbers should be in effect prohibited from using overseas services that are not capable of transmitting calling line identification information. It is our understanding that calling line identification enabled calls from overseas countries may not result in a telephone number being transmitted to a telephone service terminating in another country due, for example, to privacy related regulatory provisions in some jurisdictions which require carriage service providers to prevent the transmission of the number across country borders. However, we understand that such calls result in the display of, for example, "international" or "out of area" text instead of the calling number. Such information, while not as helpful to a called party who has calling line identification enabled receiving equipment as an actual number, is nevertheless of some help to some called parties in determining whether or not to answer a call.

The industry standard should also require callers to ensure that the number transmitted is not a number that results in non-standard charges for calls made to the number (e.g. it must not be premium rate number, etc) and is a number that can be used by the called party to contact a representative of the organisation that made the call. In this regard, we understand that some telecommunications equipment, e.g. switchboards, enable a calling organisation to change the number that would otherwise be transmitted to a number that is not the actual number from which a call is made. Any such capability should not be permitted to be used for the purpose of transmitting a number that attracts charges higher than the standard national rate, nor for transmitting a number that cannot be used to contact the organisation, nor for presenting a recorded message containing advertising/promotional material.

With regard to a requirement that the number be able to be used to contact the organisation, this means it must be suitable for use by the called party to seek to exercise a right^[9] under the Privacy Act 1988 (Cth) (NPP 2.1) not to receive any more direct marketing communications from the organisation and/or to make a complaint to the organisation, etc.

7. Other Issues

We note that the Discussion Paper states:

and that the matters which must be addressed by the standard are specified in Section 125A of the Telecommunications Act 1997^[10] as inserted by the Do Not Call Register (Consequential Amendments) Act 2006^[11].

We also note that Section 113 (Examples of matters that may be dealt with by industry codes and industry standards) of the Telecommunications Act 1997 (as amended) states:

"(w) record-keeping practices to be followed in relation to telemarketing calls made or attempted to be made;
(x) action to be taken to limit the total number of telemarketing calls attempted to be made, by a particular participant in a section of the telemarketing industry, during a particular period, where the recipient answers the attempted call, but the attempted call does not have any content;
(y) action to be taken to limit the total number of telemarketing calls made, or attempted to be made, by a particular participant in a section of the telemarketing industry, during a particular period to a particular telephone number."

EFA is highly concerned that the above matters are not required to be addressed in the industry standard, especially in relation to predictive dialling calls (automated calls that use a computer to dial the number, then if it is answered, try to find an available telemarketer). Such calls often result in silent calls (when there is no available telemarketer) which are more disturbing and worrying to recipients than a call made by a person who speaks. This issue, and our reasons for believing regulatory restrictions are necessary, is addressed in detail in Section 11 of our submission to the DCITA Do Not Call inquiry, available at:
http://www.efa.org.au/Publish/efasubm-dcita-donotcall-2005.html#50_19^[12].

At the least, an industry code appropriately dealing with items (w) to (y) inclusive above needs to be in place (registered by the ACMA) by the time Do Not Call Register commences operation.

EFA trusts that, if the ACMA does not become aware in the near future that an appropriate industry body will soon be submitting such a code for registration, the ACMA will use its powers under the Telecommunications Act 1997 to request such a code be developed and, if an appropriate code is not developed, will develop an industry standard.

EFA is of the view that such regulatory provisions need to be operative by the time the Do Not Call Register commences operation because the use of random/sequential predictive dialling equipment is likely to become more commonly used by telemarketers seeking to reach numbers that are not in the public phone book nor on the DNC Register, e.g. silent/unlisted numbers and mobile phone numbers. As mentioned earlier herein, we consider it likely that a significant number of people will not place such numbers on the DNC Register due to the risk of unlawful access, disclosure and use, especially if they have not been receiving many telemarketing calls to their number to date. Hence, we consider the use of random/sequential predictive dialling equipment requires regulation in order to keep telemarketing calls to non-published numbers to a minimum.

8. References

1. Australian Communications and Media Authority ("ACMA"), Discussion Paper: Industry Standard for the Making of Telemarketing Calls, August 2006.
<http://www.acma.gov.au/acmainterwr/_assets/main/lib100844/dncstandarddiscpaper1.doc>

2. Do Not Call Register (Consequential Amendments) Act 2006
<http://www.comlaw.gov.au/ComLaw/Legislation/Act1.nsf/asmade/bytitle/ 016259B0D15E9AC8CA2571A2001F0CFA?OpenDocument>

3. Submissions to the Department of Communications, Information Technology and the Arts ("DCITA") Do Not Call inquiry
<http://www.dcita.gov.au/tel/do_not_call>

4. Explanatory Memorandum, Do Not Call Register Act 2006 (Cth)
<http://www.comlaw.gov.au/ComLaw/Legislation/Bills1.nsf/all/search/ 1A697C3F1094B30FCA25717D000ACFA7?OpenDocument&VIEWCAT=attachment&COUNT=999&START=1>

5. Do Not Call Register Act 2006 (Cth)
<http://www.comlaw.gov.au/ComLaw/Legislation/Bills1.nsf/all/search/ 1A697C3F1094B30FCA25717D000ACFA7?OpenDocument&VIEWCAT=item&COUNT=999&START=1>

6. Centrelink staff sacked for privacy breaches, ABC News Online, 23 Aug 2006
<http://www.abc.net.au/news/newsitems/200608/s1721505.htm>
Snooping Centrelink workers sacked, ABC The World Today, 23 Aug 2006
<http://www.abc.net.au/worldtoday/content/2006/s1721992.htm>
Privacy scandal rocks Centrelink, ABC Lateline, 23 Aug 2006
<http://www.abc.net.au/lateline/content/2006/s1722513.htm>

7. A right under the Privacy Act 1988 (NPP 2.1) would exist in some but not all instances. For more detail, see Office of the Privacy Commissioner, Submission 8 (p.4) to the Senate ECITA Commitee DNCR Bill inquiry, June 2006.
<http://www.aph.gov.au/Senate/committee/ecita_ctte/do_not_call_register/submissions/sub08.pdf>

8. Privacy Act 1988 (Cth)
<http://www.comlaw.gov.au/ComLaw/Legislation/ActCompilation1.nsf/current/ bytitle/ 4C1DCEE59902C166CA2571AF007E5012?OpenDocument&mostrecent=1>

9. See Note 7.

10. Telecommunications Act 1997
<http://www.comlaw.gov.au/ComLaw/Legislation/ActCompilation1.nsf/current/ bytitle/ FAA789D148B0FF6FCA2571AB0017F9C7?OpenDocument&mostrecent=1>

11. See Note 2.

12. EFA submission to the Department of Communications, Information Technology and the Arts' consultation re Introduction of an Australian Do Not Call Register, 28 November 2005.
<http://www.efa.org.au/Publish/efasubm-dcita-donotcall-2005.html#50_19>

9. About EFA

Electronic Frontiers Australia Inc. ("EFA") is a non-profit national organisation representing Internet users concerned with on-line rights and freedoms. EFA was established in January 1994 and incorporated under the Associations Incorporation Act (S.A.) in May 1994.

EFA is independent of government and commerce, and is funded by membership subscriptions and donations from individuals and organisations with an altruistic interest in promoting online civil liberties. EFA members and supporters come from all parts of Australia and from diverse backgrounds.

Our major objectives are to protect and promote the civil liberties of users of computer based communications systems (such as the Internet) and of those affected by their use and to educate the community at large about the social, political and civil liberties issues involved in the use of computer based communications systems.

EFA policy formulation, decision making and oversight of organisational activities are the responsibility of the EFA Board of Management. The elected Board Members act in a voluntary capacity; they are not remunerated for time spent on EFA activities. The role of Executive Director was established in 1999 and reports to the Board.

EFA has long been an advocate for the privacy rights of users of the Internet and other telecommunications and computer based communication systems. EFA's Executive Director was an invited member of the Federal Privacy Commissioner's National Privacy Principles Guidelines Reference Group and the Research Reference Committee (2001) and the Privacy Consultative Group (2004-2005). EFA participated in NOIE's Privacy Impact Assessment Consultative Group relating to the development of a Commonwealth Government Authentication Framework (2003), Centrelink's Voice Authentication Initiative Privacy Impact Assessment Consultative Group (2004-2005), the ENUM Discussion Group and Privacy & Security Working Group convened by the Australian Communications and Media Authority ("ACMA" formerly ACA) (2003-2006), and the ACA's Consumer Consultative Forum meeting (April 2005). EFA has presented written and oral testimony to Federal Parliamentary Committee and government agency inquiries into privacy related matters, including amendments to the Privacy Act 1988 to cover the private sector, telecommunications interception laws, cybercrime, spam, etc.