Submission

28 November 2005

Introduction of an Australian Do Not Call Register

Below is EFA's submission in response to the Discussion Paper titled Introduction of an Australian Do Not Call Register issued by the Department of Communications, Information Technology and the Arts.

Executive Summary
Introduction / Overview
Type of Scheme
1. Do Not Call Register
2. Opt in / Opt out
Regulation of Direct Marketing Calls
1. Definition of Direct Marketing/Commercial Calls
Regulation of Other Solicitation Calls
Rights to Opt Out of Direct Marketing and Other Solicitation Calls
Access to, Use and Disclosure of a Do Not Call Register
Registration on a Do Not Call Register
1. Individuals / Residential Subscribers
2. Small Businesses and Other Businesses
Coverage/Jurisdiction
1. Offshore initiated calls
Coverage/types of calls prohibited
1. Dual purpose calls
2. Automated calls
Regulation of Automated Calling Systems
1. Predictive diallers / Silent calls
2. Random and Sequential Number Diallers
3. Recorded Message / "Information" calls
Exemptions
Administration
Enforcement
Fees and funding
Minimum National Contact Standards
Inclusion/Exclusion of facsimile
Conclusion
References
About EFA

1. Executive Summary

EFA strongly supports the establishment of a Do Not Call Register applicable to direct marketing/commercial calls to residential numbers in the first instance. Additional measures are also necessary, including regulations governing the use of automated calling systems and minimum national contact standards.
Other types of solicitation calls should be regulated by requiring compliance with minimum national standards, including requiring organisations to maintain their own Do Not Call lists and honouring do not call requests.
Despite attempts by the industry to self-regulate, consumer frustration with telemarketing has continued to escalate, and the main direct marketing industry body does not have sufficient coverage of telemarketing organisations to make self-regulation workable.
EFA considers an 'opt out' register would be an acceptable approach if it contained solely telephone numbers and was established and operated by a national government regulatory authority.
EFA considers that a definition of unsolicited direct marketing/commercial calls, which would not be permitted to be made to numbers on a Do No Call Register, should be substantially similar to the definition of "commercial electronic messages" in the Spam Act 2003.
Other types of organisations making unsolicited calls (e.g. charities seeking donations, social or market research organisations), should be given the opportunity to comply with mandatory minimum national standards, including a requirement to maintain their own organisation-specific Do Not Call lists and honour do not call requests.
Australian legislation would need to make unambiguously clear that Do Not Call lists are provided by the registry operator to an organisation for the sole purpose of preventing calls to numbers on the list and that any other use or disclosure of the list is illegal.
All individuals/residential subscribers should be permitted to register any or all of their landline and mobile phone numbers on a Do Not Call Register.
Individuals should be able to register by at least two methods, e.g. by calling from the telephone number that they wish to register, or by entering their number on a web site provided for the purpose of registration.
Telemarketers should be required to update their lists at least every 30 days.
EFA considers the issue of whether small business should be able to register with a Do Not Call Register is problematic because it has the potential to prohibit accepted business practices and result in increased costs to businesses (including small businesses) that are not normally regarded as telemarketers.
Numbers should not be removed from the register except at the request of the relevant subscriber.
It should be illegal for companies/organisations to leave unsolicited direct marketing messages or other solicitation call messages on a mobile phone message bank facility because many mobile phone users are charged a fee to access their mobile phone voice mail box.
Overseas calls to numbers registered on a Do Not Call Register should be prohibited if the calls have an Australian link, similar to the provisions of the Spam Act 2003.
Calls that purport to be for purposes other than telemarketing, but have that purpose, either as a primary or other intention, should be prohibited to numbers on a Do Not Call Register. This includes message, information and customer satisfaction calls, "courtesy" calls, and calls offering prizes, free goods or services, the primary or other purpose of which is direct marketing.
Greater regulation of calls made using automated calling systems is necessary than merely prohibiting automated calls to numbers on a Do Not Call Register.
Predictive dialling practices that result in abandoned or silent calls, whether or not made to a number on the Do Not Call Register, and whether or not the purpose of the call is telemarketing, should be made illegal, in a manner substantially the same as the situation in the U.S.A.
The use of random or sequential number generating/dialling systems (equipment or software) for the purpose of making telemarketing calls should be prohibited.
Unsolicited recorded message calls should be prohibited, the only exceptions being recorded messages delivered in compliance with abandoned/silent call regulations, and emergency calls that are necessary with the sole objective of ensuring the consumer's health and safety.
No organisations/companies should be exempt from compliance with a Do Not Call Register when making direct marketing calls.
Businesses should not be permitted to telemarket to existing or past customers who have registered with the Do Not Call Register, unless the customer has informed the business that they consent to receiving telemarketing calls.
There should be no exemptions for charities, religious organisations, political parties, educational bodies etc. making direct marketing calls. Calls from such organisations, including government bodies, for other solicitation or information purposes should be subject to regulations governing the use of automated calling systems and with minimum national contact standards, including respecting an individual's request not to be called again.
Researchers should be required to disclose, at the beginning of a call, whether or not the researcher/organisation and their client are required to comply with the Privacy Act 1988 in relation to information given to them by the called party.
The Australian Communications and Media Authority should directly administer and operate a Do Not Call Register. We are strongly opposed to a Do Not Call Register being operated by any entity other than a government regulatory authority.
EFA considers the telemarketing industry should either fully or partially fund a register. If the anticipated costs of establishing, maintaining and operating the register are considered by the government to result in unreasonably high charges to telemarketers, then it should be partially funded by the government
Individuals and small businesses should not have to pay to have their numbers incorporated on a Do Not Call Register. Equally, people should not have to pay to have an unlisted (silent) number.
Minimum national contact standards should be imposed on all organisations making unsolicited calls.
The sending of unsolicited advertising messages via facsimile should be made illegal in the absence of express prior consent of the recipient, in substantially the same way as commercial electronic messages under the Spam Act 2003.

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2. Introduction / Overview

01. Electronic Frontiers Australia Inc. ("EFA") is a non-profit national organisation representing Internet users concerned with on-line rights and freedoms. EFA is funded by membership subscriptions and donations and has members in all Australian States and Territories. Further information about EFA is provided in Section 20 hereof.

02. EFA appreciates the opportunity to make this submission in response to the Discussion Paper titled Introduction of an Australian Do Not Call Register: Possible Australian model^[1] issued by the Department of Communications, Information Technology and the Arts ("DCITA"). We also take this opportunity to compliment the DCITA on a comprehensive paper covering a range of issues and options.

03. We note the commentary in the Discussion Paper concerning the definition of "telemarketing" therein:

"This paper has taken a broad definition of "telemarketing calls" as being all unsolicited telephone calls from companies and organisations. However, it is recognised that there are many categories of unsolicited calls. There are those for "commercial purposes" such as encouraging sales and "non commercial purposes" such as research, encouraging charitable donations and for the provision of information. The boundaries between these categories are not clear and one of the purposes of this paper is to seek a community view on where the lines might be drawn.
...
However, not all forms of direct marketing are acceptable to all individuals. Some attract considerable criticism. Telemarketing, that is direct marketing by phone, in particular has been seen by some commentators as intrusive and annoying.
Telemarketing is sometimes linked with legitimate social research because of the tendency of some telemarketers to preface sales proposals with questions about consumer preferences. Calls which have any intention of selling goods or services are not generally grouped with social research calls.
Genuine research calls, while unsolicited, differ from telemarketing in a number of ways. The most obvious difference being that these calls do not actually offer any goods or services for sale."

04. EFA agrees that establishing boundaries around various categories of unsolicited calls from companies/organisations is not easy, not only in terms of legislative definitions, but also because individuals have differing views concerning what types of calls they are willing to accept.

05. We believe that vastly more individuals find unsolicited "direct marketing" calls (including such calls that initially pretend to be "market research" calls) objectionable than other types of unsolicited calls. We also believe that a significant number of individuals are willing to receive some other types of calls and/or calls from some but not all types of companies/organisations. However, exactly which types are acceptable varies among individuals.

06. A major contributing factor to the very high level of annoyance in the community is the fact that currently individuals have no legislated right to opt out of receiving unsolicited calls that they find intrusive or annoying from companies/organisations with which they have no existing relationship. This situation exists as a result of loopholes in the Privacy Act 1988^[2]. Further, it is questionable whether or not those loopholes could be adequately plugged in relation to calls made by automated calling systems calling randomly and sequentially generated numbers. (Further information in this regard is provided in Section 6 below).

07. We consider that if the above contributing factors were addressed by legislatively requiring all companies/organisations to respect an individual's request not to be called, then an approach that maximises individuals' freedom to choose and does not unnecessarily restrict companies/organisations would be more readily achievable, at least at this point in time. If an approach similar to that proposed by EFA below was taken, it would need to be reviewed within two years to ascertain whether or not the regulatory regime had adequately achieved the objective of protecting consumers from unwanted intrusive and/or annoying calls.

08. EFA considers that a four pronged approach should be taken to address the problems:

establishment of a Do Not Call Register applicable to calls that have a purpose, whether or not the sole purpose, of direct marketing, that is, where prohibited calls are defined in a substantially similar way to prohibited commercial electronic messages in the Spam Act 2003^[3];
legislation regulating the use of automated calling equipment/software applicable to all companies and organisations that make unsolicited calls (that is, whether or not the called number is on the Do Not Call Register);
legislation imposing minimum national "contact" standards on all companies and organisations that make solicitation calls, including any companies or organisations that would be exempt from the Do Not Call Register provisions and whether or not the calls have a "direct marketing" purpose (i.e. also applicable to calls soliciting donations, or information such as survey responses, etc). These standards should include provisions:
- giving individuals the right to opt out of receiving unsolicited calls made by or on behalf of any particular organisation/company and requiring the organisation/company to respect the individual's choice;
- regulating hours during which calls may be made, information which must be provided by the organisation/company, requiring termination of calls on request, etc.
individuals who would prefer not to receive any unsolicited calls from companies/organisations should be entitled to have an unlisted/silent number without paying a fee for same.

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3. Type of Scheme

3.1 Do Not Call Register

1.1 Do you support the establishment of a do not call register?
1.2 Why do you support the establishment of a do not call register?

09. Yes, EFA strongly supports the establishment of a Do Not Call Register applicable to direct marketing/commercial calls of the type described in Section 4 below. Other types of solicitation calls should be regulated by requiring compliance with minimum national standards, including requiring organisations to maintain their own do not call lists and honouring do not call requests as detailed later herein.

10. Telemarketing calls are an unwelcome intrusion into the privacy of the home. Consumers put up with being bombarded constantly with the shrill voice of advertising at every turn. They are entitled to relief when they retreat to the privacy of their home. Telemarketing is increasingly developing into open warfare between marketers and consumers. Telemarketers are adopting increasingly advanced technology in order to defeat the meagre defence mechanisms available to consumers. Accordingly consumers need every assistance to overcome the bombardment.

11. In addition, changes in telecommunications are likely to result in cheaper (possibly almost free) calls in the future, thus lowering the cost barrier even further for telemarketers. Telemarketing could become as common as spam.

12. EFA believes that stronger regulation is needed for an "industry" that is increasingly out of control. The Australian Direct Marketing Association ("ADMA") has only small coverage of the telemarketing sector. According to ADMA's web site as at 25 November 2005, only 32 ADMA members ^[4] are in the "telemarketing services" industry.

13. Although consumers currently have the mechanism of a silent/unlisted number to provide a somewhat effective "opt-out" facility, unfortunately they are penalised by Telstra (and possibly some other service providers) for the "privilege" of opting out, by way of a $36 per annum charge. In any case, this existing option does not suit individuals who want or need to have their number in a public number directory so that individuals can find their number, nor those who do not wish to receive direct marketing calls but do not object to other types of calls from companies/organisations. Moreover, an unlisted number does not prevent telemarketing calls made using systems that dial random or sequentially generated numbers.

14. The mere adoption of a Do Not Call Register will not, however, be enough. Additional measures are necessary, including regulations governing the use of automated calling systems and minimum national contact standards, as discussed later herein.

1.4 Could a self regulatory scheme provide a suitable solution?

15. No, obviously not. If the entire telemarketing industry was willing to self regulate, they have had many years to demonstrate that. ADMA has offered a voluntary Do Not Call list for a number of years, but consumer frustration has continued to escalate, demonstrating that self-regulation does not work in this industry.

16. Moreover, self-regulation in the telemarketing industry cannot be expected to operate in a manner acceptable to consumers because a vast amount of telemarketing calls are made by call centres. Calls centres are not so much competing for consumers' business as for the business of other organisations that outsource their telemarketing activities. As a result, despite laudable efforts of industry associations in developing and promoting compliance with Codes of Practice, objectionable telemarketing practices continue. As Sytel Limited observes in its paper titled The Elimination of Silent Calls Caused by Predictive Dialers^[5]:

"Another reason for high levels of silent calls is simply that in a competitive market, the prizes go to the fleetest of foot. Following practices first established in the US (and responsible for much of the dialing excesses that have occurred there) companies outsourcing their lists in the UK often split them among a number of out-sourced call centers who are then invited to compete, on a regular basis, as to which of them gets future business. This can mean...

high levels of silent calls leading to...
higher talk time for agents which leads to...
higher sales per hour, which means...
better chances of retaining existing, or winning additional business.

In an unregulated environment, the stark choice sometimes facing UK call centers is either to lose business or operate outside the DMA [Direct Marketing Association] code."

17. EFA considers it is essential that the Australian Government act now to reign in the the "cowboys" in the telemarketing industry that refuse to appropriately self-regulate due to competitive pressures or for any other reason.

3.2 Opt in / Opt out

3.1 Should individuals and small businesses be able to 'opt in' to receive telemarketing calls?
3.2 Should individuals and small businesses be able to 'opt out' if they wish not to receive telemarketing calls?

18. EFA considers individuals should be provided with a readily available and easy means of not receiving unsolicited telemarketing calls. (Whether this should also apply to small businesses and others is less clear and is discussed under Section 8 - Registration below.)

19. In our view an 'opt in' register (to receive telemarketing calls) would be preferable because, by its nature, it does not involve potential for misuse of numbers registered by people who wish to be left alone. This approach would be generally consistent with the opt-in approach taken in the Spam Act 2003.

20. In contrast, an 'opt out' register results in individuals being forced to provide their number (and potentially other personal information) in the hope of being left alone. If, as suggested in the Discussion Paper, the numbers on the 'opt out' list are provided to telemarketers then telemarketers obtain some, potentially many, numbers that they did not already have with, in effect, an instruction not to call those numbers. This creates a risk that those businesses may disclose the numbers to other organisations, notwithstanding that it may (and should) be illegal to do so.

The risk of improper use/disclosure would be exacerbated if various types of organisations (e.g. charities, religious organisations, political parties, etc) are exempt from compliance with Do Not Call legislation. A "black market" for the list could arise. Exempt organisations could obtain the Do Not Call Register (list) from a telemarketer and call the numbers on it. The recipients of those calls would have no means of knowing, and certainly not proving, that their number was obtained as a result of illegal use or disclosure of the Do Not Call Register.

21. In our May 2004 submission ^[6] to the (then) Australian Communications Authority's discussion paper Who's Got Your Number?: Regulating the Use of Telecommunications Customer Information, we responded to commentary therein concerning the possible introduction of a do-not-contact or do-not call list with the advice that:

"We consider there should be a legislative prohibition on the use of the names and personal contact details of individual customers in public number directories for the purpose of direct marketing unless the individual had expressly consented by registering with an opt-in service. ...
If an opt-out [of being contacted] register was to be established in Australia (other than ADMA's existing expensive service), in our view the register would have to be established and run by a national statutory authority, backed up by legislation obligating marketers to comply, and providing the authority with the power to fine offending companies. The authority would need to provide a service whereby businesses provided their lists/database records to the authority and the authority deleted or flagged personal information about individuals who had opted out, so that the businesses were not provided with information about individuals that the business did not already have."

22. However, unlike a Do Not Contact Register, a Do Not Call Register would not need to contain names and/or addresses.

23. In the case of a Do Not Call Register, EFA considers an 'opt out' register would be an acceptable approach if it contained solely telephone numbers and was established and operated by a national government regulatory authority. In such a case, we would not oppose provision of lists of numbers to telemarketers (as distinct from a registry operator returning flagged/washed lists to them) because it appears this would facilitate and encourage compliance. In this regard, we understand that most automated calling systems have the capability of automatically screening numbers against one or more do not call lists installed within the system in order to ensure that numbers on a list are not called. We consider that precluding the use of such automated screening systems (by requiring a registry operator to provide only a flagging/list washing service) would be impractical. It would be likely to discourage compliance due to higher fees that would needed to fund a "washing" service and delays in obtaining a "washed" list given every telemarketer would need to submit their list/s at least every 30 days for "washing". Compliance would seem considerably more likely if telemarketers could simply download a do not call list and load it into the do-not-call component of their automated calling system.

24. Due to the risk of misuse of lists provided to telemarketers, it would be essential that strict provisions concerning access to, use and disclosure of numbers on the Do Not Call Register be implemented (see Section 7) and backed up by penalties for non-compliance.

25. As we recognise that corporate pressure will almost certainly result in the government deciding not to implement an 'opt in' register, the remainder of this submission assumes that an 'opt out' register would be implemented.

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4. Regulation of Direct Marketing Calls

4.1 Definition of Direct Marketing/Commercial Calls

26. EFA considers that a definition of unsolicited direct marketing/commercial calls, which would not be permitted to be made to numbers on a Do No Call Register, should be substantially similar to the definition of "commercial electronic messages"^[7] in the Spam Act 2003. It should cover calls where it would be concluded from the content of the call and the company/organisation that makes or "authorises" the call, that the purpose, or one of the purposes of the call, is:

"(d) to offer to supply goods or services; or
(e) to advertise or promote goods or services; or
(f) to advertise or promote a supplier, or prospective supplier, of goods or services; or
(g) to offer to supply land or an interest in land; or
(h) to advertise or promote land or an interest in land; or
(i) to advertise or promote a supplier, or prospective supplier, of land or an interest in land; or
(j) to offer to provide a business opportunity or investment opportunity; or
(k) to advertise or promote a business opportunity or investment opportunity; or
(l) to advertise or promote a provider, or prospective provider, of a business opportunity or investment opportunity;"

27. In our view such a definition includes calls purporting to provide prizes or free goods/services that actually have a purpose of soliciting sales or advertising or promoting goods/services etc. However, if the government's legislative drafters consider that it may not, then the definition should be extended to make clear that it covers such calls.

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5. Regulation of Other Solicitation Calls

28. EFA considers new regulatory measures are necessary to provide individuals with rights not to receive any unwanted solicitation calls, that is, not only direct marketing calls but also other solicitation calls which include:

calls soliciting money, e.g. donations, etc.
calls soliciting goods, e.g. second hand clothing, household goods, etc.
calls soliciting information, e.g. market research, social research, voting intentions, etc.

29. It does not currently seem to be clear whether or not the above types of calls are a significant contributor to consumer annoyance. However, the above types of organisations engage in making unsolicited calls to people with whom they have no existing relationship, in circumstances in which they are not obliged to comply with existing legislation that would otherwise require them to honour a do not call request (as detailed in the following section).

30. Therefore, rather than subjecting organisations that make the above types of calls to compliance with a Do Not Call Register at this stage, we consider they should first be given the opportunity to comply with mandatory minimum national standards, including a requirement to maintain their own organisation specific do not call lists and honour do not call requests as detailed below.

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6. Rights to Opt Out of Direct Marketing and Other Solicitation Calls

31. EFA considers that a significant contributing factor to the very high level of annoyance in the community is the fact that currently individuals have no legislated right to opt out of receiving unsolicited calls that they find intrusive or annoying from companies/organisations with which they have no existing relationship.

32. In this regard, the Privacy Act 1988 in effect grants organisations the right to collect individuals' contact details from third party sources for a primary purpose (e.g. "direct marketing" or "soliciting donations" or "market research" and use the information to call individuals without even requiring them to respect an individual's instruction that they not be contacted again. This inappropriate situation exists because the NPP2 use and disclosure prohibitions apply only to use/disclosure for a secondary purpose^[8].

33. Further, even if appropriate amendments were made to resolve the above problem, it appears individuals would still not have the "right" to have their opt out request respected when automated calling systems are used to call randomly and sequentially generated numbers. An organisation that calls such a number has probably not collected "personal information" (as defined in the Privacy Act) because the number has probably not been placed "in a record" and in some, possibly many, instances the individual's identity may not be reasonably ascertainable from the number. Hence, it appears organisations may not be obliged to give effect to an individual's request not to be called again because they did not collect and use "personal information" to call the person in the first place.

34. In addition EFA understands that when individuals ask telemarketers to "please remove me from your list", they are often told "you are not on a list". This probable fact should not be able to be used by telemarketers to avoid complying with a request not to be called again.

35. Hence, all organisations that make solicitation calls, or engage an agency to do so on their behalf, must be required to comply with legislative provisions requiring that:

organisations must maintain their own do not call lists and respect individuals' requests not to be called;
organisations must ensure that when a do not call request is received during a call made to an individual, that the request is processed at the time of the call, rather than forcing the person to make a call to someone/somewhere else;
when an agency (e.g. calling centre, or market/social researcher, etc) calling on behalf of a client organisation receives a do not call request during a call, it must ask the requesting party if the number should be placed only on the client organisation's do not call list, only on the agency's list, or both;
when an individual requests that their number be placed on an organisation's and/or agency's do not call list, the organisation/agency must provide the person with a unique registration number serving as proof that the request was made.

36. Organisations that fail to comply with the above requirements, or call a number after being requested not to do so, should be subject to pecuniary penalties.

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7. Access to, Use and Disclosure of a Do Not Call Register

37. As mentioned in Section 3.2 above, providing numbers on a Do Not Call Register to telemarketers creates a risk of misuse of the register, including the potential for a black market especially if some types of organisations are exempt from compliance. Therefore, in our view no organisations should be exempt from compliance.

38. Furthermore, there are uses for a do not call list that contains only numbers, other than calling people. For example, as Experian's Frequently Asked Questions ^[9] page about the U.S.A. Do Not Call Register states:

"Could a company purchase the Registry and reverse append names and addresses for the sole purpose of selecting those do not call households for a direct mail promotion?
No. It is a violation to use the list for anything other than compliance with the DNC rules."

39. Hence, Australian legislation would need to make unambiguously clear that the list/s are provided by the registry operator to an organisation for the sole purpose of preventing calls to numbers on the list and that any other use or disclosure of the list is illegal. It should contain provisions to the same effect as the below extract from the U.S.A. FTC web site ^[10]:

"Selling or Using a Do Not Call List for Purposes Other than Compliance
It is a violation of the Rule for anyone to sell, rent, lease, purchase, or use an entity-specific Do Not Call list or the National Registry for any purpose other than complying with the Rule's Do Not Call provisions or preventing calls to numbers on such lists. This provision applies to list brokers, third-party services, and others, in addition to sellers and telemarketers. It is intended to ensure that consumers' phone numbers on Do Not Call lists and the National Registry are not misused. It is a violation of this provision for a seller to market its own entity specific Do Not Call list to another entity for use as a "do call" list.
Sellers and telemarketers (on behalf of sellers) must purchase access to the relevant Do Not Call data from the National Registry database. The Rule prohibits participating in any arrangement to share the cost of accessing the National Registry database. A telemarketer may not divide the costs to access the National Registry database among various client sellers; access for each client seller must be purchased separately. Similarly, a telemarketer may not access the National Registry to obtain Do Not Call data and transfer the data to or share it with another telemarketer."

40. While the second paragraph above may have a primary purpose of ensuring that every seller pays its share of funding the registry, in our view the provisions also assist considerably in making readily apparent the restriction on use and prohibition on disclosure of the list, that is, that no organisation that has not paid for access (other than an agency/calling centre engaged by a seller that has paid) should have the list in its possession. In some circumstances, these provisions may also assist in enforcement in relation to determining whether call/s to number/s on the list resulted from a genuine error or unlawful use or disclosure of the list.

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8. Registration on a Do Not Call Register

4.1 Who should be eligible to register numbers on a do not call register?

8.1 Individuals / Residential Subscribers

41. All individuals/residential subscribers should be permitted to register all (not only some) of their landline and mobile phone numbers on a Do Not Call Register.

42. There should not be a limit on the quantity of numbers an individual is permitted to register.

43. Further, the register administrator should not be required (or even allowed unless expressly requested) to remind individuals, either annually or at any other intervals, that they have previously chosen to have their number/s listed on the register.

44. Individuals should be able to register by at least two methods:

by calling a telephone number from the telephone number that they wish to register (similar to the phone registration service provided by the FTC in the USA);
by entering their number on a web site provided for the purpose of registration.

45. A period of 30 days (as suggested in the Discussion Paper) from an individual's registration of their number/s would be reasonable for the purpose of providing telemarketers with sufficient time to update their do not call lists. That is, telemarketers should be required to update their lists at least every 30 days. This period should not be longer than 30 days.

8.2 Small Businesses and Other Businesses

46. Telemarketing is also a problem in business, and costs businesses money in wasted staff time.

47. However, there are differences between calls to a business and calls to a home number. A business by its nature is "open for business" during business hours, and most businesses involve buying supplies and materials as well as selling their products or services. A home phone is a different matter, because the home is generally a retreat from the world of commerce.

48. EFA considers the issue of whether small business should be able to register with a Do Not Call Register is problematic because it is not apparent how any sales person could know whether a particular small/medium sized business had 20 or less employees (as proposed in the Discussion Paper). Hence it would appear that every sales person (including those employed by small businesses) who wished to make a sales call to another business (other than obviously large businesses) would need to pay to check whether the other business is on the Do Not Call Register.

49. EFA also considers the question of whether small businesses, or any other businesses/organisations, should be able to register numbers on a Do Not Call Register depends on the definition of telemarketing that would apply, that is, the type of calls that would be prohibited.

50. A business in a particular industry may not object to calls from sales people who provide products or materials used by that industry, even if there is no prior business relationship. However, staff may object to calls that are of a more general or personal nature, e.g. people promoting hotel club memberships, real estate, personal insurance etc.

51. Enabling small or any other type of business to register numbers has the potential to prohibit legitimate business practices and result in increased costs to businesses (including small businesses) that are not normally regarded as telemarketers.

52. For example, if a person selling plumbing equipment/supplies wishes to make a marketing call to a small business plumber, it appears the sales person would have to pay a fee and access the Do Not Call Register to ascertain whether the plumber's number is on the register. This issue is the same as that which had to be addressed in formulating the Spam Act 2003. However, because the Spam Act takes an 'opt in' approach it was possible to legislatively infer consent ^[11] to receive commercial messages relevant to work-related business, functions or duties of a recipient if the email address was "conspicuously published". This type of solution does not seem workable with an 'opt out' approach to telemarketing calls because almost all businesses' telephone numbers are conspicuously published in telephone directories. Hence any business (including a small business) that wished to make a sales call about a product/service relevant to another small business would have to pay to check the Do Not Call Register.

53. EFA's principle interest in Do Not Call legislation concerns the provision of protection for individuals from the onslaught of telemarketing calls to individuals' homes and mobile phones. We are concerned that the proposal to include small businesses on a Do Not Call Register seems likely to result in delay in implementation of a register and associated legislation while businesses argue about restriction of legitimate business to business practices. Accordingly, unless DCITA becomes promptly aware of a means of dealing with the business related issues referred to above, EFA submits that a Do Not Call Register should initially apply only to individuals/residential subscribers. It could be extended to businesses and other organisations at a later time after business to business issues had been further considered and appropriate solutions found.

4.2 Should mobile numbers be included on a register?

54. In these days of international travel, mobile numbers have roaming capability. This creates two problems. Firstly, designated hours for making calls are meaningless if the destination phone is located in a different time zone. Secondly, the recipient may be charged for the international component of the call.

55. In addition, incoming calls may be received in inconvenient locations such as when in a meeting, and even in dangerous locations such as when driving a vehicle. A ringing phone can be distracting, whether or not it is answered. It is not always practical to turn a phone off when in an inconvenient location, for example, when an important call is being awaited.

56. EFA considers mobile numbers should be allowed to be registered on a Do Not Call Register. However, we consider that the registry operator should provide consumer information recommending that mobile numbers not be registered unless the person is already receiving an unacceptable amount of telemarketing calls. Mobile numbers (except perhaps small business numbers) are not normally listed in directories and therefore registering them could open them to abuse because the mobile numbers on a Do Not Call Register would constitute an otherwise difficult-to-obtain list of known numbers which could be used, if the list fell into the wrong hands, including for SMS spam from countries outside the jurisdiction of Australian law.

57. Moreover it should be illegal for companies/organisations to leave unsolicited direct marketing messages or other solicitation call messages on a mobile phone message bank facility because many mobile phone users are charged a fee to access their mobile phone voice mail box. (This situation may also exist with remote access voice message banks provided by some telecommunications service providers in association with residential landline numbers.)

4.3 Should there be a limit on how many numbers can be registered overall?

58. No.

4.4 Should there be a time limit set on the period numbers remain on a register?

59. No. Numbers should not be removed from the register except at the request of the relevant subscriber. As stated in the Discussion Paper "[o]nce people indicate they do not wish to receive telemarketing calls it could be assumed that unless they request removal of their numbers from the register, they continue to wish not to receive telemarketing solicitations". EFA considers it not only could, but should, be so assumed.

4.5 Should individuals be able to register numbers on behalf of others?

60. Yes. In this regard, the Discussion Paper suggests "[t]hat subscribers could register numbers on behalf of minors and with the written permission of other individuals". Provision would also need to be made to enable registration of numbers on behalf of individuals who are not able to provide "written permission" due to physical or mental disability.

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9. Coverage/Jurisdiction

9.1 Offshore initiated calls

5.1 Should Australia attempt to regulate offshore telemarketers?

61. Yes. Calls to numbers registered on a Do Not Call Register should be prohibited if the calls have an Australian link similar to the provisions of the Spam Act 2003. EFA agrees with the remarks in the Discussion Paper that:

"Comprehensive and effective solutions to the problem of 'rogue' offshore telemarketing are embryonic and require investigation and analysis. Adopting an Australian link concept, similar to that applied under the Spam Act, for a do not call register could provide at least a partial solution to the problem by ensuring not only that telemarketers located in Australia, but also those that have links similar to those set out in the Spam Act, could be subject to do not call restrictions. That is, not only telemarketers, but companies engaging telemarketers to solicit sales on their behalf, could be required to comply with do not call legislation."

62. In addition, regulations governing the use of automated calling systems and minimum national contact standards should apply to telemarketing calls originating offshore. Such provisions would be enforceable, at the least, in relation to calls made on behalf of organisations that are located in Australia, or have assets in Australia.

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10. Coverage/types of calls prohibited

10.1 Dual purpose calls

6.4 Should calls which have dual purposes, that is, to provide information or test customer satisfaction, for example, as well as offer goods or services for sale, be prohibited to numbers on a do not call register?

63. Yes. Calls that purport not to be for the purpose of telemarketing, but have that purpose, either as a primary or other intention, should be prohibited to numbers on a Do Not Call Register.

64. This includes message, information and customer satisfaction calls, calls purporting to be "just a courtesy call", and calls offering prizes, free goods or services, the primary or other purpose of which is direct marketing.

10.2 Automated calls

6.1 Should automated calls be prohibited to numbers on a do not call register?

65. Calls made using automated dialling equipment are no less privacy intrusive, and are more annoying or distressing, than calls made by a human.

66. Greater regulation of calls made using automated calling systems is necessary than merely prohibiting automated calls to numbers on a Do Not Call Register.

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11. Regulation of Automated Calling Systems

11.1 Predictive diallers / Silent calls

6.2 Should predictive dialling calls be prohibited to numbers on a do not call register?

67. As mentioned in the Discussion Paper, predictive dialling calls (automated calls that use a computer to dial the number, then if it is answered, try to find an available telemarketer) 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.

68. While the Discussion Paper notes that "these calls are said to cause serious distress to the elderly and infirm", they also cause anxiety or unacceptable inconvenience to many other people. According to consumer survey research results ^[12] published by the U.K. Direct Marketing Association in 2005, silent calls caused 53% of the U.K. population either anxiety or unacceptable inconvenience. 22% of the public said they feel anxious when they receive a silent call and 37% said they are unacceptably inconvenienced. Anxiety was a significant issue for women - 30% of women said that they felt anxious when they received silent calls, as opposed to 11% of men. According to the report "[g]enerally older respondents feel more inconvenience than younger respondents, and anxiety about silent calls is far greater for women (30%) than for men (11%), particularly women of 16-24 years of age and those who live alone.

69. As the research report points out, recipients of silent calls experience anxiety because they do not know who is making the call and also because many do not even know that predictive diallers cause silent calls. Hence they feel anxious because "Why would anyone without malicious intent make a silent call?" and therefore fear that it is, for example, a burglar checking to see if there is anyone at home, or a stalker, or a person they have known in the past checking to see if they are still at the same address with the intent of upsetting or harassing them, etc.

70. Predictive dialling practices that result in abandoned or silent calls, whether or not made to a number on the Do Not Call Register, and whether or not the purpose of the call is telemarketing, should be made illegal in a manner substantially the same as the Discussion Paper notes is the situation in the U.S.A.^[13]. Legislation should expressly prohibit companies/organisations using predictive dialling systems from abandoning outbound telephone calls unless:

they ensure that no more than three per cent of all calls (measured per day per calling campaign) are abandoned;
they allow telephones to ring for at least 15 seconds or four rings before before disconnecting an unanswered call (this ensures the called party has reasonable time to answer a call and are not subjected to "dead air" after one, two, or three rings and minimises the number of abandoned calls that would not be counted in the percentage of abandoned calls because a person was not hung up on);
they connect calls to a live representative within one second of a person's greeting (not two seconds for the reason given below); or
in the small percentage (3%) of allowable calls when a live representative is not available to speak with a called party within one second of a call being answered, they play a recorded message which must state only the name and telephone number of the seller responsible for the call and include a brief statement of the purpose of the call e.g. that "the call was for telemarketing purposes", but must not contain a sales or other solicitation pitch. The number on the recorded message must be one which a consumer can call to place an entity specific Do Not Call request (and must be a local call, 1800 or other minimum call cost number, i.e. a number that does not result in the caller paying mobile phone, long distance, or any other potentially high call rates).
they ensure that there is a 72 hour period before a number receiving an abandoned call is called again (as Ofcom has recently announced it requires);
they maintain records documenting adherence to the above requirements.

71. We also note that the U.K. regulator Ofcom issued new regulations ^[14] on 31 October 2005 concerning the use of predictive dialling systems which are very similar to the above.

72. EFA submits that telemarketers should be required to connect calls within one, not two, seconds of consumers' greetings. The reason for this is as pointed out by Sytel Limited ^[15], a U.K. developer of call centre software including predictive dialling software:

"In the US, the FTC/FCC bowed to industry pressure in respect of answering machine detection, and decided to allow 'dead air' calls for up to two seconds beyond the end of the called party's greeting before declaring a call 'abandoned' in the absence of any agent, and obliging the caller to play a brief message. Sytel's firm view is that the US regulators did not fully appreciate the delays that can still ensue, under its two second rule. For example in practice, consumers will often extend their greeting saying "Hello...hello...hello" with less than two seconds between each hello, meaning that the allowable call delay can stretch to as much as 7 or 8 seconds. Keeping consumers waiting before connecting them to an agent is the biggest cause of nuisance in all markets, and we would not be surprised if the FCC/FTC reconsidered their ruling in due course.
Recommendation:
We believe that the UK should follow the standard of the UK DMA and set a maximum delay of one second from the time that a consumer is detected as having answered the phone, before a call is classified as abandoned. See 3(ii) below for discussion on how calls are actually abandoned following the playing of a message."

11.2 Random and Sequential Number Diallers

73. The use of random or sequential number generating/dialling systems (equipment/software) for the purpose of making telemarketing calls should be prohibited.

74. This practice results in telemarketing calls being made to people who have silent (unlisted) numbers and anecdotal evidence (from some EFA members) indicates such people are receiving an increasing number of unwanted telemarketing calls. Telemarketers often state, when asked about the source of the person's number, that it was randomly or sequentially generated.

75. Subscribers who have silent numbers have already made it quite plain that they do not want to receive unsolicited calls and many of them (e.g. Telstra customers) pay $36 per year for a silent number in the hope of being left alone.

76. Further some, possibly many, people with silent numbers will not wish to register their number with a Do Not Call Register due to the possibility of misuse of lists (such as by an exempt organisation) which could result in them receiving more unwanted calls.

77. We observe that the draft ADMA Code of Practice ^[16] (submitted to the ACCC), which would only apply to ADMA members, indicates that ADMA members are willing to comply with such a prohibition. It states:

"Members must not use random or sequential dialling equipment to generate telemarketing calls."

78. However, in our view, it is doubtful whether the above would apply to use of software that generates random or sequential number lists that can then be loaded into automated calling systems. If it does not, the restriction would not be effective.

79. EFA submits that legislation is necessary to prohibit all telemarketers from calling randomly or sequentially generated numbers.

11.3 Recorded Message / "Information" calls

6.3 Should recorded message calls, providing information only, be prohibited to numbers on a do not call register?

81. A major problem is likely to arise for individuals who register if recorded messages are not prohibited to numbers on a Do Not Call Register. The do not call list would provide telemarketers with a ready made list of numbers to which they could make recorded message calls. While such use of the list could (and should) be made illegal, it seems highly unlikely that it would be possible to know with sufficient surety for enforcement purposes whether a recorded message call to a number on the do not call list had been made as a result of illegal use of the list, or as a result of using a system that dials randomly or sequentially generated numbers.

82. Unsolicited calls delivering recorded messages should be entirely prohibited because it is quite possible that the recipients of such calls will be charged for the cost of call. The prohibition should apply to all numbers (i.e. whether or not the called number is on a Do Not Call Register) and all companies/organisations (i.e. whether or not the sender is exempt from compliance with the Do Not Call Register). Obviously an exemption would need to be applicable to recorded messages delivered in compliance with abandoned/silent call regulations referred to above.

83. The recipient is likely to be charged for the call as a result of relatively new services provided by telecommunications companies that enable subscribers to redirect calls to another number. For example, individuals may redirect their home phone number to their mobile phone while they are away from home and are charged for the cost of the call that is redirected to their mobile phone at mobile phone calling rates. Moreover, if the individual's mobile phone is switched off or out of range, the recorded message will be delivered to their mobile phone voice mail box resulting in the person called having to pay for the time used in transmitting the entire recorded message into the voice mail box because they were not available to quickly hang up on the call. Obviously transmission time may be seconds or minutes depending on the length of the recorded message.

84. While we do not know how common recorded telemarketing calls are in Australia at this point in time, they certainly are being used. For example, an EFA board member recently received an unsolicited recorded marketing message call to a fixed line that is often redirected to a mobile phone when the person is not at the fixed line address. Anecdotal evidence indicates recorded telemarketing calls are quite common in Australia and are a cause of significant consumer annoyance. They will no doubt become more frequent unless prohibited.

85. It should be noted that regulation of predictive dialling equipment as discussed earlier herein would prohibit recorded message calls because the called party would not be connected to a live representative within one second of the called party's greeting. For the same reason, it would also prohibit calls that deliver recorded announcements and then tell the recipient to press "X" to claim their "lucky prize", etc, before they are connected to a live representative.

86. Unsolicited recorded marketing calls have already been prohibited in the UK (and we assume throughout the EU) and in the USA.

UK:

"Under The Privacy and Electronic Communications (EC Directive) Regulations 2003 (the '2003 Regulations') it is an offence to use automated calling systems to make direct marketing calls which do not consist of live speech unless the called person has previously notified the caller that for the time being they consent to such communications being sent. An example of such a call is a recorded message for marketing purposes where no operator is present."^[17]

USA:

87. As the FTC states on its web site ^[18]:

"The use of prerecorded message telemarketing, where a sales pitch begins with or is made entirely by a prerecorded message, violates the TSR because the telemarketer is not connecting the call to a sales representative within two seconds of the person's completed greeting."

88. In addition, the FCC also regulates telemarketing and points out on its web site ^[19] that:

"Calls using artificial or prerecorded voice messages - including those that do not use autodialers - may not be made to residential telephone numbers except in the following cases:

emergency calls needed to ensure the consumer's health and safety;
calls for which you have given prior consent;
non-commercial calls;
calls which don't include or introduce any unsolicited advertisements or constitute telephone solicitations;
calls by, or on behalf of, tax-exempt non-profit organizations; or
calls from entities with which you have an established business relationship.

In addition, the FCC's rules prohibit the use of autodialers in a way that ties up two or more lines of a multi-line business at the same time.
All artificial or prerecorded telephone messages must state, at the beginning, the identity of the business, individual, or other entity that is responsible for initiating the call. If a business is responsible for initiating the call, the name under which the entity is registered to conduct business with the State Corp. Commission (or comparable regulatory authority) must be stated. During or after the message, the caller must give the telephone number (other than that of the autodialer or prerecorded message player that placed the call) of the business, other entity, or individual that made the call. It may not be a 900 number or any other number for which charges exceed local or long distance transmission charges.
Autodialers that deliver a recorded message must release the called party's telephone line within 5 seconds of the time that the calling system receives notification that the called party's line has hung up."

89. In our view the only exceptions to a prohibition on unsolicited recorded message calls should be to permit recorded messages delivered in compliance with abandoned/silent call regulations, and to permit emergency calls that are necessary with the sole objective of ensuring the consumer's health and safety.

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12. Exemptions

7.1 Should exemptions to the prohibition on calling numbers listed on a do not call register be permitted?
7.4 If you think exemptions should not be permitted to the prohibition on calling numbers listed on a do not call register, why do you oppose granting all/some/particular exemptions?

90. As stated earlier herein, EFA considers that at this point in time a Do Not Call Register should apply to direct marketing calls. In our view, no organisations/companies should be exempt from compliance with a Do Not Call Register when making direct marketing calls. The risk of misuse of the register would be exacerbated if some types of organisations are exempt. Other reasons for opposing the suggested exemptions are below.

7.5 If you think exemptions should be permitted do you think existing business relationships should be exempted?

91. No. One purchase should not subject consumers to unsolicited direct marketing calls from that business. Furthermore, the Discussion paper suggests:

"Existing business relationships could be defined as those which involve companies and individuals who have purchased goods or services from a company in a period of 12 months prior to telemarketing approaches, or individuals who have made inquiries regarding goods or services in a period of three months prior to telemarketing approaches. For example, a consumer of computer equipment may wish to receive information on new updates available for purchase or on potential problems."

92. While this suggestion may sound reasonable at first glance, in practice it would result in consumers been harassed by unwanted calls from businesses for significantly longer than 12 months and also by businesses with which they have only had a tenuous "existing" relationship. For example, it would allow:

providers of services such as electricity, gas, telecommunications, banking, insurance, etc. to telemarket to customers forever, or for 12 months after a consumer had cancelled their account due to e.g. dissatisfaction with the service or cost of the service (to try to convince the person to switch back to that service);
hotels/accommodation chains to telemarket to persons who have stayed at a hotel for even only one night for 12 months thereafter;
airlines to telemarket to persons who travel by air infrequently, e.g. only once on a holiday, for 12 months thereafter;
etc.

93. Further, consumers should certainly not be subjected to telemarketing for 3 months after they have merely made an inquiry about a product or service.

94. It should also be noted that consumers are subjected to unwanted telemarketing calls on behalf of businesses with whom they have an existing relationship offering to sell them the same services that they already pay that business to receive. This is particularly common in the telecommunications industry and probably also in industries providing credit cards, insurance, etc. These calls are generally more annoying than calls offering services that one does not already receive. However, if "existing relationships" are exempt from compliance with Do Not Call Register provisions, persons registered would not be able to lodge complaints about the foregoing types of highly annoying calls. This is likely to result in the register and related enforcement measures being regarded as inadequately effective.

95. We note that in the U.K. businesses are not permitted to telemarket to their own customers who have registered with the Telephone Preference Service (do not call register)^[20], unless the customer has advised the business that they do not object to calls from that business.

96. Businesses should not be permitted to telemarket to customers who have registered with the Do Not Call Register, unless the customer has informed the business that they consent to receiving telemarketing calls. Businesses are quite capable of asking customers whether or not they consent to direct marketing approaches from the business at the time the customer purchases goods or enters into a contract for provision of services.

97. Further, with regard to the Discussion Paper's suggestion that:

"Consumers could also request in writing that companies with which they have established business relationships cease to contact them for telemarketing purposes."

98. we draw to attention that NPP2.1(c) of the Privacy Act 1988 already requires companies (other than exempt small businesses) to give effect to a request by a customer not to receive direct marketing communications. That Act does not require the customer to make such a request "in writing" and any legislation implementing a Do Not Call Register must not reduce individual's existing rights in this or any other regard.

7.6 Should this exemption also apply to affiliates or subsidiaries of companies with whom people have existing relationships?

99. No. An exemption should not apply to affiliated, related, subsidiary or parent companies, because as the Discussion Paper notes, "in many cases, products produced by those companies may bear no similarity to the products consumers have purchased or inquired about when forming business relationships with parent or associated companies".

100. Purchasing goods or services from one business should certainly not subject consumers to telemarketing from other businesses.

7.7 Should exemptions be granted to charities?

101. No. Charities should not be permitted to make unsolicited direct marketing calls to numbers on a Do Not Call Register. In relation to other unsolicited calls made by charities, e.g. seeking donations, charities should be required to comply with regulations governing the use of automated calling systems and with minimum national contact standards including honouring do not call requests.

102. Charities should not be exempt from having to comply with regulations requiring them to honour do not call requests made to them or to organisations calling on their behalf. As the Discussion Paper notes, the U.K. Do Not Call Register applies to charities, and in Canada the CTRC requires telemarketers to keep lists of individuals who request not to be contacted by their organisations, including solicitation of donations by, or on behalf of, charitable organisations. In the U.S.A. the FTC apparently does not have authority to regulate charities (non-profit organisations) but do have authority to regulate for-profit companies that make telephone calls seeking charitable donations on behalf of charities. While the FTC has determined to exempt these entities (telefunders) from the national do not call registry requirements, the FTC requires telefunders to honor a person's request not to be called on behalf of a particular charitable organisation ^[21].

7.8 Should exemptions be granted to religious organisations?

103. No. We note the Discussion Paper states: "In favour of this exemption: Religious organisations provide valuable support and community services as well as moral guidance and need to use a variety of means to raise funds".

104. EFA considers that whether or not a particular religious organisation provides "valuable" services and moral guidance is a matter of opinion. Further, some religious organisations that try to sell their publications (and convert people to their point of view) via doorknocking campaigns are particularly obnoxious because they refuse to respect individuals' explicit and repeated instructions not to contact them again. While EFA does not know whether these organisations also engage in telemarketing, their refusal to respect individuals' wish to to left alone would be no less obnoxious if solicitations were made by telephone.

105. Religious organisations should not be exempt from Do Not Call Register requirements in relation to direct marketing calls, and in relation to other solicitation calls, e.g. seeking donations, they should be required to comply with regulations governing the use of automated calling systems and with minimum national contact standards.

7.9 Should exemptions be granted to educational institutions? ["limited exemption for students and alumni"]

106. No. As the Discussion Paper states "[g]enerally, public educational institutions qualify as organisations which do not sell tangible goods and services". If any particular educational organisation sells goods and services they should not be exempt from prohibition on telemarketing to numbers on a Do Not Call Register. Further, while the Discussion Paper suggests a limited exemption could apply in relation to students and alumni, educational institutions are quite capable of seeking consent to telemarket to students and alumni or to call them for any other solicitation purpose.

7.10 Should exemptions be granted to government bodies?

107. No. Legislation implementing a Do Not Call Register should prohibit direct marketing calls (or at most also some other solicitation calls). Such legislation would not prevent government being "able to provide information on important issues such as changes to legislation that may affect citizens", nor government bodies being able to use telephone contact "to provide information to citizens". Hence, there would be no reason for an exemption to be granted to government bodies.

108. However, government bodies should not be permitted to force people to receive information by telephone (e.g. recorded messages) that they do not wish to receive. Accordingly, unsolicited calls by government bodies should be regulated in a manner requiring them to comply with regulations governing the use of automated calling systems and with minimum national contact standards including respecting an individual's request not to be called again.

7.11 Should exemptions be granted to registered political parties and registered political candidates?

109. No. Legislation implementing a Do Not Call Register should prohibit direct marketing calls (or at most also some other solicitation calls). Such legislation would not prevent political parties and candidates being able to "provide citizens with valuable information they can use to inform their voting behaviour". Hence, there would be no reason for an exemption to be granted to political parties and candidates.

110. However, political parties and candidates should not be permitted to force people to receive information by telephone (e.g. recorded messages) that they do not wish to receive. Accordingly, unsolicited calls by political parties and candidates should be regulated in a manner requiring them to comply with regulations governing the use of automated calling systems and with minimum national contact standards including respecting an individual's request not to be called again.

7.12 Should exemptions be granted to market researchers undertaking social research?

111. As stated earlier herein, we are of the view that legislation implementing a Do Not Call Register should prohibit dual purpose calls to numbers on the register. Among other things, this would make it unlawful for telemarketers to call a number on the register claiming to be undertaking "research" and then move on to soliciting sales, or advertising or promoting goods, services, etc. If such dual purpose calls are prohibited, then there would be no need to exempt (genuine) market and social researchers from compliance with Do Not Call Register applicable to direct marketing calls because it would not be applicable to their calls.

112. We observe that the definition of "market and social research" in the Market & Social Research Privacy Principles issued by the Association of Market and Social Research Organisation's ("AMSRO")^[22] states:

"market and social research means investigation of the behaviour, needs, attitudes, opinions, motivations or other characteristics of a whole population or a particular part of a population, in order to provide accurate and timely information to clients (government, commercial and not-for-profit organisations) about issues relevant to their activities, to support their decisionmaking processes. ... Market and social research differs from other forms of information gathering in that the information is not used, disclosed nor transferred either to support measures or decisions with respect to the particular individual, or in a manner that results in any serious consequence (including substantial damage or distress) for the particular individual. Any information gathering activity in which the names and contact details of the people contacted are to be used for sales, promotional or fundraising activities or other non-research purposes (e.g. debt collection, credit rating) directed at the particular individual can under no circumstances be regarded as market and social research. In addition, any activity that attempts to impart information to individuals rather than collect information from individuals (e.g. push polling) can under no circumstances be regarded as market and social research."

113. In our view, researchers undertaking market research or social research as defined above should be required to comply with regulations governing the use of automated calling systems and with minimum national contact standards including maintaining their own opt out/do not call register and respecting an individual's request not to be called again.

114. In addition, we consider that callers undertaking research should be specifically required to inform a called party, at the commencement of a call, whether or not the Privacy Act 1988 applies to information they will collect during the call, and if not the name of the client organisation irrespective of whether the Privacy Act 1988 arguably enables them to refuse to provide such information. In this regard we observe that the Privacy Guidelines for Qualitative Research^[23] issued by the Association of Market and Social Research Organisation's ("AMSRO") state:

"There are certain exemptions to the Privacy Act and these exemptions extend to the privacy principles developed by industries. For example, subcontractors to a political party or Member of Parliament are exempt from the Privacy Act, and thus if your research organisation is carrying out research as a subcontractor to a political party or Member of Parliament it will be exempt from the M&SRPPs. (This is regardless of any decision to opt into the M&SRPPs and out of the NPPs.) Therefore, it will not, among other things, be obliged to reveal the details of the organisation for which it is conducting the research. If research participants enquire as to the details of undertakings relating to privacy, they can be informed that the organisation for which your organisation is contracted is exempt from the Privacy Act."

115. Hence, according to the above, when the researcher's client is a political party or politician, the called party is provided with no privacy protection at all because the contracted researcher does not comply with the NPPs nor the industry privacy code. EFA therefore considers researchers should be required to disclose, at the beginning of a call, whether or not the researcher/organisation and their client are required to comply with the Privacy Act 1988 in relation to information given to them by the called party.

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13. Administration

8.1 Should the Australian Communications and Media Authority directly administer a do not call register?
8.2 Should operation of a do not call register be awarded after a tender process?

116. The Australian Communications and Media Authority ("ACMA") should directly administer and operate a Do Not Call Register.

117. We note the Discussion Paper suggests:

"While ACMA, or some other body would retain oversight of the do not call function, it may be more efficient to tender out the operation to organisations that have experience and background in the operation of database registers."

118. We are strongly opposed to a Do Not Call Register being operated by any entity other than a government regulatory authority. Further, we expect that respondents to a tender would most likely be the Australian Direct Marketing Association and commercial organisations involved in data matching and/or direct marketing. We strongly object to any such organisations having any involvement in the operation of a government mandated Do Not Call Register.

119. "Operation of database registers" of the type that would be necessary (such as operated by the FTC) is not "rocket science" and in our view the ACMA's implementation of web site spam reporting and related systems (including user registration) strongly indicates that they already have relevant expertise either in-house or available to them on contract.

8.3 What specific tasks should be entrusted to an administrator?

120. The proposed registry operator functions listed in the Discussion Paper (page 25) should be undertaken by the ACMA, not outsourced to another entity. The vast majority of these functions concern encouraging compliance, informing consumers about their rights, dealing with complaints and reporting to the Minister, all of which in our view should be undertaken by the regulator. Further it would be completely inappropriate to require individuals to have to make complaints in the first instance to a marketing industry body (for example, the ADMA) and to have an industry body adjudicating on disputes regarding what constitutes sales, advertising, or promotional information, or dual purpose calls, etc.

121. With regard to registration, we note the Discussion Paper suggests that the operator's website could "provide individuals and small businesses with the opportunity to register phone numbers online" but does not propose any other means of registering. It is essential that other means of registering also be provided, in particular, that individuals should be able to register by calling a telephone number (provided by the administrator/registry operator) from the telephone number that they wish to register. This service should be an automated service that places the calling number on the Do Not Call Register (as is provided in the U.S.A. by the FTC).

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14. Enforcement

8.4 What specific tasks should be entrusted to an enforcement body?

122. The ACMA should also be responsible for enforcement of the related legislation. The ACMA is, in our view, the most appropriate enforcement body for the same reasons as suggested in the Discussion Paper. We do not consider that the Office of the Federal Privacy Commissioner or the Australian Consumer and Competition Commission to be an appropriate enforcement body. Further, we expect the ACMA would be in the best position to undertake enforcement action as it already has significant relevant experience gained from its administration and enforcement of the Spam Act 2003.

123. The ACMA's enforcement role should be substantially the same as its role in relation to the Spam Act 2003 including, as set out in the Discussion Paper, to:

"investigate suspected non compliance with do not call legislation;
initiate one or a number of enforcement options to ensure compliance with the legislation, including:
- providing advice;
- providing cautionary warnings;
- issuing infringement notices; or
- undertaking court proceedings."

8.5 What penalties should apply?

124. Pecuniary penalties payable should be at least the equivalent of those payable under the Spam Act 2003, including higher penalties for offenders with a prior record.

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15. Fees and funding

9.1 Should the telemarketing industry solely fund a do not call register?
9.2 Should the telemarketing industry primarily fund a register?

125. EFA considers the telemarketing industry should either fully or partially fund a register. If the anticipated costs of establishing, maintaining and operating the register are considered by the government to result in unreasonably high charges to telemarketers, then it should be partially funded by the government.

9.3 Should individuals and small businesses be expected to pay a small fee to be included on a register?

126. Absolutely not. As stated in the Discussion Paper "There is a strong case that individuals and small businesses should not have to pay to have their numbers incorporated on a register. It is not considered appropriate that people should have to pay to remove themselves from participating in a marketplace not of their own choosing."

127. Equally, people should not have to pay to have an unlisted (silent) number.

9.4 How should fees to access a register be set?

128. Fees should be structured in a similar manner to the FTC fees. In particular, an annual fee should be charged so that organisations are not discouraged from frequently accessing the register to update their own lists, as would be the situation if there was a fee based on the number of times the register was accessed. In addition, sections of the register based on area codes should be available for annual fees based on the number of sections required, as fees structured in this way will discourage downloading of the entire Do Not Call Register and therefore assist in reducing the potential for misuse.

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16. Minimum National Contact Standards

10.1 Should minimum national contact standards apply to all telemarketing approaches?
10.2 What are the appropriate rules for information disclosure?
10.3 Are there any other standards that should apply to telemarketers?

129. Yes, in addition to a national Do Not Call Register, minimum national contact standards should be imposed on the telemarketing industry, and exempt organisations if any (as stated above, EFA does not consider any organisations should be exempt from compliance with a Do Not Call Register that is applicable to direct marking calls).

130. In our view minimum national standards would, as suggested in the Discussion Paper, provide certainty to organisations that operate in a variety of Australian jurisdictions, and we consider it would therefore be more likely to result in compliance. We are also of the view that clear national minimum standards would be of assistance to consumers in deciding whether or not to list their numbers on a Do Not Call Register.

131. The standards should apply to all solicitation calls to individuals (residential and mobile numbers) made by or on behalf of all companies and organisations. Solicitation calls include, but are not limited to:

calls soliciting money, e.g. donations, etc.
calls soliciting goods, e.g. second hand clothing, household goods, etc.
calls soliciting information, e.g. market research, social research, voting intentions, etc.

132. The standards should include the following requirements:

organisations may only call individuals/consumers between 9am and 8pm Mondays to Fridays, 9am and 5pm Saturdays and not on Sundays or any public holiday;
organisations must maintain their own do not call lists and honour do not call requests as detailed in Section 6 earlier herein.
organisations must, at the commencement of a call, disclose the name of the organisation calling, and if it is an agency calling on behalf of a client organisation, also the name of the client organisation, and if requested, the address and phone number of the agency and/or client organisation as applicable;
organisations must, if requested, inform the called party of the source from which their number was obtained;
organisations must not contact an individual or number more than once in once in any 30 day period, for the same or similar campaigns;
organisations must refrain from blocking caller line identification;
organisations must terminate calls promptly at the request of persons being called, and also must release telephone lines within five seconds of the called party hanging up.

17. Inclusion/Exclusion of facsimile

2.1 Should a do not call register address direct marketing approaches by facsimile?

133. We note the Discussion Paper states that:

"As a result of objections raised by business, the Spam Act does not cover commercial messages sent via facsimile but has the capacity to do so. A review of the Act to be undertaken before April 2006 will reconsider whether facsimile transmissions should be covered by the legislation. For this reason, discussion of a 'do not call' register will not address telemarketing by facsimile."

134. Since the commencement of the Spam Act 2003, unsolicited direct marketing facsimile transmissions have commenced being received at EFA's facsimile number. It appears this may be an effect of the prohibition on sending unsolicited commercial email messages.

135. EFA considers the sending of unsolicited advertising messages via facsimile should be made illegal in the absence of express prior consent of the recipient. Facsimiles result in costs to the recipient in use of paper and toner/ink. Furthermore, the intrusion/annoyance cannot even be effectively stopped by quickly disconnecting the call because most facsimile machines are configured to automatically re-dial at least twice after an unsuccessful transmission.

136. Accordingly, EFA considers legislation prohibiting the sending of unsolicited commercial facsimile messages is now necessary. However, we consider such messages should be regulated in substantially the same way as commercial electronic messages under the Spam Act 2003 i.e. generally opt-in to receive, not under provisions relating to an opt-out Do Not Call Register.

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18. Conclusion

137. Increased government regulation of the telemarketing industry is necessary to provide consumers with relief from the intrusion and annoyance of unsolicited calls. Due to the nature of the industry, market competition does not provide consumers with options or choice and industry self-regulation has demonstrably failed.

138. A regulatory regime comprising the following components should be implemented in the first instance:

Legislation establishing a Do Not Call Register, and associated compliance enforcement mechanisms, applicable to calls that have a purpose, whether or not the sole purpose, of direct marketing, that is, where prohibited calls are defined in a substantially similar way to prohibited commercial electronic messages in the Spam Act 2003;
Legislation applicable to all companies and organisations when making solicitation calls, including any companies or organisations that would be exempt from the Do Not Call Register provisions and whether or not the calls have a "direct marketing" purpose (i.e. also applicable to calls soliciting donations, or information such as survey responses, etc):
- regulating the use of predictive dialling equipment; prohibiting calls to randomly or sequentially generated numbers; and prohibiting unsolicited recorded message calls.
- imposing minimum national "contact" standards including:
  - requiring companies and organisations to maintain their own do not call lists; enable individuals to opt out of receiving unsolicited calls made by or on behalf of the particular organisation/company; and comply with an individual's do not call request;
  - regulating hours during which calls may be made, information which must be provided by the organisation/company, requiring termination of calls on request, etc.
A requirement that telecommunications service providers must not charge residential subscribers for a silent/unlisted number (in order to enable individuals who do not wish to receive any types of solicitation calls to have a means of avoiding same without paying for the "privilege".)

139. A regulatory regime of the above type should be reviewed within two years of implementation (including by way of public consultation) to ascertain whether consumers have been adequately protected. If not, significantly stronger protections would then need to be implemented depending on the situation. For example, application of the Do Not Call Register to other types of solicitation calls, or prohibiting direct marketing and possibly other solicitation calls without express prior consent of consumers.

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19. References

1. Discussion Paper: Introduction of an Australian Do Not Call Register, Department of Communications, Information Technology and the Arts, October 2005.
<http://www.dcita.gov.au/tel/do_not_call>

2. Privacy Act 1988
<http://scaleplus.law.gov.au/html/pasteact/0/157/top.htm>

3. Spam Act 2003
<http://www.austlii.edu.au/au/legis/cth/consol_act/sa200366/>

4. Who's Who of ADMA members, Australian Direct Marketing Association web site (accessed 25 November 2005)
<http://www.adma.com.au/asp/index.asp?pgid=2030>

5. The Elimination of Silent Calls Caused by Predictive Dialers, Sytel Limited, February 2004.
<http://www.sytelco.com/silentcalls/ The%20Elimination%20of%20Silent%20Calls%20Caused%20by%20Predictive%20Dialers.pdf>

6. EFA submission in response to the ACA's discussion paper Who's Got Your Number?: Regulating the Use of Telecommunications Customer Information, 14 May 2004.
<http://www.efa.org.au/Publish/efasubm-aca-ipnd.html>

7. Spam Act 2003, Section 6.
<http://www.austlii.edu.au/au/legis/cth/consol_act/sa200366/s6.html>

8. For more detail see Sections 6.1.4 and 6.3.1 of EFA submission to the Review of the Private Sector Provisions of the C'th Privacy Act 1988 undertaken by the Office of the Federal Privacy Commissioner ("OFPC"), 22 December 2004.
<http://www.efa.org.au/Publish/efasubm-slcrc-privact2004.html>

9. Frequently Asked Questions - (USA) Do Not Call Register, Experian (accessed 25 November 2005).
<http://www.experian.com/donotcall/faqs.html#27>

10. Complying with the Telemarketing Sales Rule - Selling or Using a Do Not Call List for Purposes Other than Compliance, Federal Trade Commission (USA), (accessed 25 November 2005).
<http://www.ftc.gov/bcp/conline/pubs/buspubs/tsrcomp.htm>, Archived at <http://web.archive.org/web/20071026124223rn_1/www.ftc.gov/bcp/conline/pubs/buspubs/tsrcomp.shtm>.

11. Spam Act 2003, Schedule 2.
<http://www.austlii.edu.au/au/legis/cth/consol_act/sa200366/sch2.html>

12. Report on Silent Calls Research 2005, The Direct Marketing Association (UK), February 2005.
<http://www.dma.org.uk/_Attachments/Resources/1320_S4.pdf>

13. Complying with the Telemarketing Sales Rule - Call Abandonment (and Safe Harbor), Federal Trade Commission (USA), (accessed 25 November 2005).
<http://www.ftc.gov/bcp/conline/pubs/buspubs/tsrcomp.htm>, Archived at <http://web.archive.org/web/20071026124223rn_1/www.ftc.gov/bcp/conline/pubs/buspubs/tsrcomp.shtm>.

14. Statement of policy on the persistent misuse of an electronic communications network or electronic communications service - Consultation Document, Office of Communications (Ofcom) U.K., 31 October 2005.
<http://www.ofcom.org.uk/consult/condocs/misuse/misuse.pdf>

15. See note 5.

16. Draft Direct Marketing Code of Practice, Australian Direct Marketing Association (ADMA), September 2005.
<http://www.accc.gov.au/content/trimFile.phtml?trimFileName=D05+62052.pdf &trimFileTitle=D05+62052.pdf&trimFileFromVersionId=714872>

17. See note 14.

18. See note 13.

19. Unwanted Telephone Marketing Calls - FCC Consumer Facts, Federal Communications Commission (USA), 11 October 2005 (10/11/05).
<http://www.fcc.gov/cgb/consumerfacts/tcpa.html>

20. U.K. Telephone Preference Service (do not call register), Frequently Asked Questions.
<http://corporate.mpsonline.org.uk/TPSC/html/FAQ.asp>

21. See note 13.

22. Market & Social Research Privacy Principles, Association of Market and Social Research Organisation, 1 September 2003.
<http://cms.amsro.com.au/files/pdfs/MSRPPs.pdf>

23. Privacy Guidelines for Qualitative Research, Association of Market and Social Research Organisation, undated (accessed 25 November 2005).
<http://cms.amsro.com.au/files/pdfs/Guidelines_qualitative.pdf> (PDF file date 21/11/2003)

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20. 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 ten 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 rights of users of the Internet and other telecommunications and computer based communication systems. EFA has presented written and oral testimony to Parliamentary Committee and government agency inquiries into numerous Internet and telecommunications related matters, including amendments to the Privacy Act 1988 (Cth) to cover the private sector, telecommunications interception laws, censorship, cybercrime, spam, copyright, etc. 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 Privacy and Security Working Group convened by the Australian Communications and Media Authority ("ACMA") (2003-2005), and the Australian Communications Authority's Consumer Consultative Forum meeting (April 2005).

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Updated: 23 April 2009, linked missing ftc.gov addresses to Internet Archive pages.

EFA Site Navigation:

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Submission

Introduction of an Australian Do Not Call Register

Contents:

1. Executive Summary

2. Introduction / Overview

3. Type of Scheme

3.1 Do Not Call Register

3.2 Opt in / Opt out

4. Regulation of Direct Marketing Calls

4.1 Definition of Direct Marketing/Commercial Calls

5. Regulation of Other Solicitation Calls

6. Rights to Opt Out of Direct Marketing and Other Solicitation Calls

7. Access to, Use and Disclosure of a Do Not Call Register

8. Registration on a Do Not Call Register

8.1 Individuals / Residential Subscribers

8.2 Small Businesses and Other Businesses

9. Coverage/Jurisdiction

9.1 Offshore initiated calls

10. Coverage/types of calls prohibited

10.1 Dual purpose calls

10.2 Automated calls

11. Regulation of Automated Calling Systems

11.1 Predictive diallers / Silent calls

11.2 Random and Sequential Number Diallers

11.3 Recorded Message / "Information" calls

12. Exemptions

13. Administration

14. Enforcement

15. Fees and funding

16. Minimum National Contact Standards

17. Inclusion/Exclusion of facsimile

18. Conclusion

19. References

20. About EFA

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