Explanatory Statement

 

Issued by the authority of the Australian Communications and Media Authority

TELEMARKETING AND RESEARCH CALLS INDUSTRY STANDARD VARIATION 2011(No.1)

Telecommunications Act 1997

Background, purpose and legislative basis

This document provides an explanation of the Telemarketing and Research Calls Industry Standard Variation 2011(No.1) (the Telemarketing Standard Variation) made under subsection 130 (1) of the Telecommunications Act 1997 (the Telecommunications Act).

Subsection 125A(1) of the Telecommunications Act requires the Australian Communications and Media Authority (ACMA) to determine an industry standard to apply to the telemarketing industry.  This is in addition to the obligations placed on telemarketers by the Do Not Call Register Act 2006 (DNCR Act). 

On 22 March 2007, the ACMA made the Telecommunications (Do Not Call Register) (Telemarketing and Research Calls) Industry Standard 2007 (the Telemarketing Standard).  A minor variation was made to the Telemarketing Standard on 29May 2007 by the Telecommunications (Do Not Call Register) (Telemarketing and Research Calls) Industry Standard Variation 2007 (No. 1).  Further minor variations were made to the Telemarketing Standard on 27 September 2010 by the Telecommunications (Do Not Call Register) (Telemarketing and Research Calls) Industry Standard Variation 2010 (No.1), reflecting the amendments made to the DNCR Act on 18 May 2010.

The Telemarketing Standard, among other things, sets out the times at which telemarketing calls and research calls can be made, the information that must be provided when making such a call, and the circumstances in which a telemarketing call must be terminated.

Review of the Telemarketing Standard

There is no legislative requirement for a review of the Telemarketing Standard, however under section 5 of the Telemarketing Standard (which regulates the times and days when telemarketing and research calls can be made) there is a note which states “ACMA intends to review the operation of section 5 as soon as practicable after the end of 12 months after the industry standard commences’ (31 May 2007).  In October 2008, the ACMA informed stakeholders that a review of section 5 of the Telemarketing Standard was to be delayed until 2010. 

The ACMA commenced the review (incorporating the intended review of section 5) of the Telemarketing Standard on 1 December 2010.  It was considered the review would provide a valuable opportunity to assess if the Telemarketing Standard was meeting community and industry expectations in relation to the making of telemarketing and research calls.

 

 

Consultation

On 7 December 2010, in accordance with the requirement to consult under section 132 of the Telecommunications Act, the ACMA released a discussion paper Review of the Telemarketing Industry Standard for public consultation. The ACMA received 34 submissions from a variety of sectors in the community including private citizens, public authorities, banking and finance, charities, members of the telemarketing industry, social and market research organisations, consumer representative organisations and small business.

There was consensus among submitters that sections of the Telemarketing Standard require redrafting as they are confusing. Redrafting would provide clarity for both industry and consumers, and would help make the standard more effective for enforcement purposes.

In May 2011, the ACMA released a second discussion paper, Proposed revisions to the Telecommunications (Do Not Call Register) (Telemarketing and Research Calls) Industry Standard 2007. It provided a summary of the submissions received in response to the first discussion paper, findings and other information to assist in considering the proposed revision of the Telemarketing Standard and sought comment on the proposed revisions. The ACMA received 30 submissions from private citizens and consumer representative organisations, telemarketers (including marketing and social researchers) and telemarketing industry representative bodies.

As required by Part 6 of the Telecommunications Act, the ACMA also consulted with the Australian Competition and Consumer Commission, the TIO, the Office of the Privacy Commissioner, consumer bodies and each of the States and Territories.

The second discussion paper proposed five main amendments to the standard.

1.      Renaming the standard

It was proposed to rename the standard the Telemarketing and Research Calls Industry Standard 2007. This proposal was broadly supported by submissions.

2.      Time at which telemarketers can contact consumers

Revisions were proposed to section 5 of the Telemarketing Standard which would have the effect of reducing the time that telemarketers can contact consumers on Saturdays and Sundays, such that calls could not be made before 10 am, instead of 9 am.

This proposal was not generally supported and this amendment has not been pursued in the Telemarketing Standard Variation.

3.      Provision of information

Revision of the existing section 6 and the addition of further sections 6A, 6B and 6C were suggested with the aim of clarifying the existing requirements for the provision of information during telemarketing calls. In addition it was proposed to reduce the time that telemarketers have to inform call recipients of certain information from 30 days to seven days. This time frame applies to the following information:

·         where the telemarketer obtained the call recipient’s telephone number

·         the name of the person the call was intended for (if applicable)

·         the name and contact details of any organisation that provided the information to the person calling (if applicable).

This proposal was generally supported by the majority of submissions.

4.      Terminating a telemarketing call

It was proposed that subsection 7(2) be amended to rectify a minor drafting error and to reduce confusion about when a telemarketer must terminate a call.

5.      Calling line identification (CLI)

It was proposed that a new subsection 8(2) be added to the Telemarketing Standard to ensure that not only are telemarketers required to enable CLI but that they must make reasonable efforts to ensure that the CLI number displayed is suitable for return telephone contact by a call recipient.

Submissions generally supported the proposed revision with minor redrafting of the CLI definition.

Regulatory impact

 On 9 May 2011 the Office of Best Practice Regulation agreed with the preliminary assessment that no Regulation Impact Statement would be required in relation to these changes and provided advice of this effect (ID 12621). Accordingly, no Regulation Impact Statement is required for the Amending Variation.

Notes on the instrument

Section 1 – Name of Variation

Section 1 provides that the Telemarketing Standard Variation is the Telemarketing and Research Calls Industry Standard Variation 2011(No.1)

Section 2 – Commencement

Section 2 sets out that the Telemarketing Standard Variation commences on the day after it is registered.

Section 3 – Amendment of Telecommunications (Do Not Call Register) (Telemarketing and Research Calls) Industry Standard 2007

Section 3 provides that Schedule 1 amends the Telemarketing Standard.

Schedule 1                      Variation

[1]            Section 1

Item 1 renames the Telemarketing Standard as the Telemarketing and Research Calls Industry Standard 2007. The changed name more clearly sets out what the instrument is about and to whom it applies.

[2]            Section 1, excluding heading

Item 2 substitutes ‘This industry standard is the Telecommunications (Do Not Call Register) (Telemarketing and Research Calls) Industry Standard 2007’ with ‘This industry standard is the Telemarketing and Research Industry Standard 2007’ to ensure  consistency in the use of the new name.

[3]            Subsection 3(1)

Item 3 adds a definition of the ACMA into the Telemarketing Standard to ensure the acronym is understood when used in the Telemarketing Standard.

[4]            Subsection 3(1)

Item 4 removes the definition of call operator and inserts a new definition of calling line identification. The definition of call operator has been removed as, due to the revised wording of the requirements in section 6 and 7, the expression is no longer used in the Telemarketing Standard.

The term ‘calling line identification’ is used, but not defined, in the Telecommunications Act and is a technical term that is well understood within the telecommunications industry. However, including a definition of this term will ensure that the meaning of calling line identification in section 8 of the Telemarketing Standard is understood by all telemarketers and consumers.

[5]            Subsection 3(1)

Item 5 adds a note after the definition of voice call, explaining that the definition of voice call, contained in section 4 of the DNCR Act includes, among other things, a call that involves a recorded or synthetic voice.

During consultation it became clear that the application of the Telemarketing Standard to calls made using recorded or synthetic voices was not well understood by members of the public and industry. The addition of this note makes it clear that the definition of ‘voice call’ in the DNCR Act, incorporated into the Telemarketing Standard, explicitly extends to these kinds of calls.

 [6]           Subsection 3(2) and subsection 3(3)

                 Item 6 removes redundant references to the expression ‘call operator’ wherever occurring. 

[7]            Section 4

Item 7 corrects the note to section 4 of the Telemarketing Standard to ensure it more accurately reflects that the standard applies to attempts to make calls.

[8]            Subsection 5(1)

Item 8 makes a minor amendment to subsection 5(1) of the Telemarketing Standard to ensure that it is clear that the prohibition on calling during the specified prohibited times is subject to the conditions in both subsection 5(3) and subsection 5(5).

Subsection 5(3) extends prohibited calling times so that no telemarketing calls, including research calls, may be made on the listed national public holidays or a holiday on a weekday given in lieu of a national public holiday.

Subsection 5(5) allows for calls to be made outside the prohibited calling times if the relevant telephone account-holder or their nominee has given consent in advance to receiving a call at the time or day at which the call is made or attempted to be made.  In this regard the Telemarketing Standard is not intended to inconvenience consumers by preventing them from consenting or requesting to calls outside the generally permitted hours. For example, if a telemarketer called on a weekday when the call recipient  was having dinner, the call recipient may request that the caller terminate the call but also agree to the caller making another telemarketing call after 8pm. However, if required by the ACMA, the caller must demonstrate that consent was obtained and the call was made at the time arranged by consent. For example, a caller may cause records to be made of these matters.

 [9]           Paragraphs 5(2)

Item 9 omits the words ‘subsection (3)’, substitutes the words ‘subsections (3) and (5)’ for the reason provided above in relation to item 8.

[10]      Subsection 5(3)

Item 10 omits the words ‘(2) (a) to (d)’, substitutes the words ‘(2) (a) to (f), and subject to subsection (5)’ to correct a minor drafting error and for the same reasons provided in relation to item 8.

[11]          Subsection 5(3)

Item 11 inserts a note to the subsection to clarify that

callers are not prohibited from making or attempting to make calls on a State or Territory public holiday, unless the State or Territory public holiday falls on a day that would otherwise be prohibited under the Telemarketing Standard.

[12]          Paragraph 5(5)(c)

Item 12 makes a minor amendment to add the word “the” before the word “ACMA”, wherever occurring, consistent with common usage.

[13]          Note after paragraph 5(5)(c)

Item 13 omits the note after paragraph 5(5)(c). As the review of section 5 has been completed the note is now redundant.

[14]          Section 6

Item 14 replaces existing section 6 with new sections 6, 6A, 6B and 6C. The new sections contain the same substantial requirements regarding the provision of information as the previous section 6, but the requirements have been amended to use simpler language and to provide greater clarity for both industry and consumers.

                 Section 6 sets out the information provision requirements that apply to telemarketing calls that are not research calls. Different types of information are required to be given at different times during the call.

The caller must give their name, the purpose of the call and the name of the person who caused the call to be made immediately after the call commences (subsection 6(2)). These are considered to be types of information a call recipient would need to know at the beginning of the call in order to make an informed decision as to whether they wish to continue with the phone call. For example, when giving information about the purpose of the call, it is intended that callers clearly identify at the beginning of the phone call that the call is a ‘sales call’, a ‘telemarketing call’, or otherwise makes it clear that the call has a telemarketing purpose, allowing the call recipient to determine whether it is a call they wish to continue. Information about the purpose of the call is also relevant to the call times and other information provision requirements, as well as for compliance with the DNCR Act.

Subsection 6(3) sets out the information that must be provided immediately upon request and includes: the employee or staff identifier of the individual making the call, name and contact details of the caller’s employer, contact details of the person who caused the call to be made and contact details for persons responsible for handling inquiries and complaints. This information will assist call recipients who wish to pursue a query or complaint relating to a particular telemarketing call and will also assist the ACMA in the investigation of potential breaches of the Telemarketing Standard or the DNCR Act.

Subsection 6(4) sets out information that must be provided, if the call recipient requests it, within a reasonable time of such a request being made. This information includes information about who the call was intended for and how the person making the call obtained the phone number and other details. This information will assist the ACMA and other regulatory agencies in investigating complaints about the inappropriate use of information for telemarketing purposes.

This subsection requires that if this information cannot be provided during the call, the caller must give the information to the call recipient within 7 days of being asked to do so. This is because accurate information about the sourcing of personal details may not be immediately available to the caller and the caller may need time to collect the relevant information. 

This amendment has the effect of reducing the time that telemarketers have to supply such information from 30 days to 7 days. Submissions from industry and the public indicated that this was a reasonable timeframe in which to provide this type of information.

Section 6A sets out the information provision requirements that apply to calls that are research calls within the meaning of the Telemarketing Standard. Different types of information are required to be given at different times during the call. The specific information required to be provided in respect of research calls is the same as for telemarketing calls, with the exception that, in contrast to other telemarketing calls, under subsections 6A(3) and (4), a research caller is only required to disclose the name of the person who caused the call to be made immediately upon request, or if the call recipient does not request this information, before the end of the call. This distinction recognises that immediately disclosing the identity of the person who caused the call to be made may affect the called party’s response to the research questions. This may in turn reduce the accuracy of the research. However, it is considered necessary that this information be provided during the call as this information allows both the consumer to make inquiries and complaints and assists in the investigation of such complaints by the ACMA.

New section 6B duplicates the definition of ‘contact details’ that was previously included as subsection 6(2) of the Telemarketing Standard. Under section 6B, for the purpose of sections 6 and 6A, contact details include a telephone number suitable for receiving telephone calls during normal business hours at the location of the call recipient, together with any of the following:

·            a street address;

·            postal or business address, other than a street address;

·            email address.

Callers need not disclose their street address or a home phone number, but may provide other contact details where concerned about staff or business security issues.

New section 6C clarifies that where a call is made using a recorded or synthetic voice, the caller must ensure that the call includes a mechanism to enable the call recipient to request the information listed in subsections 6(3), 6(4), 6A(3), 6A(5) and 6A(6). While the Telemarketing Standard has always applied to telemarketing calls made by way of recorded or synthetic voices (so called ‘robo-calls’), it was felt that it was necessary to clarify that such calls must always allow for the call recipient to request certain information in order for the information provisions requirements to effectively apply to those types of calls.

 

 [15]         Section 7

                Item 15 makes a minor amendment to the heading to section 7, removing the unnecessary words ‘Standard for’.

[16]          Paragraph 7(1)(a)

                Item 16 replaces the words ‘the caller or call operator’ with the words ‘the person making the call’. The term ‘call operator’ was considered to be confusing and the obligations in the Telemarketing Standard have now been clarified to apply to the person physically making the call.

[17]          Subsection 7(2)

                Item 17 rectifies a drafting error and reduces confusion about when a telemarketer must terminate a call.

Subsection 7(2) of the Telemarketing Standard provides an exception to the requirement, contained in paragraph 7(1)(a), to immediately terminate a call if it becomes apparent that the caller is at a location such that the time that the caller is receiving the call is within the prohibited calling times identified in section 5 of the Telemarketing Standard. The exception allows the caller to continue the call if the call recipient has expressly stated that he or she would like the call to continue.

This exception does not apply to the circumstances in which a caller must immediately terminate a phone call identified in paragraph 7(1)(b). Paragraph 7(1)(b) requires the caller to immediately terminate the phone call if the call recipient asks for the call to be terminated or otherwise indicates that the call recipient does not want the call to continue.

Examples of statements that a call recipient might make that may indicate they do not want the call to continue could include (depending on the context):

·         I’m not interested;

·         I’m on the Do Not Call Register;

·         Can I call you back;

·         I want to talk to someone about it first;

·         Now is not a good time;

·         I want some time to think about it.

 

[18]          Section 8

                 Item 18 renumbers previous section 8 as subsection 8(1) and inserts an example to clarify what is meant by enabling calling line identification. This item also adds a new subsection 8(2) which requires callers to make reasonable efforts to ensure that the number transmitted to the calling number display of the receiving phone is a telephone number which is suitable for receiving return phone calls. This requirement has been added to the Telemarketing Standard to address consumer frustration experienced when the number identified through the calling line identification is a phone number that cannot receive phone calls. This commonly occurs when the number transmitted as the calling line identification is a number allocated to a particular calling centre for making outbound calls only. In such a circumstance, subsection 8(2) requires the caller to make reasonable efforts to ensure that a different number that is capable of receiving inbound calls is transmitted for the purpose of calling display.

This requirement also assists the ACMA to investigate potential breaches of the Telemarketing Standard and the DNCR Act.