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Regimes

     overview

This note considers Do Not Call Registries.

It covers -

• introduction - what is a Do Not Call registry?
• background - telemarketing principles, economics and privacy questions
• issues - opt-out, existing relationships, jurisdictions and other issues

     introduction

As the name suggests, a Do Not Call registry is a database that allows consumers to indicate that they do not wish to receive unsolicited commercial telephone calls.

The registry may be operated by a government agency and binding on all telemarketers. It may instead be operated by a marketing industry group and bind only that group's members. It may encompass both voice and fax calls.

Do Not Call register schemes have attracted attention across the globe, reflecting consumer unhappiness about intrusive telemarketing and the example of federal/state legislation in the USA. They are a building block rather than a total solution, particularly as most regimes feature substantial exclusions and as consumers encounter calls made from offshore call centres or by automatic diallers.

     background

Telemarketing has four foundations -

• direct marketers are competing in what has been characterised as the 'attention economy', in which there are perceptions that consumers are missing - or simply ignoring - messages from advertisers
• consumer identification and delivery costs are low (eg a call centre, increasingly located in an offshore low wage jurisdiction, can use a list of numbers - sometimes specific to a very narrow demographic - or instead progressively call any/all numbers on a network)
• metrics for telemarketing are readily available (eg the percentage of calls that resulted in an immediate 'sign-up' or that elicited information - accurate or otherwise - for a pollster)
• consumers may be more receptive when contacted at home and by voice rather than through a communication by paper or email.

That has resulted in increasing use of calls to residential and mobile numbers - or merely to any number - by entities offering to sell a product or service or seeking information. As with spam, sufficient people respond to make telemarketing worthwhile for some decisionmakers, particularly those marketers who are comfortable discounting erosion of brands or other negative perceptions.

Comprehensive accurate statistics are unavailable. However, it is likely that consumers in the US were receiving up to ten unsolicited commercial calls per day and that consumers in Australia were receiving around two per day. Many of those calls took place during mealtimes, late at night or at the weekend (whether because the caller targeted that time for a response, was ringing from another timezone or simply didn't care).

Some callers have relied on automated dialling. Some have reflected consumer uptake of 'screening' technologies by using computers to leave a message in voicemail. Some have relentlessly faxed offers; particular scams have added injury to insult by including inoperative 'unsubscribe' numbers or that are charged at a premium rate. Others have simply harvested data provided by the consumers themselves - whether direct to the marketer or to another entity that has purchased a database. Some have relied on telephone directories, one reason why many people (up to 30% of subscribers in some jurisdictions) are going 'ex-directory' with silent numbers.

Telemarketing is thus a consumer trouble spot, which has resulted in complaints to regulators and often creative responses by individual consumers (some of which are highlighted below).

Most reputable organisations have responded by allowing consumers to opt out of further calls, implicitly maintaining inhouse do not call registers (albeit registers that are sometimes ignored by their agents). Some simply eschew telemarketing as too damaging to their corporate profile. Some have made commitments to industry codes of practice, trusting that there will be meaningful sanctions against breaches by their peers. Others have simply ignored concerns, fuelling demands by consumers for mandatory do not call registration.

Such registration allows consumers to add contact numbers to a list that is accessed by marketers. Numbers on that list must (with exceptions) not be called; breaches can be punished under civil or even criminal law.

Do Not Call registers embody the principles of 'non-interference' and consent that some people consider central to privacy. In essence, there is a distinction between the public (including contact at work and during work hours) and private spheres. Individuals have an expectation that they will not be bothered at home or during what is generally considered to be private time.

    issues

Critics of mandatory Do Not Call regimes have typically claimed that registers are not needed or will result in huge (albeit rarely specified) job losses. Those claims are problematical.

The clearest indicator of community support for mandatory registers is the number of consumers who have added their numbers to a register. In the US, for example, over 90 million people had registered with the Federal Trade Commission Do Not Call registry, described below, by mid 2005. That is consistent with opinion polls indicating that many consumers regard telemarketing - particularly at home and during mealtimes or late at night - as offensive. Polling and submissions to regulators also indicate egregious abuses by marketers, including bodies that are members of industry associations.

Call centre industry representatives have asserted that telemarketing performs an invaluable social service (eg communicating with the disabled or others who "are stuck at home or can't read the mail"), provides entry-level employment or a career path in IT, or even drives infrastructure development in regional Australia as telecommunication providers roll out fibre to service rural telecentres.

Such claims have been undermined by reports indicating that callcentres are typically not the beginning of an IT career path (staff are usually members of a binary proletariat and average turnover in a centre may be 300% per year), located in metropolitan rather than rural areas and may rely on transient workers such as overseas backpackers rather than local kids and their parents. Claims about job losses through introduction of a national register are particularly contentious given corporate announcements that callcentre operations are independently being moved offshore, for example to India, to cut wage and compliance costs.

Do Not Call schemes - like spam regulation schemes - have a national basis. They can address marketing that originates within the particular nation and arguably, as with spam, can restrict marketing where there is a strong national connection (eg an organisation assumes that it can evade restrictions by having calls made by its offshore staff/agents).

Schemes are, however, eroded by low cost international calling on behalf of offshore rather than local entities, particularly using VOIP. In practice there is little the Australian government can do to stop telemarketing from India or other places offshore.

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