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regimes
This page considers overseas and Australian Do Not Call
Registries.
It covers -
the US regime
The US National Do Not Call Registry (NDNCR),
implemented by the Federal Trade Commission in 2003 under
the Do-Not-Call Implementation Act, preempted
existing and proposed state legislation. It builds on
the 1991 federal Telephone Consumer Protection Act,
which has been used in landmark prosecutions of junk faxers.
Under the legislation most telemarketers are required
to delete from their call lists any numbers that are featured
on the NDNCR. Calling the deleted number may incur a fine
of up to US$11,000. Numbers are added to the registry
by consumers; registration is free and is effective for
five years. The registry includes home and mobile phone
numbers.
The federal regime withstood a constitutional challenge,
with marketers somewhat disingenuously claiming that restrictions
breached 1st Amendment protection of free speech. The
Federal Court of Appeals 10th Circuit upheld the NDNCR's
constitutionality, differentiating between commercial
communication and ordinary free speech.
The NDNCR has substantial exceptions for calls by (or
on behalf of) charities, political organisations, market
research services and commercial entities with which the
consumer has "an existing business relationship".
Callers offering to sell goods or services while ostensibly
conducting a survey must comply with the NDNCR deleting
requirements.
The 'existing relationship' provision enables an organisation
to call for up to 18 months after the consumer's last
payment, purchase or delivery - or an inquiry by the consumer
- unless requested not to call again. The organisation
must abide by such a request, with a penalty of up to
US$11,000 for noncompliance.
The legislation does not prevent consumers from independently
asking organisations not to phone them - and indeed not
to contact them in any way.
elsewhere
Experience overseas offers some pointers for development
of an effective Australian regime.
Canada's federal C-37
bill, for example, has been criticised by Michaeil Geist
and others as the 'do not hesitate to call' register.
Geist noted
that the proposed Canadian 'existing business relationship'
exception is broader than that in the US, allowing businesses
to contact former customers for up to 18 months after
the last communication.
Under
the revised rules, if you spend one night in a hotel,
the hotel chain can call you for the next 18 months,
even if you register your phone number on the do-not-call
list. Similarly, if you call a long-distance provider
for information about their latest plan, they can call
you for the next six months. All of this is in
addition to the blanket exception for charitable calls,
calls from political parties, and polling company calls
seeking participation in surveys.
In
the UK the Telecommunications (Data Protection &
Privacy) Regulations 1999 - reflecting the 1997 EU
Privacy Directive - underpin the Telephone Preference
Service (TPS), Corporate Telephone Preference Service
(CTPS) and Facsimile Preference Service (FPS) schemes.
Those schemes are opt-out: individuals and organisations
must indicate that a landline/mobile number is not to
be called. The UK regime does not cover sequential automated
dialling.
Australia
Australia does not currently have a national Do Not Call
Registry. A discussion paper was released
by the federal Minister for Communications, IT & the
Arts in 2005.
During the 2004 federal election the ALP reflected suggestions
by the Ministerial Council on Consumer Affairs in calling
for a US-style registry, to be managed by the Australian
Communications & Media Authority (ACMA). The proposed
regime would include a ban on all unsolicited consumer
telemarketing on public holidays and sundays. It was assailed
by some telemarketers as resulting in "huge job losses"
or "the last days of telemarketing".
The registry proposed by the ALP would supersede private
lists such as that under the auspices of the Australian
Direct Marketing Association (ADMA), which in July 2004
claimed that the US government
is
facing an administrative and financial nightmare as
it is now dealing with a disgruntled and disillusioned
public and costs that are spiralling out of control.
The
Australian Market & Social Research Society, representing
businesses in the market research sector, noted
that
It
is very common for the Society to find that people are
complaining about telemarketing and that the first opportunity
they have had to express their concerns is when a research
company has provided them with the 1300 number. ...
They are just sick of the volume of unsolicited calls
in general, and of being pursued to buy things in particular.
It
is unclear whether the Australian legislation would restrict
cold calling by non-profit organisations and political
entities - consistent with loopholes in the Spam Act
2003 and the Privacy Act - and substantially
strengthen existing Trade Practices Act restrictions
on misleading representations (eg offering goods/services
under the guise of market research).
Consumers can currently use the non-mandatory registry
maintained by ADMA. That registry does not cover all marketers
- many organisations are not ADMA members. ADMA notes
that its scheme does "not cover telephone calls from
market research firms, real estate agents and local businesses".
consumer activism
Consumer responses when confronted by unsolicited commercial
calls occupy a continuum from guerilla activity to polite
requests to desist.
Arguably the best response is to ask the caller to remove
the number from the marketer's database, taking a note
of details so that the recipient can take action if there
is no follow up. That action might include a letter of
complaint to the marketer, advice to a regulator or industry
organisation or consumer advocacy body, or a letter to
a newspaper or online forum.
Some recipients have been less positive, with numerous
anecdotes about abusing callcentre staff, blowing whistles
or otherwise expressing their ire. Some put the caller
'on hold' indefinitely, on the assumption that the caller's
time is money.
Those with a taste for theatre may instead provide what
the caller would regard as inappropriate responses, ranging
from complaints that security agencies are beaming coded
messages into the recipient's alfoil
hat to requests for a personal relationship.
Others play 'guess the callcentre', particularly where
there is a suspicion that the caller is not - as claimed
- ringing from an adjacent city but is in fact sitting
with 500 other teleslaves in a boilershop in Mumbai. Some
seek to subvert survey calls by supplying incorrect data,
which may be one reason for the ineffectiveness of many
marketing campaigns.
mail
Governments in Australia and elsewhere have not established
'do not mail' registers, although some national direct
marketing organisations such as ADMA operate private schemes
of varying comprehensiveness.
It has been estimated that around 9 billion items of junk
mail (supposedly over 1,000 items per household) are received
in Australia each year. Most of that letterbox litter
is unaddressed.
The ADMA national Do Not Mail database supposedly featured
some 222,000 individuals as of mid-2005, with critics
commenting that the list would be significantly higher
if more people were aware of the database.
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