overseeing compliance with the do not call register act 2006
TRANSCRIPT
Overseeing compliance with the Do Not Call Register Act 2006
International Training Program
ACMA—ITU International Training Program 2009Melbourne, Australia
Telemarketing regulation in Australia
Pre-Do Not Call Register
>
No industry-specific regulation>
Voluntary Code of Practice
>
Some general, inconsistent state-based legislation>
Australian Direct Marketing Association “Do Not Contact Register” (voluntary)
ACMA—ITU International Training Program 2009Melbourne, Australia
Establishment of Do Not Call Register
DNCR established in response to:>
Community concern about volume and inconvenience of telemarketing
>
Industry and consumer confusion about the rules
Objectives of DNCR Scheme:>
Provide a more consistent regulatory environment for industry
>
Reduce inconvenience for consumers>
Provide an effective complaint handling mechanism
ACMA—ITU International Training Program 2009Melbourne, Australia
Operation of the Register
Current arrangements>
“Opt Out” scheme
>
Numbers must be primarily for private or domestic use>
Telemarketers submit contact lists for checking (“washing”) prior to dialling
>
“Washed” lists are valid for 30 days>
Exemptions
Proposal to extend Register to all numbers (incl. business, fax, emergency services) in 2010
ACMA—ITU International Training Program 2009Melbourne, Australia
Do Not Call Register Act 2006
>
Requires the ACMA to establish the Register>
Sets out two key rules (civil penalty provisions)>
A person must not make or cause a telemarketing call to be made to a number on the Register (s.11(1)) – some exceptions
>
Agreements for the making of telemarketing calls must require compliance with the DNCR Act (s.12(1))
ACMA—ITU International Training Program 2009Melbourne, Australia
“Causing” a call to be made
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Extended definition of “cause” applies where:>
Person A enters into an agreement with another person (Person B)
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Under the agreement, Person B undertakes to make (or cause any or all of its employees/agents to make) telemarketing calls
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Person B, or an employee/agent of Person B, gives effect to the agreement by making a telemarketing call
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Both Person A and Person B may be liable for calls made in contravention of the Act
ACMA—ITU International Training Program 2009Melbourne, Australia
Complaints received
0
2,000
4,000
6,000
8,000
10,000
12,000
14,000
16,000
18,000
July - Dec07
Jan - June08
July - Dec08
Jan - June09
Complaints Received
>
Steady drop in complaint numbers since June 2007
ACMA—ITU International Training Program 2009Melbourne, Australia
Compliance approach
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Focus is on reducing the number of telemarketing calls people on the Register receive
>
Level of regulatory intervention tied to the scale and severity of the compliance issue
ACMA—ITU International Training Program 2009Melbourne, Australia
Compliance approach
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3-stepped approach to compliance:>
Businesses complained about receive an advisory letter in the first instance, advising them of their legal obligations
>
If further complaints are received, a warning letter is sent
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Complaints received after a warning letter is sent may be subject to a full investigation
ACMA—ITU International Training Program 2009Melbourne, Australia
Enforcement options
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Formal warnings>
Enforceable undertakings
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Infringement notices ($2,200 per call/$110K per day)>
Injunctions
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Federal Court (pecuniary penalties - $11K per call/$220K per day)
ACMA—ITU International Training Program 2009Melbourne, Australia
Compliance and Enforcement: Challenges
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No discrete “telemarketing industry”>
Wide range of different industries make “telemarketing calls”
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Outsourcing arrangements>
Offshore telemarketing
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Limitations of call tracing capabilities
Investigation Case Study: Dodo Australia
ACMA—ITU International Training Program 2009Melbourne, Australia
ACMA—ITU International Training Program 2009Melbourne, Australia
Dodo: Pre-investigation
June-September 2007
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Three informal notifications sent
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Continuing high complaint numbers (129 complaints from June-Sept 2007)
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Investigation commenced October 2007
ACMA—ITU International Training Program 2009Melbourne, Australia
Dodo: Decision to Investigate
The problem>
Large-scale, systemic non-compliance across the telco industry - 55% of all complaints
>
High level of consumer frustration
The approach>
Telco compliance campaign encompassing:>
Education
>
Targeted investigations spread across each level of the telco industry (incl. Dodo)
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Publicity
ACMA—ITU International Training Program 2009Melbourne, Australia
Dodo: The Investigation Process
The investigations process
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Commencement
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Evidence-gathering
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Opportunity for submissions
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Decision by delegate
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Publicity of outcome
ACMA—ITU International Training Program 2009Melbourne, Australia
Dodo: Commencement
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Investigation focused on three month period in 2007
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Obligation to notify respondent of commencement (Telco Act)
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Statutory notice issued to Dodo seeking information and documents (Telco Act s.521)
ACMA—ITU International Training Program 2009Melbourne, Australia
Dodo: Evidence gathering
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Evidence relied upon>
Dialler disposition records
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Call tracing records>
Consumer complaints
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Call centre contracts>
Call centre scripts
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Evidence ordinarily gathered using statutory powers
ACMA—ITU International Training Program 2009Melbourne, Australia
Dodo: Opportunity for Submissions
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Obligation to provide respondent with opportunity for submissions prior to adverse finding
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Dodo investigation:>
Written allegations by the ACMA
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Meetings to discuss options>
Formal submissions by respondent
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Offer of enforceable undertaking
ACMA—ITU International Training Program 2009Melbourne, Australia
Dodo: Decision by Delegate
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Acceptance of enforceable undertaking>
Engagement of external compliance consultant
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Record keeping>
Auditing
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Use and oversight of outsourced call centres
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Infringement notice issued>
$147,400
ACMA—ITU International Training Program 2009Melbourne, Australia
Dodo: Publicity
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Media release announcing outcome
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Press coverage
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Radio interviews
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30% drop in overall complaints following announcement
ACMA—ITU International Training Program 2009Melbourne, Australia
Dodo: Post-investigation
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Very few complaints received>
Significantly improved compliance practices>
Record keeping
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Complaint handling>
Auditing
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Oversight of third party call centres>
Overall, representative of “best practice” compliance
ACMA—ITU International Training Program 2009Melbourne, Australia
DNCR Investigation Challenges
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Evidence gathering>
Technical limitations
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Availability of information
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Cooperation of respondents
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Cooperation of offshore entities
ACMA—ITU International Training Program 2009Melbourne, Australia
Telco Compliance Campaign
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The campaign:>
Industry specific education
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19 formal investigations>
5 infringement notices
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8 enforceable undertakings>
6 formal warnings
>
Publicity>
Creating an environment of accountability
ACMA—ITU International Training Program 2009Melbourne, Australia
Telco Compliance Campaign - outcomes
0
500
1,000
1,500
2,000
2,500
3,000
3,500
4,000
4,500
5,000
Jan - June08
July - Dec08
Jan - June09
Complaints about Telcos
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Drop in complaints about telcos>
From 55% down to 35% of all complaints>
From 2,500 per quarter to 500-600 per quarter
ACMA—ITU International Training Program 2009Melbourne, Australia
Compliance and Enforcement: 2010
Industry focus:>
Real estate industry
>
Call centre industry>
Financial services
>
Small businesses
Other activities:>
International engagement
>
Transition to expanded Register