ACMA media release 53/2007 - 30 May

30 May 2007

ACMA removes prohibition on Sunday research calls

The Australian Communications and Media Authority has varied the Telecommunications (Do Not Call Register) (Telemarketing and Research Calls) Industry Standard 2007 to allow research calls to be made on Sundays.

Under the revised industry standard, which commences on 31 May with the Do Not Call Register Scheme, a research caller must not make or attempt to make a research call on a Sunday before 9.00 am or after 5.00 pm.

Telemarketing calls are still prohibited on Sundays under the standard.

‘ACMA has decided to vary the industry standard because the Authority reached the conclusion that prohibiting research calls on a Sunday could potentially reduce the benefits to the community from well-structured research,’ said Chris Chapman, ACMA Chairman.

‘This view is based on strong evidence provided to ACMA that the prohibition could undermine the value of longitudinal data sets where data had previously been collected on Sundays, as well as increase the potential for bias because samples were not representative.’

Before varying the standard, ACMA called for views on the issue of research calls on a Sunday through the release of a discussion paper on 20 April 2007. The submissions received provided extensive new quantitative and qualitative information which emphasised the importance of Sunday calling to quality research.

‘ACMA understands that the community generally considers unsolicited telephone calls to be inconvenient and intrusive,’ said Mr Chapman. ‘However, the community also appreciates the importance of quality research in delivering social and economic benefits.

‘After considering the views put to us, we have concluded that calls should be allowed on Sundays but with tighter calling hours than those that exist under current self-regulatory arrangements. This will allow valuable research to continue.’

ACMA will be closely monitoring compliance with the new Sunday calling times and consumer response to the standard.

‘This work will be used as part of ACMA’s comprehensive review of the calling hours under the standard in the next 12 months,’ Mr Chapman added. ‘The review can be brought forward at any time should significant concerns be brought to our attention.’

Breaches of the standard may incur either a formal warning or financial penalty, determined by the Federal Court. Penalties are up to $250,000 per contravention for bodies corporate and $50,000 for individuals.

ACMA also expects that the telemarketing and research industries will move quickly to develop codes of practice to address consumer concerns about industry activities which are not addressed by the ACMA standard.

Media contact: Donald Robertson, ACMA Media Manager, on (02) 9334 7980.

Backgrounder

Telecommunications (Do Not Call Register) (Telemarketing and Research Calls) Industry Standard 2007

ACMA is responsible for making a telemarketing and research calls standard and establishing a Do Not Call Register on which people can register their telephone numbers to enable them to opt out of receiving a wide range of unsolicited telemarketing calls. These responsibilities arise from the Do Not Call Register Act 2006 (DNCR Act) and the Do Not Call Register (Consequential Amendments) Act 2006.

Under section 125A of the Telecommunications Act 1997 (the Telecommunications Act), ACMA must determine an industry standard relating to the telemarketing industry before the commencement of Part 2 of the DNCR Act. The standard must only cover certain matters; permitted calling hours, information which must be provided by the caller, requirements on terminating unsolicited calls and the enabling of calling line identification.

On 22 March 2007, ACMA made the Telecommunications (Do Not Call Register) Telemarketing and Research Calls) Industry Standard 2007 under section 125A of the Telecommunications Act. This standard, among other things, prohibited the making of research calls on Sundays from 31 May 2007.

Ministerial Direction

Following representations made directly to the Minister for Communications, Information Technology and the Arts, Senator the Hon Helen Coonan directed ACMA on 4 April 2007 to consider whether to exercise its power under section 130 of the Telecommunications Act to vary the industry standard so as to:

• remove the prohibition on making, or attempting to make, a research call at any time on a Sunday; and
• include a prohibition on making, or attempting to make, a research call on a Sunday at the same times as a research call is prohibited on a Saturday, that is before 9 am and after 5 pm, as provided for in paragraphs 5(2)(c) and (d) of the industry standard.

ACMA was required under the Australian Communications and Media Authority (Telemarketing Industry Standard) Direction No. 1 of 2007 (the Direction) to have regard to the following matters in considering whether to vary the industry standard to allow research calls at certain times on a Sunday:

• the important public benefit derived from accurate and high-quality research; and
• the likely impact that prohibiting research calls on Sundays would have on the collection of accurate and high-quality research.

Subsection 4(3) of the Direction requires that if ACMA varies the industry standard as a result of the direction, the variation must commence at the same time as Part 2 of the DNCR Act. This will ensure that the varied permitted calling hours for research calls commence at the same time as the other provisions in the industry standard. Part 2 of the DNCR Act commences on 31 May 2007.

Copies of the Direction and industry standard are available at www.comlaw.gov.au.

Consultation

On 20 April 2007, ACMA released a discussion paper, Consideration of whether to remove the prohibition on making research calls on Sundays, inviting comment and the submission of data and other evidence to assist ACMA in its consideration as to whether it should vary the industry standard.

ACMA received 274 submissions in response to the discussion paper and 224 petition letters from:

• government organisations (7 submissions);
• industry and consumer representative groups (5 submissions);
• industry members, their employees and clients (225 submissions and 224 petition letters); and
• members of the public (37 submissions).

Variation to the industry standard to allow research calls on Sundays

On 29 May 2007, ACMA made the Telecommunications (Do Not Call Register) (Telemarketing and Research Calls) Industry Standard Variation 2007 (No.1).

Schedule 1 of the instrument provides that paragraph 5(2)(e) of the industry standard (which now provides that research calls not be made on Sundays without prior consent) be substituted with the requirement that research calls not be made on a Sunday before 9.00 am or after 5.00 pm, without prior consent.

Calling times under revised industry standard

Under the industry standard, a caller must not make or attempt to make a call on:

There is an exception to the rules where consent has been given by the call recipient in advance to receive the call during the prohibited calling hours.

Where more stringent calling hour restrictions apply under a state or territory law, the more stringent law will continue to apply. ACMA understands that state and territory laws regulate contacts directed towards sales and do not directly regulate calling hours for research calls.

A research call under the industry standard is defined as meaning a call described in paragraph (b) of the definition of a telemarketing call in section 7 of the Telecommunications Act. Generally speaking, a research call is a voice call where the purpose or one of the purposes is to conduct opinion polling or to carry out standard questionnaire-based research.

The Do Not Call Register

The industry standard will complement the Do Not Call Register that was launched on 3 May 2007. The Do Not Call Register is a database where individuals may list their Australian fixed line and mobile telephone numbers that are used for private or domestic purposes. Generally, it will be against the law to make unsolicited telemarketing calls to a number listed on the Do Not Call Register. This is subject to some limited exemptions which will allow certain public interest organisations (such as charities and educational institutions) to make specific types of telemarketing calls to numbers on the Register.