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establishing and
operating the do not call register
Kent Davey, Partner
The Australian Communications and Media Authority (ACMA)
has recently announced that a fully owned subsidiary of
Melbourne-based Service Stream Limited (Service Stream)
has been selected to build and operate the Do Not Call
Register (Register).
The Register is expected to be operational by
May 2007 to assist with regulating and
minimising unsolicited telemarketing calls.
ACMA is required to establish the
Register by the Do Not Call Register Act 2006 (Cth) (DNCR Act)
which commenced on 30 June 2006. The DNCR Act
prohibits the making of unsolicited telemarketing calls to telephone numbers
registered on the Register.
This
article provides an overview of the provisions of the DNCR Act that
apply to the establishment and operation of the Register and also
outlines the obligations on Service Stream.
Register
Establishment and Telephone Number Registration
Under Part
3 of the DNCR Act ACMA has arranged for Service Stream to keep the
Register on its behalf. A telephone account-holder or their nominee
(who has been nominated in writing) will be able to make an application to Service
Stream for entry of the account-holder’s telephone number on the
Register. A telephone number will be able to be registered on the
Register without charge if it is:
-
an Australian number
(fixed or mobile);
-
used or maintained
exclusively or primarily for private or domestic purposes; and
-
not used or
maintained exclusively for transmitting and/or receiving faxes.
Part 3 provides that the
registration of a telephone number on the Register takes effect on the date it
is entered by Service Stream and remains in force for 3 years unless removed
earlier in accordance with an ACMA determination. After the expiry of the 3
year period a telephone number may be re-registered on the Register.
Prohibited
Telemarketing Calls and “Washing” Calling Lists
Part 2 of the DNCR Act (which is
expected to commence in May 2007) prohibits a non-exempt person, whether located
in Australia or overseas, from making a telemarketing call, without the express
or implied consent of the account-holder, to a telephone number registered on
the Register unless a specified exception applies. Organisations which have
been exempted from this prohibition on public interest grounds include
charities, registered political parties, independent members of parliament and
candidates in parliamentary elections, religious organisations, educational
institutions (only for calls to current and former students) and government
bodies. A penalty of up to $1.1 million will be payable by a person who
breaches this prohibition.
Non-exempt organisations which make unsolicited
telemarketing calls will need to submit their telephone number calling
lists to Service Stream to have their lists “washed” to avoid breaching
Part 2 of the DNCR Act. If an organisation pays the applicable fee determined
by ACMA then Service Stream is required by Part 3 of the DNCR Act to
“wash” a telephone number calling list by informing the organisation
whether any of the telephone numbers on the list are registered on the
Register. It is expected that during the first 4 years of operation of
the Register that $15.9 million will be recovered from the telemarketing
industry by payment of fees to access the Register.
ACMA has recently released for public comment
the draft Do Not Call Register (Access to Register) Determination
2007 setting out the arrangements for organisations wishing to
access the Register to have their lists “washed”. The Determination
describes how a list of telephone numbers is to be submitted to Service
Stream for washing and how Service Stream must inform organisations
whether numbers are registered on the Register.
Service Stream’s Register
Obligations
In October 2006 ACMA issued a “Request for Tender in
Relation to the Provision of Do Not Call Register Services” seeking
tenders from suitably qualified and experienced tenderers for the
establishment of the Register. ACMA has recently announced that Service Stream
will build and operate the Register for $12.1
million (excluding GST) for an initial four year period until February
2011 with an option for an additional three year period.
ACMA has
stated that Service Stream will be responsible for:
-
building,
commissioning, keeping, operating and administering the Register;
-
promoting and raising
awareness of the Register; and
-
handling complaints and
enquiries about the operation of the Register.
ACMA
expects that the Register will be operational by May 2007.
Conclusion
The
establishment of the Register represents a key element of the
legislative reforms introduced by the DNCR Act to regulate and minimise
unsolicited telemarketing calls. Based on international experience ACMA
expects that up to 1 million telephone numbers may be registered in the
first week of operation of the Register.
Service Stream has the challenge of establishing the
Register within a short timeframe and in a manner which meets its
contractual obligations to ACMA. However, notwithstanding the
appointment of Service Stream, ACMA will remain responsible for
overseeing the operation of the Register and investigating breaches of
the DNCR Act.
For
further information, please contact Kent on +61 3 9609 1695 or email
kdavey@rk.com.au
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