Submission to: Australian Communications and Media Authority (ACMA)

Transcription

1 Submission to: Australian Communications and Media Authority (ACMA) from: dlook Pty Ltd ACN in response to: ACMA s invitation to comment on its Discussion Paper of March 2009 entitled New Fees and Payment Methods for Accessing the Do Not Call Register in Contacts: This submission was prepared for and on behalf of dlook Pty Ltd by Amos Aked Swift. dlook Sydney April

2 Content 1. Introduction & Summary Background on dlook Stimulus for Present Submission Scope of this Submission Specific Issues Conclusion and Summary Views Contact Information dlook Pty Ltd Page 2 of 12

3 1. Introduction & Summary This submission to ACMA presents some views of dlook Pty Ltd in relation to ACMA s Do Not Call Register ( DNC Register ) and its March 2009 Discussion Paper on the same subject. dlook's interest in this matter arises, inter alia, from its being an access seeker, as defined in the Act. Accordingly, dlook pays fees to ACMA to wash lists of numbers and thereby ensure compliance. It is dlook s contention that this additional cost and procedural burden is avoidable by application of the simple procedure of calling only numbers self - identified in business directories or other media as contact numbers for businesses. However, dlook has been advised that such a procedure cannot be relied upon to ensure compliance with the Act. And indeed dlook s experience indicates that around one in twelve de facto small and SME business numbers are included on the DNC Register, The costs of being an access seeker under the Act are now set to increase, and in a fashion which further discriminates against the small business user. dlook believes that its own procedures in identifying business numbers should obviate the requirement for washin g of its lists as an access seeker with ACMA. The fact that this is not the case is due to the inclusion on the DNC Register of numbers which the Act intended would not be eligible for such inclusion. Accordingly, dlook holds the view that ACMA process es for approving applications for inclusion on the register should be more rigorous, and that action should be taken, as it can under the Act, against those achieving inclusion on the DNC Register by making a false claim or declaration in the Application Form. Further, the costs involved for ACMA in creating and operating the DNC Register and the related process should be met by the beneficiaries. Whilst recognising that the Act at present would not enable that, the possibility may exist, if ineligible Applicants are to be included on the Register, that those Applicants should pay a fee for such inclusion, which fee would cover the costs of promulgating those numbers as marked for prospective access seekers. If introduced, this mechanism would enable dlook and si milar actual or prospective access seekers, to further refine their call lists, for which they have already expended resources, in order to exclude the one -in-twelve DNC Register listed business numbers. dlook Pty Ltd Page 3 of 12

4 In short, dlook contends it should not have to pay for ACMA washing of lists of numbers which have been selected from sources which make those numbers ineligible for inclusion on the DNC Register. 2. Background on dlook dlook Pty Ltd (dlook) is an electronic directory services company, using internet-based technology to provide its business -only customers with enhanced and rapid directory-based business search and subsequent exposure on the internet. It commenced operations in Sydney in 2005 and has steadily grown and updated its user base, which con sists of businesses public service, community and charity organizations to which dlook provides an equivalent service. By the beginning of 2009, the dlook directory indexed in excess of 500,000 web pages and over 1.5 million business entries. The service provided by dlook uses proprietary technology and offers the particular advantage to users of a specialised directory listing and indirectly a web presence in a timely fashion. Among other advantages offered by the service, customers are able, through the directory, to match marketing campaigns for their products more concisely to their product availability and delivery schedules. dlook utilises telemarketing as a part of its continuous database update for more relevant customer information inter alia using methods which fall within the definition of telemarketing calls detailed in Section 5 of the Act. However, dlook does not normally make telemarketing calls which would require it to be an access seeker as indicated in Section 19 of the Act. dlook is a member of the Telecommunications Industry Ombudsman (TIO), as a carriage service provider. 3. Stimulus for Present Submission dlook has noticed that some of its directory entries are also on the DNC Register even though they have been listed or update d in one or more business directory. A consequence has been that dlook could appear to have made, authorised or facilitated Section 5 telemarketing calls to numbers included on the DNC Register via a listing in its Directory. This is similar to the position for other Directories. dlook Pty Ltd Page 4 of 12

5 dlook s position as to the acceptance and display of numbers listed in its Directory is based upon submissions from the business supplier, verified by follow up correspondence or telephone call. dlook s policy in respect of telephone based telemarketing calls is as follows: dlook only makes telemarketing calls to business numbers which are listed in a published business directory; dlook only makes telemarketing calls during normal business operating hours; dlook does not make telemarketing calls on weekends or public holidays. dlook understands from the ACMA to the effect that the above calling policy of dlook would not ensure that calls were not being made to numbers on the DNC Register. dlook s comments in 5.2 below were prompted by the foregoing. It has been and remains the case that dlook considers its operations in the business -only areas do not breach the Act in any way. Our comments are intended to clarify this position and also to provide views on how t he Register can be more effective in meeting the objectives of the Act. 4. Scope of this Submission ACMA has invited comment on four particular aspects in Section 8 [8(a) through 8(d)] of its discussion paper. This submission comments on two of these, namely: 8 (a) The proposed fees that will be charged to access the Register in ; and 8 (d) Any other issues associated with accessing the Register or the methodology used to determine the fees that submitters may wish to raise. 5. Specific Issues 5.1 Comment in relation to (a): The proposed fees that will be charged to access the Register in dlook Pty Ltd Page 5 of 12

6 Comment: Argument: The proposed fees scale for advances the inequities evident in the current fee structure Under the prevailing fee structure for , the economy of scale available to large users is already enormous. In particular, and abstracting from the Excess Usage Charge, a small user seeking to wash up to 20,000 numbers pays a unit charge of 0.37 cents per number. The largest users pay only cents. Thus the small business user currently faces a charge which is 4.4 times (i.e. 440%) the charge paid by the largest users even though the small user prepays and the large user post pays. The Discussion Paper does not address the relativities on the cost side of ACMA operations, and so does not provide any basis for the prospective subscriber to its service to understand the basis for this differential. Any possible implication of this sharply sliding fee scale that it may be functionally related to economy of scale in dealing with large users is negated by the fact that the very smallest users (seeking to wash up to 500 numbers) are not charged at all. The proposed scale further accentuates the above disparities. The proposed unit price increase for users seeking to wash 100,000 numbers (i.e. the third lowest category) is 5.9%, compared with only 4.8% for each of the four largest user categories. This foregoing point means that the differential between the largest and smallest paying categories goes from 440% to 443%. Whilst this creep factor is not great of itself, it would indicate that the mechanics of the changes work against small users and in favour of the large incumbent users. Further, the particular changes to arrangements proposed in Section 7 of the Discussion Paper, whereby dlook Pty Ltd Page 6 of 12

7 payment will be required in advance, are likely to remove or at least significantly reduce any cost differentials which may presently exist as between larger and smaller ACMA access seeker accounts. This would be expected to result in a narrowing of the price differential between large and small users, instead of the widening of this differential as mentioned above. As a broader general comment on this conclusion: ACMA in inviting comment on its Discussion Paper (8[d]) asks inter alia for comment on its methodology used to determine the fees. The Discussion Paper, however, does not explicitly delineate any methodologies. For instance, it might be expected in the relation to the point made in the previous paragraph that there would be some reference to the change in cost relativities as a basis for determining the new price relativities. The outcomes proposed by ACMA indicate an absence of neutrality in respect of prospective subscribers underlying the methodology and objectives of the review. 5.2 Comments in relation to (d): Any other issues associated with accessing the Register or the methodology used to determine the fees that submitters may wish to raise The comments which dlook makes under this section may not be considered to fall strictly within the ambit of the invitation 8(d). Insofar as they do not, dlook would respectfully request that its comments be taken into consideration as legitimate issues fo r a small industry participant. As indicated above, dlook does use telemarketing services to update its directory entries, but in a fashion which in its considered view does not require it to be an access seeker per the Act (s19.1) Comment: Telephone numbers advertised by individuals and entities holding themselves out to be businesses are not eligible for inclusion in the Register Argument: The Act Section 14 Eligibility for Registration states that: A telephone number is eligible to be entered on the Do Not Call Register if: (b) it is used or maintained exclusively or primarily for private or domestic purposes ; dlook Pty Ltd Page 7 of 12

8 Whilst advertising a number for a business activity does not imply that that number is not used primarily for private or domestic purposes, it must reasonably be taken to imply that during business hours it can be treated as not being used exclusively or primarily for private or domestic purposes. dlook is assiduous in targeting business numbers, for sound commercial reasons includ ing: the service dlook offers will not be wanted other than by businesses; dlook s compliance with the Act is ensured by calling only business numbers and dlook should not be faced with a potential liability pursuant to the Act if entities are wrongfully seeking the benefits afforded by the Act. ACMA has a responsibility under the Do Not Call Register (Administration and Operation) Determination 2007 Section 8 to remove an entry from the Do Not Call Register if ACMA is satisfied that: (a) the telephone number associated with that entry is not eligible to be entered on the Do Not Call Register; or (b) the person who applied to register the telephone number associated with that entry was not eligible, under section 15 of the Act, to register the telephone number on the Do Not Call Register. It is dlook s understanding that the terms of the original 2006 Act in respect of eligibility for inclusion in the Register, namely that the telephone is used or maintained exclusively or primarily for private o r domestic purposes remain intact. Indeed the words are reiterated in 1.2 of the March 2009 Discussion Paper. Furthermore, it is emphasised in the Regulations in respect of Applications for inclusion in the Register, that giving false or misleading in formation is a serious offence, under section of the Criminal Code. dlook Pty Ltd Page 8 of 12

9 5.2.2 Comment: As a corollary of the previous comment, ACMA might consider a more rigorous process in evaluating requests for inclusion in the register. Argument: The terminology in the Act Section 14 Eligibility for Registration states a positive criterion for inclusion in the Register, viz (in part), that A telephone number is eligible to be entered on the Do Not Call Register if it is used or maintained exclusively or primarily for private or domestic purposes. The ineligibility of a number not meeting this requirement is implicit only. ACMA makes Determinations on the Administration of the Act pursuant to its powers under Section 18 of the Act, which includes the authority for ACMA to determine: the form of applications for telephone numbers to be entered on the Do Not Call Register; the manner in which such applications are to be made. ACMA could thus specify more tightly eligibility criteria in order to ensure, to a great er extent than at present, compliance with the Act by Applicants.. At present, ACMA s form for application for inclusion on the Register is commendably simple, but the interpretation of the words maintained exclusively or primarily for private or domest ic purposes is left to the applicant. It would be valid for these Section 14 Eligibility terms to be further clarified by ACMA. For instance, it could be fairly considered that if: The applicant claims more than 30% of the telephone costs as a business expense for tax purposes including GST input credits; or The number has been listed by the applicant in a current business telephone directory (such as Yellow Pages); or dlook Pty Ltd Page 9 of 12

10 The number is shown as a business contact number in advertising or promotional material issued by the applicant, or on a web site by authority of the applicant, then the ACMA Application Form could specify that such numbers are ineligible (and of course that penalties apply for false declarations). Some such approach would seem necessary for ACMA to be seen as diligent in properly administering the Act, in particular Section 14 of the Act and Section 8 of the Do Not Call Register (Administration and Operation) Determination Comment: A User-Pays approach to sourcing revenues f or DNC Register costs should include those on the Register Argument: The Act at present appears to provide no mechanism for ACMA sourcing revenue for cost recovery other than by charging Section 19 Access Seekers. If a class of account holders (telephone numbers) who are not eligible per Section 14 of the Act are to be given the protection of and enjoy the benefits of the Act, ACMA might seek or devise a means of having such account holders pay for the benefit, however counterproductive to the business that outcome may be. Thus, mixed personal/business numbers (Applicants) which wish not to receive telemarketing calls would pay the costs of ACMA establishing such a sub -register, including the costs of promulgating that list to telemarketers via a DNC m arking system. As a sidebar, it is noted that the principle in the past in relation to being allocated a telephone number (where the numbering plan is a public asset in the hands of the Commonwealth) was that the publishing of that number in a publicly a vailable directory was automatic, and exclusion from the directory was possible only on payment of a fee (the ex-directory status). dlook Pty Ltd Page 10 of 12

11 Thus expunging the number from the public directory was identified as a benefit for which the customer paid a premium, with a related cost to the number issuer (the Commonwealth). Under the current regime, it has become treated as a right of the customer, the cost of which has to be met by third parties (referred to in the Discussion Paper as the industry ). 6. Conclusion and Summary Views dlook s comments on the current and proposed arrangements for the Do Not Call Register in summary are: The present price structure favours large users and private individuals at the expense of small businesses - and the proposed changes further emphasise this bias; Evidence to hand indicates that not all inclusions in the Register are properly eligible in accordance with the Act - and it is ACMA s responsibility under the Act to clean up the Register, rather than pursue telemarketers who are the subject to complaints by such registrants. Telemarketers sourcing numbers from self -advertised business directory numbers, and expending resources to ensure the integrity of their call lists, should ipso facto not be faced with the further expense and inconvenience of subscribing to the ACMA service - particularly in the circumstance that the Register may not be properly compliant with the Act. More broadly, and recognising who the beneficiaries of the Do Not Call Register are, and who they are intended to be under the Act, an amendment to the Act on user pays grounds that had those enjoying the protection of the Register at least paying some part of the costs - analogous to the historical charge for ex -Directory status would be fair, reasonable and desirable. dlook Pty Ltd Page 11 of 12

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