The national telecommunications regulator is now seeking public comment on a draft national standard within that new discussion paper, which is "intended to provide the community with greater certainty regarding the minimum level of behaviour they can expect from fax marketers".
The Standard reflects the Do Not Call Register Legislation Amendment Act 2010 (Cth), in effect from 30 May this year, which amended the Do Not Call Register Act 2006 (Cth) - a statute that some marketers decried as the end of civilisation as we know it but welcomed by consumers (a welcome signalled by large-scale registration of private numbers to escape interference by telepests).
The 2010 amendments -
* extend the eligibility requirements to allow the inclusion of fax numbers on the Do Not Call Register (the Register)The new document provides a summary of the feedback received and background information to assist people in considering the draft standard and invites comment from industry and other interested parties.
* establish a general prohibition against sending of marketing faxes to numbers on the Register
* insert a new provision into the Telecommunications Act 1997 (Cth) (s.125B) requiring ACMA to "determine certain standards relating to the fax marketing industry".
From the perspective of community engagement it is a depressing document. A mere 17 responses (including one [PDF] by the author of this blog) were received in relation to the June discussion paper, with comments as follows -
Prohibited times for the sending of faxesWhat has been included in the draft standard (which regrettably enshrines Sunday but disregards the sensitivities of people for whom Saturday is a day on which not to be disturbed) -
Ten submissions addressed this issue, most favouring clear and enforceable rules on restricting the hours during which fax marketers can contact consumers. Those submissions included the following comments:
+ marketing faxes should be permitted to be sent Monday through to Friday, with suggested permitted times on weekdays ranging from 8.00 am to 9.00 pm
+ marketing faxes should be permitted to be sent Saturdays, between 8.00 am and 9.00 pm — with five submissions supporting reduced hours on Saturday (e.g. between 8.00 am to 6.00 pm)
+ no fax marketing to occur on Sundays and national public holidays (seven submissions). One submission supported allowing fax marketing between 9.00 am and 5.00 pm on such days
+ the prohibited faxing times should be defined in the standard so that they relate to the time zone of the receiver
+ there should be an exception to the prohibition where the receiver has provided consent to receive a marketing fax at a time which would otherwise be a prohibited time.
Provision of information within a fax
The ten submissions which addressed this issue supported a requirement upon fax marketers to provide contact information and suggested that:
+ contact details should be required to easily identify the originator (the person who authorised the sending of the marketing fax, or the advertiser)
+ the contact details required should include standard business details such as company name, phone number, email address and ABN (or similar)
+ contact details should be set out on the first page of the marketing fax
+ the minimum required font size should be stipulated in the standard.
Volume and frequency of marketing faxes to a number
Only one submission supported the introduction of volume and frequency restrictions on the number of marketing faxes that may be sent in a particular period. Several submitters suggested that regard should be had to the existing Handling of Life Threatening and Unwelcome Communications Industry Code, which currently provides some regulation in relation to ‘unwelcome’ communications.
Seven submitters indicated this type of limitation would be difficult to comply with for a variety of reasons. The submissions provided the following comments:
+ if would be technically difficult, time consuming and expensive to implement a solution for compliance
+ no other standard in the world currently includes these type of restrictions
+ the inclusion of this type of restriction could be considered a ‘restraint of trade’
+ he fax marketer has little or no control over the actual number of times a number has been ‘attempted’ (for example, when the first attempt is not successful) as the telecommunications provider is the ‘actual’ dialler
+ large organisations often have only one fax number as a point of entry, which distributes faxes automatically to recipients throughout the organisation via other channels (for example, email). This would mean the fax marketer’s fax communication frequency with a particular organisation (as opposed to an individual) would be limited.
Opt-out functionality
All fourteen submissions which addressed this area supported the inclusion of a requirement to provide opt-out functionality in marketing faxes and many noted that this is already a standard industry practice.
Many submissions favoured a requirement to provide a web based option as an easy and cost effective opt-out mechanism for fax recipients. However, other submissions proposed that a variety of contact options should be required to ensure consumers are not prevented from opting out due to lack of access to particular forms of technology. Many of the submissions suggested the information should be available on the first page of the fax and the minimum font size be prescribed in the standard.
Prohibited times for the sending of faxesACMA has sought comment by early November on draft standard, particularly -
Under the draft standard, a sender must not send a fax, or cause a fax to be sent, on:
+ a weekday before 9.00 am or after 8.00 pm or
+ a Saturday before 9.00 am or after 5.00 pm or
+ a Sunday or
+ a national public holiday.
A reference to time is the time at the place that is the usual address of the relevant account holder.
An exemption has been provided where the relevant account holder, or nominee of the relevant account holder, has consented in advance to receiving the fax at that time.
Provision of information within a fax
Under the draft standard, a marketing fax must include the following information:
+ the name of the person who authorised the sending of the fax
+ the Australian Business Number (ABN) of the person who authorised the sending of the fax, or equivalent business number identification if the person who authorised the sending of the fax is a foreign company
+ the contact details of the person who authorised the sending of the fax (telephone or fax number, street address, postal or business address and email address)
+ the details of how the recipient can send an opt-out message including:
+ a statement to the effect that the fax recipient may opt-out of receiving any future faxes from the person who authorised the sending of the fax by conveying an opt-out message to an opt-out address and
+ an opt-out address to which fax recipients can communicate an opt-out message.
The information required must be:
+ displayed in a clear and conspicuous manner
+ included on the first page of the fax at a minimum
+ displayed using a minimum size 10 font.
Limit on number of faxes to be sent to a recipient in a period
A person who sends faxes must make reasonable efforts to ensure it does not send more than 10 faxes, which are authorised to be sent by the same fax advertiser, to a particular Australian number in any single 24 hour period.
Opt-out functionality
Under the draft standard a person who sends a fax must have in place processes to ensure that:
+ the opt-out address provided in the fax is capable of receiving opt-out messages 24 hours a day, seven days a week
+ as soon as possible, and no later than seven days, after the fax recipient has opted-out of receiving fax messages, the fax recipient’s number is removed from any list of Australian numbers used by the sender to arrange for the sending of faxes on behalf of the fax advertiser.
Operation of state and territory laws
The draft standard is not intended to exclude the operation of a law of a state or territory to the extent that the law is capable of operating concurrently with the standard.
For example, if a state/territory law prohibits a fax marketer from sending a fax on a day or at a time, other than a day or time restricted in the standard, then the more stringent state or territory law would apply.
a. four areas required to be addressed in the draft standard by the Telecommunications Act
b. limit on number of faxes to be sent to a recipient in a period (should the number remain at 10 in a 24 hour period or should it be increased or decreased? should the period in which a number of faxes may be sent to a recipient remain at 24 hours or should it be increased or decreased?)
c. interpretation of words used in the draft standard.
