EXPLANATORY STATEMENT
Issued by the authority of the Australian Communications and Media Authority
Do Not Call Register (Access Fees) Amendment Determination 2009 (No. 1)
Do Not Call Register Act 2006
Purpose
The Do Not Call Register (Access Fees) Amendment Determination 2009 (No.1) (the Amendment Determination) has been made by the Australian Communications and Media Authority (ACMA) to amend the Do Not Call Register (Access Fees) Determination 2007 (the existing Determination). The Amendment Determination updates the fees for services provided under subsections 19(2) and 19(3) of the Do Not Call Register Act 2006 (the Act) and removes excess usage fees.
Legislative Provisions
Under subsection 13(1) of the Act, the ACMA must keep or arrange for another person (the contracted service provider) to keep, on behalf of the ACMA, a register of telephone numbers for the purposes of the Act. The register is to be known as the Do Not Call Register (Register).
The Register allows individuals to ‘opt out’ of receiving certain unsolicited telemarketing calls by registering their home or mobile telephone numbers that are used or maintained exclusively or primarily for private or domestic purposes.
It may be unlawful under section 11 of the Act to make, or to cause to be made, telemarketing calls to telephone numbers placed on the Register. However, the Act allows access-seekers to submit lists of telephone numbers to the ACMA or the contracted service provider for checking against the Register (section 19 of the Act). The ACMA or the contracted service provider must then inform the access-seeker which numbers (if any) on the access-seeker’s list are (or are not) listed on the Register. This process of ‘washing’ a submitted list against the Register will help access-seekers to comply with the Act (see subsection 11(3) of the Act).
Under subsection 21(1) of the Act, the ACMA may make a determination about the fees payable for the provision of a ‘washed list’ or the refunds of fees for those services. The determination may also make provision for any exemption from fees payable (subsection 21(2) of the Act). The charges must not be such as to amount to taxation.
A determination made under subsection 21(1) is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
On 1 May 2007, the ACMA made the existing Determination.
Background
The ACMA completed its second annual review of access fees and cost-recovery arrangements against the cost-recovery principles outlined in the Australian Government’s Cost Recovery Guidelines (the Guidelines). The Department of Finance and Deregulation has advised that the review and accompanying Cost Recovery Impact Statement for the Register was developed in a manner that was consistent with the Guidelines. The review resulted in a small increase to the fees for the ‘washing’ services provided under subsections 19(2) and 19(3) of the Act and the removal of excess usage fees.
This annual review looked at the total direct costs (actual and estimated) of the Register and compared these to the total revenue received (actual and estimated) from access-seekers in the first and second years of the Register’s operation. It is estimated that the full amount of costs that will be incurred in the second year of the Register’s operation will not be fully recovered in the second year of operation. The reasons for the shortfall include additional costs associated with enhancements to the Telemarketer Access Portal (the industry website); refunds provided by the ACMA in accordance with its refund policy and lower than expected demand for larger subscription types. Consistent with the Guidelines, any costs that are not recovered, or amounts received in excess of the costs incurred, will be used as a basis to adjust the subscription fees applicable in future years.
The ACMA also reviewed the current pricing structure and payment arrangements for the Register and found that nine out of ten subscriptions by access-seekers chose not to use the excess usage charges facility. The ACMA found that issuing invoices and collecting payment for excess usage charges is administratively inefficient. This is because many of the invoices for these charges are of low-value, while the number of invoices issued is substantial. As the costs incurred by the ACMA in administering this inefficient and low-demand charging arrangement are subsequently passed onto industry, the ACMA has decided to remove the option to submit numbers in excess of a subscription and has consequently decided to remove the excess usage fees from 1 July 2009. As noted below under ‘Consultation’, there has not been any objection by industry to removing this facility.
Once the adjusted cost-recovery amount had been calculated for 2009-10, this was incorporated into the revised fees for accessing the Register in 2009-10 using a detailed model developed by Access Economics (an independent consultancy organisation).
Regulation Impact
Given the expected minimal impact the slight increase in fees will have on industry and competition, an exemption for a Regulatory Impact Statement and Business Cost Calculator Report has been obtained.
Consultation
A Discussion Paper about the proposed Register cost-recovery arrangements and the draft Amendment Determination were issued for public comment on 24 March 2009, accompanied by a media release. The Discussion Paper sought industry feedback on three proposals:
- the updated annual subscription fees;
- the removal of excess usage fees; and
- a change to payment arrangements such that prepayment would be required for subscriptions by access-seekers.
The Discussion Paper was published on the ACMA’s website and emailed directly to key industry stakeholders, including 3,100 telemarketers, associations representing firms engaged in telemarketing, and consumer groups.
The ACMA received four submissions in response to the Discussion Paper. Three of the submissions provided comments that were out-of-scope of the Discussion Paper.
The fourth submission noted that it did not support the proposed 4.81 per cent increase in the fees. This submission argued that given the current economic climate, the fee increase will have a direct and negative impact on jobs. No supporting information regarding the magnitude of the impost the fees will have on businesses and jobs was provided in this submission.
However, as noted in the Discussion Paper, the fee increase is mainly due to additional services being procured under the Register contract. These services included enhancements to the Telemarketer Access Portal (the industry website) and the Complaints Management System. The lower than expected demand for larger subscription types and refunds made by the ACMA in accordance with its refund policy have also marginally contributed to the fee increase. The 4.81 per cent fee increase in 2009‑10, however, is less than the previous 5.4 per cent increase in 2008‑09.
The submissions did not raise any concerns regarding the proposal to remove excess usage charges and the proposal to require prepayment for subscriptions.
Although the submissions did not raise any concerns regarding the prepayment arrangements, the ACMA has decided to not proceed with this proposal at this time.
NOTES ON SECTIONS
Section 1 - Name of determination
Section 1 provides for the citation of the Amendment Determination as the Do Not Call Register (Access Fees) Amendment 2009 (No.1).
Section 2 - Commencement
Section 2 provides that the Amendment Determination commences on 1 July 2009.
Section 3 – Amendment of Do Not Call Register (Access Fees) Determination 2007
Section 3 amends the existing Determination known as the Do Not Call Register (Access Fees) Determination 2007.
Schedule 1- Amendments
Item 1 substitutes a Note in the existing Determination at section 3, inserting a reference to the definitions contained in section 4 of the Act of contracted service provider.
Item 2 substitutes a new subsection 4(1) in the existing Determination, which inserts a new revised fee schedule for the services provided under subsection 19(2) and (3) of the Act.
Item 3 substitutes a new first example in the notes to subsection 6(1) to reflect the new subscription fees in the revised fee schedule inserted by item 2.
Item 4 substitutes a new second example in the notes to subsection 6(1) to reflect the new subscription fees in the revised fee schedule inserted by item 2.
Item 5 inserts a new subsection 6(4) after subsection 6(3) to ensure that access-seekers are not able to submit telephone numbers for washing in excess of their current subscriptions. The new subsection requires ACMA or the contracted service provider to not commence ‘washing’ a list of telephone numbers until the access-seeker purchases a subscription, or subscriptions, which is equal to, or greater than, the quantity of telephone numbers on the list submitted for washing.
Item 6 removes the excess usage fee provisions, by omitting section 7. From 1 July 2009 excess usage charges will no longer be available.