Do Not Call Register (Access Fees) Amendment Determination 2010 (No. 2)

Administered by Department of Communications and the Arts

Legislation au F2010L03330 Not in force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

 

Issued by the authority of the Australian Communications and Media Authority

 

Do Not Call Register (Access Fees) Amendment Determination 2010 (No.2)

 

Do Not Call Register Act 2006

 

Purpose

The Do Not Call Register (Access Fees) Amendment Determination 2010 (No.2) (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 subsection 19(2) of the Do Not Call Register Act 2006 (the Act). 

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 Australian 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 or fax marketing messages by registering eligible numbers on the Register.

It may be unlawful under section 11 of the Act to make, or to cause to be made, telemarketing calls to Australian numbers placed on the Register. It may also be unlawful under section 12B of the Act to send, or cause to be sent, marketing faxes to an Australian number placed on the Register. The Act allows access-seekers to submit lists of Australian 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) and subsection 12B(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 third 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 review resulted in a small increase to the fees for the ‘washing’ services provided under subsection 19(2) of the Act.

This 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 from the start of the Register’s operations in May 2007 through to December 2012. The adjusted fees have been calculated using a detailed model developed by Access Economics (an independent consultancy organisation).

Regulatory 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 was issued for public comment in July 2010. The Discussion Paper sought industry and public feedback on the updated annual subscription fees.

The Discussion Paper was published on the ACMA’s website and emailed directly to key industry stakeholders, including over 7,000 telemarketers, fax marketers, associations representing firms engaged in telemarketing and fax marketing, and consumer groups.

The ACMA received six submissions in response to the Discussion Paper.   


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 Determination 2010 (No. 2).

 

Section 2 - Commencement

Section 2 provides that the Amendment Determination commences on 1 January 2011.

 

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 new table at subsection 4(1) in the existing Determination, inserting the revised fee schedule for the services provided under subsection 19(2) of the Act.

Item 2 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 1.

Item 3 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 1.

 

Overview

The Do Not Call Register (Access Fees) Amendment Determination 2010 (No. 2) was made by the Australian Communications and Media Authority (ACMA) to update the fees for services provided under the Do Not Call Register Act 2006. This Amendment Determination seeks to amend the existing Do Not Call Register (Access Fees) Determination 2007, primarily by adjusting the fees for the services associated with checking telemarketing and fax marketing lists against the Do Not Call Register. The objective of this amendment was to ensure that the fees charged align with the costs of maintaining the register and the principles outlined in the Australian Government’s Cost Recovery Guidelines. The ACMA conducted a review of access fees and cost-recovery arrangements, resulting in a modest increase in fees to better reflect the costs incurred from the start of the Register’s operations in May 2007 through to December 2012. This adjustment was calculated using a model developed by Access Economics. The Amendment Determination aims to ensure that the fees charged do not exceed the actual costs incurred and comply with the legislative requirements, including not amounting to taxation.

Scope and Application

The Do Not Call Register (Access Fees) Amendment Determination 2010 (No.2) applies to the Australian Communications and Media Authority (ACMA), which is responsible for maintaining the Do Not Call Register. This register enables individuals to opt out of receiving unsolicited telemarketing calls or fax marketing messages by registering their numbers. The Amendment Determination updates the fees for services provided under subsection 19(2) of the Do Not Call Register Act 2006, allowing access-seekers to submit lists of Australian numbers for checking against the Register to ensure compliance with the Act. The Amendment Determination amends the existing Do Not Call Register (Access Fees) Determination 2007, which was made by the ACMA, and it applies nationally across Australia. The fees for the ‘washing’ services have been slightly increased, as determined by a review of the total direct costs and revenue received from access-seekers. The Amendment Determination commenced on 1 January 2011.

Key Provisions

The Do Not Call Register (Access Fees) Amendment Determination 2010 (No.2) modifies the Do Not Call Register (Access Fees) Determination 2007, primarily by updating the fees for the services provided under subsection 19(2) of the Do Not Call Register Act 2006. This Amendment Determination is a legislative instrument made by the Australian Communications and Media Authority (ACMA) to ensure that the fees for services align with the cost-recovery principles outlined in the Australian Government's Cost Recovery Guidelines. These services include the checking of submitted lists of Australian numbers against the Do Not Call Register, which helps access-seekers to comply with the Act. Under the Do Not Call Register Act 2006, the ACMA is responsible for maintaining the Do Not Call Register, which allows individuals to opt out of receiving unsolicited telemarketing calls or fax marketing messages. Access-seekers, such as telemarketers and fax marketers, can submit lists of Australian numbers to the ACMA or a contracted service provider for verification against the Register. The ACMA or the service provider must then inform the access-seeker which numbers on their list are on the Register (subsection 19(2) of the Act). This process is crucial to ensure compliance with the Act, which prohibits making telemarketing calls or sending marketing faxes to numbers on the Register (sections 11 and 12B of the Act). The Amendment Determination imposes obligations on the ACMA and contracted service providers to update the fee schedule for the checking of lists against the Do Not Call Register. This update is based on a review of the total direct costs of maintaining the Register compared to the revenue received from access-seekers. The ACMA must ensure that these fees are fair and do not amount to taxation (subsection 21(1) of the Act). Additionally, the Amendment Determination provides for any exemptions from fees payable, ensuring that the fee structure remains reasonable and does not unduly burden access-seekers. In terms of consequences for non-compliance, the Do Not Call Register Act 2006 stipulates that it may be unlawful to make telemarketing calls or send marketing faxes to numbers on the Register (sections 11 and 12B). While the Amendment Determination itself does not specify penalties for breach, the Act does outline that breaches may result in civil or criminal consequences. The Act's provisions suggest that individuals or entities found to be in breach of these provisions could face significant penalties, although the exact penalties are not detailed within the Amendment Determination.

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