Australian Communications and Media Authority Activity
The Australian Communications and Media Authority (ACMA) is responsible for enforcing
telecommunications laws across Australia, including the Telecommunications Act 1997 (Cth) (the
Telecommunications Act), the Do Not Call Register Act 2006 (Cth) (the Do Not Call Act), the Spam
Act 2003 (Cth) (the Spam Act), the Telemarketing and Research Industry Standard 2007 (the
Standard), and the Telecommunications Consumer Protections Code 2012 (the Code). It has the
power to investigate compliance, issue formal warnings, accept enforceable undertakings, commence
proceedings against and issue infringement notices to companies for non-compliance.
ACMA is in the midst of a crack-down on breaches of the Do Not Call Act, as well as on telecom
providers under various industry codes. Recently, ACMA has issued:
• a formal warning to Exceed Connect;
• a formal warning to Web 1000;
• a direction and enforceable undertaking to Macquarie Telecom;
• an infringement notice of $34,000 to Premium Financial Services; and
• proceedings against travel company Getaway Escapes.
In the case of both Exceed Connect and Macquarie Telecom, their troubles seem to have began
when their telco customers were transferred over from other providers. Macquarie Telecom has had
some 130,883 services transferred to them from other providers since March 2010 for which they had
not uploaded records to the Integrated Public Number Database (IPND). The IPND is an industrywide
database of all public phone numbers and associated customer data, used, amongst other
things, as a resource for emergency services organisations responding to emergency calls.
Additionally, Macquarie Telecom did not enter any record onto the IPND for an additional 11,616
services during the period from March 2010 - July 2015. Carriage service providers are required to
provide and maintain accurate records on the IPND under the Telecommunications Act and the IPND
ACMA has directed Macquarie Telecom to comply with the IPND Industry Code, which results in
harsher penalties being available in the event that it commits a further breach of the Code in the
future. ACMA has also accepted from Macquarie Telecom an undertaking, enforceable in the Federal
Court, to upgrade its data collection and reconciliation procedures, undergo an independent audit into
its processes, implement additional training and education procedures and report back to ACMA on
the outcome of these measures.
Exceed Connect's troubles with ACMA also stem from the transfer of customers from another Telco,
in this case, Exceed Telecom, after it was placed in external administration last year. In contravention
of the Code, ACMA alleges that Exceed Connect did not use reasonable endeavours to ensure
consumers were only transferred where their prior consent to the transfer was obtained. In addition,
Exceed Connect failed to ensure that consumers were provided with certain information regarding the
transfer, as required under the Code. Exceed Connect received a formal warning from ACMA under
the Telecommunications Act.
In the case of Getaway Escapes, ACMA has brought action in the Federal Court for breaches of the
Do Not Call Register Act by Getaway Escapes and its subsidiary AusFlights. Both companies have
been placed in liquidation. ACMA alleges that both companies made telemarketing calls to phone
numbers that were on the Do Not Call Register and failed to ensure that the their telephone lists were
properly checked against the Register before engaging in telemarketing. Federal Court penalties for
contravening the Do Not Call Act can be as high as $360,000 per day for corporate offenders.
ACMA also alleges that Getaway Escapes conducted telemarketing calls without caller ID being on,
which is a breach of the Industry Standard. This is the first time ACMA has brought Federal Court
proceedings for contravention of the Industry Standard. The Federal Court is empowered to penalise
body corporates up to $250,000 per contravention of the Industry Standard.
The Do Not Call Register was also the source of a $34,000 infringement notice paid by Premium
Financial Services (Premium) following an ACMA investigation this month. In the case of Premium,
marketing services were outsourced to a call centre which Premium relied upon to perform
telemarketing on its behalf. ACMA Chairman Richard Bean has explained that it is insufficient for
businesses to assume that call centres they engage are compliant, and both the companies who
engage others to conduct marketing, as well as those who perform the marketing calls, can be made
to pay infringements for breach.
Web 1000 has been issued a formal warning for breaching the Spam Act. Despite its assertion that its
marketing databases were legitimately sourced from compliant lists purchased from third parties and
customers who had given express consent, ACMA issued a formal warning once it became clear that
Web 1000 could not show any records of consent for the consumers contained on its marketing
database. Businesses should ensure that records of consent are kept prior to engaging in online
marketing, in order to avoid any potential breaches of the Spam Act.
Businesses should be mindful of ACMA's regulatory powers and activities and must endeavour to
ensure that their communications practices adhere to all legal requirements in order to avoid the
significant penalties surrounding their breach. It is particularly prudent to learn from the infringement
paid by Premium this month, and actively ensure that any contracted telemarketing services providers
you engage are also compliant with all relevant laws.
It is important for telcos in particular to ensure ongoing compliance with both the Telecommunications
Act and relevant industry codes and work quickly to remedy any breaches that may occur. As we
have seen with both Macquarie Telecom and Exceed Connect, this is particularly relevant in respect
of data transferred from other service providers.
For more information, please contact Anne-Marie Allgrove, Toby Patten or Matthew Dempsey.