Submission to the ACCC regarding ADMA's request for authorisation of a modified Code of Practice

I am an independent advocate, having been involved in telecommunications privacy since making submissions to, and meeting with, the AUSTEL Privacy Inquiry in 1992.  My work involves technical writing in telecommunications.  I was a member of the CTN (Consumers Telecommunications Network) council for several years in the mid 1990s.  I was one of the advocates who made submissions in 1999 when ADMA originally applied for their Code to be authorised.

My 1999 submissions are at: http://www.firstpr.com.au/issues/tm/  and the final version of this submission will be available at this URL.

This submission consists of one HTML page and a number of attachments which I intend the ACCC to also print and consider - and which I will supply in printed form to the ACCC in the next few days.

This submission focuses primarily on the telemarketing aspect of the current and proposed Code, with secondary focus on ADMA's fitness, and the Code's suitability, for consumer protection in direct mail or other forms of direct marketing.

The problems caused by telemarketing - to consumers and businesses - are not primarily due to marketing and sales as such.  The problems are primarily due to repeated, systematic, (typically) large-scale, unauthorised, pernicious and knowingly intrusive use of telecommunications networks, people's telephone services - with all the annoyance and costs this entails.  These problems should be solved by government regulation, not by any self regulatory regime such as ADMA was granted, and is seeking to extend.

Even if it were deemed appropriate that telemarketing be subject to a self-regulatory regime, ADMA should not be the organisation which is given government approval for a Code, because firstly it does not have significant "industry coverage" and secondly it is not the key representative body in outbound telemarketing.

Even if telemarketing and other forms of direct marketing were deemed to be suitable for industry self-regulation, ADMA's record of being hostile to privacy, and its apparent desire to have no relationship with the Australian Teleservices Association of  makes it an unsuitable body to be given this responsibility.

Numerous failings of the Code are highlighted, but these are illustrative of what is wrong with the whole concept of self-regulation of this kind of exploitative "industry".  These are not things which, if fixed, would make the Code acceptable.


The ACCC can only approve codes where there is a shown to be a net positive benefit to consumers (compared to no such approved code) and where that net positive benefit justifies the anti-competitive impact of such an approval.   But it is argued here that the code, at least in respect of telemarketing, if approved, conveys an overall burden on consumers. 

The ACCC is presumably required, either formally or in general pursuit of its consumer protection goals, to only approve a code when it can be shown that the code is as good as it could possibly be.  One way of saying this is that the code should be "worlds best practice".  Worlds-best practice for telemarketing regulation is not based on a self-regulatory model.  This has failed here and in other countries.  In the USA, a centralised government-based opt-out system has been implemented, with tremendously high participation rates.  Realistic calculations below indicate that the US scheme is at least 400 times more effective at stopping calls per targetted person than ADMA's, irrespective of the general frequency of calls in each country.  The US scheme has a 43 times greater participation rate in its opt-out list - and it applies to all telemarketers, whereas ADMA's applies to 10% or less.

While the US scheme falls somewhat short of the ideal regulatory scheme, it is vastly better than any self-regulatory scheme or anything ADMA would willingly accept.  Similarly Europe has adopted government regulation, Australia is poised to use legislative measures to govern email on an opt-in basis, and even ADMA has accepted that mobile marketing must only take place on an opt-in basis.

The ACCC should refuse to approve any code of self-regulation regarding telemarketing at all, especially with ADMA.  Telemarketing and other systematic intrusive misuse of telecommunications networks should be subject to centralised federal government regulation.

ADMA portray the systematic making of millions of unwanted, intrusive, phone calls as an acceptable marketing practice.  It is not and never has been acceptable to the vast majority of residential and business telephone customers.

The vast majority of recipients of these calls find them annoying, perplexing, privacy invasive, insulting and/or a burden in other ways.   If ADMA or anyone else argues that outbound telemarketing is generally or even to a moderate extent acceptable to consumers, or businesses, then they should propose that it only take place on an opt-in basis.

Outbound telemarketing places a variety of burdens on consumers, on businesses (and therefore on consumers through increased business costs) and on society in general.  Outbound telemarketing has absolutely no advantage for the recipient over the wide variety of non-intrusive advertising techniques (print, radio, TV) or over traditional non-intrusive, respectful, ways of doing business in which the customer initiates contact with the vendor when he or she desires to make a purchase.

Outbound telemarketing is expensive, but getting cheaper due to these developments which will surely lead to a greater burden on consumers and business unless the practice is properly regulated:

1. Decreased costs of placing local telephone calls and calls to mobiles.
   
   
2. Decreased costs of making calls from distant places, via various telephone links or via Voice over IP (VoIP - calls carried partly or wholly on the Internet or some other TCP/IP packet-switched network).  This enables call centres to be more centralised, including them being located in a remote low-labour-cost country.
   
   
3. Decreased costs of long distance and international calls.
   
   
4. Decreased costs of using computers to dial numbers, manage calls and keep operators busy.  (Such "Predictive Dialling" systems make more calls than operators can answer, and burden the recipient in two ways when this occurs.  Firstly they may end the call before it is answered - only to call again later.  Secondly, upon answering, the hapless recipient hears a recorded voice instructing them to wait for an operator to be available with an "important message".  The use of such predictive diallers should be regulated as a telecommunications matter, it is a question of deliberate widespread misuse of the network and the recipient's telephone service.  This is not a privacy or marketing matter at all.)
   
   
5. Increased tendency to use pre-recorded or partially automated, and therefore lower cost, methods of making the call.
   
   
6. Increased sophistication of computer technology to place calls in ways which get around recipients attempts to defend themselves.  In one report (sorry, I don't have the reference now - but I will add it to my site) in the USA, telemarketers have developed automated calling systems which end the call as soon as a live person answers, but persist and leave messages when an answering machine or voice-mail system answers the call.
   
   

The prevalence of an unwanted, pernicious, intrusive marketing technique is proportional to its success rate and inversely proportional to its cost.  Spam emails have exceptionally low costs and it is not uncommon for a single address to receive 40 a day at present, despite their low success rate which is probably below one in a million at present.   All lowering of costs, and all uses of new technology in outbound telemarketing will drive its more widespread use, until proper regulations are enforced. 

The burden placed on consumers (and business recipients) has many dimensions.  It should not be necessary to list these exhaustively - for several reasons. 

Firstly, all ACCC members should be well aware of the problem this causes, unless perhaps they have been shielded in recent years by unlisted numbers at home.  Also, I expect that telemarketers don't target the ACCC as much as they target businesses and other organisations, who are plagued with calls and trickery to try to bypass the defensive measures put in place to stop these calls wasting the time of decision-makers.

Secondly, outbound telemarketing has no benefits for recipients over a variety of well accepted non-intrusive marketing/sales techniques.  So even if the burden it placed on consumers, business and society in general was small, the conclusion would be the same - it must be regulated to prevent these costs being borne, except by those very few companies or individuals who for some reason explicitly consent to receiving such calls on an opt-in basis.

Nonetheless, here is a summary of some of the burdens outbound telemarketing places on society.  Other forms of intrusive systematically made unwanted telephone calls create similar burdens - market research calls and malicious calls (harassing, threatening or offensive, as per Section 85ZE of the Commonwealth Crimes Act).  

Some proponents of outbound telemarketing draw a distinction between "charity" calls and sales calls - but this usually of no importance to the persons who must be protected (consumers and businesses) because they simply do not want any such sales (or often survey) calls at all irrespective of whether they are thought to be commercial or charity by the caller.  

Some burdens imposed by outbound telemarketing include:

1. Disruptions, wasted time, frustration and annoyance at home and at work, on a massive scale nationally, at almost any time of the day or evening - with little or no chance of using personal defences to avoid such calls.
   
   
2. Tying up a person's telephone line with an unwanted call.
   
   
3. Interrupting an existing call (via call waiting) for the unwanted telemarketing call.
   
   
4. The necessity (for most people who prefer to be pleasant) of trying to get rid of an unwanted caller who is trained and experienced at avoiding all such attempts to end the call.   Thus the recipient is thrown into a contorted, deceptive, psychological situation where they are trying to get a trained, paid, professional  manipulator to end the call, without being unpleasant and without violating standards of decency the recipient would prefer to uphold.  Callers often use every possible means to twist the recipient's mind into listening to their spiel, especially be deliberately misconstruing or ignoring the recipient's polite rejections.   The result is that the best way, as most people discover, to get rid of telemarketers is to be abrupt and unpleasant (such as hanging up without a word, or with few words) or to be actively unpleasant in the hope of contributing to job stress, costs for employers and so, in a lasting sense, to an overall reduction of the incidence of outbound telemarketing. 
   
   
5. The common experience by many people - whoever answers the phone - of being talked to in a supposedly pleasant and supposedly polite manner, for purposes of manipulating them into doing something they do not want to do.  Callers often insist they are not selling anything, and that they are making a "courtesy call" - but this is deliberately deceptive and gives the recipient little alternative but to either end the call abruptly, or engage in an argument about the nature of the call, which the caller is trained to exploit as a means of delivering their marketing message.
   
   
6. The constant, unpredictable, privacy invasions at home, or on mobiles, by which recipients stop what they are doing, answer the phone expecting a friend or a customer, and find themselves wasting their time talking to, and trying to get rid of, a person who cares nothing for them and only wants to get their attention and money, despite all the caller's pretences to politeness, "courtesy" etc.
   
   
7. The pressure of unwanted calls, often resulting from aggressive repurposing of the contents of the White Pages (which Telstra has consistently opposed in the courts), causes many people (but usually not businesses, who must be in the directory to do business) to pay substantial fees each year for an unlisted number (known in Australia by the anachronistic term of "silent line" and overseas as "ex-directory" or "unlisted" numbers).   This is an economic burden for millions of Australians, amounting to costs in the dozens of millions of dollars per year.  This is a small indication of how much people value their peace and quiet - that they would go to the trouble and the recurring expense to get their name and number out of the directory.   There are further costs to the people themselves, to their friends and to society in general from this trend towards having an unlisted number.  It causes friends from the past to be unable to find each other as people move and change their addresses.  It causes extra costs to phone company enquiry lines - which is the supposed justification for charging $32 or so (I haven't researched the actual fee recently).  It greatly inhibits the ability of individuals, helping professionals and officials to contact people in times of accident or emergencies.   I have not researched current figures for ex-directory numbers in Australia or the USA, but I recall in the mid 1990s it was well above 50% in California.  The pressure for going ex-directory is almost entirely due to the problems of outbound telemarketing calls - but some proportion of the population would want to be ex-directory for other privacy reasons as well.
   
   The ACCC should ask Telstra the annual cost of the "silent line" service and how many customers currently pay for this.  Multiplying the two together gives a dollar cost to the community which is very largely due to the burden of telemarketing on the community, and which represents only a fraction of the many concrete and diffuse costs and other burdens the public has to pay for this pernicious business practice.
   
   
8. In the USA, where many people at home are subject to two or three telemarketing calls a night, for years after year, this must contribute significantly to the level of angst, and generalised levels of distrust of strangers.  (It would also exacerbate the suffering of people with depression, mood disorders and the like.) This, along with the prevalence of guns and violence, is a significant contributor to the generalised lower levels of trust for strangers in the USA compared to Australia.   Every outbound telemarketing call in Australia degrades our collective ability and propensity to trust and be happy.  So outbound telemarketing, especially as it rises towards the extreme levels it has in the USA, is a powerful cause of the irrevocable destruction of one thing which Australia is rightly well-known for - our generalised trust for strangers, otherwise known as our happy "national character".   It is a travesty that a pernicious marketing technique should be allowed to invade the lives of most citizens and systematically destroy our trust in fellow Australians who we don't know, forcing us to be more defensive about answering the phone, and damaging our "national character".  The destruction or diminution of this "national character" has important economic impacts in tourism and more broadly in our ability to export food and other goods and services where the subjective judgement as to the product's quality and value is partly dependent on the nature of the people and society which produce it.   It follows that any country which successfully protects its citizens (at home and at work) from the time-wasting and character-embittering effects of outbound telemarketing will enjoy greater domestic happiness, lower levels of stress-induced illness, greater productivity and will be internationally recognised, explicitly and by flow-on effects, as a country where respect, quality and decency are thriving.
   
   
9. Market research via telephone is not always of any social value (such as merely testing the impact of an advertising campaign) - but it can be of immense social value (for governments, community organisations and social researchers), and the alternative forms or contact are either much more expensive (face-to-face interviews) or have such a low response rate (surveys by mail or the Web) that their results are of little or no quantitative value.   Some or many people are prepared to respond positively to market research calls, assuming that these are genuine calls for matters of interest to the person, and that they are conducted according to internationally recognised standards as has long been developed by the market research industry.  Market research telephone calls are a unique, cost-effective and timely approach to market research - but their effectiveness is greatly diminished by the pressure of telemarketing.  This has long been recognised in the market research industry (I have some references, but it is self-evident), to the point where this, the most widely used form of market research, is becoming increasingly useless due to low response rates.  The cause is firstly the high incidence of ordinary telemarketing calls, leaving people with no interest at all in why they are being called - just an urgent desire to end the call and ensure they are never called again.  The second cause is the subset of outbound telemarketers who are "SUGgers" - Selling Under the Guise of market research.   SUGging is a trades-practice and marketing regulation issue, embodied within an unwanted intrusive telecommunications issue.  Theoretically SUGging might be effectively eradicated by some regulatory means - though almost certainly not a self-regulatory one, since the callers who use these deceptive techniques would not want to join any such self-regulatory industry body.  As long as telemarketing is not properly regulated as a telecommunications problem, SUGing will continue.  Any level of telemarketing, and SUGging in particular, seriously burdens the market research industry, as well as the recipients of these calls.  Telephone market research is a vital and irreplaceable avenue for a wide range of socially valuable research.  The only way of saving the value of telephone market research is to properly regulate telemarketing - with centralised government regulations.
   
   

There are some specific problems with telemarketing from a consumer protection perceptive which do not relate to its central problem of being an intrusive misuse of the recipient's phone service.

 Direct marketing sales involve a number of systemic problems for recipients/customers.  These include the way customers are prompted into making decisions about purchases when they least expect it, with the possibility that they will therefore make a decision they later regret.  ADMA's code and other state regulations try to deal with these problems with cooling off periods etc.  

But there is another systemic problem with outbound telemarketing which is not at all subject to regulation - the fact that any level of officially sanctioned telemarketing is an encouragement to people in general to divulge personal information to anyone who calls them.   One would think that far from allowing outbound telemarketing as if it was a reasonable business practice, that there should be a complete ban on this approach to selling or soliciting donations and/or a public awareness program to warn all business people and consumers never to divulge information to people who contact them by phone.

The following discussion uses the example of the person's credit card details, but applies in general to absolutely anything they divulge about themselves in the course of responding to a call which to them, appears to be an outbound telemarketing call.

In an ideal world, outbound telemarketing would be banned outright, with the possible exception of an infinitesimally small number of people who opted in, after they had been warned of all the risks, of whom it could be shown were not certifiably insane, and who had made a fully informed explicit decision.

As long as outbound telemarketing remains an officially or socially "accepted practice" (even though the vast majority of people do not respond positively) then there is a generalised situation in which some, or many, people have the following expectations:

1. It is common, and officially accepted, that legitimate businesses, charities (and so-called charities, such as businesses licensing charity's names for a tiny percentage of the proceeds of the sales/"donations") will call businesses and homes, requesting information about recipient's living situation, desires, plans etc. and making sales, or taking donations, typically involving the recipient giving their full credit card details.
   
   
2. That recipients of such calls should take on face value what they are told by the caller.
   
   
3. That since this is an officially sanctioned or tolerated business practice (as it currently is due to lack of regulation and due to the ACCC's approval of ADMA's Code) that there is some form of safety in this sort of communication, and that there are ways by which the recipient will be generally protected by the law (or perhaps some self-regulatory scheme) in the event that the caller misuses the information divulged to them.
   

In the current situation, where these things are generally accepted by some or many people, then some of them will naturally divulge personal details to whoever calls them and convinces them of their bona-fides.   Its easy to imagine this being used for criminal purposes, and for stretching or breaching standards of good business practice.   No degree of self-regulation can prevent this.  Furthermore, even firm government regulation of telemarketing - any situation in which outbound telemarketing is accepted by the government as a legitimate practice - will foster the above beliefs in the minds of millions of consumers, without being able to prevent criminals from duping consumers.

In the above environment, criminals can easily convince many people that the caller is a company or "charity" the recipient may or may not have heard of.   Also, the criminal could be outside Australia, and so not in the slightest subject to Australian laws, or probably any (currently lacking) ability of the telecommunications carrier to retrospectively trace the origin of the call.   Here are some scenarios which demonstrate that any public acceptance of outbound telemarketing as a legitimate business practice will inevitably lead to criminals taking great advantage of consumers.

• Caller convinces recipient that they are a legitimate business or charity - and solicits a sale or "donation" to be paid for by credit card.  Caller then has the recipient's full card details - their name, card number, expiry date and security number.   This enables the caller to make a potentially very large series of purchases with the recipient's card.   These would typically be via the Net.  Purchases of goods and services might be revealed in the weeks or months which follow to be fraudulent, but by then, the goods or services (such as saleable items and Internet access, telephone calling cards in any country, or perhaps online gambling etc.) will have been delivered.  A more direct method by which credit card details can be used to generate cash is via the huge number of adult Internet sites which involve monthly subscriptions (by credit card) with incentive payments to referring web sites.   Thus, the caller establishes some such site, and registers it as a referring site with a large number of adult sites.   The caller then collects a substantial number of sets of credit card details, and using appropriate software to automate the process, causes multiple "customers" to subscribe to multiple adult sites, with the incentive payments being made to their own site before the fraud is exposed.   The cost to the banks and consumers is massive, since hours or days are required in each instance to untangle and try to reverse the unauthorised transactions, and to establish a card with a new number.
  
  
• Caller asks about the recipient's security system and/or their valuable possessions, and thereby gains information for a future burglary.
  
  
• Similarly, asking questions about holidays, work times or other aspects of the person's life, under the guise of selling travel packages, provides information which will assist in a burglary or other fraudulent activity.
  

Other branches of the ACCC would be well aware of the many ways in which people can be duped via telephone.   The point is that these criminal abuses  only possible on a large scale in an environment when there is a generalised expectation that outbound telemarketing is a legitimate business practice.

There is no way of successfully regulating to prevent these abuses.  The only way to reduce or eliminate them is to either ban outbound telemarketing (except perhaps for a tiny number of well-informed people who opt-in to it), or to allow it to continue, with a public awareness campaign which urges people never to divulge any personal information to anyone who calls them - but to do so only after calling a number which the caller may point them to, but which can be know for sure, (such as via the White Pages) as belonging to a legitimate organisation which is known to and regulated by the appropriate government regulatory agency.   This is fine in principle - and somewhat inconvenient in practice.  But it would be anathema to telemarketers is because the sole reason they persist with outbound telemarketing is because of its surprise effect, its manipulative power over some people - its ability to cajole some people into paying money without much further thought.  A lot of that manipulative power would be destroyed if all recipients were required to end the call and call some number, after verifying that it was to a legitimate organisation.  This would give them time to reflect upon what they had just been talked into, and time to get back to whatever they were interrupted from doing - so ending the attention-focussing manipulative spell of the telemarketer before the sale or donation has been finalised.

The elimination of outbound telemarketing as an accepted business practice is the only way to prevent a large number of potential and actual criminal and fraudulent misuses of consumers' private information, especially their credit cards.

Far from being regulated and approved by the ACCC, outbound telemarketing should be banned or tolerated only once the public is fully informed of the dangers it involves.

A small number of legitimate charities use outbound telemarketing directly to raise funds.   There are a number of reasons why this should be discouraged.  Firstly, as noted above, it conditions people into giving their credit card details to people they do not know, and have no way of identifying, since telephone calls have no way, at the time, of being traced and shown to originate from a legitimate organisation. 

Secondly, the charity use of outbound telemarketing involves several pernicious costs which are contrary to the needs and expectations of the public, and of charities in general.   These costs and problems include:

1. The cost of unwanted intrusive phone calls which is forced upon the public in general (unless the charity only calls those who have previously given their informed consent).   It makes no difference how needy or worthy a charity is - this can be no justification for burdening individuals or businesses, or hundreds of thousands of individuals or businesses, as listed above in the discussion of the general problems of telemarketing.
   
   
2. The high costs, in phone calls, call-centre capital and running costs and labour costs, of making the vast numbers of outbound calls.  This inevitably greatly diminishes the proportion of funds collected which remain after costs for the intended purpose of funding the charity's core activities.  (There is a fair-trading problem here in that potential donors are not told what proportion of their payment actually goes to the charity - and also that there seems to be no compulsion for them to be told the caller is a business licensing the name of the charity, rather than the charity themselves.  These problems would be insignificant if calls were made only to the small number of people who would knowingly opt-in to them. )
   
   
3. The resulting fatigue of potential donors caused by repeated calls from a specific charity, or charities in general.  This transforms the charity from an organisation which should be, and wants to, contribute to society into a privacy invasive, manipulative time-waster which has to try to make a profit in a low-efficiency, high-cost relationship with the public and its donor base.
   

There are further costs and problems inherent in the common practice of a legitimate charity (or even an organisation such as a public radio station, which is not a charity, but may be perceived as one by the public) licensing its name to a commercial outbound telemarketer, which solicits donations, sells "gifts" or sells "discount cards" (for $90 or so) on behalf of the charity.   Very often, the caller pretends to be from the charity itself, and the recipient has no way of knowing that only a small proportion of the gift sale, or "donation", goes to the charity.   As I wrote in 1999 http://www.firstpr.com.au/issues/tm/comments-rw-1.html :

The general donor fatigue caused by legitimate charities telemarketing the public, plus the knowledge that charities (at least some of them) care so little about the public that they will spend hundreds of thousands of dollars making such calls, is greatly compounded by the commercial licensees of charity names - who further wear out the public and give them less and less confidence that a substantial proportion of their "donation" ever goes to the charitable cause.

Some of the issues here are more properly covered by trades-practice and charity-specific regulations, since they are not specific to direct marketing.  However direct-marketing techniques of telemarketing, door-to-door sales and direct mail (as well as potentially email or SMS etc.) significantly exacerbate the problem, firstly by the charities and pseudo-charities (the commercial licensees) spending so much money invading peoples privacy, and secondly because these direct-marketing arrangements provide people with greatly diminished opportunities to think carefully about their "donation" or to check the bona-fides of whoever they are being urged to give their money to.

As with sales, "charity" telemarketing has no benefits for recipients over other non-intrusive methods of making donations.

These problems can and should be solved by centralised government regulation in the domains of telecommunications, charity and direct marketing.  A self-regulatory scheme such as ADMA's has no real impact, because any charity or commercial licensee who would be restricted by ADMA's Code would be better off not joining ADMA.

While outbound telemarketing does have some unique problems in the event that a sale or "donation" takes place, the real problem is that it happens at all (unless to the minuscule number of people who would make an informed and unpressured choice to opt-in to such calls).

Outbound telemarketing is primarily a telecommunications issue.  It is the systematic misuse of people's telephone services, in circumstances where potentially millions of people are called - in all but a few cases, contrary to the desire of those recipients.

As such, neither the ACCC nor ADMA should have any role in regulating this particular aspect of the unwanted call problem.  It is a telecommunications problem and it should be regulated appropriately by the federal government.   Ideally this should be as part of a generalised prohibition of systematic abuses of the telephone network and individual and business telephone services, extending the currently narrow criminal provisions (85ZE: harassing, threatening or, in all the circumstances, offensive). 

This regulation should be generalised in principle and apply as evenly as possible to email, phone calls, instant messenger, ICQ etc. as well as to SMS and other point-to-point technologies which are yet to be developed.

The problem with the current arrangement of an ACCC approved Code for ADMA as the government sanctioned regulator of the "telemarketing industry" is that it provides zero or negative benefits ot the public (both consumers and business) whilst giving the impression that:

1. Outbound telemarketing is properly regulated.
   
   
2. That it is a legitimate practice for businesses and charities.
   

I believe the ACCC should refuse to approve any Code proposed by ADMA (or any other body) which concerns telemarketing.  The reasons above are more than sufficient to show why telemarketing should not be be subject to any legitimising weak self-regulatory regime, and why it should be subject to centralised, hard, telecomunications-specific government regulation.   Even if the ACCC rejects all the above, additional considerations detailed below show why ADMA should not be entrusted with the regulation of telemarketing, and perhaps any matter concerning consumers' privacy at all.

In June 2003, the Australian Government has promised to regulate unsolicited commercial email on an opt-in basis, via legislation, except where the recipient was in an existing business relationship with the sender:

This follows an NOIE report into the spam problem, in April 2003.  This includes details of the European Union, Austrian and Danish opt-in legislation.


The Danish legislation of 2000 (as amended to 2003), provides opt-in arrangements (or an existing business arrangement) for email, fax and "automatically dialled" phone calls (section 3).  There is also a government-operated opt-out list, with no mention of charges to access that list:

(There may be some definitional problems in whether "automatic dialling" refers to any non-manual dialling system, as is used by moderate and large-scale telemarketers - which it probably does - and whether the following "automated calling machines" only refers to systems with no human involvement.)

The European Union legislated in 2002 for opt-in regulation of email and other forms of communication.
The European Coalition Against Unsolicited Commercial Email has an extensive listing of regulations regarding email and sometimes other forms of unsolicited communications.  A number of countries are listed as having opt-in legislation.

The state of California regulated unsolicited commercial email, telephone, mobile and fax communications.  This legislated opt-in approach is contained in three bills which can be found via the search page: http://www.leginfo.ca.gov/bilinfo.html by selecting the 2001-2002 session and three bill numbers listed below.  Also listed is a brief description and the URL of the final Act:


 

I have not had time to research in detail the latest telemarketing regulation regimes in European countries.  While worlds best practice is not necessarily defined by the new arrangements in the USA, these arrangements, described in the next section, should be examined closely by the ACCC in assessing ADMA's application.

I have written in the past on how some phone companies in the USA implement "Customer Activated Malicious Call Trace" - the ability, for a small fee, to have any incoming call traced after it has ended, with the number being available only to the Police and/or phone company or telecommunications authority inspectors.  This material has not been updated in recent years, but as far as I am aware, no progress at all has been made towards this in Australia since I wrote it:


For a variety of reasons well beyond proper regulation of telemarketing, it is vital that this be made a standard feature of all Australian telephone services - fixed and mobile.   Without this, hoax calls, including potentially hugely costly and disruptive bomb threats, can be made with impunity.

There is no jurisdiction I am aware of which has a really solid regulatory arrangement for all forms of systematically made unwanted calls, and for other such abuses of the phone networks and Internet, and the services which are connected to them.

However there has been a major step in the right direction in the USA, at least for telemarketing, which accounts for the vast majority of the invasive unwanted call problem.

Self-regulation and state-wide opt-out lists were found to be insufficient to deal with the burden imposed on the public by outbound telemarketers.  The USA suffers a higher incidence of calls than we do in Australia, due in part to the fact that local calls are free.   But as telecommunications costs and technologies change, there is no reason for complacency in Australia - there is every reason why the telemarketing pressure will increase to the levels of several calls a day that it has in the USA. 

The primary reason citizens create, support and pay for governments is to create a centralised system for protecting some or all citizens from things they cannot protect themselves from individually. 



An adult citizen can individually protect himself or herself quite adequately, and much better than a government could, from various threats and inconveniences, such as the problem of seeing or hearing things which they find distasteful or disturbing in the books, magazines,  newspapers, radio, television and Web-sites they read, listen to or view.  (But governments bent on social control sometimes pretend otherwise.)  Citizens individually, or as small communities, cannot protect themselves against a number of more diffuse and serious invasive threats, including burglary and assault by local criminals, from attacks by terrorists, and from the entire country being invaded by foreign forces.  These are primary reasons why people expect, demand and depend on government protection.   Likewise, citizens expect governments to systematically work to control threats of disease, flood, fire etc. which they cannot individually defend themselves against.   Outbound telemarketing and other systematic kinds of unwanted telephone calls are threats and inconveniences which people have no way of protecting themselves from, due to the very limited capabilities of their phone, and the very limited nature of its connection to the telephone network.  (The situation is quite different in the case of the Internet, where the customer equipment is a computer, which can run software which communicates with any other computer on the Net - so it is possible, if tricky, to build very good personal defences against spam.  However, spam still should, in my view, be subject to some government regulation, since it is a systematic abuse of the network and of people's Internet services.)

Since the 1980s or so, there has been a fashion in administration and politics for governments getting out of regulating industries and protecting citizens.  The current overall policy in Australia which gives rise to these ACCC-approved Codes is part of that trend.  In some cases, where the industry body and the industry participants are of good character and have a genuine desire to respect the needs and desires of the public, a self-regulatory approach is good or ideal.   But this is not the case with the intrusive communications of spammers or outbound telemarketers. 

The experiment of self-regulation in outbound telemarketing has failed, here and overseas (as far as I am aware).  Certainly in the USA, it has failed.  It takes a lot go get a government, especially the Bush administration, to increase or instigate government regulation of business to protect consumers.  But this is what has happened, because the long experiment with weaker forms of telemarketing regulation has failed.

We advocates consistently argued against self-regulation for telemarketing in 1999 and many of us argued against ADMA having any self-regulatory role, based on our past experience - and our experience at the time - with this organisation, which has consistently tried to minimise privacy protection for Australians.

So the ACCC should look closely at the US development, where these self- and state-based regulatory experiments have been tried, because they failed there for the same reason they fail here:  Outbound telemarketing is inherently a privacy invasive business practice.  Proper regulation involves ending this business practice entirely, except for whatever small number of individuals would knowingly opt-in to receiving such calls.  Therefore, asking an industry to self regulate itself is like asking a burglar to never burgle again.  It is entirely unrealistic to think that ADMA, or any group which is genuinely representative of telemarketers (which ADMA is not), could ever regulate telemarketing properly, because to do so would virtually eliminate the practice by which they earn their living.

The new arrangements in the USA are far from ideal, because of the various types of call, such as from political parties, which escape regulation.  But this is an important and long-overdue step in the right direction, because it is centralised government regulation, with real harsh penalties, imposed by the government, on a national basis.

The ACCC should refuse to authorise ADMA as a regulator of telemarketing and so enable this problem to be regulated properly, following the lead of the USA, the EU and some European countries.

This is operated by the Federal Trade Commission (FTC) and Federal Communications Commission (FCC) and will be enforced by these two agencies, and state law enforcement officials.   This national, strongly enforced, opt-out system is the product of many years deliberation.  The key pages for regulatory decisions and rules are:



This greatly extends the FCC's relatively weak regime established in 1992, and shows that the US public and government have no faith at all in direct marketer's desire to self-regulate outbound telemarketing.

The sites for consumers and telemarketers are:



The FAQ http://www.donotcall.gov/FAQ/FAQConsumers.aspx says:


Scaling to Australia's population, this would be about 5,000 submissions. 

This current ACCC consideration of ADMA's Code has received no publicity, and will primarily draw submissions from a handful of advocates and consumer organisations.  But the ACCC might like to consider that in principle, if not yet in intensity, the US situation is identical to the Australian one, and that with proper consultation with the public, 5,000 or so submissions would be received, the vast majority opposing self regulation and calling for an urgent government regulatory response at least as robust as that adopted in the USA.

Rather than entrust the opt-out list to a "self-regulatory body" (the US DMA has long had such an opt-out list), the regulations establish a body under government auspices to operate the list.  This means that consumers can have far greater confidence in their information being handled properly.  (See below  for the problems inherent in ADMA's approach.)  Most of the 27 state-based do-not-call lists have been or will be transferred to the federal system.

Enforcement is hard rather than the weak or non-existent sanctions of a self-regulatory regime.  Telemarketers who break the new rules can be fined USD$11,000 for each call.

The FTC, in a press-release: http://www.ftc.gov/opa/2003/09/030902dnc2.htm stated:

A table of state-by-state details, as at 25 August: http://www.ftc.gov/opa/2003/08/030825drs.htm shows 41,717,790 registered numbers, of which 14 state lists contributed 9,033,751 and the remainder being the result of individuals registering by:

• Phone: 6,981,298.
• TTY (for the sight/hearing impaired): 237.
• Web: 25,702, 504.
  

With six million numbers being added in the week before the cutoff date for commencement of the regulations on 1 October, it can be seen that there is a tremendously positive public response, with the likelihood of tens of millions of numbers still to be added.  (ADMA's response to its opt-out list is shown below to be about 1/43 as successful after two years as the initial phase of the US system.)


Predictably, the telemarketing representative organisations are unhappy about genuine government protection of consumers.  A 2 September report at http://www.adage.com/news.cms?newsId=38620 reports two lawsuits against the government Commissions:


At the highly regarded http://www.junkbusters.com site of ex-patriate Australian, Jason Catlett, reports on how the two Commissions worked together and reduced the number of exceptions to the new system http://www.junkbusters.com/new.html (2003-9-9):



The National Do Not Call Registry only publishes numbers - it does not link those numbers to any other information.  In contrast, the ADMA list involves distributing each person's full name, address and telephone number to all companies (ADMA members and non-members) who pay for it, which has completely intolerable privacy implications for many or most people. 

The National Do Not Call Registry makes lists of numbers available, by area code or for the entire country (depending on the subscription arrangement) so that telemarketers can remove these numbers from their lists.  As described at http://www.ftc.gov/opa/2003/08/tmkraccessinfo.htm these are text or XML (a highly structured form of text) as compressed zip files, via FTP over the Net.  Update files are also produced, so that it is not necessary to regularly download the entire file to stay up-to-date. 

There is also a web-based interactive approach to checking numbers which involves no lists or data-processing - up to 10 numbers at a time, in one area code, can be checked via an ordinary Web browser session.

More information for telemarketers can be found at:  https://telemarketing.donotcall.gov/FAQ/FAQBusiness.aspx .

According to http://www.ftc.gov/bcp/conline/pubs/alerts/dncbizalrt.htm


An explanation of how to comply with the TSR (Telemarketing Sales Rule) is at:  http://www.ftc.gov/bcp/conline/pubs/buspubs/tsrcomp.htm . In contrast with fashions still prevailing in Australia, this 38 page document constitutes detailed and prescriptive government regulation of business, in order to protect consumers in a field where they cannot individually or collectively protect themselves.  This US Federal Trade Commission document is an attachment to this submission and I ask that the ACCC scrutinize it and compare it to ADMA's proposal.  I don't have time to exhaustively compare the two, but it is clear that ADMA's proposal falls well short of Worlds Best Practice, in principle (self-regulatory vs. government regulation) and in many specific details.

These rules concern the sales and information privacy aspects of telemarketing calls, including inbound calls - where other marketing material encourages a potential customer to call a number in order to purchase goods or services.  So this goes well beyond the question of unwanted calls, and into the consumer protection aspects of direct marketing.

The rules, in general, do not apply to charities or political organisations.  The exemptions are summarised at a site with a name similar to, but with a .com, rather than .gov, to the Do Not Call site:  http://www.donotcall.com/loopholes.asp :



The rules do not generally apply to calls directed at businesses, but there are specific, and quite important instances in which the rules do protect businesses from the constant pressure of sales calls regarding fax rolls, cleaning supplies etc.  From the explanation of the Telemarketing Sales Rule http://www.ftc.gov/bcp/conline/pubs/buspubs/tsrcomp.htm :


The abovementioned document is the short, informal, version.  The formal document is a 101 page PDF:


This Final Rule document is also an attachment to this submission.  I ask the ACCC to cast their eye over it, since it contains reasoning behind the Federal Trade Commission's decision, and is indicative of the importance and complexity of proper regulation of outbound telemarketing.

The final decision on fees for telemarketer access to the list contains some estimates of the numbers of telemarketers in the USA: 

Strengths and limitations of the US approach

Ideally, outbound telemarketing would be banned, except to those those who give explicit, informed and unpressured consent.

Failing that, an opt-out system seems to be the best solution - but since the majority of people, at home and business, want to opt out, it seems quite ridiculous to have to maintain such a large list, rather than the much smaller list of those who actually find the practice acceptable.

The ideal way to run an opt-out system is something I explored in detail in my 1992 submissions to the AUSTEL Privacy Inquiry. 

Ideally, there should be no publishing or release of numbers at all.  Instead, telemarketers (or any marketer for some other form of do-not-contact list) should submit their numbers for scrutiny and have the list operator respond with a Yes / No for each number.  This is easy to do with database files, submitted via the Net, and it can also be done with trivially easy programming for one number at a time queries for both telemarketer staff using a browser manually, and for telemarketer software doing real-time checks on numbers just before making calls. 

The privacy problems of releasing numbers linked to names and/or addresses are completely insurmountable - but this is what ADMA wants ACCC approval for.  Virtually no person who values their privacy can tolerate such linked data being distributed in ways they cannot control - and there is no way at all that ADMA can prevent their list falling into the hands of untrustworthy people.  Privacy is not a luxury, it is a right and for people who are trying to keep themselves safe from abusers, or in the case of public figures just trying to keep themselves safely and sanely out of the public gaze, it is an essential of life.  For instance, its is impossible to imagine Bob Hawke giving his name, address and phone numbers to ADMA.

The US system works primarily by distributing numbers.  This avoids most of the privacy problems of linking them to other personal details, but it does raise some problems.  For instance, if a stalker was seeking the phone number of their victim, and they know the area code they live in or have moved to, and they have a good idea of when that person changes their number and so gains a new one, then they can monitor the changes to the opt-out list within an area code in that period of time and arrive at a relatively short list of numbers, one of which will be their victim's.   This is especially true since geographic location is typically indicated by all but the last four digits.  This abuse of the system is largely impossible with the preferred approach of operating it on an enquiry basis.


Ideally, a telemarketing regulatory approach would cover calls to businesses, schools, community organisations, homes and government departments.

Ideally there would be no exceptions for charities, political parties etc.

The US system has its limitations, but for an opt-out system, it is fundamentally the right approach - hard, government regulation, real penalties for each violation, government control of the opt-out database and no publishing of any information at all in relation to the opted-out numbers.

If the ACCC approves ADMA's proposals for telemarketing in any way at all, then it will be giving official approval for a self-regulatory scheme which is opposed by most or all Australian advocates, and which is utterly deficient in principle and in detail from the US scheme.   So the ACCC would be giving its imprimatur to a sham of a so-called "regulatory" system when it should be supporting the protection of Australian homes and businesses along lines at least as substantial as those now enacted in the Unites States.

ADMA represents some Australian direct-marketing companies and charities.  While for reasons of revenue and credibility, it seeks to increase its membership and to claim that it already has a very large and complete coverage of direct marketers, ADMA's limited membership is in fact all that the organisation represents.

Even if a self-regulatory regime were considered suitable for telemarketing, or for other aspects of direct marketing, there are several sets of reasons to question ADMA's suitability for the task.  Some of these are general problems inherent in such self-regulation and others are particular to ADMA.

In October 1998, ADMA had 370 members, of which 28 were listed as being involved in telemarketing.

The following analysis is based on ADMA's site http://www.adma.com.au on 9 September 2003.

The main page of ADMA's sites claims that it represents "over 500 member organisations.".  However the membership list, as shown by searching for all categories in all states, has 443 members.  After removing a handful of members of the same name which are evidently state-based divisions of the one company, or two branches of the one company at the same location, ADMA's membership stands at 436.  (One of these is "New Zealand Post International".  Another is "CW Agencies Inc VANCOUVER BC" - and Google finds no pages in the .au domain which mention "CW Agencies".) 

Some members are evidently suppliers of goods and services to direct marketers, rather than marketers or list providers themselves, such as printers, envelope manufacturers and legal and staff recruitment firms.  These firms have no marketing activities so their membership involves no regulatory restrictions on their business activities.

A text file with all members is an attachment to this submission ADMA-members-2003-09-09.txt  Those members which appear in the "Telemarketing Services" (27) and "Lists" (22) categories are flagged with T and L respectively.   While not every "telemarketing" company would be involved in outbound telemarketing, quite a number of  ADMA members in addition to those listed as "Telemarketing Services" would also be engaged in outbound telemarketing, for their own sales, but not as a "service" for other clients.

It is impossible from ADMA's site to estimate the percentage of members involved in outbound telemarketing.  The 27 of 443 represents 6% and gives a very approximate idea of the proportion of ADMA members who are engaged in outbound telemarketing.

As was pointed out by many advocates in 1999, ADMA's coverage of companies (and charities) involved in outbound telemarketing falls demonstrably below the substantial coverage needed for ACCC approval of a Code.   The ACCC seemed to accept this during our discussions, but nonetheless approved the Code.  

Before trying to quantitatively estimate ADMA's coverage of outbound telemarketing, some definitions and clarifications are in order.

Bold claims are often made by telemarketers and by ADMA about the value of goods and services transacted through "telemarketing" - but this term includes "inbound" telemarketing as well as "outbound".   Inbound telemarketing has no obvious privacy or unwanted telecommunications problems.  There are some pretty straightforward consumer protection issues, but these are not important in the debate about ADMA receiving ACCC approval as the government mandated industry body to self-regulate outbound telemarketing in Australia.

As a very approximate insight into the telemarketing problem, here is a list of the details of some of the telemarketing calls I received in 2000 and 2001. I have not kept complete records, and sometimes I simply hung up without finding out anything about the caller.  (I now get fewer calls, after having the two major CD-ROM vendors remove my name from their products.  These are listed, so that other people can do the same, at the start of my page http://www.firstpr.com.au/issues/tm/ )   My number had a basic "business" listing in the White Pages, as well as its residential listing, but there was no Yellow Pages listing.  I never give my name or number in situations which might lead to telemarketing.   This is a lower level of calls than some people get, for instance in suburbs such as Camberwell which is wealthier than mine.   These do not include the persistent and at times truly bizarre repeat callers such as "Calder Windows" who were a problem in earlier years.

These calls took place after ADMA's Code was established.  They include some in the period after January 2001 when Desktop Marketing removed my number from their system.  I did not register with ADMA's do-not-call list.  I sometimes simply hung up, but usually instructed them never to call me again.


These 56+ calls, some of them from repeat offenders, is not a complete record of the telemarketing calls I have received.  However, it is highly representative of the calls which a home - and in some cases a small business with no Yellow Pages entry - would receive. (I cancelled my business listing in the White Pages to reduce the telemarketing problem.)

Apart from Telstra and the ANZ bank, both of whom I am a customer, none of these calls seem to have came from ADMA members.

ADMA's claim of adequate coverage of outbound telemarketing is of no practical importance to me.  It is impossible to imagine that my experience of telemarketing is so different from the general experience of all Australians that ADMA really does have significant coverage of outbound telemarketers, and for some unknown reason, my experience does not reflect this.

Another approach to gauging industry coverage is to find companies in the Yellow Pages who advertise telemarketing services.  This is only a small subset of those companies and charities who make such calls, so even if ADMA or some other organisation can demonstrate high coverage of such telemarketing services companies, that would in no way show they have coverage over the main source of the calls. 

Here are the companies listed in the Yellow Pages, under Telemarketing, for Victoria, on 9 September 2003:

After removing duplicates, 50 telemarketing companies listed for Victoria.  5 are ADMA members.  Many of the non-member companies listed here are clearly active telemarketers.    (Chris Connolly repeated this exercise in NSW with similar results.)

Although I have not researched it specifically, it is clear that there are a number of major list brokers who are not ADMA members, such as:

• Accountable List Brokers Pty Ltd http://www.listbroker.com.au hundreds of lists, including one of over 12 million homes, with phone numbers:  "Australian Direct Responders".
  
  
• Dependable Database Data http://www.australiaondisc.com.au .  This company seems to be the second major vendor, after ADMA Member Desktop Marketing (http://www.dtms.com.au), of CD-ROMs of White-Pages entries for outbound telemarketing.  Their "Australia on Disc" contains 6.9 million residential listings with extensive sorting facilities, including by location.
  

Another approach to estimating the number of companies involved in telemarketing is to consider the membership of the ATA - Australian Teleservices Association (previously the Australian Telemarketing Association) http://www.ata.asn.au .  This association is discussed further below.  The membership includes both individual and a number of corporate categories, so it is impossible from the membership number alone to gauge the number of organisations involved in telemarketing.  The ATA seems to be primarily concerned with inbound calls for many purposes other than sales - but their Code of Conduct applies specifically to outbound calls.  So the ATA covers many call centre activities beyond direct marketing.  The membership is not publicly available.

On 21 August 2003, in response to my emailed enquiry, Michael Meredith, Executive Director of the Australian Teleservices Association, wrote to me:


Even allowing for:

• ADMA's membership being more involved in telemarketing than the 27 formally listed members indicates.
  
  
• The ATA's 1,800 strong membership being only partly companies.
  
  
• Uncertainties about the above estimates of 3 to 5% purely outbound and 71% partly outbound.
  

it is reasonable to conclude that the ATA's representation of outbound telemarketers greatly exceeds ADMA's.

This does not mean that the ATA or any other organisation is a suitable industry self-regulator, but it does show that ADMA is definitely not a tenable organisation to receive ACCC approval for this role.

The Australian Teleservices Association, whose membership and telemarketing coverage is discussed in the previous section, is a second and larger organisation which seeks to represent telemarketers in Australia.

Neither ADMA or the ATA seem to refer to each other whatsoever in their web sites.

As each organisation is surely well aware of the other, the only possible conclusion is that these two organisations are involved in a "turf war" for membership and credibility - credibility amongst industry members and also presumably with government agencies such as the ACCC.

The ATA has its own Code of Practice, regarding primarily outbound telemarketing:



I will not critique this Code, since telemarketing should be regulated by the government, not telemarketers themselves.  It doesn't seem to be significantly better than ADMA's, and has the same problems of explicitly allowing a pernicious misuse of people's telephone services for intrusive marketing, pretty much any time of the day and most days of the year.

Here are some points I hope the ACCC will consider when evaluating the success of ADMA's Code so far and ADMA's suitability as a government-authorised industry self-regulator, for any aspect of direct marketing whatsoever:

• Why, after four years of operation as an ACCC approved self-regulatory Code of Practice, does Australia's primary telemarketing representative organisation make no reference to ADMA's code at all?
  
  
• Why does the ATA persist with its own Code, rather than accede to the government-mandated "Code Authority" of ADMA?
  
  
• Why does the ATA have its own complaints procedure, encouraging consumers to write to it, rather than to ADMA, the Privacy Commissioner or the ACCC?  https://www.ata.asn.au/info_complaints.htm :
  

• Why does ADMA not mention the ATA in its site, or have it as a member?
  
  
• It is my clear impression, from the reply I received from the ATA's Executive Director (above) on 21 August that my email to him the day before was the first he had heard of ADMA's application for further ACCC approval of their Code.   Assuming that this is the case, why hadn't the ACCC already alerted the ATA?  Why didn't ADMA alert the ATA?
  
  

It is easy to get the impression that part of ADMA's aim in seeking ACCC approval for its Code as part of its sparring for status and membership.  ADMA's failure to mention its new Code authorisation application to the ATA seems impossible to reconcile with the notion that ADMA is anywhere near trustworthy and resourceful enough to be granted express government mandate for what should, by rights, be a government responsibility: regulation of direct marketing and protection of the privacy of all Australians.

There are substantial potential advantages in a self-regulatory regime for a given industry.  In general, the shorter the feedback paths and the more knowledgeable the regulator, the sooner problems will be corrected.  This is assuming that the regulatory body has a genuine desire and the ability to regulate the industry to protect consumers.   However, since self-regulatory bodies are industry bodies they are beholden to their industry members. (To the point that the organisation or its directors could be sued if it failed to properly represent the interests of its members.)  Theoretically they have a formal and social contract with the government and society to protect the interests of consumers, but in fact, their entire existence and funding depends upon the willingness of industry participants to support the body.

There is always a tension, or potential tension, between business and customer.  (Not all the problems are businesses taking advantage of customers - there are also a handful of unreasonable and at times criminally fraudulent customers who, given the chance, will take advantage of businesses.)

There are industries where most of the participants take a genuine pride in providing an excellent service for customers, and who are keen to maintain standards and work to avoid over-pricing, anticompetitive conduct etc. which are potential problems in any type of commerce.  The ideal industry in this respect is one which makes no demands on customers, potential customers, society in general or the environment other than the fees it requires for its goods and services.  Such an industry, with a well respected industry body with excellent coverage of participants, is a good candidate for the sort of "co-regulatory" or "self-regulatory" arrangement ADMA was granted in 1999.  Such an industry can be profitable and overall beneficial to customers and society in general, provided that customers are prepared to pay the fees the participants are happy with.  Then, other than potential disputes about pricing, there is no conflict whatsoever between the industry going about its business, and the public benefit.

But direct marketing, in the form of unsolicited contacts to thousands, hundreds of thousands or millions of people, by mail, and especially by telephone, is a completely different situation.

No-one gets a telephone service so that they can be interrupted and subjected to distraction and manipulation by telemarketers. 

No-one maintains a postal address with the desire that they will get junk mail.

The key characteristic of direct mail and telemarketing especially is that in general (unless the seller has a list of prospects of people who are 100% happy about being contacted, which is never the case in practice) this business practice of intrusive mail or telephone communication places a significant and completely unjustifiable burden on individuals all over the country.  Virtually everyone with a postal address or a telephone is forced to share this burden, time and again, over and over, from the same marketers many times and from many marketers just once.   There is no possible moral or economic justification for this imposition.  There are no benefits whatsoever for consumers in finding out about, or purchasing goods and services (or making donations) over other non-intrusive methods of advertising and purchasing / donating.

Via email, the post, telephone calls and any new methods of point-to-point communication which become available, outbound direct-marketing places a massive burden on society in general, and a frequently intolerable burden on millions of citizens.

Because direct marketers can never even closely approach their ideal - a list of people who have never heard of them, but who will be happy to be contacted and who will very often accept their offer - outbound direct marketing (except on an opt-in basis) always imposes a huge, unfair, distressing, expensive and destructive burden on virtually all adults in Australia.

This is not a clearly defined "industry".  Outbound direct-marketing is a pernicious business practice adopted by a few full-time operators and occasionally by a larger number of ordinary businesses.

Outbound direct marketers cannot do business without continually and repeatedly burdening thousands or millions of people at home, and at their workplaces (thereby burdening all businesses with extra costs which damage national competitiveness and which must be paid for by consumers in the end).

Since outbound direct-marketing offers no benefits to consumers over non-intrusive methods, and since it always imposes unacceptable costs on the public in general, the only proper form of regulation is to ban it except for those who make an explicitly, fully informed and unpressured decision to accept outbound direct-marketing communications.

Direct mail can have some benefits over telemarketing and ordinary advertising.  Unlike advertising, it can include product samples, or more detailed and personalised product information than is possible via the Net, print media advertising or radio or TV.  Unlike telemarketing, the recipient's attention is given to the material when they choose to go to their letterbox, and at any time afterwards.  But direct mail clutters up mailboxes and wastes paper and transport resources.

I think that direct mail could probably remain a viable business practice on a carefully managed opt-in basis.  But it is impossible to imagine this for outbound telemarketing.  Since becoming involved in this issue in late 1991, I have never seen any evidence that anyone at all actively wants to be subjected to sales and fundraising calls on their home, work or mobile phones.

Both direct-mail and outbound telemarketing have a huge negative impact on society, primarily on people who have no interest whatsoever in the product or charity, and who have no way of defending themselves.   This is the sort of problem we create governments to solve.

Successful regulation of direct mail to properly protect consumers and businesses who are targeted would lead to greatly reduced direct mail activity, significantly lower revenues, but greater profit margins on this smaller revenue base, since mailouts would go to people who want them.  (Alternatively, if it is assumed that competition has the effect of driving prices down to the limit set by a viable, lower, profit margin, then benefits flow to consumers in the form of lower costs.)

Successful regulation of outbound telemarketing would result in cessation of all outbound sales and funds-raising calls except to the very small number of people who have knowingly and explicitly consented to receiving them.  Outbound calls would be vastly reduced, say to 0.1% of current activity.  Efficiency could be higher, depending on the costs of maintaining a properly regulated "industry" which ensured calls were only made to those who genuinely want to receive them.  The current huge number of scatter-gun calls, which burdens practically every adult and every business in the country, would cease. 

Direct marketing on the regulated basis just described would be like any other legitimate, accepted "industry" or business practice - it would not burden anyone except those who wanted to be burdened by its activities.

The problem for the public is that the great majority of outbound telemarketing - and to a somewhat lesser extent direct mail - activity is directed at people who don't want it, and who can't individually protect themselves from it. 

The only economic reason this extraordinarily costly, unfair, overkill of intrusive communications persists is because in a small proportion of cases, it happens to reach someone who is in the mood to buy or donate or who can be talked into doing so.   Ideally, all consumers and businesses would refuse to do any business with anyone who approached them in an intrusive manner.  Unfortunately, a small proportion of people are susceptible to intrusive marketing and do part with their money.  These careless / impressionable purchasers and donors are at least as culpable as the marketers themselves for the burdens everyone suffers from intrusive marketing, since the fund it entirely.  (There are also non-economic reasons behind outbound direct marketing.  Firstly there is the instinctual hunting and gathering thrill of spear-like targeting or mass-netting income-generating customers, rather than just opening a shop and waiting for them to walk in.  Secondly, many businesses, for ill-considered reasons, have brief forays into outbound telemarketing and direct mail because vendors of lists, especially CD-ROMs of home and business contact details, are able to convince them it would be acceptable and profitable to engage in these aggressive, "take action rather than wait and hope" intrusive marketing approaches.)

An industry which naturally happily co-exists with its customers and the wider public, and for which there is one clearly respected body which has sufficient coverage, is a good candidate for some level of self- or co-regulation.

Even if telemarketing and direct mail were such "industries", there would be systemic problems with self- or co-regulation:

• From the point of view of a customer or other member of the public, their perception of their bad experience with the business or business practice does not necessarily lead them straight to the appropriate self-regulatory body.  For instance, if outbound telemarketing calls were self-regulated (or government regulated) as if they were a primarily a marketing matter, then a person who has a problem with repeated non-fax calls to a fax number (from voice telemarketers) sees the problem as a telecommunications matter, and has no reason to consider the telemarketing regulatory framework - since such calls are indistinguishable to them from malicious or accidental calls or technical failures.
  
  
• In any self-regulatory arrangement, the aggrieved party has to first determine the domain of their problem - from a range of government spheres and a much larger array of interlocking and at times overlapping self-regulatory arrangements.  This is an initial problem, and in some cases an ongoing problem if the person's actual experience is deemed to involves more than one regulatory domain. 
  
  
• Similarly due to the poor correspondence of the various self-regulatory domains to the actual experience of people, there are problems of overlap and turf-wars between the domains, and also the pattern of one domain insisting the problem belongs to another.   For instance, if a person is repeatedly called by their bank (actually someone claiming to be from their bank - the recipient has no way of knowing for sure who is calling), is this a matter for the banking industry self-regulatory body, or does it belong to the direct-marketing domain? 
  

Modern life is complex, so regulatory arrangements tend to be complex too.   The advantage of self-regulatory schemes is the potential for faster, more knowledgeable, "closer" feedback and problem resolution.  But there are real disadvantages because of the difficulty of discovering and negotiating a complex, diffuse and poorly co-ordinated mish-mash of regulatory arrangements.  This is bad enough for someone like me who is a telecommunications consultant.  The problems are far worse for the elderly, those with poor English skills and those who lack the patience or the general knowledge to successfully discover and navigate the maze of frameworks, laws and regulatory bodies.  Similarly, the maze raises problems for these regulatory bodies themselves.

There are arguments for and against self-regulation.   But it is clear that self-regulation can only be successful when the representative body has good coverage, and when the mainstream of the industry naturally and happily does business in a way which does not burden society in general or cause problems for customers.

But direct-mail and outbound telemarketing are striking examples of the opposite conditions.  These business practices, in their current scatter-gun form, are inherently a serious and often intolerable burden on society.  These business practices are inherently of little or no value to customers over non-intrusive alternatives.

These facts make it impossible for any industry body to successfully self-regulate the "industry" - really the pernicious business practice - to the point where it no longer burdens society and where it does not take unfair advantage of its few remaining customers.  This is because any such successful outcome would have the effect of significantly reducing (direct mail) or almost entirely eliminating (outbound telemarketing) the current "industry" - the current business practices - which provide the membership and funding for the industry body.

An honest and proportionate account of the impact outbound telemarketing has on Australians would be a massive, deafening, roar of millions of people cursing, characterising the telemarketers with vile invective, and demanding government action to halt this abuse.

Of necessity this submission contains a polite, concise and incomplete account of the problems caused by outbound telemarketing.  However it is instructive and not at all unfair to draw an analogy between a telemarketing industry body protecting consumers from telemarketing and giving foxes guarding chickens.

But even if, by some bizarre distortion, outbound telemarketing was deemed to be an industry or business practice in which consumers really could be protected by a self regulatory body, there are several reasons why ADMA in 2003 cannot be that body:

1. Its coverage of outbound telemarketing - both of dedicated telemarketers and of businesses (and charities) who for their own purposes conduct outbound telemarketing - is far below that which the ACCC requires.  It is both low in absolute terms and it is lower than another teleservices (previously "telemarketing) industry body: the ATA.
   
   
2. ADMA has repeatedly displayed its hostility towards privacy and consumer benefits.  It also displays its contempt for the ATA by failing to mention the ATA on its site, and apparently by failing to inform it of the current application to the ACCC.  (This is not to say that the ATA is any more genuinely interested in consumer privacy.)
   

ADMA's application for ACCC accreditation was opposed largely or entirely, and often with great passion and in substantial detail, by a wide range of privacy and consumer advocates in 1999.  The ACCC listened to and apparently accepted all the advocates' critiques - and then granted ADMA the approval it requested. 

Now, after four years, we can see how ineffectual ADMA and its so-called "Code Authority" has been at actually protecting Australians from the flood of outbound telemarketing calls.

While the ACCC's 1999 decision might be seen as an act of faith - in self-regulation generally and in ADMA's character and capabilities specifically - there is no basis in 2003 for continuing to give ACCC-approval for this failed experiment.

The ACCC must have criteria for refusing approval for codes of practice.   There must be cases where the arguments are so clear that approval is refused.  Its hard to imagine a clearer set of circumstances than ADMA's for refusing to approve a code of conduct.

In 1999, the advocate's concerns were directed to what we believed would happen.  We predicted it would be a sham, of no real benefit to consumers, with many significant costs.  

The last four years of sham consumer protection with no substantial protections proves that the advocates were right, and that the ACCC's 1999 faith in self-regulation of outbound telemarketing - and in ADMA - was ill-judged.

The US hard regulation of outbound telemarketing - in a country renowned for letting corporations do as they please (largely due to the dependence of both parties on corporate funding) invites some observations:

• Firstly, that the problem is so bad, and industry "self-regulation" so ineffective that even a Republican US government was moved to act decisively.
  
  
• That this would probably never have happened if the parties to be regulated were big corporations - who provide most of the funding to the political parties and so who have disproportionate influence and lobbying power.  (For instance, such regulation of the drug industry is inconceivable in the USA - a friend who reports on the health industry there tells me that the number of drug industry full-time lobbyists in Washington DC outnumbers the combined numbers of senators and congressmen.)
  
  
• Therefore, that major corporations are generally not involved in outbound telemarketing.  This makes sense, since outbound telemarketing is perhaps the surest way of destroying the public perception of a company or product.
  
  
• Therefore, that most participants in the direct marketing industry are small companies (too small for their political donations to stop this legislative regulatory response).  In many cases, the main source of outbound telemarketing calls - in the USA and probably Australia - results from those at the moral bottom of the business food chain: operators who have no scruples and whose business principles are no better than those of spammers.
  

The criticisms of the "Code Authority" in this section would be pointers to improvements for the future if it is thought worthwhile for ADMA to continue to have a role in regulating direct-mail.  But there are many arguments against ADMA having any government-mandated consumer protection responsibilities.  The point about these shortcomings is that it demonstrates failings which are attributable to:

• The entire concept of ACCC-approved industry self-regulatory bodies in circumstances such as this, where the "industry" (rather the pernicious business practice) would almost cease to exist if consumers really were protected.
  
  
• The specifics of this instance - ADMA being unwilling and unable (due to its need to enable members to continue their privacy invasive business practices) to genuinely protect consumers, and there being no oversight or pressure for it to do so.
  

There is no "Code Authority".  There is a pretence to such a body existing, but there is no evidence of a separate organisation, with articles of association, constitution, budget, audited accounts etc.  The "Code Authority" is not under any kind of public oversight - it is a private function within ADMA.

As best as can be ascertained from publicly available material, the "Code Authority" is a secretariat of ADMA staff handling day-to-day operations, with a chairman, two industry representatives and two "consumer representatives".  These people are presumably paid and work as contractors.  There is is no public  disclosure in the "Authority's" annual reports, or anywhere else of some matters which are crucial to the independence of these people:

• There is no mention of what they are paid.
  
  
• There is no mention of the length or nature of the contracts they are on.
  
  
• There are no details of what non-disclosure agreements board members have signed regarding their interaction with ADMA proper, their work on the so-called "Code Authority" or their interaction in this role with ADMA members and members of the public.
  
  
• There are no minutes of meetings or public disclosure of communication between the so-called "Authority" and ADMA.
  
  

So we have no reason whatsoever to think of these people as independent in their "Code Authority" activities.

There is no information at all on how they are selected.

As far as I am aware, the so-called "consumer representatives" were not selected in consultation with any consumer representative body.  A proper approach would be to leave the appointment of consumer representatives to AFCO (Australian Federation of Consumer Organisations http://www.consumersfederation.com ) who would also ensure that their terms of involvement and payment enabled them to be truly independent from ADMA and so to truly represent consumers. 

The chairman and one of the "consumer representatives" are members of the Australian Consumers Association board.  But what are their capabilities in the "Code Authority"?  If they were to suggest real regulation, such as telemarketing being conducted on an opt-in basis only (which is the only way of properly protecting the public) ADMA would ignore it.  What then would be their position in this "Code Authority"?

This so-called "Authority" is not a separate body - it is part of ADMA.  ADMA consistently claim to have 500 members, when the real number is less than 450.  ADMA consistently claims the "Authority" is independent, when it is in no way independent of ADMA. These seem to be three clear, and oft-repeated, instances of false and misleading advertising.

Chris Connolly's submission covers the low level of complaints (compared to direct marketing complaints directed to state and federal privacy commissioners) which shows there is a low public awareness of, and/or trust in, this Code and its so-called "Authority".

There appears to be no oversight whatsoever of either ADMA or the "Authority" to give confidence in any of the published information about the Code, the "do-not-call" list, the "Authority" or the complaints from the public.  ADMA can't even get its own membership numbers right within 10%.  Why should the ACCC or the public have faith in the accuracy of any other qualitative or quantitative information ADMA presents?

Only cursory details of complaints are given.

Complaints can only be made in writing, which precludes the faster and more convenient method of email, and the more interactive, reassuring and informative approach of making a complaint by phone.

This is the "Authority", given government approval to self-regulate the direct marketing industry, including outbound telemarketing which involves hundreds of millions of intrusive phone calls a year.  Yet there is no provision for using the telephone to call the "Authority" regarding complaints.

ADMA contends, and the ACCC seemed to accept, that the threat of expulsion from ADMA was likely to be a significant deterrent to members who failed to meet the requirements (weak though they are) of the Code.  Yet when one long-time member of ADMA is found by the "Authority" to be repeatedly violating the code, it willingly left the organisation.  (2000-2001 report.  Victor Paul Direct Marketing Pty Ltd is "sanctioned" for "unsatisfactory handling of complaints, disputed billing practices, and lack of clarity of the initial offer".  The company, a member since 1994, advised in August 2000 that it would not be renewing its ADMA membership.)

This shows that the "Authority" has no clout with at least some companies, and probably most companies, whose business practices harm consumers - since the company can save the bother of code compliance and its ADMA fees by either leaving ADMA, or never joining in the first place.   The implication is that the so-called benefits to a company from the public percieving it to be an ADMA member are worth little or nothing to such companies. 

Without the ability to order financial compensation, the "Authority" is truly toothless, since its worst possible action against a non-compliant ADMA member is to expel the member and so free the company from its obligations under the code.

All these concerns were raised in 1999 by the advocates as arguments that self-regulation for an "industry" - or rather a business practice - where the majority of problems are caused by hard-to-identify, unprincipled, systematically intrusive and exploitative "cowboys" can never work.  Those telemarketers who most urgently need to be regulated are those which are least likely to pay money to join ADMA, to pay for access to the do-not-call list and so to be subject to the Code in any way.


The "Code Authority" meets every three months.  How can this facilitate timely handling of consumer complaints? 

What qualifications does its secretariat have to deal with complaints day-to-day?  Do they keep in touch with complainants via phone and email, or are all attempts at resolution conducted by the slow, formal, one-way use of letters in the postal system?

The "Code Authority" produces an annual report as its sole public record of activity.  This is slow to come out (no 2002-2003 report yet on 11 September 2003 - and the previous years report's PDF file was created on 20 March 2003) and gives no indication that the "Authority" is genuinely interested in protecting consumers from telemarketing.  While the "Authority" can suggest changes to the Code to ADMA, in the years reported to date, there has been no suggestion that, for instance, outbound telemarketing be conducted on an opt-in basis only.

There is no information on the number of members or non-members who used the do-not-call/mail list.  (I wrote to ADMA about this on 8 September and have not received a response by the time this submission was completed after 4PM on 12 September.)


The 2001-2002 report does not mention the number of people who have registered with the do-not-call/mail list.  The previous reports give the following information:

This last figure was presumably for the end of June 2001.  Now, two years and three months have passed and ADMA expects the ACCC to give another five years of approval for its Code and so-called "Authority".  But where is the key information on numbers of people who have registered for the opt-out list?  Where is the information on how many members and non-members of ADMA have actually paid the fees to use the list?

How can ADMA justify charging its own members for a list of consumers who should not be contacted, when compliance with this list is a requirement of membership?   The fees are substantial, and in addition to the membership fees, constitute a further disincentive for any business, especially a smaller business, for using this list or being subject to the Code and its so-called "Authority".

The fees on 11 September 2003 are:



Since the lowest fee for ADMA membership (companies with less than $750k) is $1,089:


any small telemarketer who wants to comply with the the do-not-call list faces a cost of $1450 (these are all annual fees) or $1539 including joining ADMA and so being subject to the Code authority.  (Although the contract for the list - 4.4 - involves the licensee undertaking to comply with the Code.)

By contrast, the US Do-Not-Call system provides free access to the list for five area codes (telephone areas in the USA are significantly smaller than the big metropolitan areas of Australia).  There is also a manual web-based system for looking up numbers - I can't find cost information for this, so perhaps it is free.

The low number of registrations on the do-not-contact list shows that it is almost entirely ineffectual at protecting Australians from unwanted intrusive communications, especially outbound telemarketing.

The USA has population about 13 times that of Australia.  At the start of operations of the US Do-Not-Call service (the end of August 2003 cutoff date for the list which becomes effective on 1 October) there were 48,400,000 registrations.  In Australia, after two years of ADMA's code, its opt-out-list had 49,000 registrations - 1/1000 of the number, with 1/23 of the population..  So the US legislated, government controlled,  telemarketing opt-out list was very quickly 43 times as effective as ADMA's industry controlled, weak, "self-regulated" scheme.  Furthermore, the US scheme covers all telemarketers, whilst ADMA's only covers a small fraction - 10% or less.

It is reasonable to assume that the number of people registering in the US scheme will double over time.  Even allowing for some growth in ADMA's numbers (which one would think they would have reported if they had grown) to as much as double the 49,000 reported in 2001, it seems that ADMA is never going to have more than 1/43 of the proportion of the population on its list than the US government scheme.   Multiplying this factor - 1/43 - by the low coverage of the "industry" (say 10%) then we must conclude that as a proportion of calls affecting the general population, the US, legislated, government controlled scheme is at least 400 times as effective as ADMA's.

How can ADMA's Code "Authority" be considered "independent" or publicly accountable when it is necessary to use Google to find out anything about its M-Marketing Committee, and when an enquiry about the do-not-contact list registrations and the numbers of members and non-members who use it goes unanswered?

ADMA's list does not apply to businesses - yet businesses or other organisations such as charitable organisations involved in delivering social services - are constantly hounded by telemarketers and hawkers.  The great majority of businesses have an "Absolutely No Hawkers" sign on their doors, but no such thing is possible via telephone.

The public and privacy advocates have no reason to trust ADMA its "Authority" or any of the members or non-members who access the list.

The public is asked to provide their name, phone number (for opting out of telemarketing) and/or address (opting out of direct mail).  Likewise their mobile-phone number and email address for opting out of being contacted by these methods.

The full information is then included in the list to be distributed to members and non-members.  There is no possible way of ensuring that the information is used only as intended.

The list could not possibly be used by anyone who values their privacy, because it explicitly links their name to whatever contact details they put on the list.

It only takes one unprincipled employee to take a copy of the list and forward it to persons who would misuse it for there to be serious and perhaps life-threatening impact on people who placed their details on the list.  There is absolutely no way of preventing this or detecting any such copying and misuse.

Stalkers, abusers and the like cannot be prevented from paying other people to supply information on the people they want to know the whereabouts of.  This leads to a straightforward financial incentive for misuse of the list, including non-ADMA members to purchase it under false pretences which ADMA would find hard to detect.  Anyone at all in Australia can pretend to be a telemarketer and purchase the list, and ADMA has no way of ensuring the bona-fides of any such person.

No public figure, or person trying to remain safe from an abusive ex-partner, or who feels under threat from criminals (including corrupt police) could possibly use this list without great risk.

(ACIF has a Code regarding SMS marketing http://www.acif.org.au/ACIF/files/C580_20021.pdf which I have not had time to study.)

The telephone network, email and later mobile text communications developed in an environment where security and privacy were not properly considered.  Since mobile text messaging (and other more complex protocols with extensive text, audio, graphic and video content) has become widely adopted after the terrible problems of telemarketing and spam became well known, it is not surprising that those promoting mobile services were at pains to prevent its widespread misuse.


ADMA's initial approach to email and "M-Marketing", was purely opt-out - as still reflected in its do-not-contact list. This is to be expected from any industry body, since the opt-in approach - the only one which properly protects consumers - would result in a virtual cessation of the practice, unless marketers were somehow able to convince a significant number of people to accept their messages.

It is not clear how ADMA's M-Marketing Code came into being, but it is dated June 2003.  Acknowledgement is given to the carrier AAPT, but Google finds no significant reference to "M-Marketing Council" (AKA "Mobile Marketing Council") outside ADMA's site - and the site's page for this "Council" is available only to ADMA members.  According to  www.bandt.com.au/articles/a4/0c0163a4.asp this was chaired by David Burden, CEO of Legion Interactive http://www.legioninteractive.com.au which operates BlueSkyFrog, claiming "811,795 customers opted-in to receive email and mobile marketing messages". 



The M-Marketing Code covers an open-ended variety of communication techniques and requires that people either opt-in or be an existing customer of the company who sends them commercial messages.  

Opt-in is the only proper approach for regulating intrusive communications.

The M-Marketing Code has minimum requirements for each message:

• Information identifying the message originator in such a way that they can be easily recognised and contacted by the recipient.
  
  
• Details of an appropriate contact mechanism that allows the recipient to obtain all the following information in relation to the message originator:
• Full company name
• Legal address
• Company registration details
• Postal address - PO Box addresses are not permitted
• Email address.
• Fixed line telephone number.
• Where appropriate, details of where the recipient can view or hear the terms and conditions applicable to a particular promotion, advertisement or offer.
• Contact details to which enquiries or complaints should be directed.

• The contact mechanism provided (above) must be provided at low cost and be easy to use by the recipient.
  

So in order to opt-out of future messages, or to even find out how to opt-out, the recipient may be required to use a service which costs them a fee.  While this may be necessitated by the costs and very limited message lengths of SMS (160 or 130 characters depending on the technology), this complicated and potentially costly burden of responding to or opting out of mobile marketing messages is a burden on individuals, and further cause for them to only be sent to people who explicitly opt-in to them, not  just to anyone who becomes a customer of a company which wants to send such messages.

If a Google search is anything to go by, there is close to zero public or industry awareness of this M-Marketing Code. 

In respect of telemarketing at least, there is nothing ADMA could do to alter its code which would result in its approval (AKA authorisation) by the ACCC leading to net public benefit.

This submission has given many reasons why this is the case.  These are summarised below.

If ACCC approval of ADMA's code was in the public interest, then consumer/privacy advocates would support it.  However we believe that the regulation of intrusive telecommunications, and many other aspects of consumer protection, are best achieved by government regulation, rather than self-regulation or a maze of ADR (Alternative Dispute Resolution) schemes.

In order to approve this Code, the ACCC needs to establish beyond question that there is net benefit to consumers in doing so.  Its not good enough to identify one or more specific items of real or purported benefit and assume from this that the benefit of approval is in total positive.  Approval of this code involves immense costs to consumers immediately (the continuation of virtually unrestricted telemarketing, with government approval), and in the broader sense of damaging the prospects for proper regulation of the problems inherent in direct marketing.  So the ACCC needs to consider all these factors in deciding whether the net benefit is positive.

There are a series of tests which ADMA's proposal - and ADMA itself - must pass in order for the Code to be approved.  Failing any one of these tests renders the Code unapprovable.  Most of these tests have nothing to do with the Code itself, so its not a question of the ACCC granting approval subject to changes to the code, or additional conditions to take effect in the future.

The purpose of government is to support and protect citizens - with particular emphasis on protecting citizens from threats they cannot protect themselves from individually, if this can be achieved efficiently on a country-wide basis, without significant diminution of individual freedoms or imposing unreasonable burdens on citizens.

The ACCC's responsibility is to protect consumers and businesses - in this case from a small proportion of businesses who impose great costs on society by pursuing unreasonable business practices which the vast majority of individuals and businesses would never inflict on anyone.

Authorisation of ADMA's Code in 1999 was a mistake.  It constituted government approval of business practices which burden uninvolved parties with unreasonable costs.  It was a clear statement to the public that ADMA is a trustworthy organisation, that it has proper coverage of telemarketing and other aspects of direct marketing, and that the public should be happy with the meagre protections and dispute resolutions its Code and "Authority" offers.

In summarising this submission, here are a list of tests, all of which the ACCC must establish beyond reasonable doubt that ADMA, its Code and the "Code Authority" pass, before authorisation can be contemplated.  

1 - ADMA's coverage of telemarketing and direct mail

2 - ADMA's integrity and suitability for being a government approved regulator

3 - Approval of ADMA's code has serious broad costs for the public and for policy development

I have run out of time to complete this submission.  But even if only a fraction of the problems highlighted here were true, then ACCC approval for ADMA's code would be impossible to contemplate.

There may be a relatively small number of submissions opposing ADMA's application, due to this not being a publicly advertised process, due to privacy advocates having their hands full with many other issues, and also due to this week having two privacy conferences in Sydney.

I trust that the ACCC will consider all these points carefully, and take a close look at major developments in telemarketing regulation which have taken place in Europe and the USA since 1999.

I will supply these in hard copy - and I ask that the ACCC print these documents too since they can best be considered on paper, rather than on screen.

• An explanation of how to comply with the US TSR (Telemarketing Sales Rule):  http://www.ftc.gov/bcp/conline/pubs/buspubs/tsrcomp.htm .
  
  
• US Federal Trade Commission 16 CFR Part 310 Telemarketing Sales Rule; Final Rule: http://www.ftc.gov/os/2003/01/tsrfrn.pdf .
  
  
• A text file I prepared from ADMA's site, listing their members (with duplicates removed) and with list suppliers and telemarketers flagged: ADMA-members-2003-09-09.txt   (In this version of the submission, emailed as a single file to the ACCC, for simplicity I have appended this text below.)