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Monday, 01 March 2010 17:46

ACMA takes gotalk to court over do-not-call violations

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Telephony and Internet services provider, gotalk's use of Indian call centres for outbound telemarketing in 2007 has come back to haunt it for the second time.

The ACMA has taken gotalk to the Federal Court alleging that two offshore call centres made more than 40,000 telemarketing calls to numbers on the do-not call register on gotalk's behalf.

This follows the ACCC taking action against gotalk over its use of the same call centres. In June 2008 the ACCC announced that it had accepted court enforceable undertakings from gotalk concerning the conduct of its overseas telemarketing agents. The ACCC said that the call centres had made a number of false representations about gotalk and its services.

Gotalk says the court action from the ACMA had come out of the blue 18 months after it last had any communication with the ACMA over the alleged breaches and says that it is, in effect being punished twice for the same alleged offence.

The company issued a statement saying "the allegations made by the ACMA relate to alleged breaches of the Do Not Call Act 2006 which occurred during four months at the end of 2007," and it notes that, because the Act only came into force on 1 July 2007, they occurred "in the very early stages of this new legislation."

Gotalk CEO Steve Picton told iTWire that both the ACCC's and ACMA's actions related to the company's use of Indian call centres, which he said had been "out of control" and which gotalk had ceased using in late 2007.

He said that the ACMA had issued an infringement notice on 28 August 2008 alleging that these call centres had breached the do-not-call rules and that, until a week ago, there had been no significant discussions on the matter since September 2008. "Then last week I got a call from the ACCC saying they were filing on Wednesday."

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The ACMA spokesman would also not comment on what discussions, if any the ACMA had held with gotalk prior to resorting to court actions.

According to the ACMA's web site "if a regulatory breach [of the DNC rules] occurs the ACMA will, within the limits of the legislation, take regulatory action commensurate with the seriousness of the breach.

"The ACMA's general approach to compliance is to negotiate and resolve the matter, without resorting to formal procedures. However, if informal resolution is unsuccessful or inappropriate the ACMA will take appropriate enforcement action."

Further, the ACMA says it may issue a formal warning and "will generally make public comment at the same time as issuing a formal warning." It goes on to say that taking the alleged offender to court can only be done "where a person has either failed to comply with an infringement notice issued by the ACCC or where the alleged breaches otherwise warrant court proceedings."

The available information does not indicate what criteria the ACMA might use to determine that a case warrants referral to the Federal Court (the ACMA can also take the matter to a Federal Magistrates Court).

The ACMA says it is first time it has taken a company to the Federal Court for contraventions of the Do Not Call Register Act 2006. The case will be heard in the Federal Court in Sydney. The ACMA spokesman told iTWire that no hearing date has yet been set.

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