Thursday, February 14, 2013

A REVIEW OF THE TELEPHONE CONSUMER PROTECTION BILL 2013 HB. 427


In this article, I review the Telephone Consumer Protection Bill 2013 HB. 427 (the “Bill” or “TCPB”) and make some recommendations for the benefit of the House Committee on Communications (the “Committee”) currently tasked with producing an advisory report on the Bill.

OVERVIEW OF THE BILL
The Bill was introduced into the House of Representatives by Hon. Abiodun Abudu-Balogun (Ijebu North, Ijebu East and Ogun Waterside Federal Constituency) on 16th January 2013 when it was read for the first time. The Bill went through second reading on 12th February 2013 and was subsequently referred to the Committee for further legislative work. The long title of the Bill is “A Bill For An Act To Protect Telephone Consumers From The Activities Of Telemarketers And To Provide For Adequate Sanctions Against The Business Of Telemarketing in Nigeria And For Other Purposes Connected Therewith.” The Bill contains thirteen (13) sections and an explanatory note.

In its explanatory note, the Bill seeks to enact a law to protect telephone consumers from unsolicited advertisement by telemarketers in Nigeria. Accordingly, the Bill imposes restrictions on unsolicited advertisements and on the use of artificial or prerecorded voice, and online telemarketing. Specifically, the Bill prohibits; the posting of any unsolicited advertisement to a called party; and artificial or prerecorded voice calls to residential telephone lines, unless the call is made with the prior express consent of the called party. The Bill also prohibits calls made without prior express consent to a residential telephone line using an artificial or prerecorded voice to deliver a text message.

Under the Bill, unsolicited advertisement by telephone is prohibited between 9.00 pm and 8.00 am. Telemarketers are however exempted where the calls do not include a solicitation to purchase goods or services or where the consumer has provided prior express consent. Online telemarketing is also prohibited under the Bill except with the prior express consent of or application of a subscriber. Telemarketing organisations are subject under the Bill to certain identification requirements. Consumers who register their residential telephone line(s) in a “DO-NOT-call Register list”, after the expiration of thirty (30) days after the last call or solicitation may not be solicited without their prior express consent.

In accordance with the provisions of the Bill, the Nigerian Communications Commission (the “Commission” or “NCC”) is the sole administrator of the provisions of the Bill. The Commission is also required by the Bill to issue regulations to service providers on the operations of telemarketing business in Nigeria. The Bill provides consumers with the right to sue for damages for a violation of the provisions of the Bill at the Federal High Court or a High Court of a State. Finally any telephone service provider that calls or sends a text message in violation of the Bill is guilty of an offence and liable to a fine of N5,000,000.00 (Five Million Naira).

KEY ISSUES AND ANALYSIS
General Prohibitions

The Bill prohibits the posting of any unsolicited advertisement to any called party (Section 1). “Unsolicited Advertisement” is defined in Section 12 of the Bill to mean “any material advertising the commercial availability or quality of any property, goods or services which is transmitted to any person without that persons comment or permission”. The Bill also prohibits calls made without prior express consent to a residential telephone line using an artificial or prerecorded voice to deliver a text message (Section 2). The Bill, however exempts calls which are non-solicitation calls unless the consumer has provided prior express consent (Section 3).

Telemarketing to Mobile Telephone Lines
The Bill prohibits the posting of unsolicited advertisement to any called party (Section 1). Consistent with the literary interpretation of statutes, “any called party” will be interpreted to include owners of mobile telephone lines for the purpose of prohibition under Section 1.

In the same vein, the Bill specifically prohibits telephone calls using an artificial or prerecorded voice message to any telephone number assigned to residence, except with the prior express consent of the called party (Section 2) and also states that the use of artificial or prerecorded voice or text messages to residential telephone subscribers must comply with time of day restrictions (Supra). However the Bill does not indicate whether mobile telephone subscribers or a subset thereof are “residential telephone subscribers” for purposes of these restrictions.

Calling Hours
Under the Bill, no telephone solicitation using an artificial or prerecorded voice to deliver messages or text messages calls may be made to any residential telephone line prior to 8 a.m. or after 9 p.m (Section 2). Although the term “telephone solicitation” is not defined in the Bill, there is no record from the legislative history that the Bill intended for calls to be exempted from telephone solicitation restrictions unless the residential subscriber has (a) clearly stated that the telemarketer can call, and (b) clearly expressed an understanding that the telemarketer’s subsequent call will be made for the purpose solicitation. Thus, calls made before 8 a.m or after 9 p.m will not violate Section 3 if they are made with the prior express of the resident. If a resident withdraws such consent, any further solicitation to that resident will be in violation of the provision of the Bill barring calls before 8 a.m or after 9 p.m.

Prior Express Consent
The Bill allows all forms of telemarketing contact only if the contacted party consents to such contact (Sections 2, 3 and4). Because, the term “prior express consent” is not defined in the Bill (or from the legislative history of the Bill), it remains unclear whether telemarketers and/or telephone service providers would incur liability in circumstances where they place calls to a residential telephone line belonging to a consumer who provided the number as a number at which s/he could be reached.

Exemption
Calls that do not include a solicitation to purchase goods are exempted from general prohibitions, unless the consumer has provided prior express consent. (Section 3). The Bill is unclear whether Section 3 prohibits telephone calls from a person with whom the resident already has an established business relationship (or whether such established business relationship constitutes “prior express consent”), as such calls do not adversely affect the privacy rights of the resident. A typical situation where this applies would be in instances where debt collection calls are originated by automatic dialling machines. In this regard, the Bill does not clarify whether the continued existence of an unpaid debt will create an existing business relationship exemption for debt collection calls under Section 3.

Administration of the Bill
The Nigeria Communications Commission shall administer the provisions of the Bill. (Section 7). The Commission is also authorised to issue regulations to service providers on the operations of telemarketing business in Nigeria (Section 8).

Private Right of Action
The Bill provides consumers with the right to sue for damages in a Federal High Court or the High Court of a State for any violation of the Bill (Sections 9 and 10), however it is unclear whether consumers can file class actions based on the private right of action created by the Bill.

Fine and Penalty
Section 11 provides that “Any telephone service provider that call or sent text message to any of it is subscriber shall be guilty of an offence, and liable to a fine of N5,000,000.00 (Five Million Naira) provided that the called parts proof unsolicited call or text messages for the provision of goods and services”. This provision is unclear in its meaning and needs to be redrafted to make clear its meaning.

RECOMMENDATIONS FOR THE COMMITTEE
Since the proposed law will have serious ramifications for the individual privacy rights of consumers and the freedom of expression of business entities, the Committee must carefully review the law before its passage. The Committee in providing an advisory report on the Bill must ensure that individual privacy rights of consumers and the freedom of expression of business entities are balanced in such a way that protects the privacy of individuals and permits legitimate telemarketing practices in Nigeria.

Following are some of the recommendations for consideration by the Committee;
I. The Bill should be redrafted to attain the greatest possible accuracy and clearness of meaning in some of its provisions;

II. The Bill should be revised based on the study of the experiences of other countries with similar legislations;

III. The Bill should be revised to provide clarity on whether telemarketing to a wireless mobile telephone line is prohibited under Section 2; and

IV. The Bill should be revised to clarify the circumstances by which prior express consent would be deemed to have been given.


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