7. Mobile Spam by yaofenjin

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									7. Mobile Spam
Impetus
The December 2006 meeting sought information about the extent to which mobile
spam is a problem and, if so, what might be done about it.
Background
ACMA is responsible for the administration of the Spam Act 2003. The Spam Act
regulates commercial electronic messages, including SMS (Short Message Service)
and MMS (Multimedia Message Service) messages received on mobile phones.
At the December 2006 CCF meeting, it was agreed that ACMA would coordinate a
paper on mobile spam for the next meeting with CA and AMTA.
Mobile spam: a growing problem
The penalty provisions of the Spam Act commenced in April 2004. Since then, the
proportion of complaints ACMA has received about unsolicited commercial
electronic messages (spam) on mobile devices has increased steadily and now
comprises about 20 per cent of all complaints (see Figure 1 below).

                                                     ACMA spam complaints per quarter

          1000


          900


          800


          700


          600
 Number




                                                                                                                       Email
          500
                                                                                                                       Mobile

          400


          300


          200


          100


            0
                 Jun-04   Sep-04   Dec-04   Mar-05      Jun-05   Sep-05   Dec-05   Mar-06   Jun-06   Sep-06   Dec-06
                                                                 Date



The spam complaints received by ACMA in the ‘mobile’ category include complaints
about ‘missed call’ marketing, WAP content messages and, very rarely, MMS
messages. ACMA received a total of 154 missed call marketing complaints between
November 2005 and September 2006. Missed call marketing messages involve
ringing a phone just long enough for a phone number to be displayed. There is no
voice element to the call and as a result such messages fall under the Spam Act.
The issue of missed call marketing messages is emotive for consumers because, by
phoning back these ‘missed calls’, they effectively pay the cost of receiving the
unwanted marketing message and they may be enticed into subsequently calling a
premium rate number where high call charges are incurred. The two senders of missed



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call marketing messages have agreed to cease such activities while ACMA completes
its investigations.
ACMA has received over 300 complaints relating to premium SMS services,
representing over 60 per cent of all complaints relating to SMS messages. Where
these complaints relate to the delivery of a premium service product, rather than the
advertising of a product, ACMA refers these complainants to their carrier and the TIO
for resolution under the Mobile Premium Services Industry Scheme.
Complainants often wait until they are being charged for a premium service before
they lodge a complaint, rather than when the original SMS marketing of the service
occurred. If the original advertising message has been retained, ACMA will
investigate the complaint under the Spam Act.
One example of an advertisement sent using SMS that ACMA can act on under the
Spam Act read $’50 phone card awarded 2u! Txt WANT to 19xxxx to accept.
$500cash won wkly! Info?xxxxx 1300xxxxx sub@$5 every 6days. sae reqd. optout
from mktg?stop to 19xxxx’. As the complainant had not yet subscribed to the service,
ACMA considers this message to be advertising. Because the complainant alleged the
message to be unsolicited, ACMA has investigated this matter further.
On the other hand, another complaint was about messages that read ‘Heres UR 3 GR8
TONES from http://au.xxxxxxxx.com/?1234567891011’. The complainant had not
retained the original message advertising the service and also indicated he was being
charged for the service. In this case, ACMA referred the complainant to the
Telecommunications Industry Ombudsman for resolution of his billing dispute under
the Mobile Premium Services Industry Scheme.
Compliance Issues
Compared with other forms of electronic messaging, four factors can result in many
SMS messages not complying with the Spam Act.
First, the 160 character SMS text message limit means that senders often exclude a
functional unsubscribe facility in their message. Second, the character limitation
also means SMS messages often lack clear identification of the sender. The lack of
provision of these facilities means that consumers are greatly inconvenienced when
seeking to opt out of these messages. The exclusion of this information appears to be
largely driven by senders not wishing to utilise their valuable character space with
content that in their view, is not profitable.
Third, while the Spam Act requires consumers to consent to the receipt of CEMs,
with regard to SMS spam advertising premium services, firms often rely on
questionable consent to send messages to recipients. This is mainly because strong
financial incentives are derived directly from the messaging activities themselves (for
example, through signing up consumers to premium services), unlike emails where it
requires a recipient to take further action to buy a product. With email spam it is
generally much easier to determine if consent has been provided by the message
recipient.
Fourth, the 160 character limits on SMS messages and small screens on mobile
phones can make it extremely difficult for people to review lengthy terms and
conditions to sign up for SMS messages or other documentation such as privacy



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policies. They have to undertake an additional action such as accessing a website to
obtain the information.
Mobile spam has some advantages in terms of enforcement compared with email
spam. Most mobile spam originates in Australia and hence action can be more easily
taken under the Spam Act. In practice, however, many of the larger premium rate
SMS operations are local ‘shell’ subsidiaries of foreign companies.
For example, one of the main senders of unsolicited commercial SMS messages in
Australia has its registered address as an accountant’s office in suburban Sydney. The
main operations of the company are based in the European Union. Should the
company be penalised for breaching the Spam Act, the company could potentially be
wound up and a phoenix company would likely be established in its wake.
Overseas-based entities
The now deregistered ACIF C580 Short Message Service (SMS) Issues Code
contained provisions relevant to overseas-based entities (as well as Australian-based
commercial SMS providers) that have not been fully replicated in any subsequent
codes or legislation. In particular, clause 5.2 of that code required carriers and
carriage service providers to warn message originators that they could withdraw
services unless the message originator complied with the SMS guidelines contained in
this code. It allowed carriers and carriage service providers to suspend or terminate
SMS services to the message originator if the message originator did not comply with
formal warnings about non-compliance.
At the time the code was deregistered, the ACIF Mobile Messaging Working Group
was considering whether to incorporate clause 5.2 into another appropriate industry
code.
Questions for discussion
Are there any measures ACMA could be utilising to improve compliance with the
Spam Act in relation to mobile spam?
How might overseas-based spam messages be addressed?
What are the best means of educating the public about the appropriate response to
mobile spam?




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