Silent Calls from overseas

A number of people ask me about Silent Calls made from overseas, so here are some relevant comments. These include points on wider topics.

The law

The statutory provisions prohibiting Silent Calls, marketing calls to those registered with the TPS and recorded message marketing calls apply to the organisation responsible for the call. This could be a company that falls within the relevant jurisdiction but uses an overseas call centre of its own or engaged under contract.

The place from where the call is actually made does not affect the requirement to comply with the law.

CLI

Because the caller line id (CLI) from some overseas administrations may be unreliable, BT tends to not provide it to the person called - it is presented as simply "International". This means that on receiving a Silent Call one has no direct way of identifying the originator.

I personally place no reliance on CLI as it does not actually identify the caller. It only gives a telephone number that may be shared between many users of a call centre or may be false or unobtainable anyway. I also support the legal right for any caller to withhold CLI if they choose.

When making a voice telephone call, I believe that the caller has a duty to declare who they are (or who they represent if it is a business call) and the reason for their call as soon as it is answered. Any failure to do so, whether the call is Silent or not, should be treated as a misuse of the telephone network.

Call Tracing

For those experiencing regular calls from unidentified callers the Nuisance Calls Bureau of their telephone service provider may place a trace facility on the line. This enables the identity of the caller to be recorded by the telephone company so that it can be used as evidence by those bodies empowered to investigate illegal activity. This includes Ofcom (for Silent Calls) and the ICO (for breaches of the PECR).

The information recorded may be different to that revealed to the recipient. It includes a CLI that is withheld by the caller or suppressed (e.g. by BT if from overseas).

To identify the caller it is necessary to engage the assistance of the telephone company that owns the number and perhaps an agent to whom it has been issued. This is generally offered on a reciprocal basis or may be compelled by those conducting formal investigations.

Data protection law prevents any of this information from being released to the person called, but not to the relevant authorities. Experience (in my case with BT) shows that the NCB will be as helpful as they can without breaking the law, e.g. confirming if two traces gave the same result and if the caller is regularly the subject of traced calls.

Whilst this process may be less reliable in the case of overseas calls, and cannot be guaranteed to be effective, it is certainly not a complete waste of time. As ever, one has to persuade the NCB to take the case on, as they have limited resources.

Where the authorities can be persuaded to act properly using their powers it can be highly effective. Two traced Silent Calls to me from Kitchens Direct led to an Ofcom investigation that revealed 1½ million Silent Calls in a three month period. That was however back in 2003; Ofcom has not conducted an investigation from a citizen's complaint since 2006. That investigation led to Kitchens Direct being permitted to continue making that number of Silent Calls so long as they made enough completed calls to keep the percentage below 5%; the only subsequent change by Ofcom is that the 5% is now 3%.

International co-operation

There is some degree of co-operation between authorities in different countries, as none are keen to be branded as being responsible for international nuisance calling. This has been effective in the past and should be encouraged.

I reject the suggestion from some (e.g. the DMA) that telephone misuse is simply a problem that exists from overseas. There are exceptions, but most of those who are trying to contact us are looking to do business with us in the UK, even if they find it cheaper to use an overseas call centre.

We must remember that no useful business objective is achieved by a call from someone with whom one cannot do business. Every business caller will have to declare who they are at some point - that is the stage at which efforts to cause them to stop their improper practices can commence.

Silent Calls and the other categories of misuse referred to here are invariably carried out on a large scale. It may be that investigations and action have to begin from a small number of cases and will require intense and co-ordinated activity by many parties, some of whom may be overseas. That is however how one may act to deal with the problem.


The difficulties of dealing with Silent Calls and other types of nuisance from overseas highlights the fact that the present approaches being followed by Ofcom and the ICO are ineffective.

It is not acceptable to simply aggregate incomplete complaint data so as to suggesting that nothing can be done.

Neither is it acceptable to threaten higher penalties to suggest that a stronger line is being taken, when this is nothing more than a substitute for effective action.

Ofcom's trickery is extended

see my media release - Ofcom's trickery is extended

Comments on - Ofcom's Halloween trick, a treat for Silent Callers

I have shared the following thoughts with MPs invited to participate in the BIS consultation.

I refer to my media release - Ofcom's Halloween trick, a treat for Silent Callers

One week after the BIS Department launched a consultation on whether or not to grant Ofcom's request for an increased penalty to use against Silent Callers, ...

... Ofcom announces a weakening of its stated policy – permitting more Silent Calls.

The only relevant policy statement that Ofcom actually needs is a simple confirmation that:

hanging up in silence is a misuse of the telephone network, those who do it persistently will be subject to action proportionate to the extent of the nuisance caused.

Instead we get loads of nonsense about abandoned call rates, detailed specifications of permissible time delays and lists of mitigating and exacerbating factors – which nobody fully understands anyway. Ofcom's
duties and powers as a regulator are limited to providers of services in the markets that it covers, to further the interests of their consumers. Silent Calls are made by (mis-) users of those services.

Ofcom's supplementary function to deal with misuse in "furthering the interests of citizens in relation to communications matters" cannot be undertaken on a pseudo-regulatory basis. What it has done so far was wrong and misguided from the start and has been seen to fail. I cannot see how an increase to the maximum possible penalty will make any significant difference - especially when those making Silent Calls see the "rules" being loosened!

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The 2009/10 BIS Consultation - My counter proposal

The BIS consultation (launched on Friday 23 October) has today (28 October) been published. Responses are requested by 25 January 2010.

I oppose the simple granting of an increase to the maximum penalty that Ofcom may impose on those practising "persistent misuse" (making Silent and "abandoned" telephone calls). Ofcom needs to review its relevant policy and practice, making appropriate changes in the respects listed below.

An undertaking to this effect should be necessary for parliament to once again grant an increase. Ofcom admits to having failed to discharge the duty placed upon it by parliament when the previous increase was granted in April 2006 - "We expect you to use your powers to eradicate the nuisance of Silent Calls".

Ofcom has used the increased penalty against some companies who have not been found to have made a single Silent Call. It has used the powers wrongly and sparingly. It has not identified any Silent Caller since October 2008, nor commenced any formal investigation since April 2007. The last time that complaints to Ofcom about Silent Calls led to use of the powers was in April 2006.

A lot of fuss and a bigger penalty must not again be used as an alternative to taking effective action. Ofcom must now change the way in which it uses its powers in the following respects:

1.      To address the issue of "Silent Calls".

All of the action so far reflects the stated primary policy objective, which is to keep the percentage of so-called "abandoned calls" (which may or may not be "Silent") below 3% of the total made on any "campaign". Some of those penalised so far have exceeded this limit, but have not been found to have made a single Silent Call. Those who remain within this percentage limit, regardless of the number of Silent Calls made, have escaped action.

This nonsensical approach must be halted.

2.     To use its powers in the way intended by the relevant legislation.

The powers do not enable the imposition of general regulations covering contact centres. They only enable proportionate action to be taken, starting with a formal Notification once Ofcom has sufficient evidence of "misuse of the telephone network". Ofcom wrongly defines this as only occurring when it considers it worthwhile to take serious action (i.e. the imposition of a serious penalty).

The powers are designed to support a progressive and proportionate approach to every case of persistent misuse. A Notification may be followed by the imposition of an enforceable requirement to cease the activity, which may then lead to the imposition of penalties in the event of a breach.

Ofcom prefers to use the option to impose a penalty at the first stage, on the basis of the misuse practised before action is taken.

3.     To act, using the powers it has, to prevent Silent Calls from being made, not to simply penalise some in the hope that others will be deterred by the threat of similar action against themselves.

Noting that no action is taken against those who do not exceed the 3% limit will mean that those who stay within it will not be in any way deterred, whatever the level of penalty.

There is little evidence of the penalties actually imposed serving as a deterrent. Misuse by companies as large as Abbey and Carphone Warehouse did not warrant use of the existing maximum. Smaller companies would expect the penalties to be proportionate, as they are required to be, and so would have little fear of £2M.

There is no company presently subject to an enforceable requirement to cease making Silent Calls, which Ofcom has been unable to enforce, due to the limit on the size of the penalty. If Ofcom was unable to prevent Silent Calls being made by this method, it would have the option of seeking an injunction so that the misuse would be subject to criminal sanctions in the event of continuing to disregard an order to stop making Silent Calls.

4.     To cease trying to be the regulator of the contact centre industry.

Ofcom is by nature a regulator, working closely with a defined industry, setting and maintaining standards, so that consumers may benefit from fair competition. It tries to follow this same approach in addressing the issue of Silent Calls. This is ineffective and improper for two reasons.

a)     Ofcom has no powers or duty to regulate the contact centre industry, nor to promote competition amongst those who are its clients,

Codes of practice and self-regulation within the industry may be helpful in preventing persistent misuse; however Ofcom has no need to get involved in such matters and certainly not to set standards.

b)     Silent Calls must be "eradicated", wherever possible, not regulated.

Every Silent Call is simply a misuse of the telephone network. Those who are persistent in the practice of failing to announce themselves when making telephone calls should simply be required to cease that practice.

There are other relevant issues of public concern, which Ofcom seeks to address within the scope of the same policy. Broadening the focus of Ofcom's intervention simply makes its attention to the primary issue, indeed the only one truly relevant to the powers, inadequate.

I seek to encourage all those who are to respond to the BIS consultation to consider these points and to make appropriate representations.

Emerging from semi-retirement

My re-engagement in this campaign is with the purpose of requiring Ofcom to take a more effective approach to its duties in respect of this matter.

The BIS Department is to consult on whether or not it should grant Ofcom a further increase to the maximum penalty available.

When the previous increase was approved in 2006 it was granted on very clear terms outlined by the Minister.



(more from this debate)

A more effective approach to enforcement action must now be a quid pro quo for the granting of an increased penalty. This time however the precise terms must be stated and agreement gained prior to the granting of Ofcom's request.

If bigger penalties represent a more effective deterrent, then fair enough. Detterence is however only part of the solution. Proportionate action must be seen to be underway for any potential penalty to be seen as a threat. Furthermore it must be seen that Ofcom's duty is to halt and prevent this nuisance (by swift, appropriate and proportionate action) not simply by a few headline-grabbing big cases.