Ofcom wriggles before the Public Accounts Committee

The following comments on the evidence given by Ed Richards, Chief Executive of Ofcom, to the Public Accounts Committee of Parliament on Tuesday 14 December 2010, have been shared with members of that committee and others.

Links

• Transcript of the evidence (see Q128)

• Video of the full session

• Video clip of the element covering Silent Calls

General Observations

Mr Richards did a fine job of presenting Ofcom as it commonly seeks to be characterised - totally convinced of its own rectitude, stuck in the middle between competing forces, feeling unappreciated by all.

Glimpses were offered of the "courage" which Ofcom shows when engaging with the companies it regulates. These showed that it does so on totally unequal terms. Being relatively poorly resourced, it lives in constant fear of legal challenge and it is consequently unable to do its work properly, but feels deserving of great praise for what it manages to achieve.

Ofcom clearly makes no attempt to justify outcomes as the consequence of specific interventions that it makes. It is indeed difficult to properly attribute the effects delivered by a competitive market to the efforts of regulator, which is simply required to ensure that competition operates effectively. This duty is commonly fulfilled by failing to intervene when asked to do so, leaving the market to produce the desired effects. In many areas of its work Ofcom cannot present direct evidence of "value for money", as one cannot necessarily predict the alternative outcome that would have resulted had Ofcom chosen to intervene in situations where it chose not to, nor vice versa.

Mr Richards could have advanced the argument that Ofcom delivers most value when it wisely decides to do nothing, as this assumption underlies the spirit of a "light touch regulator". His defensive approach however precluded any such open and honest discussion. The defensiveness even extended to fiercely maintaining that "value for money" was always a driving factor, as he responded to a challenge on this point. This was done despite having referred to fulfilment of statutory duties at minimum cost as being the totality of the motivation only a few seconds previously.

It was most significant to hear Mr Richards presenting Ofcom as being independent in its thinking, as a total unified organisation. Having to account for both public funding as grant in aid and payments from those regulated, perhaps suggests the need for alternative approaches to be taken to assessment of different aspects of its work. This would satisfy the distinct demands for accountability and reflect the fact that some outcomes are more readily attributable to its work than are others.

Not so for Ofcom; it continually conflates distinct roles and duties, to obfuscate attempts to call it to account. Failure to acknowledge the difference between the distinct and potentially conflicting duties to citizens and those to consumers is what most clearly demonstrates thinking that is centred on Ofcom itself, rather than the nature of the world in which it operates.

It was most entertaining to hear Mr Richards attempt to deny the obvious truth that meeting a demand for a changed approach in the future must mean this approach was not being followed in the past. This demonstrates a characteristic insularity, a failure to recognise that certain truths exist in a world of which Ofcom is only a part.

I am a little lost in trying to understand why Ofcom itself seems to place so much emphasis on trying to justify the decision to create it, by merging other bodies. That decision was taken by parliament which conferred duties on Ofcom. I cannot see why Ofcom has to answer for that decision; surely it is only answerable for the performance of the duties which it holds. Effort spent on justifying its existence undermines performance of its own duties; indeed it may lead to them being carried out in a manner that serves the interests of Ofcom, rather than those whom Ofcom exists to serve. (Failing to use the powers it holds against those practising persistent misuse, because this may lead to an increase in the number of complaints received, would be a classic example of such self-serving action.)

I was also entertained by a development that occurred long after we had heard a vigorous defence of having demonstrated economy by direct comparability between Ofcom and the bodies which it had replaced. In a later exchange, Mr Richards was compelled to switch to saying that one was not comparing like with like, because Ofcom was performing functions other than those which it had inherited. Mr Richards thereby undermined the basis of earlier lengthy exchanges, although it is unsurprising that the Committee did not wish to go back and replay them.

The defensiveness shown in response to the enquiries from the Committee demonstrates to me that Ofcom is not familiar with having to account properly for the performance of its duties. Mr Richards confirmed the impression commonly presented by Ofcom personnel, that it lives in a world of its own, feeling that it has to guard itself against any input from outside and only let out that which it chooses to release on its own terms.

One must also note that if the lines of argument presented by Mr Richards are typical of those pursued by organisation that he heads, it is unsurprising that it lives in fear of opposition from good legal minds.

Silent Calls

The issue of Silent Calls clearly demonstrates one area where Ofcom applies its own interpretation of its duty, in direct contradiction of the direction of parliament - "we expect you to use your powers to eradicate the nuisance of Silent Calls".

Ofcom interprets its role, in this respect, as being that of a regulator, balancing the needs of the call centre industry with the interests of citizens, or perhaps the interests of the consumers of those who use the services of the call centre industry e.g. those seeking low energy prices or cheap bathrooms. This is totally outside the scope of Ofcom's statutory powers and duties. Ofcom’s regulatory role is limited to the communications industry and the furtherance of the interests of consumers of telecommunications services. The business activities of those who misuse the telephone network should be of no direct relevance to its use of the persistent misuse powers.

Mr Richards referred to regulatory action - writing to certain companies to advise them of new requirements that would be imposed from February. This approach is totally improper. Ofcom has no statutory authority to impose general regulations regarding the extent to which companies may make Silent Calls. In this case, the revised guidance is only about when Silent Calls should be made to any particular person – on successive days, rather than being repeated with a day. If applied, this change will simply redistribute the nuisance, over a longer period for any one victim and to more victims on any particular day. Furthermore, such explicit statement of what is required serves to confirm that one Silent Call, per caller, per victim, per day is acceptable to Ofcom.

The relevant powers are simply for the purpose of preventing and potentially penalising cases of persistent misuse of the telephone network. The powers enable the issuing of Notifications and the imposition of enforceable requirements and penalties on specific offenders. All of these actions are public, and as Mr Richards confirmed, such action will lead to an increase in the number of complaints received by Ofcom.

Noting previous reference to engagement with certain companies, I have asked for the names of these companies to be released. If these companies are known to be making Silent Calls, they must be practising "persistent misuse", as understood in the general sense, even if they are doing so within the tolerances improperly applied by Ofcom. As Ofcom is aware of their activities then it must have the necessary "reasonable grounds" for issuing a formal Notification of Persistent Misuse. One consequence of this would be the capacity for Ofcom to impose enforceable requirements on them. Ofcom however prefers to work with these companies privately, so that neither its activities, nor theirs, can be exposed to public view.

Proper use of the persistent misuse powers does not suit Ofcom's style as a regulator - balancing provider and consumer interests. It therefore twists the nature of the powers, thereby distorting its function, failing to fulfil its duty to further the interests of citizens in relation to communications matters.

The point that is being missed with Silent Calls is that this is not something that has to be tolerated and reduced - habitually hanging up in Silence when someone answers a call is totally unnecessary and unacceptable. It is properly covered by the persistent misuse powers and should therefore be subject to use of these powers, as specified in the legislation, not addressed by Ofcom's preferred pseudo-regulatory approach. The only purpose of the persistent misuse powers is to cause persistent misuse to cease, not for it to be redefined as though it may be tolerated at some negotiated level.

As stated previously, if Ofcom is unwilling or unable to use its powers properly then this aspect of its responsibilities must be passed on to another body able to deliver value for money, by using the powers properly.

The issue of Silent provides a good example of where Ofcom's attempts to demonstrate value for money, by showing falling complaint figures, fails woefully. Despite Mr Richards' suggestion that other means of measurement are used, complaint levels remain as the principle means by which Ofcom itself measures its effectiveness in this aspect of its duties.

By acknowledging my frequently published point about the levels of complaint being tied to levels of publicity rather than the levels of nuisance being experienced, Mr Richards went some way towards holding up his hands in admission of failure, although he tried to pretend otherwise. Fear of increased levels of complaint is clearly one factor that inhibits Ofcom's desire to use its powers; this was seen very clearly in the way that Mr Richards referred to the possibility of more complaints being generated in the event that Ofcom, most reluctantly, finds any need to use its powers in the new year.

In fact, the "consumer experience" data does not confirm the drop of 25% to which Mr Richards referred. A new category of experience - "abandoned calls" has been added to the data set. If consumers are as confused about what is an abandoned call (both in itself, and as distinct from a Silent Call) as is Ofcom and those who seek to understand its guidance, then any data on this topic must be considered wholly unreliable. There is simply no evidence whatsoever of Ofcom responding to the expectations of parliament in 2006 - to use its powers to eradicate the nuisance of Silent Calls.

There is one very simple way that we could see if Ofcom is delivering value for money in its efforts to stop Silent Calls. Ofcom could simply use the powers it holds by issuing Notifications of Persistent Misuse to those found to be making Silent Calls, including (as required) as specification of the activity that led to the Notification. On noting that Ofcom did not need to follow such Notification with a penalty for breaching a requirement to cease the practice, we would know how many Silent Calls had been stopped.

The simple fact is that Ofcom continues to tolerate, and even encourage, the making of Silent Calls. It does not even regard the practice as being the persistent misuse which most of us believe it to be.

Conclusion

This evidence session confirmed that Ofcom is failing to perform its duties under the Communications Act, in relation to Silent Calls. I hope that the Public Accounts Committee will reach this conclusion. I believe that it is for the BIS committee to take the matter forward.

I will be addressing the specific points made by Mr Richards on this issue in more detail in a further communication.

BBC Watchdog - “false claims”, “bodge jobs” and “poor service”

An item broadcast on BBC Watchdog on Thursday 7 October (viewable here) covered the issue of Silent Calls, along with other related and unrelated issues.

The focus on this issue of public concern was welcome, but many of the points made and the explanations given were factually incorrect and misleading. I do not agree with the support for the practice of making Silent Calls which was offered, nor the proposed "consumer" remedy. Despite the many mistakes made in the presentation of the piece, I have to assume that the comments from the contributor and editorial comments from the presenter were well founded and considered, rather than misguided, and so I have to declare my total opposition.

I believe that all Silent Calls are unnecessary and unacceptable. Responsible companies, such as BT and British Gas, should simply stop making them as a matter of policy.

Ofcom should firstly withdraw its support for use of obsolete (AMD) technology which it knows to be a major cause of Silent Calls - it currently advocates use of this technology "in the public interest".

Ofcom should then cease tolerating the practice of habitually making Silent Calls and treat every case that comes to its attention as "Persistent Misuse of a Telecommunications Network or Service". Every culprit should be initially served with a Notification of Misuse. Where resources permit and the scale of likely misuse warrants further investigation, this should be followed by the possible imposition of an enforceable requirement to cease the practice and a proportionate penalty for breaches of such a requirement.

Contrary to the position adopted by Watchdog and its contributor, endorsement of the Ofcom policy, I totally oppose the suggestion that people should individually opt-out from receiving information about products and services because they do not wish to receive Silent Calls, whilst this unacceptable practice continues. It is right that they are made aware of the option to opt-out (if properly explained) and that respect for that right should be enforced, but this is not the way to stop Silent Calls being made. Killing off telemarketing by those who have high standards and respect regulations simply puts people out work, stifles the domestic economy and drives the industry into the hands of those who operate outside the law.

---

My complaint to Watchdog

I have written to Watchdog pointing out a number of specific errors in the piece and offering clarification on certain points. An extract from my message, addressed to the producer of the item, with some modest re-drafting, follows.

(The text of part of the item is published in the Watchdog blog.)

•	Automatic generation of telephone numbers is performed by those who provide lists to telemarketing companies, but the Silent Calls which can result from their number scanning operations are not the ones that you were focussing on. They are a quite separate, and fairly rare, issue.
•	The Silent Calls we experience are caused in two ways:
	ο	Firstly, when more automatically dialled calls than expected are answered and so there is no agent available to pick up the call.
	ο	Secondly, when technology designed to detect the clicks and whirrs of a mechanical answering machine (although slightly refined) mistakes a human being for a machine and hangs up after a period of silence. As well as these, sometimes people think the silence is going to continue and hang up before the call gets passed to an agent anyway.
•	The piece failed to explain that Ofcom tolerates both of these types of Silent Call, subject to additional conditions.
	ο	The first type is acceptable, so long as 33 times as many "non-silent" calls are made on the same day.
	ο	The second type is acceptable (when the machine gets it wrong). From February next year Ofcom will start to regard cases where two such calls are made to the same person on the same day as unacceptable. These "repeat silent calls" will have to be spaced out one per day per person. (Cases where the period of silence at the beginning of every call is taken to indicate that nobody will ever speak are not regarded as being Silent Calls!)
•	Not one complaint or "own initiative investigation" by Ofcom since 2007 has led to any determination that anyone is engaged in "persistent misuse of the telecommunications network", the basis for Ofcom to issue a public Notification Of Misuse, impose an enforceable requirement to cease the practice and perhaps impose a penalty.
	Ofcom has not recently been "granted new powers". The recent increase to the maximum possible penalty is meaningless if Ofcom finds that all of the Silent Calls being made fall within its "tolerance policy".
•	Both BT and British Gas claim to be complying with the Ofcom tolerance policy. This could however mean that they, like others, are making millions of Silent Calls. There was no suggestion that they are failing to comply, indeed it was specifically stated that BT was making one Select Call per day - exactly what is demanded by the latest revision to Ofcom's policy.
	Neither of these companies have anything to fear from the possibility of a greater penalty, their Silent Calls are "Ofcom-approved".
	Why did nobody ask them how many Silent Calls they are making? - The public needs to understand exactly what the Ofcom policy means in practice.
•	If one understands call centres, it is clear that there is no need or justification for making any Silent Calls. Ofcom should be stopping them, not tolerating them.
•	It is wrong to say that "Ofcom can't look into individual complaints". It can, but now chooses not to, after having done so only once - in response to my complaint about Kitchens Direct in 2003, which kicked the whole thing off. Since then, Ofcom has been trying to evade addressing the issue properly, in the hope that people will stop complaining; that is why it is still a major problem. Ofcom should be called to account to citizens for what it is doing; this point came out very clearly from the recent parliamentary debate on the issue.
•	Failure to respect the TPS is NOT a criminal offence. It is a breach of a statutory regulation which may be enforced by the ICO through the civil law.
	Ofcom's powers in respect of persistent misuse do not include any authority to impose general regulations, but they do enable specific requirements and penalties to be imposed in particular cases, again through the civil law.
•	It is totally wrong to say that calls from overseas or from autodiallers are not covered by TPS registration. The way in which the call is generated, or the place where this occurs, is irrelevant. Any company trading in the EU, which either makes or instigates a marketing call is required to respect the PECR.
	Ofcom applies its use of the persistent misuse powers on exactly the same basis.
•	Phonepay Plus has no role in regulating the making of Silent or marketing calls. The content of a call that solicits a call to be made to a Premium Rate Service falls within its remit, but that was not the point being made in the broadcast. The content of all marketing calls is regulated by various bodies.
•	Many people feel that recorded marketing messages are now the major source of telephone nuisance. Contrary to common understanding, these are totally illegal, regardless of TPS registration. Offering the option to press a button to speak to someone makes no difference. The only circumstances in which it is permissible to play such a message is after explicit consent to receipt of such messages has been given.

Other communications

I have also written to BT and British Gas asking them to confirm that the statements published in the "Watchdog" blog are genuine and that they do make Silent Calls in compliance with the Ofcom policy. I refer them to the demands from parliament that more information about this issue be made available to citizens, including publication of the "current top abuses".

As both are very large companies, it is likely that compliance with the Ofcom policy will place them in this category. I therefore ask each to provide details of the number of Silent Calls they make in any given period.

Parliament debates Silent Calls - 13 September 2010

This briefing consists of sound clips of selected "highlights" from the debate by a Commons Committee, with my description of what was said, and my comments (which are sometimes offered at length only for the benefit of those who may wish to get into the detail).

(Click on the "play button" to hear the numbered clip - detailed instructions about the player are here).

The Hansard text is available here. The video record of the full debate is available here.

This debate was in consideration of an order to increase the maximum penalty available to Ofcom under its "persistent misuse" powers from £50,000 to £2,000,000. These powers enable Ofcom to Notify, and potentially penalise, those who breach its "rules" covering Silent Calls.

Ofcom has not seen fit to use these powers since undertaking a series of investigations in April 2007. Assuming that Ofcom is using the powers in accordance with the legislation, this means that nobody has been found to breach these rules since then.

Clip1 (from archive) When parliament previously granted an increase in the maximum penalty (from £5,000 to £50,000) in 2006, this came with a clear qualification, delivered by the then Minister (Alun Michael).

Clip2 After opening the debate, the Minister (Ed Vaizey) was swiftly challenged by his shadow (Kevin Brennan) on the fact that Ofcom allows callers to hang up in silence as many times as they wish, so long as they make 33 times as many non-Silent Calls on the same day.

Clip3 The Minister continued by indicating the current level of public concern about Silent Calls.

Clip4 He then reported the numbers of unsuccessful complaints made to Ofcom - not one of these had led to any use of the powers. He also referred to the recent report by Which? Magazine, which indicates what a tiny proportion of those who are disturbed by Silent Calls bother to make a formal complaint to Ofcom.

Ofcom's view of the situation (as drawn primarily from looking at levels of complaints) will only show how many people have the time to waste moaning without any prospect of achieving anything, or are sufficiently angry that they have to waste their time letting off steam. Given that Ofcom has not found that anyone is currently breaching its "rules", all of the Silent Calls referred to clearly fall within its tolerance limit. The perpetrators would therefore never be subject to a penalty, of whatever level.

Clip5 The Minister nonetheless concluded that some sort of action is necessary and reported Ofcom's view that a greater deterrent would be the answer.

One is left wondering how a greater penalty for breaching the rules would bear on those who are only making Silent Calls that are deemed "acceptable"! This is the barely recognised elephant that was present in the committee room throughout the debate

Clip6 The results of a public consultation, with a large majority of respondents being in favour of increased penalties, were cited as being the justification to dismiss the argument that I had advanced in my response (with two others sharing the same conclusion).Although this option was not offered as a possible response, I had suggested that it was a revised policy, rather than an increased maximum penalty, which was needed.

Clip7 The minister concluded his argument by making unsubstantiated claims about what an increased penalty could achieve.

I continue to argue that if all the Silent Calls currently being made are deemed "acceptable", then an increased penalty could only be expected to affect some other problem, as yet unseen.

There may be Silent Callers who are unaware that they are complying with Ofcom's rules, and could therefore be frightened into ceasing their practice by the possibility of an enormous penalty. If this were the objective, it would be necessary to prohibit proper public debate of the issue, so as to ensure that they do not get to discover the truth. I fear that there are too many Silent Callers who know what they can get away with to make this an effective strategy.

Clip8 The Shadow Minister (Kevin Brennan) opened his contribution by laying out his position of broad support, but calling for further steps to be taken. He also made a personal confession.

In response to an intervention he confirmed that the level of penalty is meaningless without the possibility of it being imposed.

His reference to recorded messages prior to the intervention was, I believe, mistaken. The recorded messages that we are familiar with hearing are (sadly) not delivered so as to avoid making Silent Calls. These are all delivered in breach of regulations enforced, not by Ofcom, but by the Office of the Information Commissioner.

Calls using a recorded message to promote or offer goods, services or even a political party are illegal (unless explicitly requested). This has nothing to do with the Telephone Preference Service, Silent Calls or Ofcom. It is covered by a statutory regulation which is generally neither recognised nor enforced.

(I refer below to Ofcom blocking my attempt to stop Silent Calls by giving honest dialler users the option of using an "Informative Message". Some get confused by the totally different purpose behind two quite different uses of recorded messages. I cannot say that Mr Brennan had made this mistake, however even if he not, his comments could serve to mislead others.)

Clip9 Some figures from the case which Ofcom undertook in response to my first formal complaint about Silent Calls were introduced to the discussion.

Ofcom has not subsequently either undertaken any investigations on the basis of a citizen's complaint about Silent Calls, or published the actual results of any investigation in terms of the amount of nuisance found to have been caused (number of Silent Calls being made). The only figures ever published by Ofcom when reporting on cases of persistent misuse, since 2004, are bland percentages. These obviously give no information whatsoever about the actual persistent misuse or number of "acceptable Silent Calls". Citizens cannot therefore form any judgement about whether the level of penalty imposed is proportionate to the degree of nuisance suffered, nor make any assessment of the reasonableness of Ofcom's decision not to use its powers.

I can add some meaning to the figures that were mentioned without being associated with a timescale. Assuming the same overall calling rate as discovered in 2003/4, "Kitchens Direct" alone would now be making up to 6,000 Silent Calls a day with no fear of incurring a penalty, or other action by Ofcom. This continuing activity is not deemed by Ofcom to represent "persistent misuse".

Clip10 Mr Brennan then sadly lost the plot (as I see it). He had previously confirmed his agreement with Ofcom, asserting that the percentage limit (currently 3%) should apply not just to Silent Calls, but to all dialler-generated calls where no agent is available to speak - these are known as "abandoned calls". It was "abandoned calls" that he was referring to when he called for a reduction in the percentage.

I have never agreed with the "percentage approach" to assessing whether or not persistent misuse has occurred. Ofcom's own policy (as first published in 2004) explicitly referred to this approach and declared it to be totally inappropriate, for the same reasons that I give below. The relevant clause was removed from the policy statement in 2005 when the 3% limit was introduced.

I believe that the problem of Silent Calls remains as serious as it is today because Ofcom changed its formal approach at this point, in response to pressure from the Direct Marketing Association. This was the first of a continuing series of successive steps in weakening its policy.

The other primary reason for the current problem is the fact that Ofcom then explicitly ignored Silent Calls caused by the use of Answering Machine Detection equipment. In conjunction with the DMA, Ofcom devised complex rules intended to regulate (i.e. control, rather than prohibit) "abandoned calls". These rules make specific provision for the use of AMD. They allow every call to begin with a period of silence and deafness from the caller, whilst the person answering the call speaks to a machine. Ofcom has now got to understand this issue and has recently increased the permitted duration of the period of silence at the beginning of every call, in response to pressure from the CBI.

Ofcom further proposes to add a formal tolerance of the totally Silent Calls caused by AMD. This tolerance will be qualified, not by a percentage, but by the number of Silent Calls made by any caller to any person each day (the likely figure is 1). Again, forthcoming changes to Ofcom's formal published policy will explicitly permit every caller to make a single Silent Call to any person each day. The increased penalty could only be applied to those who make a second attempt to call a number following automatic detection of an answering service that day. Regardless of whether either of the calls causes a person to experience a Silent Call, this is what is outlawed by Ofcom's proposed "ban on repeat Silent Calls". I am furious that Ofcom is playing around with devising codes of practice for the sake of the call centre industry, when it should simply be using its powers to stop every case of "persistent misuse" that comes to its attention. This issue was not discussed by the committee.

In 2005 I brought forward a proposal that the very particular nuisance of a Silent Call could be avoided by using a recorded message to announce the name of the caller and to explain what had happened if a call has to be abandoned after being answered. Nobody would be compelled to deliver such messages, but if the benefits of use of predictive diallers are considered to be worth the risk of having to abandon calls, then the caller must own up and take the proper consequences in the best way possible. When making a voice telephone call, the caller has a duty to announce their name (or that of the company which they represent) when the call is answered. Presenting a number for a return call to hear a "generic" answerphone message does not relieve that responsibility. I believe that announcing who is calling reduces the level of nuisance below the standard that qualifies as "persistent misuse". If no further conversation is possible, then the degree of nuisance falls in with that caused by many other unwanted and ineffective calls. Ofcom's role is only to deal with the very serious matter of "persistent misuse". Once Ofcom has been seen to have dealt with Silent Calls, perhaps it could look to apply more severe criteria in its determinations of persistent misuse.

Because Ofcom actually treats Silent Calls and "abandoned calls" as essentially one and the same, subject to the same percentage tolerance and the same potential penalty if the tolerance is exceeded. Sadly the "Informative Message" (which can only inform, it must not fulfil any marketing purpose) is therefore not used in practice.

I continue to believe that if the perpetrator is prepared to identify themselves as being responsible for a failed call, then they (or their agents) should be free to continue using predictive diallers. It is argued that without the productivity benefits offered by this technology all call centre operations would be simply moved beyond the effective bounds of any UK regulation. I feel confident that the possibility of complaints and reputational damage would ensure that instances of abandoned calls would be minimised at source if Silent Calls were to be banned. Any case where the caller was clearly unconcerned about the impact of admitting to making abandoned calls could readily be made subject to use of persistent misuse powers.

I see no need whatsoever for Ofcom to consider defined percentages when making a determination of "persistent misuse". If an activity represents "persistent misuse" of itself then it must be stopped. The scale of some other activity cannot have any bearing on the misuse. The nuisance caused by a telephone call to one person (many times over) is not changed by the number or nature of calls made to others. (This latter point is exactly the argument which appeared in the Ofcom Statement of Policy prior to the 2005 revisions, when the percentage limit was formally introduced. - The percentage approach had been applied previously in practice, in disregard of the formally stated policy.)

The particular problem with the proposal made by the shadow Minister is that if a percentage limit on all non-Silent abandoned Calls were to be reduced, ultimately to zero, then use of the predictive dialler would effectively be banned, increasingly and eventually totally. The battle I want with the UK Call Centre industry is over the way in which it operates, in particular over Silent Calls, not over the continuation of the industry - that is a quite separate matter. Furthermore, even though some may wish for it, given the way in which Ofcom forms its policy, I see no prospect of Ofcom ever taking responsibility for destroying the UK call centre industry.

Ofcom has a statutory duty to further the interests of "consumers" of telecoms services - the call centre industry probably represents one of the largest groups of such consumers. This duty is carried out through powers of general regulation. Ofcom's first principal duty is however to "citizens" (i.e. regardless of the nature of any commercial relationship they may have with any other party). It is clearly this duty which applies in the case of "persistent misuse", where Ofcom holds no powers to impose general regulations. A general failure to appreciate the nature of Ofcom's status and role, partly arising from misrepresentations by Ofcom itself, is one of the reasons why Ofcom is able to get away with its persistent misuse of the persistent misuse powers.

Clip11 The Minister was asked to exert some influence over Ofcom and to report back to the House. In fact, Ofcom is not accountable to the government, it is (or should be) proudly independent, and accountable only to parliament. Likewise, the Minister cannot be held to account by parliament for the activities of Ofcom.

Clip12 The LibDem spokesperson (Lorely Burt) stressed some valuable points, although failed to draw a conclusion. She did not even comment on whether Ofcom had fulfilled the expectation which she and others imposed on it in 2006.It is disappointing that her points could not be rammed home, as a series of questions was left hanging. She asked "will it work?" in 2006, but does not offer a view on whether it did when addressing the issue again, and simply repeating the same question, in 2010! I do not believe that the coalition agreement demands support for the Minister's view that Silent Calls (subject to a 3% limit) are acceptable.

Clip13 A Labour Party backbench member (Chris Leslie) made a useful contribution.

In the same spirit as that in which I understand his proposal to have been made, I support his call for the top current abuses to be made visible. I believe that the names of those who are making large numbers of Silent Calls but are found to be complying with the Ofcom "rules" should be published.

At the very least this would enable victims to avoid wasting their time by complaining to Ofcom about acceptable Silent Calls. It would also, as Mr Leslie suggests, encourage citizens to take direct action against those who effectively hold "an Ofcom license to make Silent Calls".

(I trust that this suggestion was not made entirely seriously. This would be taking the "Big Society" much too far, especially if the widely-supported idea of two million pounds worth of damage being an appropriate penalty for a Silent Caller were to be carried through. If this concept of citizen enforcement were to be extended, then we could however save a very large amount of the present budgets for the Home and Justice departments.)

Clip14 In summing up, the Minister referred to the Ofcom rules having features other than the 3% limit

He fails to point out that these are only factors which are used in mitigation, in cases where the 3% limit has been exceeded. They may be used by Ofcom to prevent action being taken, or to reduce the level of penalty deemed necessary. They are not, as the Minister may have believed and seemed to imply, additional requirements.

Clip15 The Minister confirmed a meeting with Ofcom.

Clip16 He also offered to report back to the committee on that meeting.

I have asked for a suitable version of this report to be made publicly available.

I have subsequently written to the members of this committee and also to the Business Innovation and Skills (Select) Committee. It is the latter, not the Minister or his department, which holds Ofcom to account.

Personal thoughts on Ofcom and Silent Calls

I have today issued the following thoughts on the issue of Ofcom's persistent misuse of its powers to deal with Silent Calls ("persistent misuse of a network or service") to the MPs who will be debating a proposed increase to the penalty that it can use. This committee will be sitting on Monday 13 September at 4:30 in room 11.

(This follows an extensive briefing.)

On the level of the increased penalty being proposed

♦	Ofcom does not request the increase because it has found the existing penalty inadequate for the purpose of ensuring compliance with an Enforcement Notification to cease making Silent Calls. Ofcom has never had to deal with a breach of such a Notification.
	Ofcom is itself persistently misusing the persistent misuse powers by failing to issue initial Notifications when it has the necessary minimal evidence. It conducts lengthy secret investigations collecting the information necessary to support imposition of a Penalty. This is done before it has even Notified the offender and required them to cease the practice. Ofcom issues the Notification and then follows directly with the penalty after the event - indeed, often several years after the event!
	The emphasis is on using the powers to penalise past practice, rather than to stop it. This mistaken approach reflects Ofcom's standard role, imposing general regulatory requirements, seeking compliance and only intervening formally when necessary. This is not appropriate in the case of the persistent misuse powers, which do not confer any authority to act as a general regulator.
♦	The level of penalty being sought is so much greater than any penalty previously imposed that one cannot image another penalty ever being imposed. The penalty has to be proportionate and we note that £30,000 was adequate for Santander. With the figure of £2 Million being bandied around, Ofcom would be open to ridicule if it ever imposed a penalty that was proportionate.
♦	If there are cases known as being likely to require a much greater penalty, then one must ask why no action has been taken so far. Repeated breaches of an Enforcement Notification may be subject to repeated penalties. Ultimately Ofcom may seek an injunction for enforcement by the courts if necessary.
♦	There is a suspicion that Ofcom intends to use the threat of a massive penalty as an alternative to action. This suspicion is not easy dismissed.

The use of "rules"

♦	Ofcom spends a lot of its energies in this matter playing around with what is in fact Best Practice Guidance for the Call Centre Industry. This includes a limited tolerance of Silent Calls, which is urged on Ofcom by some of those with whom it chooses to interact, as representatives of an industry for which Ofcom has no responsibility. Ofcom has no statutory powers or duty to regulate the behaviour of any industry, other than those which provide Communications Services. It regulates those industries to further the interests of consumers in the respective market, including promoting competition.
	The consumers of the specialist call centre industry are those who commission it to conduct marketing campaigns. The consumers of the collections industry are the banks and other lenders whose debts are being recovered. In-house call centres have as their (external) consumers those who buy items such as fitted kitchens, mobile phones, classified directory listings, and financial services. Ofcom has no duty to regulate these markets.
	Ofcom's simple duty in using the persistent misuse powers is to prevent and stop nuisance to citizens being caused by misuse of the telephone network by any user of that network (one whom Ofcom should regard as a consumer, of communications services).
	Where a case of persistent misuse comes to Ofcom's attention it must simply use its powers, commencing with a Notification. The habitual practice of hanging up in silence is surely persistent misuse. No more detail is needed in general policy.
♦	Specific tolerance of Silent Calls is seen in the rules by the use of a "percentage approach", which Ofcom itself had dismissed previously as being totally inappropriate. The primary factor considered by Ofcom when addressing a case is the daily percentage of "abandoned calls" as recorded by the dialler.
	The number of calls that were terminated in Silence is not a consideration! Self-declared (rather than verified) use of the Informative Message to avoid the Silent Call is considered as a mitigating factor, but this has not prevented penalties being imposed in several cases where Ofcom reports that no Silent Calls were made, but the percentage limit was exceeded.
	Every case that has been dealt with using the powers has been on the basis of the percentage limit being exceeded.
	When Ofcom repeatedly refers to its rules, those who make millions of Silent Calls, but also make enough (possibly annoying) calls when they speak to someone, can sleep easy.
♦	Answering Machine Detection equipment is thought by some to have always been the cause of far more Silent Calls than the "no agent available" ("over-dialling") situation. This method and the underlying technology was originally designed to detect the clicks and whirrs of a mechanical tape recorder - that is why it is known as Answering "Machine" Detection, despite the fact that most answering services are now delivered on the network. The algorithms used have been adapted to analyse speech patterns and other factors which are thought to be different when recording a greeting rather than answering a call in person. It is acknowledged by all as being imprecise, but there can be no reliable means of knowing just how imprecise it is. The failure rate (the number of times that positive detection of an answering machine is false) is never even claimed to be better than 1% by the most bullish of its promoters.
	Given that every "false positive" detection is a Silent Call, I find it unthinkable that use of this equipment could not be seen as persistent misuse. Ofcom however thinks differently. It has always been seen to tolerate it and in a recent consultation hit a particularly low point (in my estimations) when considering options regarding how to adjust its "rules".
	Ofcom argued that because use of this equipment made call centres more efficient it was in the public interest for its use to continue because this efficiency would cause prices to consumers to be kept low. (I can offer chapter and verse to any committee member who would perhaps like to read this into the record.)
	Continuing with this brilliant thread of thinking in making its case, Ofcom refers to the fact that many of those who contact it with reports of Silent Calls had done so because they had received repeated Silent Calls from the same company. Ofcom disregarded the fact that the companies responsible for these Silent Calls must have been identified and therefore could have been made subject to a Notification of Persistent Misuse. It also ignored that fact that those (proportionately) few victims of Silent Calls who complain to Ofcom may do so because they have had unusually unpleasant experiences. It used this information to conclude that "Repeat Silent Calls" was a particular problem that needed to be addressed.
	Ofcom therefore proposed that whenever AMD gave a positive indication the caller should not call the same person again that day. It proudly proclaimed this as a "ban on repeat Silent Calls". Putting aside the point that many believe that the best cure for a Silent Call is for the same company to immediately call the person (with an agent attending the call) to reassure them, a ban on repeat Silent Calls can only be a tolerance of single Silent Calls.
	If, as is likely, Ofcom brings this proposal forward into a revision to its "rules" this will amount to a formally declared tolerance of one Silent Call per caller per person per day.

The role of citizens

♦	Ofcom's very first investigation in Silent Calls was in response to a report I made, as a citizen, about "Kitchens Direct". I had identified the company with some help from the BT nuisance calls bureau and a little underhand detective work. I would doubt that there are many who would be ready to deploy the degree of dedication and effort that I committed to the task of formulating an actionable complaint and getting Ofcom to act on it.
	At the same time Ofcom also investigated another complaint submitted by the Direct Marketing Association picked up from a TV programme - this other case was found to be a problem in relation to a dialler, but not of a habit of making Silent Calls.
	The final result of the Kitchens Direct case was Ofcom getting the company to reduce its Silent Calls to no more than 10,000 per day.
	Since then, Ofcom has never (openly) commenced an investigation into Silent Calls based on complaints from citizens.
♦	Ofcom reports that in 2009 it was notified of 100,000 instances of Silent Calls where the caller was identified. The persistent misuse powers have not been used since early in 2008.
♦	Ofcom declares its objective as being to reduce the number of complaints it receives about Silent Calls. Every time it takes any action or its role is mentioned in the media the number of complaints goes up.
♦	Ofcom uses monthly totals of classified complaints received as if this were a meaningful indicator of the number of Silent Calls being made.
♦	Ofcom does not invite those who have complained once to be sure to repeat their complaint every month whilst the problem persists.
♦	Ofcom even tells those minded to complain that it will take no action based on their complaint and that there is no point in complaining unless there is some evidence of who made the call.

Summary

I formally retired from my campaigning role in 2007 after Ofcom had first imposed a financial penalty. It has now stopped using its powers and there is no indication that it will do any more, other than continue to dilute its "rules".

There is no evidence that the actual problem of Silent Calls is any different now to what it has always been. Far more people now know that they are unlikely to be deliberate harassment, for which we thank the media, not Ofcom. I suspect that many just see the nuisance as something one has to live with.

Ofcom and Silent Calls - a further chance for parliament to express a view

I have today issued the following briefing to MPs, with copies to the specialist media and other interested parties. This is in advance of a detailed briefing to the members of the committee of MPs, which will shortly be appointed to consider a proposal to endorse Ofcom's policy and approach to Silent Calls, by granting an increase to its powers to impose penalties to an absurd level.

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To: MPs concerned about Silent Calls

From: David Hickson - veteran Stop Silent Calls campaigner

cc: Interested parties (who may also wish to provide informed briefing)

I trust that you enjoyed your Summer break.

The issue of Silent Calls will shortly come before the Commons with consideration in committee of a SI to increase the size of the maximum penalty available to Ofcom.

Last time the issue of Silent Calls was considered by parliament (in 2006) it was under identical circumstances. Ofcom was granted an increase (by a factor of 10) to the maximum penalty that it could impose on those found to practice persistent misuse of a communications network or service.

On that occasion the increase came however with a clearly stated and explicit requirement from all those represented on the Committee which approved the SI submitted by the then Secretary of State. This was voiced by his minister as a condition to qualify a supportive gesture:

"We expect you to use your powers to eradicate the nuisance of Silent Calls". (read Hansard, listen using sound player with links, hear sound clips here)

Ofcom has subsequently used these powers very selectively, on very few occasions and with a focus on tolerance of the practice of call centres hanging up in Silence, subject only to certain complex technical "rules" that bear little relationship to the type or degree of nuisance caused.

♦	Ofcom has never used its power to impose a financial penalty on anyone who has breached an Enforcement Notification requiring cessation of the practice of making Silent Calls. Only one such Enforcement Notification has been issued. Ofcom is not even using the powers that it has properly.
♦	Ofcom confirms that in 2009 it received reports of over 100,000 instances of Silent Calls, with the caller identified. Ofcom has failed to use its powers in respect of any of these complaints. None of these identified Silent Callers have been Notified that that their action is deemed to be "persistent misuse", let alone subjected to a enforceable requirement to cease the practice, so as to risk incurring a penalty in the event of a breach.
	If there has been any informal contact with these companies, they must believe that their activities are in compliance with what Ofcom misleadingly describes as its "rules", as it has taken no action. Ofcom has no statutory authority to impose general regulations in this area and has not used the powers it has to act in individual cases of Silent Calls since 2008.
♦	Ofcom has not even undertaken a formal investigation into any alleged Silent Caller since April 2007. It is has not instigated any investigation based on complaints about Silent Calls presented by citizens since its very first investigation, in response to my complaint, in 2003.
♦	Ofcom is currently considering changing its policy to explicitly permit any caller to make one Silent Call per day to each citizen. This proposal was subjected to public consultation as if it were a ban on "repeat Silent Calls". Strictly read, Ofcom's current policy bans all Silent Calls, although it is commonly understood (and applied) to permit an unlimited number to be made, so long as the same caller also makes sufficient non-Silent Calls on the same day. The irrelevance of other activity used to be a feature of Ofcom's policy, but this was removed in 2005.

It is probably fair to say that Ofcom has failed to meet the expectations of Parliament.

The Secretary of State for Business, Innovation and Skills has tabled a further Statutory Instrument, to be considered under the "affirmative procedure", to further increase the maximum penalty available to Ofcom by a factor of 40. See - The Communications Act 2003 (Maximum Penalty for Persistent Misuse of Network or Service) Order 2010.

◊	Santander was only seen worthy of a penalty of £30,000 in 2008 and the Carphone Warehouse Group £35,000 in 2007, when the maximum was £50,000. One must wonder who it is that Ofcom has in mind as being worthy of a penalty of £2 Million. One must also wonder why action has not already been taken against whoever this may be. (Ofcom currently has, and will retain, the option to seek an injunction for Enforcement if its penalty powers are seen to be ineffective at halting persistent misuse.)
◊	When it does use its powers, Ofcom judges the scale of the activity being addressed to be confidential. We therefore have no idea of the proportionality of past or future penalties to the nuisance caused. We do however know that Santander and other companies which have been subject to penalties were found not to have made any Silent Calls!
◊	Ofcom has a problem distinguishing between the unacceptable practice of hanging up in Silence and that of announcing who is calling when no agent is available to complete a dialler-initiated call. Ofcom applies an excessive degree of interest in the way in which dialler technology is configured and performing complex calculations on the statistics that can be readily produced.
◊	Ofcom recognises that use of obsolete “answering machine detection” technology is an inevitable cause of Silent Calls. It however argues that use of this technology should not be deemed to represent “persistent misuse”, because the financial benefits derived may be passed on to customers of those who use it. I am almost rendered speechless when spurious nonsense such as this is granted a place in public debate.

Many feel that if Ofcom did its duty to "further the interests of citizens in relation to communication matters" it would not seek to establish codes of practice for an industry that it has no duty to regulate, but would simply deem the habitual practice of hanging up in Silence to be "persistent misuse" and use its powers accordingly, whenever it could. I believe that this was the essence of the expectation of parliament in 2006.

This new SI has been already been approved by the House of Lords, following a debate that was sadly devoid of any true understanding of the issue - see Hansard.

I will be watching forthcoming proceedings closely to note the appointment of the members of the Commons Committee to undertake the equivalent task. I will seek to ensure that those members will benefit from a comprehensive briefing. I would be grateful for any assistance that could be provided by yourselves.

IT IS MY BELIEF THAT PARLIAMENT SHOULD NOT APPROVE A FURTHER INCREASE TO OFCOM'S PENALTY POWERS WHEN THE EXPECTATIONS IMPOSED PREVIOUSLY ARE SEEN TO HAVE BEEN TOTALLY DISREGARDED.

In the absence of any comment to the contrary on the record, it would be seen that the previously expressed expectations had been met. In the current wider context, approval of the increase would inevitably be seen, and perhaps declared by Ofcom, as parliamentary endorsement of both its current approach and its proposed policy of formal tolerance of one Silent Call per caller per person per day.

This policy is more broadly seen to be an increasingly formalised tolerance of Silent Calls, whilst bluffing a strong approach and the potential for enormous penalties. Ofcom's actual stated objective is to reduce the number of complaints it receives about Silent Calls. Experience has shown that whenever Ofcom is seen to use the powers the number of complaints it receives goes up dramatically. (It is not difficult to draw a cynical conclusion about why Ofcom is reluctant to use its powers!)

I hope that your support for the campaign against Silent Calls, in response to the demands of your constituents, will lead you to do all you can to ensure that the committee appointed to represent the House gives proper and informed consideration to this matter.

(Please feel free to circulate this briefing to colleagues and party policy personnel.)

An immodest proposal

I have today issued a media release < Ofcom - the "useless Quango" - Silent Calls - the Big Society - I propose a radical solution > today; it is circulated to many interested parties well beyond the media.

It provide an update on the latest situation and conclude with a proposal for how, under the terms of the "Big Society", the problem with a Quango not doing its job properly should be addressed. I offer my services in setting up and serving in a citizen-driven social enterprise to fulfil the statutory duty that Ofcom fails to perform.

The draft of the proposal is repeated below. I await reaction with interest.

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If Ofcom, behaving as a useless Quango, cannot be seen to be willing or able to serve the interests of citizens by using the statutory powers it has been given, then these powers must be handed to an alternative agency that both can and will. These powers, which only allow for intervention in specific cases in the general public interest, are quite separate from Ofcom's role as the statutory regulator of the activities of broadcasters and telecommunications service providers in the interests of their consumers.



The “persistent misuse” powers were only given to Ofcom on its formation as an afterthought, without being discussed in parliament, when it was discovered that a gap in the new telecoms regime would otherwise arise. Unlike most of Ofcom’s other duties they do not involve control of the activities of the Communications Industry, but of those who (mis)use its services.


In the spirit of the "Big Society", I would be very happy to assist with, and serve in, a newly created citizen-driven agency to take on this, apparently unwanted, role from Ofcom and to exercise the statutory powers which Ofcom prefers not to use. As with PhonePay Plus or TPS for example, this work could be undertaken independently, but exercising Ofcom’s statutory powers on a sub-contracted basis.


I am quite sure that the funding which Ofcom has misdirected into the unnecessary and improper refinement of a wholly misguided policy could be used to better purposes. Revenue from properly imposed penalties would be equivalent to far more than operating costs for as long as the problem remained – thus helping to address the public debt. There are many positive minded people in the Call Centre Industry, who are anxious to protect its reputation, and they would doubtless be happy to contribute their energies and knowledge to such a social enterprise. I would be delighted to work with them and all others of goodwill in a spirit of public service.


I offer this proposal for publication and for consideration in all quarters.


I will continue to promote this idea and be delighted to interact with all those who wish to discuss how it may be more clearly formulated and brought to fruition.

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The House of Lords discusses Silent Calls

The proposal by the Secretary of State for Business, Innovation and Skills to increase the maximum penalty available to Ofcom, in connection with its powers to act against persistent misuse of a telecommunications network or service, to £2 Million pounds has to be discussed and approved by both Houses of Parliament.

The discussion in the Commons will (almost certainly) not take place until after the Summer recess, as the committee to do this has not yet been appointed.

The discussion in the Lords, and the inevitable approval took place on 21 July - see Hansard.

The peers who contributed were not properly briefed and so had little grasp of the issues. Key facts about the long history of Ofcom's failure to address the problem of Silent Calls were not mentioned, the nature of the relevant powers was misrepresented both in a technical and a practical sense by the Minister and other contributors had clearly misunderstood what is actually addressed by the powers.

As so often with this issue, anyone is ready to support action that seems to be doing something about unwanted telephone calls. Ofcom trades heavily on this natural support for whatever it may propose, to gain approval for its wholly wrong and improper approach to the issue.

When MPs come to discuss this proposed increase, and implicit endorsement of Ofcom's policy, they will be most throughly briefed and lobbied.

Gobsmacked by Ofcom's foolishness

This media release starts to come close to expressing the extent to which I see Ofcom as having been utterly foolish in choosing the present time for some modest tinkering with the extent to which it tolerates silent calls, whilst prohibiting other activity.

Ofcom has today announced a full blown public consultation on two minor features of the way in which it deals with cases of alleged misuse of a telecommunications network or service that come to its attention.

Ofcom continues to pretend that it is dealing with enforceable "rules", when it has no statutory powers of regulation in this field. The Statement of Policy, which it proposes to amend, bears only on the way in which Ofcom handles cases where it considers issuing a Notification of Persistent Misuse. Only after such a Notification may Ofcom impose an enforceable requirement to cease the misuse. A possible financial penalty would normally be applied in the case of a breach of such an enforceable requirement.

This has been done at the time when we are waiting for the longstanding proposal for the maximum penalty available to Ofcom to deal with cases of Silent Calls to be lifted to £2 Million to be presented for parliamentary approval.

Ofcom's tolerance of Silent Calls and its failure to use its powers in the way intended by parliament will be drawn to the attention of the government and parliament. I will now firmly oppose and campaign against the increase to the maximum penalty being granted. Ofcom must be directed to think again before it has the cheek to ask parliament to provide an endorsement of its failed and improper approach.

Response to BIS Consultation on increase to maximum penalty for Silent Calls

My response to the consultation is now submitted and published here.

I aim to point out that the maximum level of the potential financial penalty has little to do with Ofcom's failure to discharge its duty to citizens and what was demanded of it by parliament when the penalty was increased previously -

"We expect you to use your powers to eradicate the nuisance of Silent Calls".

I point out the following:

• Ofcom has not been using its powers properly.
• Ofcom's policy is for a limited tolerance of Silent Calls.
• Ofcom pretends to hold powers of regulation which do not exist.
• The BIS Department should not have proceeded with meeting Ofcom's request for an increase to the maximum penalty without looking closely at Ofcom's policy and the way it was being implemented.
• Parliament will be urged to reject a BIS proposal to grant Ofcom's request if it comes forward with no further assurances about changes to the present Ofcom policy.

I repeat a previously declined request to engage in detailed discussions about the issue. The purpose of these would be to expand as necessary on the content of my response and to discuss what may need to be done to ensure that a BIS proposal could be put before parliament in a way that could be found acceptable.

As the proposition in the consultation is expressed as being tougher on Silent Callers it is unlikely to be rejected. There are inevitably very few who are aware of the actual nature of Ofcom's powers and the way in which these are being misused.

The body of my response contains no reference to the fact that the proposal being addressed came from a former employee of Ofcom, who had taken the constitutionally questionable role of an temporary ennobled Minister in the Department.

BBC News Channel - 25 January 2010

Talking about Silent Calls with Sara Coburn in "Business" slot on BBC News 24.

Silent Calls Consultation Closes Monday 25 January 2010

An article has appeared in the aptly named "Callcentre Helper" - Last chance to support the £2 Million fine to ban silent calls.

"Call Centre Focus" has published an article urging responses to the government consultation - Silent calls deadline looms.

The Call Centre industry appears to believe, like Ofcom and the Department for Business, that the threat of major penalties will create the impression that the problem is being addressed and therefore ease public anxiety.

I retain my belief that Ofcom needs to ACT, proportionately, using the powers that is has always held, to cause those found to be practising misuse to cease (not limit) their nuisance

I have posted my comments to both journals, on the proposed increase to the maximum penalty, essentially as follows:

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It is long overdue action by Ofcom, using the powers that it holds, that would "tackle the problem more effectively". The potential for use of a greater penalty remains meaningless unless it is thought likely to be used.

The two million pound fine is nothing more than a cover for Ofcom's continuing failure to make proper use of the powers that it holds.

Abbey was only worth £30,000 and Carphone Warehouse £35,000; it took 18 months of investigation before Barclaycard was given the maximum penalty of £50,000.

Ofcom appears to have given up on all bar companies bigger than the first two and investigations of less than 3 years, as it has not announced any investigation begun since April 2007.

Who is the mythical giant that Ofcom believes to be responsible for all of the nuisance that people continue to complain about?

If the maximum penalty is increased, how long will investigations take and who will be likely to suffer a higher penalty?

Regardless of any deterrent effect of a larger penalty, the key actions points for Ofcom are as follows:

• Stop pretended that general regulations can be imposed on all users of diallers. Ofcom has no such power.
  


• Stop pretending that Silent Calls somehow do not cause inconvenience, annoyance and anxiety if the caller happens to make enough completed calls that day to remain within the 3% tolerance, or left the call silent due to AMD rather than there being no agent available. (All Silent Calls sound the same to me!)
  


• Use the persistent misuse powers as they were intended, not as if they are the same as the powers which Ofcom holds to enforce regulations on providers of telecommunications services (a totally different function held by Ofcom).
  


• Issue Notifications of Persistent Misuse against all those found to be in the habit of making Silent Calls, so as to get them to stop, rather than pressing on with an extensive investigation to see how big a fine may be imposed.
  


• Issue Enforcement Notifications against those who do not immediately cease the practice - this (and only this) places them under an enforceable regulatory requirement to do so.
  


• Continue to impose penalties, up to the maximum on each occasion, for each identified breach of an Enforcement Notification. Where necessary, progress to seek an injunction, so that further breaches may be subject to criminal sanctions.
  

All of this has been possible since Ofcom inherited the powers from Oftel in 2003. My opposition to the previous increase to the maximum penalty helped cause parliament to only grant it on the express condition that:

"we expect you to use your powers to eradicate the nuisance of Silent Calls".

In applying for the new increase, Ofcom admits that the approach it has been following has not come close to having this effect.

Whether or not a greater penalty will itself make Ofcom more or less effective is open to debate. The fact is that there are many other things that Ofcom should be doing first.

Ofcom action against Silent Callers? - time to decide. Consultation ends on 25 January.

see my media release - Big fines for a few - or firm proportionate action against all Silent Callers?