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Friday, 3 September 2010

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.

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.


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.)

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