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Tuesday, 14 September 2010

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.

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