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.