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Thursday, 7 July 2011

HomeServe and nPower - my response to Ofcom's persistent misuse of its persistent misuse powers

In response to the Ofcom announcement on HomeServe and nPower today, I have responded with a media release - Ofcom misuses its persistent misuse powers against Silent Callers, again.

Media coverage of the cases (and further comment) will be found on my campaign news feed.

These cases demonstrate how Ofcom is totally on the wrong track by only seeking to notify and penalise often technical breaches of its tolerance rules for Silent Calls; indeed some of the rules do not even cover the underlying practice of making Silent Calls.

Ofcom is geared up to be a regulator of specific industries - telecoms and broadcasting - not of those who mis-use the services of these industries. Its proper regulation is based on agreed rules and limits on "dubious" conduct.

There is however no defined group of users of call centre services on whom Ofcom can impose general regulation, although it foolishly tries to follow a familiar approach. This results in it setting pseudo-regulations adapted to fit its very limited capacity to enforce them, i.e. improperly weak with reference to what Ofcom should be doing.

Ofcom could and should be using the powers provided to it, under sections 128 - 131 of the Communications Act (published here) indicated below in brackets, in the intended manner:

No specific tolerance limit need be declared in the general statement of policy [s131] about use of the powers. Any such declaration is simply an invitation to practice misuse - it has been gratefully accepted.
All making of SILENT calls should be proscribed, with the understanding that Ofcom will take action according to the seriousness of the cases and the limits of its resources and sources of intelligence.
A case is deemed serious according to the amount of nuisance caused, with no regard to other activities undertaken by the offender.
No attempt should be made to attempt to classify unwanted telephone calls as if these represented misuse of the telephone system. The abandoned call (with the name of the caller declared) is no greater nuisance that many other equally undesirable calls that we receive.
Even if addressing abandoned calls is perhaps a worthy cause, it confuses the policy on Silent Calls, dilutes Ofcom's energies and conflates issues which are the responsibility of the ICO.
EVERY case where Ofcom has reasonable grounds for believing that the nuisance of Silent Calls is being caused at a significant level should be made subject to a formal Notification [s128], as a wholly preliminary measure.
No attempt need be made at this stage to obtain the greater level of evidence necessary to support penalties or the more serious accusation of a breach of specific regulations.
The response to the Notification should be used to determine the need for further action, including extensive investigation in a serious case.
An Enforcement Notification [s129], imposing specific conditions should be issued where it is not clearly shown that the nuisance has ceased.
The Enforcement Notification must be accompanied by details of the mechanism to be used to verify compliance and a clear indication of the consequences of non-compliance.
Investigation, including testing compliance with specific imposed conditions should then follow.
The results of the investigation, notably incidents of non-compliance with imposed requirements, should form the basis for a decision to impose a financial penalty [s130].
Determination of the level of penalty may rightly consider many of factors which Ofcom presently uses to determine whether or not to issue a Notification. These should come into play at the end of the process, not at the beginning.
The purpose of the use of the powers is to cause the nuisance of Silent Calls to halt, not to penalise it. This is where Ofcom is currently mistaking its primary role as a policeman in this area of its duties, for that of a regulator.

This wholly sensible approach, fitted precisely to the nature of the powers and Ofcom's role, is totally at variance with the way that Ofcom has persistently approached use of its persistent misuse powers.

This is why I am able to say that Ofcom is in persistent misuse of its powers.

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