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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.



3 comments:

  1. If you look at the number of complaints recieved by ofcom last year compared to the number of silent calls made you will undoubtably have the smallest fraction of a percent. There is an insignificant proportion of the population that are affected by this, there are many more who benefit from companies that use predictive diallers to offer services that are to their advantage.
    We only have a small time on this earth and we should all make the best of what we get, I feel sorry for you in a way, that you campaign to remove something that will never be realised.
    I am sure there are more worthwhile causes that will enable you to make a name for yourself? To be remembered?
    I am sure that should you be successful in your cause, you will be remembered by the thousands of poeple put out of work in the call centre industries.

    ReplyDelete
  2. Do please at least adopt a nickname when adding comments. Replying like this appears so rude:

    Anonymous

    I agree that the number of complaints received by Ofcom represents the tiniest fraction of a percent of those who are inconvenienced annoyed or made anxious by Silent Calls. Many adopt the remedy of registering with the TPS, or simply retain a resentment of the whole industry believing that it will continue to behave unacceptably regardless of what Ofcom may do; neither of these positions do any good to the outbound industry.

    I have no issue with the use of predictive diallers; I oppose Ofcom's attempt to set a limit on the proportion of "abandoned" calls. I believe that those who use (or commission the use of) predictive diallers should take responsibility for whatever level of unavoidable nuisance they cause, when no agent is available to handle an answered call, by offering an apology and stating the name by which they are known - nothing more. It is for them to determine the amount of nuisance that they are prepared to cause and to stand accountable to those who are the victims of it. Ofcom (or the ICO) should only consider getting involved in cases of deliberate abuse, where things are clearly out of control or there is no sense of responsibility being shown.

    The only focus of this campaign is on the simple principle that hanging up in silence after a call has been answered is unacceptable. I cannot believe that anyone believes that such a principle could never be accepted by the call centre industry.

    It is the very reputation of the call centre industry being further damaged by the continuing practice of hanging up in silence that limits its growth, indeed threatens its demise, as a means of cold or warm contact. I wish to support it in responsible behaviour - assuming that this is possible, as I believe that it is.

    Because AMD is perhaps the major cause of Silent Calls, as has long been recognised, I want to support the call centre industry in pressing providers of Answering Services to offer some clearly detectable signal when the service takes a call. I want Ofcom to support such moves and potentially make provision of such a signal a requirement for at least providers of network answering services. This switch to "Answering Service Detection" as a replacement for the obsolete "Answering Machine Detection" would enable the benefit of detection to be achieved with no risk of Silent Calls and fewer wasted connected calls (both due to AMD failures).

    Attacking Call Centres is a familiar sport for those who do not wish to engage with the issues. I hope these comments demonstrate that I represent a very different position.

    David

    ReplyDelete
  3. HomeServe is run by a band of hooligans. They are always in the news for some aggregious maneuver. You should google HomeServe USA. They have gone to the states and started a fresh new wave of direct mail scams and they are getting slapped for it over there. I don't think this company is going to learn that you have to make money honestly.

    ReplyDelete

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