Ofcom - the "useless Quango" - Silent Calls - the Big Society - I propose a radical solution

From – David Hickson – Stop Silent Calls Campaigner

This document lays out the current situation in relation to Ofcom's failure to use its powers to stop Silent Calls and proposes a "Big Society" replacement for this classic example of a useless Quango. It refers in particular to the shortly to be concluded public Consultation, to which responses are required by next Tuesday, 27 July.

I offer this as a briefing, for those concerned about the issue, and for media who may wish to remind people of the final opportunity to respond to a public consultation on an issue that affects a significant proportion of their readers / viewers / listeners.

My proposed solution is intended to stimulate debate, discussion and possible action to bring it about.

The present situation

Ofcom received a direct instruction from parliament on 28 March 2006 (see Hansard, hear clips).

"We expect you to use your powers to eradicate the nuisance of Silent Calls".

The powers referred to are those which Ofcom has a statutory duty to use, in the interests of Citizens, against all those who practice any "persistent misuse of a telecommunications network or service".

The habitual practice of hanging up in Silence after a telephone call has been answered is clearly a persistent misuse of the telephone network. This applies regardless of the degree of nuisance that may be caused by any actual completed telephone call or consideration of other extraneous factors.

Ofcom wrongly takes a different view, failing to use its powers to deal with "misuse". It obfuscates the issue by attempting to address a much wider class of nuisance that goes well beyond what is clearly misuse and thereby fails to address that which is. It also confuses its duty in this regard with other quite separate duties, by pretending to have applied general regulation in any area where it has no such statutory power.

The public consultation which ends next Tuesday is on an Ofcom proposal to revise its policy so as to permit one Silent Call per day from any caller to any person, and to "clarify" the formula that is used to justify a particular number of Silent Calls being made in total.

(As what is for the moment a side issue, the House of Lords has now approved the ministerial order to increase the maximum penalty available to Ofcom in connection with its powers to £2 Million. The House of Commons Committee that will discuss the matter has not yet been appointed, so final approval cannot now be achieved before the Autumn. I will be strong in my lobbying of MPs to reject this proposal, if, as at present, it would be seen as an endorsement of inaction and a formal tolerance of Silent Calls. I comment on this matter in my blog.)

What Ofcom has been doing

Rather than using its powers against those making Silent Calls, Ofcom has been using its funding, which is intended to be used in the public interest, in the commissioning of reports to inform its grossly over-complicated and misguided policy. The simple policy Ofcom is required to follow has been clearly stated by parliament. This is to - eradicate Silent Calls whenever its powers enable action to be taken - not to specify which Silent Calls are permissible as part of pseudo-regulations.

One of these reports, by Mott MacDonald, is appended to the Consultation document. It confirms that Ofcom registered 6,648 complaints about Silent Calls in 2009, each covering (on average) around 20 Silent Calls, with 82% including identification of the caller responsible. This means that Ofcom was directly provided with clear evidence of over 100,000 attributable Silent Calls in 2009. NOT ONE of these callers has been issued with a Formal Notification indicating that their behaviour is deemed by Ofcom to be persistent misuse of a telecommunications network. Ofcom has not used its powers to even issue such a Notification, let alone impose an enforceable requirement that the activity be ceased, since October 2008.

Ofcom reports that each household receives around 2.5 Silent Calls per month, and that BT received over 25,000 complaints about Silent Calls in 2009. These complaints to Ofcom represent a tiny proportion of the problem. They are however the cases that Ofcom is able to do something with. As Ofcom is not even using the first stage of its statutory powers when it is able to do so, then it cannot be complying with the will of parliament, nor can it be seen to be in any way acting against the practice of misuse in the way that it is empowered, and required, to do.

Ofcom has published yet another commissioned report, by Ember Services, separately. This details proposals considered by Ofcom, including the option of a zero tolerance approach to Silent Calls by effectively prohibiting use of a flawed design of Answering Machine Detection equipment. It should be obvious to anyone that use of any technique that causes answered calls to be terminated in Silence cannot be tolerated, because that behaviour amounts to misuse. Not so Ofcom.

This “zero tolerance” option is explicitly rejected by Ofcom on the grounds of the money that is saved by the Silent Callers who use this equipment. Respondents to the consultation are not even asked if they wish for this option, a ban on Silent Calls, to be adopted. Ofcom continues to encourage use of this equipment, having specifically amended previous policy to ensure that it can be used (see this comment).

The Silent Callers who use this obsolete technology (which Ofcom refers to as an "innovation"!) choose to invite all those they call to provide a sample of their voice before the call is either connected to an agent or terminated in Silence. This “invitation” is not in any way announced, a fact which would lead most of us to believe that this very practice is invariably misuse in itself.

Ofcom however declares that it is not only acceptable, but worthwhile in the interests of consumers! The particular line of argument advanced by Ofcom in the consultation document could be readily extended to suggest that financial penalties should never be imposed on Silent Callers, because their customers would end up having to foot the bill through higher charges. (So much for any thought that the increased penalty would ever be used!) This absurd and foolish approach must be ended.

Ofcom’s failure to address this problem seriously over the many years that I have been campaigning on this issue is undoubtedly one of the reasons why it still remains. Even now, Ofcom is keen to consider the interests of those who admittedly make Silent Calls as significant, and to allow for the continuation of the practice in its policy.

I propose a radical solution

If Ofcom, behaving as a useless Quango, cannot be seen to be willing or able to serve the interests of citizens by using the statutory powers it has been given, then these powers must be handed to an alternative agency that both can and will. These powers, which only allow for intervention in specific cases in the general public interest, are quite separate from Ofcom's role as the statutory regulator of the activities of broadcasters and telecommunications service providers in the interests of their consumers.

The “persistent misuse” powers were only given to Ofcom on its formation as an afterthought, without being discussed in parliament, when it was discovered that a gap in the new telecoms regime would otherwise arise. Unlike most of Ofcom’s other duties they do not involve control of the activities of the Communications Industry, but of those who (mis)use its services.

In the spirit of the "Big Society", I would be very happy to assist with, and serve in, a newly created citizen-driven agency to take on this, apparently unwanted, role from Ofcom and to exercise the statutory powers which Ofcom prefers not to use. As with PhonePay Plus or TPS for example, this work could be undertaken independently, but exercising Ofcom’s statutory powers on a sub-contracted basis.

I am quite sure that the funding which Ofcom has misdirected into the unnecessary and improper refinement of a wholly misguided policy could be used to better purposes. Revenue from properly imposed penalties would be equivalent to far more than operating costs for as long as the problem remained – thus helping to address the public debt. There are many positive minded people in the Call Centre Industry, who are anxious to protect its reputation, and they would doubtless be happy to contribute their energies and knowledge to such a social enterprise. I would be delighted to work with them and all others of goodwill in a spirit of public service.

I offer this proposal for publication and for consideration in all quarters.

I will continue to promote this idea and be delighted to interact with all those who wish to discuss how it may be more clearly formulated and brought to fruition.

As a footnote, I must explain that there are some aspects of Ofcom's work, as the regulator of telecommunications service providers, which I fully support. In this area however, it demonstrates the very worst features of a Quango, not least because it deliberately flouts the clearly expressed will of parliament, the one body to which it is accountable.