New Ofcom "rules" for Silent Callers - Tuesday 1 February

Summary

On Tuesday 1 February, Ofcom implements revisions to its policy on when it may take action against Silent Callers.

Ofcom already disregards cases where up to 3% of automatically dialled calls result in silence if no agent is available to handle an answered call.

From Tuesday it will increase its tolerance of Silent Calls by applying formal approval of the use of equipment that imposes a period of Silence at the beginning of every call and then commonly hangs up in the mistaken belief that a person is an answering machine.

What Ofcom calls its "new rules to ban repeat Silent Calls", permit the first Silent Call and then suggest that further Silent Calls from that caller be deferred until the next day. Ofcom may be expected to emphasise the latter element, which qualifies this weakening of its policy.

In 2006, Ofcom was told by parliament - "we expect you to use your powers to eradicate the nuisance of Silent Calls".

Many reputable companies, including BT and British Gas, proudly admit to making Silent Calls within the terms of the Ofcom policy.

Ofcom's Powers

Ofcom has powers to Notify, Regulate and Penalise specific organisations that commit a "persistent misuse of a communications network or service".

Most of us would regard the habitual practice of hanging up in Silence when calls are answered as a persistent misuse of the public telephone network.

Ofcom has a policy for its use of these powers which specifically rejects this view.

Silent Calls (Type 1)

Ofcom has long applied a policy which treats hanging up in Silence as acceptable if the person responsible makes 33 times as many other calls as they make Silent Calls on any day. This applies to the situation where there is no agent is available to deal with an automatically dialled call that is answered.

This policy has meant that not one of around 20,000 complaints received since Ofcom last used its powers in October 2008 has resulted in Ofcom even issuing a Notification of Persistent Misuse, let alone imposing enforceable regulations or a financial penalty. If not one complaint covered what Ofcom regards as persistent misuse, it is reasonable to assume that all those who are making Silent Calls are doing so with Ofcom's consent.

Probably a more common cause of Silent Calls is where a call centre uses technology designed to detect the clicks and whirrs of a mechanical answering machine (known as AMD). This is what is addressed by the revisions to the policy.

Silent Calls (Type 2)

Use of AMD causes the call to be Silent from the beginning, whilst the technology (not the calling agent) listens to the voice of the person answering. It then analyses the sound in the hope of being able to tell the difference between a live and recorded voice. Many who answer the phone and hear no immediate response to their greeting naturally assume that the caller will remain Silent and hang up.

Ofcom does not even regard this situation as representing a Silent Call!

Ofcom approves and encourages use of the technology that causes it. Ofcom argues that this nuisance is in the public interest because the cost savings achieved are passed on in lower prices!

Because there is no definitive way of detecting use of an answering service by analysing what is said, it is common for the AMD technology to make a mistake. Agents are commonly connected to answering services, wasting their time.

Accurate detection rates are improved by using a longer sample, but even the shortest pause before the caller speaks is likely to result in this type of Silent Call. The longer the pause, the more likely it is.

Silent Calls (Type 3)

Where the technology mistakes a person for a machine the period of Silence is concluded by the caller hanging up.

Ofcom now acknowledges that this happens and has consequently revised its policy.

The new policy is for Ofcom to disregard cases where a caller does this only once per day to any person.

The 3% limit for the "no agent available" situation (see above) considers all calls made regardless of who they are to. This could include many calls to the same person.

The new rules only cover the practice of calling to the same person again on the same day after thinking a machine has answered. This will now be regarded as "persistent misuse".

Ofcom does not regard repeating a Silent Call on another day as a "repeat Silent Call".

My conclusion

(In fairness, I must point out that Ofcom’s policy includes consideration of mitigating factors including use of the Informative Message and repetition. These are however only factors that feature in consideration of the severity of the action that is taken – they do not feature is in the vital determination of what is and is not “persistent misuse”.)

Ofcom's position is complete nonsense and represents a neglect of its statutory duty to citizens.

The point about the Silent Call is that the caller fails to respect the basic courtesy required when making a voice telephone call - when someone answers your call you say who you are and why you are calling. Any habitual or systemic failure to follow this practice must be regarded as "persistent misuse".

Ofcom has powers to deal with particular cases of persistent misuse that come to its attention; it has no statutory powers to regulate the activities of call centres in general. In the telecoms area, Ofcom’s regulatory powers only cover providers in the market for telecommunications services. (Part of its timidity in using the persistent misuse powers could be due to the lack of legal support for the light-touch regulatory approach that Ofcom likes to follow in all of its activities.)

By its failure to use its powers and its adoption of a para-regulatory approach, Ofcom has effectively advised call centres that habitually hanging up in silence can be acceptable. Most reputable organisations follow Ofcom's guidance, making the Silent Calls that we are suffering from within the limits that Ofcom sets.

In 2009 Ofcom received reports of 100,000 instances of Silent Calls made by identified callers. It has allegedly investigated 22 of these companies and found not one to be breaching its "rules". After receiving 6,600 complaints about Silent Calls in 2009, Ofcom received around 10,000 in 2010.

This is the clearest evidence we have that the Silent Calls which plague us are all approved by Ofcom - which should be fulfilling the expectations of parliament - "we expect you to use your powers to eradicate the nuisance of Silent Calls."

The solution for the Call Centre Industry

Contrary to what Ofcom is prepared to accept - Silent Calls are unnecessary.

Avoiding "Type 1" Silent Calls

If no agent is available to handle an automatically dialled call that is answered, the obligation for the caller to state their name can be fulfilled by use of a recorded "Informative Message". A simple message giving the name of the caller and apologising for not being able to complete the call is exceptionally permitted under these particular circumstances. Recorded message calls are generally prohibited, primarily under specific statutory regulations, (which should be) enforced by the Office of the Information Commissioner.

This generous gesture in recognition of the needs of the call centre industry for the use of predictive diallers should be acknowledged, as the alternative would have to be a ban on the use of such technology.

Those callers who are (or claim to be) unable to identify themselves immediately when a call is answered have to accept that they must therefore always be ready to conduct a conversation in person. If machinery cannot complete the call, then an agent must always attend. The wording of the Informative Message should be thought of as being the response to the request "Who is calling, please?". One has to wonder who can approach making a telephone call if unable to answer that question!

Avoiding "Type 2 and 3" Silent Calls

If callers wish to avoid an agent being connected to an answering service, they should be using Answering Service Detection technology. This technique detects a "beep" issued by the answering service when it takes a call. This is best suited to network based answering services but may be used on locally connected machines also.

In its consideration of the issue of AMD, Ofcom totally dismissed this alternative, which accepts the reality of the current situation. Network based answering services have always been used for mobile phones and are now commonly used with landlines. Digital answering machines are now more common than the tape based mechanical machines for which Answering Machine Detection technology was designed.

It is quite extraordinary for Ofcom to dismiss ASD, preferring the obsolete AMD and even encouraging its use, despite the inevitability of it causing Silent Calls in TWO ways.

From 1 February 2011, along with a continuing qualified tolerance of "type 1" Silent Calls, that will be the official policy of the public body with a primary principal duty "to further the interests of citizens with regard to communications matters".

My efforts to cause Ofcom to be called to account before parliament will continue.