Ofcom has today announced (see Consumer Bulletin) that Talk Talk has been served with a formal Notification of Persistent Misuse of the Telephone Network on account of making an excessive number of Silent Calls.
It is important to note that Ofcom regards a number of Silent Calls that is proportionately small as being acceptable, even if the number is very large in absolute terms.
This is of particular interest to me in the context of my other campaigning role - Talk Talk is the company behind the vast majority of the expensive telephone numbers being used by NHS GPs (see below for the NHS related aspect of this story).
No use of the increased maximum penalty
This follows two other recent cases of Notifications of Misuse by making Silent Calls - against Homeserve and nPower. In both cases Ofcom has decided, after receipt of representations, not to impose the financial penalty, of up to £2 Million, which it recently claimed was necessary.
Ofcom sought, and the government has granted, an increase to the previous maximum penalty of £50,000, because it was not thought large enough to address the misuse by large companies. (see the government announcement and my comment at the time.)
We now see these cases of companies which are amongst the largest in their respective sector, and therefore likely to be making very many automated calls, where Ofcom has decided that it does not even need to impose a penalty of up to £50,000. This increased penalty is thereby seen neither to be necessary, nor effective as a deterrent.
No requirement to cease the practice
Whilst the financial penalty is available to deal with past misuse that Ofcom has failed to address, Ofcom also has the power to impose a specific requirement for a company not to make Silent Calls. Neither Homeserve nor nPower have been made subject to an "Enforcement Notification" requiring them to cease the practice of making Silent Calls.
Ofcom's statutory duty "to further the interests of citizens in relation to communications matters" would best be fulfilled by preventing Silent Calls from being made, not by leaping in with penalties to cover events that occurred many months ago and publishing meaningless over-complex and unenforceable pseudo-regulations.
Not one company is currently subject to a specific regulatory requirement not to make Silent Calls, even though Ofcom has always held the power to impose such a requirement and to have it enforced through an injunction, if necessary.
No publication of the misuse
Some time after the issuing of a Notification, Ofcom publishes a redacted copy of the Notification that has been served. In the case of Homeserve this was nearly 2 months later, that for nPower is still not published after more than 3 months.
Viewing the published copy of the Notification on Homeserve, one sees that all of the information detailing the scale of the misuse has been redacted.
We therefore have no way of knowing the seriousness of the Misuse undertaken by Homeserve (or any other offender) nor the proportionality of Ofcom's decision not to impose a penalty.
I have long held the view that Ofcom is persistently misusing its Persistent Misuse powers
Perhaps now is a good time to draw attention to the fact that Talk Talk is the provider to 1,114 (80%) of the 1,401 cases of NHS GPs using expensive telephone numbers - in England and Wales this is in breach of their contracts.
[see my tables - including the "Top 20" summaries]
To retain the technical benefits available from a non-geographic number without causing callers to incur any additional cost, it is standard practice for telephone companies to allow customers to migrate from a 084 to a 03 number, at any point during their contract and without penalty. All calls to 03 numbers are charged on the same basis as those to 01/02 "geographic" numbers. The option to change only the second digit of the number is guaranteed to be available, e.g. 0844 477 1799 to 0344 477 1799. This provides the obvious route open to NHS GPs who are required to vary the terms of their arrangements to avoid patients paying a premium to call them.
The BMA however advises that "many GP practices have signed multi-year contracts with telephone services providers which cannot be varied, renegotiated or terminated without substantial financial penalty". It suggests that this provides a valid basis for a practice claiming that migration to a 03 number would be "unreasonable".
If the BMA is correct, as many practices claim, then this would imply that Talk Talk is preventing GPs from being able to comply with the principles of the NHS. Talk Talk receives a revenue share of roughly 4-5 pence per minute on calls to the 0844 numbers used by GPs. This is paid by the call originating telephone company, which obviously passes this cost on in its call charges. Talk Talk does pass some of this benefit on to the GP directly, however it is claimed that this cannot be more than 2p per call minute.
GPs obviously benefit by the full value of the 4-5p per minute, because they do not have to pay Talk Talk for their line and the facilities deployed, nor for the lease on the equipment provided to support their system. Talk Talk must however have some questions to answer if, as is alleged, it is exceptionally preventing GPs from giving up this improper subsidy of their costs at the expense of patients.