Ofcom attacked for its failure with Silent Calls

A feature article in the Sunday Post today draws attention to Ofcom's failure to address the nuisance of Silent Calls. (see content and facsimile copies)

In 2006, Ofcom was told by parliament:

“We expect you to use your powers to eradicate the nuisance of Silent Calls” [see Hansard, Sound clips]

Ofcom continued to fail to properly deploy the range of powers available to it, and continued to follow a policy of “regulation”, i.e. qualified tolerance, rather than eradication.

Under the current government in 2010, parliament granted Ofcom a further extension to its powers to levy financial penalties. The debate made no reference to the failure to comply with parliament's previous expectation.

This has resulted in one such penalty, focussed on an isolated incident lasting only six weeks. Ofcom only dealt with the incident over 3 months after it had ended, and then took a further 12 months to reach a determination that a financial penalty was necessary.

This action was only taken because a major telemarketing company had, on this occasion, breached the 3% tolerance rule. So far as we know, this same company, and many other household names, continue to terminate 3% of connected calls in silence.

Ofcom has a full range of powers, including the ability to impose an enforceable requirement not to continue making Silent Calls - this power has never been used. If such a requirement were breached, in addition to imposing repeated financial penalties, Ofcom has the power to seek for the requirement to be enforced through an injunction. If this were necessary, any further breach would become a criminal offence, with potentially most severe consequences for any offender.

This power has always been available - there should be no issue with the maximum financial penalty! This was the very point being made when it was increased from £5,000 to £50,000.

As current public focus on this issue, and related issues, strengthens, the fair telecoms campaign stands ready to engage in serious debate over the measures that are necessary. We have a number of specific outline proposals as to how the powers held by Ofcom (and those held by the ICO to deal with improper telephone marketing activity) may be more effectively deployed.

The original outline of these proposals was covered in - “Ofcom the useless Quango …”.

Further refinement is in hand.

Silent Calls - Ofcom imposes penalty of £750,000 on HomeServe

From: David Hickson, of the Fair Telecoms Campaign - veteran Stop Silent Calls campaigner

Ofcom has today announced that it will finally use the increased powers granted by parliament in 2010.

For the first time, it will impose a serious penalty against a company found to be making Silent Calls - See Update note - 19 April 2012.

After nearly nine years of my campaigning on this topic, it could be that Ofcom has finally decided to use the powers which it has always held.

The detail of the scale and precise nature of the nuisance caused by HomeServe, so as to warrant a penalty of £750,000, is still unknown.

I fear that it may be no greater than that caused by many other companies who operate within the tolerance limits set by Ofcom -

•	Hanging up in silence is OK if you make enough calls that day on which you speak to someone.
•	Repeated Silent Calls are OK on successive days, but not on the same day.
•	Use of ineffective Answering Machine Detection equipment (which inevitably causes Silent Calls, on an unknown scale) is tolerated.

I comment -

If this penalty is deserved and is to be effective as a deterrent for others, then Ofcom must make the situation totally clear.

I believe that Ofcom must respond to the wishes of parliament, clearly declared in 2006 -

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

This is not an issue of market regulation, requiring balance and tolerance, it is a case where Ofcom must simply prohibit unacceptable behaviour in the public interest.

(See my blogging "HomeServe and nPower - my response to Ofcom's persistent misuse of its persistent misuse powers")

Will Talk Talk be fined for Silent Calls - and what about undermining the NHS?

An article by a Mail on Sunday reporter - TalkTalk facing new Ofcom fine over silent calls – suggests that I may have been wrong to make the assumption headlined in a previous release.

It is claimed that sources now suggest that Ofcom will not follow the same approach with Talk Talk as it recently did with Homeserve and nPower.

Although Ofcom issued Notifications of Misuse to both companies, neither was subject to a penalty nor an enforceable obligation to cease the practice.

Ofcom treats many millions of Silent Calls as not being misuse at all; it applies a percentage tolerance and recently introduced a “one a day is OK” rule.

We know that Ofcom “has issues” with Talk Talk, having previously taken action against it on another matter.

I too “have issues” - it is expensive Talk Talk telephone numbers that are being used by many NHS GPs to subsidise the cost of their telephone systems at the expense of patients and in breach of their NHS contracts. I have published a list of 1,115 NHS surgeries using expensive Talk Talk numbers (80% of the total of such cases).

If Talk Talk were, exceptionally, to be subjected to a financial penalty for persistent misuse, this could appear to be spite by Ofcom, as many other Silent Callers do not even have their known Silent Calling brought to public attention. Furthermore, as Ofcom is in the habit of not publishing details of the scale of the misuse, we will have no idea about whether or not the penalty is proportionate.

Neither Talk Talk, nor its agent, can be fined for undermining the NHS. It is the GPs who may follow their guidance who are actually breaching their NHS contracts by using expensive telephone numbers. Talk Talk is however a major part of the problem – it could become a major part of the solution.

Virgin Media STILL overcharging callers trying to avoid Tesco Business Rate numbers | Ofcom does nothing (no news there!)

Further to my release of 22 September, Virgin Media overcharging callers trying to avoid Tesco Business Rate numbers, I understand the problem is still continuing. Virgin Media has not refunded the historic overcharges and some callers to Tesco geographic numbers are being charged for operator connected calls to MOBILE, as well as 0845, numbers.

I have been in direct contact to confirm the detail of cases that continue to be reported on the SayNoTo0870 and MoneySavingExpert forums (Links available here).

Virgin Media and Tesco need to get the situation sorted and issue public apologies for what is clearly a mistake.

Ofcom should get involved in cases like this, which are obviously having a serious impact on many people, without waiting for every victim to come forward and register a formal complaint with it.

When Ofcom is seen to be ineffective and reluctant to act – why would people bother to raise individual complaints?

We have the right to expect Ofcom to act with intelligence, not shuffle papers, collect statistics and deliberately discourage receipt of the information which would cause it to act.

There is an echo of the way in which Ofcom deals with my other focus of attention – Silent Calls – see my Silent Calls Victim blog.

Talk Talk joins the list of Silent Callers not likely to receive a £2 Million fine

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

---

Talk Talk is alleged to prevent application of the principles of the NHS by GPs

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.

Ofcom misuses its persistent misuse powers against Silent Callers, again

Ofcom has today announced a further misuse of the powers it holds to take action against all those found to be causing unnecessary inconvenience annoyance or anxiety by misuse of the telephone network. (See update notes (i) and (ii) - 7 July 2011 on this "Competition Bulletin".)

Sadly, Ofcom only uses these powers against those who breach a formal tolerance limit, based not on the amount of nuisance caused, but as a proportion of other activity by the same company on the same day.

The action by Ofcom against nPower and Homeserve is to be welcomed, if only because it draws attention to the nuisance which they will be permitting to continue causing. This only amounts to the issuing of Notifications and the consequent public shaming at this stage. Looking at previous cases, precedent and proportionality make it unlikely that the previous limit of £50,000 for a fine will be exceeded.

The limited detail of these cases which has been revealed so far demonstrates how Ofcom is tolerating the practice of hanging up in Silence when a call is answered - only intervening when an offender tells Ofcom that it has breached the rules. Furthermore, the Silent Calls made by nPower are not covered by the action and only some of those made by HomeServe are deemed to be in breach of the Ofcom tolerance "rules".

Silent Calls are totally unnecessary

If no agent is free to handle an answered call a very simple message, simply naming the caller and apologising, could be played. Ofcom suggests a far more elaborate version of this, but does not demand its use, so long as the 3% allowance of abandoned calls is not exceeded.

Many companies, including BT and British Gas publicly declare that they make Silent Calls up to this limit. They will not however say how many calls and how much nuisance they are knowingly causing to their customers and others.

The only acceptable limit for SILENT calls is 0%. Those who are prepared to say who they are when they abandon calls can take the consequences!!

Answering Machine Detection

Ofcom has muddied the waters with new rules covering the use of this obsolete equipment, designed to detect the clicks and whirrs of a mechanical answering machine.

Ofcom now declares that when this notoriously inaccurate equipment detects an answering service it is acceptable to hang up in Silence, but callers must wait until the next day before repeating the call - probably with the same effect if the detection was erroneous.

Many in the Call Centre industry would wish for providers of network answering services to provide a clear signal of some sort whenever the answering service is engaged. This would enable 100% accurate detection of use of such services, rather than the present unacceptable method of listening to the tone of voice and mode of speech from the answer.

Ofcom has explicitly rejected this option, known as Answering Service Detection, firmly supporting the use of a technology that became obsolete when mechanical tape recorders ceased to be the primary way of applying an answering service.

The present method of AMD is obsolete and wholly unacceptable, as it is perhaps the primary cause of Silent Calls. Requiring a Silent Call to be repeated on the next day, rather than the same day is no answer.

Ofcom is allowing - not stopping - Silent Calls

In a press release issued today - Ofcom 'must stop more silent calls', Margaret Hodge MP, chair of the Public Accounts Committee, rounds on Ofcom’s persistent failure to use the powers that it holds to properly address the problem of Silent Calls.

Ofcom has been told by parliament – “We expect you to use your powers to eradicate the nuisance of Silent Calls”.

Despite being granted a higher possible penalty, Ofcom has responded by revising its policy on Silent Calls to include an even greater tolerance of this unacceptable and unnecessary nuisance than that which it has applied for the last 8 years.

When asked to explain the new policy on BBC television last week, Lynn Parker, Ofcom Director of Consumer Protection confirmed the point that I have been making:

Interviewer: "So companies are allowed one silent call per day?"

Parker (Ofcom): "YES"

¾ See BBC News item with recording

This is, of course, one per recipient per caller per day. If a large call centre makes 20,000 calls a day in total Ofcom is already content if 600 of these are Silent Calls. They can now make a further Silent Call to any victim the following day, whereas a three day gap was previously suggested.

OFCOM AND SILENT CALLS - NO NEWS | THE NEWS

Silent Calls - NO NEWS

The fact that Ofcom can now impose penalties of up to £2 Million against Silent Callers is no news. (e.g. - http://www.bbc.co.uk/news/uk-12331160)

Since 2008, when it last used its powers against Silent Callers:

•	Ofcom received a total of over 15,000 complaints about Silent Calls
•	Ofcom claims to have secretly investigated 22 companies

Every one of the companies covered by these complaints and investigations were found NOT to breaking the rules which Ofcom applies in determining what is "persistent misuse of an electronic communications network or service".

Not one company has been even subjected to a public notification that it is practising misuse, let alone any financial penalty.

Silent Calls - THE NEWS

From today, Ofcom not only allows 3% of calls made to result in silence if no agent is available, it now approves use of Answering Machine Detection equipment (AMD). AMD listens to our voice as we answer the phone, so we hear a period of silence - often assuming that this is a Silent Call - as indeed it is, but not for Ofcom.

Ofcom acknowledges that AMD is not guaranteed to accurately tell the difference between a recorded message and a live person. It therefore qualifies this new tolerance of AMD by suggesting that each caller may only make one silent call each day to any person. Ofcom actually encourages AMD users to repeat each of their Silent Calls on the next day.

OFCOM FORMALLY TOLERATES SILENT CALLS - FROM TODAY, MORE OF THEM

New "rules" for when to make Silent Calls (is this a joke?)

To follow this briefing, I react to Ofcom's news release - Ofcom warns industry as new silent calls rules come into force.

The point about the “warning” is that Ofcom is asking Silent Callers to comply with rules about how many Silent Calls they make and when they make them.

Ofcom is not saying that habitually hanging up in silence is unacceptable.

Not one of the 9,000 complaints to Ofcom from citizens receiving Silent Calls in 2010, nor of the 6,600 received in 2009, enabled Ofcom to identify even one company that was breaking its rules. 22 unnamed companies have been investigated – not one was found to be practising “persistent misuse of an electronic communications network or service”.

The new rules that will be applied from tomorrow add tolerance of one Silent Call per caller per recipient per day, when obsolete technology designed to detect the clicks and whirrs of a mechanical answering machine mistakes a person for a machine.

This newly formalised tolerance of use of Answering Machine Detection fails to address the fact that every call when this is used begins with a possibly lengthy period of silence, whilst the technology samples and analyses your voice to see if you sound like a machine. Even though an agent was eventually going to speak, many assume these to be Silent Calls.

The existing tolerance of up to 3 in every 100 calls resulting in silence if no agent is available to handle an answered call that has been dialled automatically remains. Ofcom has a "guideline" that such calls should be handled by a live message announcing the name of the caller and apologising for the error, but this is not applied as an absolute requirement.

Rather than using its powers to act whenever it is made aware of a "persistent misuse of an electronic communications network or service", Ofcom fudges the issue by pretending to have regulatory powers and showing a tolerance (albeit qualified) of Silent Calls.

Silent Calls are unnecessary and unacceptable; Ofcom's policy is unacceptable.

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.

Ofcom writes to Silent Callers to tell them "Merry Christmas - it's OK - and a Happy New Year of Silent Calling"

Ofcom yesterday issued a circular letter to those it knows to be making Silent Calls - "Tackling ... Silent Calls".

This is intended to draw the attention of those who make Silent Calls to Ofcom's policy of qualified approval of the practice. It follows a consultation, to which I responded.

Most of us believe that habitually hanging up in Silence when a telephone call is answered must invariably be regarded as "Persistent Misuse of a Communications Network or Service". This is NOT the policy being followed by Ofcom. By this letter, that fact is made very clear to Silent Callers.

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

In its letter, Ofcom tells Silent Callers of the steps it expects them to take
"where such calls are made, ways to LIMIT consumer harm"

Ofcom tolerates what it chooses to call “consumer harm”.

Silent Calls may readily be avoided in two ways:

•	Always using an Informative Message, played live when the call is answered, to apologise and inform the person called of the true identity of the caller whenever no agent is available to handle an answered call that was dialled automatically.
•	Ceasing use of unreliable Answering Machine Detection technology, designed to hear the clicks and whirrs of a mechanical answering machine, in favour of Answering Service Detection, where the use of any answering service is detected reliably from a signal issued by the service.

Confirmation of Ofcom's approval of the practice of making Silent Calls and its absurd suggestions of how consumer harm may be "LIMITED" may be seen in the following further quotations from the letter:

•	"... an abandoned call rate ... of no more than 3% ..." - 1 in every 33 calls may result in silence.
•	"not contacting consumers within 72 hours of their receiving an abandoned call" - leave people waiting for 3 days before the next Silent Call, or perhaps the chance for a caller to acknowledge their previous error and apologise.
•	"... they can trace who rang them by dialling 1471 in the event of a silent call" - the chances of being able to recognise the identity of a caller from the number given as CLI are remote. Using the callback feature of 1471 is generally expensive and unlikely to reveal the full identity of the caller. I would personally never advise anyone to call back to someone who has just made a Silent nuisance call to them; if the unknown purpose of call was perhaps malicious, this is the very last thing that one should do. The suggestion that it could be acceptable to leave a “trace” of who one is, rather than clearly stating one’s name when a call is answered, is quite ridiculous.
•	"... where a call has been identified by AMD technology as being picked up by an answer machine any repeat calls to that specific number within the same 24 hour period may only be made with the guaranteed presence of a live operator". This suggestion acknowledges that AMD technology is unreliable and a common cause of Silent Calls. The foolish feature of the suggestion to wait 24 hours before trying again ignores the fact that if a false detection has occurred once it is highly likely to occur again. Ofcom is actually encouraging a pattern of one Silent Call per day from a Silent Caller.

Seven years after I succeeded in getting Ofcom to launch its first investigation into a Silent Caller who had been calling me (which led only to approval of a limited number of Silent Calls being made - 10,000 per day in the case in question) I am somewhat dismayed to find that Ofcom is still approving the practice of making Silent Calls.

I accept that Ofcom does not have the resources to identify and penalise every Silent Caller. Writing to them to tell them that it is OK to make Silent Calls is a quite different matter.

Ofcom continues to fail to address the problem of Silent Calls

From: David Hickson - Stop Silent Calls campaigner

In its summary of its Consumer Experience Report 2010 (Telecoms complaints fall – but challenges remain) Ofcom reports that complaints about Silent Calls are running at record levels. It has however failed to use the statutory powers that it holds to simply notify the offender of what it calls "a breach of the rules" since October 2008.

This can only mean that every one of the 6,600 complaints received in 2009 and the 8,600 in 2010 to date was about a company making Silent Calls within the generous allowance that Ofcom's policy permits. Ofcom says that it will "continue with our policy of enforcement", however there is only one company which Ofcom has made subject to use of its statutory powers of enforcement.

BBC Watchdog recently highlighted BT and British Gas as being amongst the companies making Silent Calls. They both claim to be doing so within the terms of what BT calls "the Ofcom Persistent Misuse Policy". Ofcom clearly agrees, as neither has been notified of a breach; I therefore agree with BT's choice of terminology to describe the Policy.

Ofcom refers to a change of policy that will be implemented on 1 February 2011. This policy suggests that those who make a Silent Call (when caused by use of obsolete and ineffective Answering Machine Detection technology) should repeat the call on successive days. Ofcom's suggestion that "companies will no longer be able to call consumers without the guaranteed presence of a live operator more than once a day" is complete nonsense.

Ofcom does not have the authority to impose such a rule as a general requirement - it can only do so in specific cases, following a Notification of Persistent Misuse. As stated above, Ofcom has only ever used this power once in relation to Silent Calls. Furthermore, Ofcom has no way of monitoring or enforcing such a requirement.

It may be that some companies will follow this policy. The cases reported by Watchdog indicate that the problem with repetition is having every day predictably blighted with suspicion every time the phone rings. The fundamental problem with an intended limitation on repetition is that it confirms tolerance of every initial instance. Ofcom's actual policy, if applied, will simply ensure that more people get a single Silent Call on any particular day.

The fundamental point that Ofcom has always failed to grasp is that NO CALL SHOULD RESULT IN SILENCE from the caller. A tolerance limit of 3% and of only one per person per day is simply an unacceptable tolerance of Silent Calls. Under Ofcom's policy, this is what has to be exceeded for even the first stage of its statutory powers to be used. The potential for a severe fine, which is available at the third stage of use of the powers, may sound impressive. If however companies such as BT and British Gas admitting to making Silent Calls and over 15,000 complaints can fail to cause even the first stage to be used, then Ofcom cannot claim to be addressing the problem effectively.

There will always be cowboys and offshore operators that Ofcom will have difficulty in detecting and acting against. It cannot be seen to be fulfilling its duty when it permits and even encourages large responsible UK companies to make Silent Calls.

No Silent Call is necessary.

Those who use predictive diallers can use an "Informative Message" when a system failure exceptionally leads to there being no agent available to handle an answered call. This is referred to, but poorly specified and not mandated, by Ofcom.

Answering Machine Detection has failed to be effective since general use of tape recorders was replaced by use of network based answering services. Ofcom is wrong to oppose the potential introduction of Answering Service Detection as an effective means of ensuring that calls have been answered by a person. Ofcom is yet more wrong to encourage the use of the obsolete Answering Machine Detection technology, on the spurious and irrelevant grounds that the money saved as a result of inevitably making Silent Calls leads to reduced prices for consumers in the markets for energy and other products and services.

Homeserve investigates improper telephone marketing - Ofcom and the Information Commissioner are seen to have lost the plot

According to an article published by FT.com - "Homeserve to probe phone campaign", Homeserve is to conduct an internal investigation into the activities of one of its marketing agencies, which leaves repeated marketing messages on the telephone answering services used by prospective customers. (See my clipped summary.)

It seems that these messages are abusing a technique, which I successfully promoted back in 2005, designed to prevent Silent Calls without prohibiting the use of automated dialling equipment. This "Informative Message" technique has already been abused by Ofcom, which uses it as the basis for permitting 3% of calls to result in Silence.

Consent to use of the "Informative Message" was negotiated between Ofcom and the Office of the Information Commissioner (ICO), both of which are quoted in the FT article. If the quotes are genuine and complete, then both bodies have missed the point.

Ofcom suggests that automated callers are able to distinguish between calls that are answered in person and those directed to answering services, as it claims that its policy is based on such an assumption. This is nonsense, there is no reliable means of doing so in use.

Ofcom actively opposes the introduction of a technique ("Answering Service Detection") that could address this. Furthermore, Ofcom approves and promotes the use of an obsolete, unreliable method of detecting mechanical answering machines ("Answering Machine Detection"). Ofcom has even had to add a proviso that the inevitable Silent Calls are repeated on successive days, rather than all on one day - it seems that this is exactly what this caller has done.

The ICO refers to there being no requirement to deliver recorded marketing messages. It fails to mention that such messages are totally prohibited by the terms of the Privacy and Electronic Communications Regulations (regulation 19), which it enforces. This prohibition applies regardless of registration with the Telephone Preference Service!

BOTH OFCOM AND THE ICO HAVE TOTALLY LOST THE PLOT IN DEALING WITH TELEPHONE NUISANCE CALLS

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Please contact me for further information and comment on this story and related issues. The issues are inevitably complex, so please bear with me as I seek to assist with attempts to untangle a web of regulatory provisions.

National Audit Office attacks Ofcom's failure on Silent Calls

From: David Hickson - campaigner against Silent Calls

A report from the National Audit Office, Ofcom: The effectiveness of converged regulation, published today, attacks Ofcom's failure to address the issue of Silent Calls.

Despite fines issued following investigations undertaken in 2007, Ofcom has not subsequently issued even one company with a simple Notification indicating that its practice of making Silent Calls represents a persistent misuse of a telecommunications network or service. Such a Notification may be followed by the imposition of an enforceable requirement to cease the practice and then a financial penalty in the event of a breach. The maximum level of penalty has recently been increased, but if nobody is breaking Ofcom's so-called "rules", which are currently in the course of being relaxed even further, then this cannot be expected to have any effect.

The NAO report looks at the levels of complaints about Silent Calls which are a potentially misleading indicator, as the peaks in levels of complaints are invariably associated with public discussion of the issue, i.e. an awareness of Ofcom's role. There is no evidence to show that the amount of nuisance being caused does not simply remain constant due to Ofcom's failure to use its statutory powers against those who perpetrate the nuisance. Despite often containing vital evidence of Silent Calls being made (10,000 instances in 2009) not one complaint (since 2007) has led to any use of Ofcom's powers.

A recent broadcast by BBC Watchdog (otherwise full of misinformation) suggested that the major perpetrators of the nuisance, e.g. British Gas and BT, are those who fully comply with Ofcom's tolerant and misguided policy of "regulation", which allows, and even encourages, the making of Silent Calls, under certain conditions.

The Ofcom policy on "Silent Calls" is a total disaster for the citizens that Ofcom has a duty to serve. During the period addressed by the NAO report, annual complaint levels have been rising, (5230, 7120, 7200, 9320) suggesting that the action taken has had no effect whatsoever.

The major problem in this area is with the convergence of Ofcom’s separate duties to further the interests of citizens in relation to communications matters,  which applies here, and it’s quite separate duty to regulate the market for communications services. Ofcom’s failure to understand the distinction makes it totally ineffective in the former role.

Please contact me for further comment, information and proposals. (There is more to read on my blog at http://scvictim.blogspot.com).

 

Ofcom continues to Tolerate Silent Calls

Ofcom has today revised its policy on Silent Calls to include a further formal tolerance of Silent Calls - see this press release.

6,600 complaints about Silent Calls in 2009, 6,800 in 2010 and 22 secret investigations recently conducted by Ofcom has led to not one company being found to be practising Persistent Misuse of a Telecommunications Network or Service, under the terms of Ofcom's policy of tolerance.

Ofcom's policy already permits call centres to make as many Silent Calls as they wish, so long as they make enough non-Silent calls on the same day (the "3% rule"). It now says that the Silent Calls which inevitably result from use of obsolete ^note Answering Machine Detection technology are OK, but must be spread around different people on any one day.

These "new rules" mean that the 2 Million people who Ofcom believe are subject to repeat Silent Calls will now have to wait at least 24 hours after receiving one Silent Call from a company before they receive the next from that company. One Silent Call per day is fine, but two in a day from the same company may cause a penalty of £2 Million pounds to be imposed.

THIS IS COMPLETE NONSENSE. It has nothing to do with Ofcom meeting the expectations of parliament, expressed in 2006 as "we expect you to use your powers to eradicate the nuisance of Silent Calls". In 2010, parliament expressed the wish for more about this matter to be explained to the public.

I ask Ofcom to explain to the public:

·       Why were all of these complaints found not to warrant even a single Notification of Misuse, let alone a penalty?

·       Who are these 22 companies that Ofcom has permitted to continue making Silent Calls under its policy of tolerance?

·       If Ofcom is happy for 2 Million people to continue to suffer Silent Calls caused by failed use of Answering Machine Detection (although now spread out over a longer period), how many suffer Silent Calls as a result of the 3% rule?

·       Can we please have an open debate about why Ofcom thinks that any Silent Calls are "necessary" and should be tolerated?

It is perfectly possible for the call centre industry to continue to be productive and effective without making Silent Calls. By tolerating Silent Calls, Ofcom is not only damaging the interests of citizens, it is also damaging the reputation of an industry on which many people rely for work.

Please contact me for further comment and details of why Silent Calls are not only unacceptable, but also unnecessary.

Note

Ofcom dismisses the argument that we should now recognise mechanical Answering Machines are now less common than use of network based Answering Services. The industry should be encouraged to move over to totally reliable Answering Service  Detection (ASD) in place of AMD. Many leading players have already abandoned AMD becuase they believe that it diminishes their cost effectiveness (as well as inevitably causing Silent Calls).

Most Silent Callers will NOT be fined £2M from tomorrow

I refer to a BIS Department news release stating – “Firms which pester consumers with silent and abandoned calls will be fined up to £2million from tomorrow under new Government legislation".

This is untrue. Ofcom only takes action against those who breach its "rules". These rules allow up to 3% of all calls made to be Silent. Anyone making enough calls in total can cause as much of this type of nuisance as they wish.

For example, the Conservative Party made "over a million" calls in the run up to the General Election. Over 30,000 of these could have been abandoned in silence with no fear of action from Ofcom. Ed Vaizey has told parliament that he is "happy to accept" this.

Despite receiving many thousands of complaints since 2007, Ofcom has not found one company to have broken its rules since then. All of this nuisance must therefore have Ofcom's approval. 22 unnamed companies have been secretly investigated, but not one has even received a Notification of Persistent Misuse - the first stage of Ofcom's powers, which must precede imposition of a financial penalty.

I ask: "What difference will a greater penalty make, when the power to "name and shame" has always existed, but not been used in respect of any Silent Call made since 2007?"

Most, if not all, of those who make Silent Calls will continue to enjoy Ofcom's approval. They will not even be named and shamed, let alone subjected to any penalty."

At last, the call centre industry wants to stop making Silent Calls - but a government minister says they are OK

Stop Silent Calls campaigner David Hickson has offered his strong support for the "Love the Beep" campaign launched by Richard Woollaston of Altitude Software, call centre technology provider, at www.lovethebeep.org.uk.

This campaign aims to replace the obsolete and ineffective Answering Machine Detection technology (AMD), which is probably the major cause of Silent Calls, with Answering Service Detection (ASD) technology. The campaign proposes that callers who only wish to speak to a person should use a detectable beep provided by answering services as the basis for deciding whether or not to hang up. This is so much better than the present method used by many call centres, which involves inviting the recipient to provide a brief sample of their voice to a piece of technology, which will guess as to whether it is live or recorded before decided whether to connect an agent or hang up in silence. (The invitation is not generally announced and consent is assumed.)

Ofcom continues to approve and support the use of this old technology which was designed to detect the clicks and whirrs of mechanical answering machines. This inevitably mistakes real people for answering services and subjects them to Silent Calls. Ofcom describes this as being innovative, and in the public interest, and will therefore be shortly changing its "rules" on Silent Calls to explicitly permit one a day from each caller to each victim.

David Hickson comments: "I have always wondered why the call centre industry has not been looking for an effective way of detecting Answering Services. I cannot understand why it persists in focussing on Answering Machines, which are never used on mobiles and rarely now on landlines. I am delighted that it has at last made progress and look forward to hearing which companies will now stop making Silent Calls using the old technology, despite having acquired Ofcom's approval.

"I fully support this campaign and want to identify which answering service providers, call centres and users of 'outbound' services do not. Perhaps Ofcom will eventually change its mind and stop approving of Silent Calls, and started treating them as the ‘persistent misuse of a telecommunications network or service’ which most of us think them to be. ...

Government minister says 30,000 Silent Calls from a political party is OK

"I wonder if making 'a million calls in the run up' to the General Election using Altitude systems (as reported at this link) resulted in many Silent Calls. Compliance with the Ofcom policy would have allowed up to 30,000."

It may be of significance that during a recent debate in parliament, a government minister confirmed that he agreed with the Ofcom tolerance of 3% of calls resulting in silence. (Refer to Clip2 at this link.) Apparently he would have been happy for a political party to have recently made 30,000 Silent Calls, with no fear of action by Ofcom.

Parliament approves £2M fine for Silent Calls

After attending, and then reviewing, the ‘Silent Calls‘ debate in parliament on Monday 13 September, veteran Stop Silent Calls Campaigner David Hickson commented,

"This is a complete disgrace. All of the Silent Calls we are suffering at present are approved by Ofcom. Since 2007, nobody has been found to have exceeded the allowance which Ofcom grants. Ofcom is currently proposing to further loosen its rules to formally allow one Silent Call per caller per victim per day.

"An increase to the maximum possible penalty is the most transparent of empty gestures. I am most disappointed that parliament has granted Ofcom's request and failed to take this opportunity to expose its failure. Ofcom has a duty to use its statutory powers to act against the 'persistent misuse' of the telephone system which is represented by anyone engaging in the habitual practice of hanging up in Silence when calls are answered.

"The first stage of Ofcom's powers is to issue a public Notification that an activity represents 'persistent misuse'; an enforceable requirement to cease and a penalty may follow. Ofcom has apparently recently identified 22 companies making Silent Calls, some of whom were exceeding Ofcom's absurd and improper allowance of 'acceptable Silent Calls'. Not one of these companies was even subjected to a Notification. I believe that Ofcom should tell us who they are, so that we can at least know not to waste time complaining about them!

"In the spirit of the 'Big Society', I have offered to help set up a 'Citizens body' to take over administration of the persistent misuse powers, which Ofcom seems to be unwilling to use properly. My offer has been formally rejected."

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Notes:

1. The Hansard record of the debate is published here - http://www.publications.parliament.uk/pa/cm201011/cmgeneral/deleg2/100913/100913s01.htm.

2. The official video recording of the debate is published here - http://www.parliamentlive.tv/Main/Player.aspx?meetingId=6600.

3. My commentary on the debate (with sound clips) is published here - http://scvictim.blogspot.com/2010/09/parliament-debates-silent-calls-13.html.

4. My feed of information covering this topic is available for view and subscription here - http://homepage.ntlworld.com/davidhickson/DHMG/index_files/Feeds.htm?DH_Camp_SC.

Parliament demands better consumer information about "acceptable" Silent Calls

I have recently returned from the meeting of the parliamentary committee that has granted Ofcom's request for an increase to the maximum penalty it can impose on those who break its rules covering Silent Calls. (The official record of proceedings is published herewill be published tomorrow.)

The minister, Ed Vaizey, will be meeting with Ed Richards, Chief Executive of Ofcom, tomorrow to discuss the points raised. Mr Vaizey has promised to report back on the outcome of this meeting.

Two major points emerged from the debate:

·       The Committee agreed that Ofcom should continue to tolerate Silent Calls being made. The Minister is happy with the currently tolerated levels, although some members urged him to discuss the possibility of lowering them a little.

·       Many members agreed that victims of Silent Calls should be given more information about what is allowed, and what is being done.

There are very many complaints made about Silent Calls, however they are generally invalid because Ofcom allows callers to hang up in Silence. They only have to a) make lots of calls to other people when they speak, and b) wait a day or more before repeating the nuisance. If they comply with these rules, then Ofcom will not take action against them.

The committee was told that since it last used its powers, Ofcom has secretly investigated 22 companies making Silent Calls. Not one of these was found to be practising "persistent misuse", so as to require use of the powers. The powers begin with a simple Notification of misuse, which can be followed by an enforceable requirement to cease the practice and the possibility of a financial penalty. Every complaint about Silent Calls made to Ofcom since 2007 has been effectively invalid, because it has not led to a determination of “persistent misuse”.

One member of the committee suggested that Ofcom should have a consumer website showing the names of companies. These would need to be the companies who are allowed to make Silent Calls, because they comply with Ofcom's rules. This would be of great assistance to their victims who would know not to waste time complaining about them.

Because all Silent Calls sound the same, it is not easy for victims to know whether or not the rules are being breached. Ofcom could certainly help citizens by advising how they can tell whether the inconvenience, annoyance or anxiety that they experience is "necessary" and when it is "unnecessary". As Ofcom wishes for the number of complaints about Silent Calls to diminish, it needs to take up this idea so as to prevent the many complaints it receives about necessary “acceptable Silent Calls”.

I have always argued that it is neither acceptable nor necessary to hang up in silence as a matter of habit. I am disappointed that Ofcom and all of the main parties represented on this committee do not share my view and create a distinction between unacceptable and acceptable Silent Calls. I reject this distinction totally – no Silent Call is necessary. There are perfectly good ways of avoiding making them whilst still running an effective and efficient call centre operation. Issues with telemarketing in general are quite separate.

In due course we may be able to turn our attention back to having the persistent misuse powers used to stop the nuisance of Silent Calls. My proposal to set up a citizen's agency to use the powers which Ofcom prefers not to use has, for now, been rejected by BIS.

Silent Calls - Ofcom awaits parliamentary endorsement this afternoon

At 4:30 this afternoon a committee of MPs will decide whether Ofcom is to be given a much wanted gift. Ofcom is seeking approval of its current failed policy to use its statutory powers against the nuisance of Silent Telephone Calls. This gift will be delivered by granting its request for an increase to its power to impose penalties on those making Silent Calls.

The present maximum penalty is £50,000. The MPs will be considering a proposal from Dr Vince Cable to increase this to £2 Million.

Some would question why this increase is necessary. Ofcom has not used its powers since completing a handful of investigations begun in April 2007. It would appear that nobody has breached Ofcom's rules since then. As a penalty of £30,000 was considered sufficient for Santander, one wonders who it is who could warrant a penalty of £2 Million.

It took Ofcom 2 years to get round to penalising Silent Calls made by Barclaycard. That is perhaps why it became the first, and only, company to incur the current maximum penalty of £50,000. Perhaps Ofcom intends to wait even longer in future, so that it can impose even bigger penalties.

After having delivered extensive briefings to the members of the committee, I will be attending the sitting. It will be interesting to see if the inevitable approval of the proposed increase is accompanied by any critical comment.

Tomorrow's news will doubtless be of Ofcom's tougher action against Silent Callers with a bigger penalty. This is however all a bluff because the rules that Ofcom will enforce using the penalty allow unlimited numbers of Silent Calls to be made, so long as enough (possibly annoying) calls where someone speaks are made by the same caller on the same day.

Ofcom currently proposes a formal tolerance of one Silent Call per person per caller per day, under the guise of a new ban on "repeat Silent Calls" that will perhaps be introduced next year. Many would have thought that all Silent Calls were already banned - it must come as a shock to some that "repeat Silent Calls" have not yet been banned.