DAVID HICKSON's SILENT CALLS BULLETIN

Nuisance telephone calls and Enforcement

Updated 29 June 2005

Further to my page covering what I know about Silent Telephone Calls, I add some brief comments covering the regulatory position of the key types of nuisance calls, and the way in which this is maintained by those responsible for enforcement, as I understand it.

Index

- The Telephone Preference Service (TPS)

- Recorded messages

- Premium Rate Services

- Silent Calls

- Enforcement action

- Untraceable calls, e.g. from Overseas

- Compelling provision of Caller Line Identity

- Feedback

 

Unsolicited direct marketing calls are permitted unless they breach the regulations covered below, or one of the others not covered here.

The Telephone Preference Service (TPS)

The TPS register is the responsibility of Ofcom. It has awarded a contract for the management of this register to the Direct Marketing Association, which does so through a subsidiary company.

The regulation covering calls to those listed on the TPS register is part of the Privacy and Electronic Communications (EC Directive) Regulations 2003 [PECR]. These are enforced by the Office of the Information Commissioner [ICO].

If you are registered with the TPS nobody should attempt to make an unsolicited direct marketing call to you. Whether such a call results in silence, a recorded message or speech makes no difference, in all cases regulation 21 of the PECR is breached.

Provisions and interpretation of PECR Regulation 21

"Unsolicited" is defined fairly broadly by the ICO in its notes covering all of the regulations. It is intended that only a clear invitation from the person themselves to the caller themselves may be used to show that a call was "solicited".

"Direct marketing" in this context is also broadly defined and can include a charity appealing for money or a political party appealing for support.

Regulation 21 also covers any company who you have specifically told not to call you, even if you are not registered with the TPS.

Some calls that breach regulation 21 may also breach other regulations.

Enforcement of regulation 21

Whilst the ICO may take action itself, there is a procedure for reporting breaches to the TPS office. They will check that the number is on the published list and, if it is, ask the caller not the call the complainant again.

The TPS company makes a periodic report to the ICO, whose powers to take action, such as imposing fines, have never been used.

Recorded messages

If anyone receives a call that consists of recorded material for direct marketing purposes, this is a breach of regulation 19 of the PECR unless they have given specific consent to receiving such messages from the caller.

Such consent must be specifically related to the receipt of recorded messages. This is a clear "opt-in" situation, where the onus is entirely on the caller to demonstrate consent.

"Direct marketing" in this context is broadly defined and can include a charity appealing for money or a political party appealing for support.

The powers held by the ICO to take action, such as imposing fines, have never been used.

Recorded messages not for direct marketing purposes

It is just being recognised that regulation 19 does not cover recorded messages that clearly do not have any direct marketing purpose, whatever the original intended purpose of the call.

A good example of this is where a marketing company uses an automatic dialler to call people with the intention of direct marketing. If, when the call is answered, they are unable to provide an operator to perform this, they may play an Informative Message (without any marketing purpose) that simply identifies the caller and the general purpose of the call.

Although nobody would wish to receive such a call, it is clearly preferable to the Silent Call that is generally delivered in these circumstances.

Premium Rate Services

Special regulations apply to these, which are associated with specific ranges of number prefixes. This is not my topic. These are controlled and the regulations enforced on behalf of Ofcom by an organisation known as ICSTIS.

Silent Calls

Most information about these is given on the main web page Silent Calls Bulletin

A pattern of behaviour that includes making Silent Calls is deemed by Ofcom to represent "persistent misuse of a telecommunications network" and subject to the powers granted to Ofcom by Sections 128 - 131 of the Communications Act 2003. The initial phase of action using these powers has been used in one case, further action in this case and with others is awaited.

The intended purpose of a Silent Call is of no consequence, it may have been made for purposes other than direct marketing.

Silent Calls are not covered by the PECR nor regulated by the ICO.

The Silent CallGuard service is promoted by the TPS company, but has no proper relationship with the TPS itself. It has no formal relationship with Ofcom, not the ICO, nor is there any statutory force behind it. It is a purely commercial operation that is used by very few companies.

An attempted unsolicited direct marketing call to someone registered with the TPS that results in silence is both relevant to Ofcom's "persistent misuse" powers and a breach of PECR Regulation 21.

Enforcement action covering all of these types of nuisance

Whilst this nuisance is being carried out on a mass scale in a systematic manner, the regulators have focussed on dealing with individual complaints.

For most of these, there is either insufficient evidence to allow action to be taken, or the regulator is totally satisfied if the problem is resolved simply for the person who has complained. For this reason, whilst I would never discourage any individual who wished to complain from doing so, I do not believe that simply processing such complaints is an effective way to deal with any of these problems.

The only way that the actual problem (which relates to the perpetrator, not any individual victim) may be dealt with is by focussing properly on the problem, not the victim. It is absurd to believe that the problem caused by a company that is calling people registered on the TPS, transmitting marketing messages or making Silent Calls has been dealt with if it complies with a request never to make another call to each individual who complains.

The powers and regulations are intended to protect everyone from nuisance. There is nothing in the regulations to say that only those who complain should be protected.

Dealing with untraceable calls, e.g. from Overseas

International nuisance calls are seen to represent a major problem for the regulators. If no UK (or EU) company is involved in the call in any way, then the powers simply cannot be applied. Attempts are being made to deal with some of these cases by international agreements and by urging specific action to be taken under their domestic law against some of the worst well-known offenders.

If a UK company can be held responsible for any call covered by these regulations and powers, then the place from where the call was originated makes no difference.

The problem is with tracing international calls, which commonly do not supply a return number (CLI) and often cannot be traced by any facilities of the telephone service providers. (There are also situations where calls originated in the UK cannot be traced.) Tracing is necessary if the caller has not provided adequate identity of the UK company involved, possibly because it was a Silent Call.

There is however a way of dealing with un-traceable Silent Callers.

One interesting feature of Ofcom's powers against Silent Callers is that it does not need to have evidence of even a single Silent Call to take action! Ofcom may use its powers where it has reason to believe that someone is engaged in a pattern of behaviour "likely" to be causing the annoyance, inconvenience or anxiety that results from Silent Calls. I believe that anyone using ACE is involved in such behaviour.

I presently have two cases being considered by Ofcom where use of ACE is admitted by the caller, but I cannot offer any evidence of having received a Silent Call from these companies myself. It is for the Ofcom investigation to determine whether the degree of nuisance being caused by these companies is worthy of action. This is what is required to pursue any case, as no single individual could ever make such a determination alone, nor could the complete evidence be obtained from any number of complaints.

Compelling provision of CLI

CLI is the number given when calling 1471 (or shown on Caller ID display). This is either the "true" number of the line from which the call is made or a "presentation number" used to provide a contact point for returned calls.

Some networks, notably those used for calls from some overseas countries, do not allow this number to be provided with the call. It is always possible for the number to be withheld.

The right for any caller to withhold their number from the person they are calling is contained in EU Directives on Privacy. There are many good reasons why this right should exist. It cannot simply be withdrawn from everyone.

It is obvious that this right should not exercised by someone who is causing nuisance. If the perpetrator of nuisance is happy to give up this right, then one may ask why they do not simply stop causing the nuisance!

It is commonly suggested that this right should be withdrawn from those who cause nuisance. Again, if we know how they are, then why not stop them from causing the nuisance in the first place.

Another suggestion is to remove this right from everyone who engages in "telemarketing". Given that it would not be reasonable to apply this to all lines used by every such company, e.g. the BT chairman's private line, one is quickly back at the previous point.

I have not heard any serious proposal about how a determination of those who should suffer withdrawal of this right would be made. Neither have I heard any serious proposal about how such measures could be enforced. The simple challenge for anyone proposing this idea is to ask who should be forced to give up the right, other than those who cause nuisance.

At first sight this appears to be a very sensible idea. When one considers how it could be done, however, it is clearly not that simple. One has to think of the time and effort involved in securing changes to EU Directives, revised international agreements (covering all countries in the world), and effective UK legislation. I believe that we have better ways of using time and resources.

I see this widely-made suggestion as a red herring, used by various organisations to kick the need for action into touch.

This is certainly not the answer to the "Silent Call". The absence of CLI compounds the impact of the Silent Call, its provision does not make the Silent Call acceptable. If a caller using a predictive dialler wishes to be identified in the event that the call cannot be completed by an operator, the Informative Message provides a way of doing this.

If we can identify those who are making Silent Calls, so as to compel them to provide CLI, then why not stop them immediately. What on earth is the point of forcing them to provide CLI so that they can then be identified in order to stop them making the Silent Calls? (The same applies to any other form of nuisance).

Feedback

Please send any useful feedback on this page to: Silent {dot} Calls @ ntlworld {dot} com

David Hickson