6 July 2006

A new Ofcom action programme

A "Competition Bulletin" announcing a programme of action by Ofcom, that commenced on 22 June, was published on 4 July 2006.

Use of the "competition bulletin" to make announcements about possible use of the persistent misuse powers is just one, purely cosmetic, illustration of how Ofcom is using unsuitable procedures to pursue its use of the persistent misuse powers.

Click this link to view the bulletin

The basis for the programme

The programme claims to be based around enforcement of a set of regulations for users of automated dialling equipment that Ofcom introduced in March 2006.

This is a fiction.

A simple reading of the relevant sections of the Communications Act 2003 (128-131) shows that Ofcom does not have any power to specify, impose or enforce general regulations on users of telecommunications equipment and services.

The persistent misuse powers may be only used to take action in specific cases, starting with a determination and Notification of persistent misuse. This must be made having regard to the published Statement of Policy (131). That Statement cannot itself create specific enforceable requirements, it can only guide use of the powers to Notify (128), Enforce (129) and Penalise (130).

The current Statement of Policy indicates (at 6.15) that Ofcom will note the degree of compliance with certain procedures (the "rules") only when decided the severity of "enforcement action". The only enforcement action covered by the persistent misuse powers is that under s129 to impose specific requirements on a misuser after a s128 Notification has been issued and an opportunity to make representations in response has passed or been used.

Ofcom wishes to act in the same regulatory role in dealing with Silent Calls as it is when properly acting as the regulator of the providers of telecommunications network and services. It therefore follows procedures that are neither supported nor required by the particular statutory powers that apply. This causes the action taken to be unnecessarily qualified and in much unnecessary effort being used.

The first stage of the programme

It appears that Ofcom is not continuously engaged in reviewing information about possible persistent misuse, as it finds it necessary to initiate a formal investigation process in order to do so. It has now used the existence of an active formal investigation as an excuse to withdraw from public comment on the subject.

A spurious claim that analysis of data will enable Ofcom to identify the organisations causing most concern by making Silent Calls, provides a sad indication of Ofcom's total failure to understand what it is dealing with.

The concern caused by Silent Calls arises from the very fact that callers do not identify themselves when their calls are answered.

Silent Callers are detected in circumstances that are exceptional in two respects. Firstly, that someone is able to identify them and secondly, that someone chooses to raise a complaint. A determination of which are the most important cases to deal with has to be based on judgement informed by intelligence, not data.

The second stage of the programme

Ofcom's procedure for enforcing regulations normally involves an investigation analysing information that those covered by its general regulatory powers are required to retain and provide on demand. From this information Ofcom may establish whether a breach of a regulation has occurred and then determine the appropriate enforcement action to take. A failure to retain, or to provide, the required information may itself be a breach.

Ofcom attempts to follow exactly the same procedure to deal with cases of persistent misuse.

The nature of the primary stage of the persistent misuse powers (a Notification under section 128 of the Communications Act) makes such an investigation totally unnecessary. This requires only "reasonable grounds for believing" that the notified person has been engaged in a pattern of behaviour or practice likely to cause unnecessary annoyance, inconvenience or anxiety.

Attempting to conduct an investigation based on information about past behaviour provided by the alleged offender is somewhat foolish when they are under no statutory obligation to record or retain the relevant evidence. Ofcom has attempted to address this by introducing a "rule" to retain information about "abandoned calls". These are only one of a number of types of Silent Call and are often not "Silent" at all, although they are still covered by Ofcom's rules. Although many will not realise this, Ofcom has no powers to impose or enforce this rule in general.

P.S. A revised set of Guidelines covering Ofcom's "enforcement" procedures has been issued and opened to consultation today. I will study this lengthy document and will respond to the consultation. I will also take the opportunity to highlight any specific aspects of the Guidelines which indicate that this particular investigation is likely to be conducted improperly with respect to Ofcom's statutory powers and duties.

My contact details

You can contact me for advice, information or anything else at:

Silent {dot} Calls @ ntlworld {dot} com