DAVID HICKSON's SILENT CALLS BULLETIN

14 September 2006

Ofcom consultation on Enforcement

My response to this consultation

What next?

My Contact details

Can we expect action?

Can we ask Ofcom to explain?

In addition to the policy documents covering Persistent Misuse and Consumer Policy, Ofcom also has a general policy document covering use of its various powers.

For the third time this year I have responded to a consultation covering relevant aspects of Ofcom's policy.

The consultation (including all published responses) is found on the Ofcom web site

A copy of my response is found here   (12 pages)

The final page contains my list of suggestions about Ofcom should use the powers.

Summary of my response

The essence of the response is to highlight the differences between the persistent misuse powers and other "enforcement" powers that Ofcom holds. These are as follows:

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They do not relate to Ofcom's role as a regulator of the markets for communications services to further the interests of consumers in those markets, but in performance of its first principal duty to citizens.

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They do not include any capacity to impose or enforce general regulations.

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They begin with the Section 128 Notification, which is not a means of enforcement, as it does not impose any obligations on the person to whom it is issued.

The section 128 Notification can only specify that a particular activity has been determined to represent persistent misuse, and invite representations in response.

If the notified person does not respond with a convincing assurance that the activity has now ceased, or if Ofcom believes that a financial penalty should be imposed or action to remedy the consequences is necessary, then further action should follow.

Ofcom appears to be unaware of these points, or to disregard them.

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It approaches use of the powers in the same way as if regulating a market, applying consumerist principles that are relevant to that role only.

It has even been suggested to me that Ofcom may acquire a duty to regulate any market in which a person practising persistent misuse is operating. So Ofcom now regulates the fitted kitchens market, blood donation, income tax collection, charity fundraising etc. as well as the markets for communications services! I think not.

It specifically claims to regulate the market for call centre services in the interests of consumers in that market - those who instigate Silent Calls.

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It pretends to have imposed "rules" covering use of automated diallers and to be enforcing compliance with these rules. It is however fully aware that this is complete nonsense, presented purely for the purpose of PR.

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It does not issue s128 Notifications where it has sufficient evidence, and then review the need for action when the subject has responded. It treats Persistent Misuse Notifications as if they were the same as other statutory enforcement tools that require much stronger evidence, as they are most severe in their effect.

When Ofcom has the necessary initial evidence, it launches a major investigation requiring significant resources, publishing the name of the organisation, and at the conclusion issues what it calls a Section 128 Notification. Those issued so far have failed to include essential elements as specified in the Act, and have pretended to impose requirements, which cannot be enforced.

It is because Ofcom has (perhaps deliberately) failed to use its powers properly that the problem of Silent Calls remains as it is today.

What next?

At any time in the next 14 weeks Ofcom will progress to the second phase of the programme it began on 22 June 2006 with an "investigation" that will last up to 6 months (see the July 06 Bulletin). It has spent the last 12 weeks doing nothing more than deciding what to do next (having previously done nothing at all about using the powers since 31 October 2005).

Will the second phase include action?

NO, the second phase will consist of "investigations" into the organisations which the first phase has shown to be those causing most concern by making Silent Calls. These will take up to 6 months.

Last time Ofcom undertook a set of investigations into Silent Callers it used this opportunity to revise its formal policy. It then published that revised policy, applied it in the conclusion of those investigations and began a consultation on that policy, all on the same day - 31 October 2005.

In March 2006 Ofcom indicated that it would review its policy again in around a year. The timing looks right for a further revised policy to be implemented at the conclusion of the forthcoming investigations and then submitted to consultation.

Can we ask Ofcom to explain what the **** it is doing?

NO we cannot. Ofcom does not engage in public discussion whilst it is engaged in an "investigation". It only makes factual announcements through its Competition Bulletin.

When I repeatedly asked Ofcom what was going on following the 1 March announcement and prior to the 22 June opening of an investigation, I was told that it had nothing to report.

Ofcom either has nothing to say - because it is doing nothing,
or is unable to comment - because it is doing something.

My contact details

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

Silent {dot} Calls @ ntlworld {dot} com