Revised statement of policy on the persistent misuse of an electronic communications network or service

Ofcom is required, under section 131 of the Communications Act 2003 (the “Act”), to prepare and publish a statement of its general policy with respect to its legal powers to deal with persistent misuse of an electronic communications network or electronic communications services.

In this context, on 1 March 2006, Ofcom published an updated Statement of Policy on the persistent misuse of an electronic communications network or service (the “2006 Persistent Misuse Statement”).

The Act allows Ofcom to revise its statement on persistent misuse from time to time as it thinks fit. On 17 December 2007, Ofcom published a consultation on its proposed revisions to the 2006 Persistent Misuse Statement. The consultation closed on 1 February 2008. This document sets out Ofcom’s consideration of consultation responses received and its revised statement pursuant to section 131 of the Act in light of those considerations (the “revised Persistent Misuse Statement”). The revised Persistent Misuse Statement will replace the version published in 2006.

The 2006 Persistent Misuse Statement set out the factors that Ofcom would take into account when deciding whether or not to take action in relation to abandoned calls, including silent calls which had been identified as a major cause of annoyance, inconvenience or anxiety for telephone users. An ‘abandoned call’ is one where a connection is made with a live individual and then terminated. This can occur where call centres use automated diallers (commonly described as automated calling systems or “ACS”) to call a number of persons but there are not enough live agents to deal with calls that are answered. A type of abandoned call is a silent call, where a person hears nothing on the end of the line on answering the phone and has no means of establishing whether anyone is at the other end.

Ofcom also stated that its approach to abandoned and silent calls would take into account positive steps that call centre operators may have taken to reduce the impact of such calls. In summary these steps include the following:

• limiting abandoned calls to a rate not exceeding three per cent of all live calls made on each individual campaign over a 24 hour period;
• playing a brief information message giving details about any call answered before an agent is available;
• providing calling line identification (CLI) information on outbound calls, so that consumers are able to make a return call;
• a 72-hour period before a telephone number receiving an abandoned call may be called again without the guaranteed presence of an agent; and
• unanswered calls must ring for a minimum of 15 seconds.

Since the publication of the 2006 Persistent Misuse Statement, Ofcom has undertaken a rolling programme of monitoring and investigating alleged instances of persistent misuse by making abandoned calls, including silent calls. The first phase of enforcement culminated in four companies receiving financial penalties of between £32,500 and £45,000 in January 2007 for failure to comply with section 128 of the Act. A second phase of enforcement has so far resulted in two further companies receiving financial penalties of £30,000 and £5,000 in March 2008. The progress of Ofcom’s continuing enforcement programme may be tracked on the Competition and Consumer Enforcement Bulletin part of Ofcom’s website.

There is evidence to suggest that the procedures in the 2006 Persistent Misuse Statement and the approach to enforcement that Ofcom adopted have had a beneficial impact. Although there is no reliable way of measuring the aggregate of abandoned calls made over any given period, one indicator is the volume of complaints made to communications providers about such calls. Here the record is promising. Complaints to BT’s Nuisance Calls Bureau (“BT”) were running at a broadly stable level of just under 30,000 a month between June 2006 and March 2007 after the publication of the new requirements. However since then we have seen a continuing downwards trend with complaints over the period between April 2007 and June 2008 averaging around 19,400 a month. In the current financial year complaints are averaging around 18,200. These figures contrast with the 80,000 complaints BT received in January 2006, before the publication of the 2006 Persistent Misuse Statement.

We recognise that the volume of abandoned and silent calls has still not been reduced to an acceptable level. However we believe that the measures adopted have made significant inroads into the problem and that sustained pressure by Ofcom creates a climate in which there are continuing improvements in call centre practice.

In the course of discussing the requirements of the 2006 Persistent Misuse Statement with industry, and in the process of conducting investigations in this context, we identified the need for greater clarity and explanation in our policy statement on persistent misuse. Accordingly Ofcom issued its consultation on proposals for revisions to its statement in December 2007. Ofcom did not propose any radical departures from the 2006 approach given the evidence that there had been some beneficial impact as a result of its approach.