Direct marking companies often use Automatic Calling Equipment (ACE), also known as �power diallers�, for the purpose �cold calling� potential consumers/buyers of their products. The automatic dialling may however generate too many calls for the marketer�s live operators to handle, in which case some calls may be automatically terminated by the ACE after the called person has already answered. This is known as �Silent Calls�.

In its May 2004 statement of policy on persistent misuse of an electronic communications network or electronic communications service, Ofcom stated that �Silent Calling� is a practice that might amount to �persistent misuse� of an electronic communications network/service. The �persistent misuse� sections of the Communications Act (sections 128 to 131 of the Act) confer on Ofcom powers to take action against certain activities which, although causing annoyance and inconvenience, are not criminal offences. In the current proceeding against MKD (which is further to an earlier investigation opened by Ofcom against the company in January 2004) Ofcom has served on MKD a Notification under Section 128 of the Communications Act, requiring that the daily level of MKD�s Silent Calls (from each outgoing number MKD operates) shall not exceed 5% (of the total number of live calls). Should MKD fail to comply with Ofcom�s Section 128 Notification, Ofcom may serve on the company a Section 129 Enforcement Notification (which, if not complied with, may be enforced by Ofcom in civil proceedings, for example, by way of an injunction) and in addition Ofcom may impose a pecuniary fine on the company under Section 130 of the Act.

The level of Silent Calls adopted by Ofcom (5% per 24 hour period) is similar to that set out in the industry Direct Marketing Code of Practice published by the Direct Marketing Association UK (the �DMA�). Ofcom has stated that though it has not formally endorsed this industry code of practice, it is appropriate for Ofcom to have regard to this code. It is interesting to note though, that the DMA�s American equivalent (also named The Direct Marketing Association) also has a code of practice in place (titled �The Direct Marketing Association Guidelines for Ethical Business Practice�) which sets the maximum level of Silent Calls on 3% (measured over a period of 30 days). This begs the question: why should a UK consumer be so privileged as to �enjoy� a higher level of Silent Calls than an American one ?

It should also be noted in this regard, that the related practice of using an automatic calling system for unsolicited direct marketing calls that do not involve a live operator (i.e. playing or leaving pre-recoded messages) is an offence under the Privacy and Electronic Communications (EC Directive) Regulations 2003.

Amit Rainhartz