David Hickson wrote OfcomWatch today and provided this follow-up to his earlier posting on the Silent Calls issue:

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Silent Calls Week - the Others and the Safe Harbor

In my posting on May 23 I covered the way in which Ofcom acted in the case of MKD Holdings Ltd (Kitchens Direct) and looked forward to how it would correct itself when dealing with future cases. Last week was Silent Calls Week.

On Tuesday, the Direct Marketing Association, “Ofcom’s co-regulator”, published the long awaited results of research into the issue. This confirmed that the problem was very serious and reported that 21% of the population are caused anxiety when receiving a Silent Call. The long-considered DMA response was to pretend to introduce a new provision to its Code of Practice, when this had been in place for some years. (Link here).

On Wednesday in parliament, the Prime Minister was asked to put pressure on Ofcom to use the existing legislation to cease the nuisance of Silent Calls. Mr Blair seemed to have little faith in Ofcom’s ability to achieve this, as he suggested that the vicar who had raised the issue with the MP asking the question was perhaps more empowered to solve the problem than he. (Hansard 16 June Column 260).

On Thursday, Ofcom announced a new investigation into 7 companies. These appear to have been selected to represent a cross section of the types of company responsible for this nuisance. Two classic DMA telemarketing agencies, two fax marketing agencies, two companies which market their own products and services and one more interesting case: Toucan Telecom is a U.K. company which does its own telemarketing from overseas call centres. This fact should not allow it to escape action by Ofcom. It is however calling to market its Carrier Pre-Select services, an activity which Ofcom has a duty to promote - can anyone see a potential conflict of interest? (Link here).

On Friday, the Chief Executive of another of these 7 companies appeared on Radio 4 to announce that his company made 30,000 Silent Calls a month. He claimed (link here) that this was acceptable as he was operating within the 5% “Safe Harbour” that applied in the UK.

Many of the problems seen in the MKD Holdings case have not been resolved in public, so we must be most vigilant in our watching of how well Ofcom has privately noted what it got wrong there, as it proceeds with these investigations.

The most significant aspect of this is the 5% nonsense. This, like the equipment used to cause Silent Calls, originates in the U.S., where there is a “Safe Harbor” percentage within which those making Silent Calls may rest safe from any action being taken against them. There is a widespread misunderstanding that a similar provision exists in the UK. This idea is promoted by the Direct Marketing Association, “Ofcom’s co-regulator”, which directly associates Ofcom with the provision of a 5% “Safe Harbour” in its Code of Practice.

Whilst a total rejection of this “percentage approach” may be found amongst the clauses of the Ofcom Statement of Policy, Ofcom is now able to declare this in the following simple terms:

“There is no ’safe harbour’ in UK law for calls at the level of 5% or any other level”.

I read that to say that all Silent Calls are illegal, unless it can be proved that they further the interests of citizens. We must keep watching closely to see if there is any attempt to apply a definition of “persistent misuse” that includes any type of “percentage approach” in these cases.

Particular considerations may be introduced to the action and penalties appropriate for offenders on a “case-by-case” basis, but may only be applied to the definition of what is “persistent misuse” if this can be shown to be necessary for Ofcom to perform its relevant principal duty - “to further the interests of citizens in relation to communications matters”. Ofcom does not have a duty to further the interests of consumers in the fitted kitchens market, nor the many other non-specific markets served by telemarketing agencies.

My earlier posting made reference to the alternative of transmitting an Informative Message when no operator was available to complete a call. The Information Commissioner, who is responsible for enforcement of the regulations covering recorded messages, has now confirmed that a purely Informative Message, without any direct marketing content, could be used in these circumstances without breaching that regulation. Ofcom may now stop worrying about the possibility that doing its duty and enforcing the law will damage an industry for which it has no responsibility anyway. Stopping Silent Calls does not mean banning predictive diallers, as there is an undesirable, but far more acceptable, alternative.

~ David Hickson