Ofcom: Review of how we use our persistent misuse powers: Focus on silent and abandoned calls
Introduction The consultation closes on 10 February 2016. Ofcom plans to issue a final statement and publish a revised policy in Q1 2016-17 and the revised policy would come into force after a two-month implementation period. We are seeking member input by Friday 22 January 2016, so that we have adequate time to prepare a suitable response, incorporating any statistical evidence. Consultation document: http://stakeholders.ofcom.org.uk/binaries/consultations/review-of-howwe-use-persistent-misuse-powers/summary/persistent_misuse.pdf Section 1 Under 1.3-1.5, Ofcom summarises their concerns about silent and abandoned calls, and what steps they intend to take. At 1.12, Ofcom has provided estimates for annual silent and abandoned calls, based on consumer research data. They estimate that consumers receive around 1.5 billion silent and 200 million abandoned calls a year. 1.21 sets out the key proposals: 1.21 The most important proposals relate to silent and abandoned calls. They include: - Making the definitions of these calls, and so the conduct we regard as persistent misuse, clearer; - Setting out an explicit policy position that consumers must not be subject to silent calls under any circumstances and that enforcement action against those who make them will be our highest priority, however they are caused, whatever the number they make (wherever it is more than three) and whatever the rate at which they make them; and - Making similarly explicit that consumers should not be subject to abandoned calls and that: o we may take enforcement action in any cases where the caller makes more than three abandoned calls; o where we have to prioritise enforcement resources, we are likely to take into account the number of abandoned calls made and/or the rate at which they are made (the higher these are, the more likely it is we would act); o we are likely to regard cases in which a caller s abandoned call rate is three per cent or more or which also involve silent calls as a higher priority for enforcement action and that callers in such cases can expect us to act; and o where we take enforcement action, we will take into account all abandoned calls a caller makes, not just those on any days in which its abandoned call rate is three per cent or more. These changes do allow Ofcom to take action in more circumstances of silent and abandoned calls, and they effectively outlaw silent calls. At 1.22, Ofcom suggest that this could lead to higher penalties for those who breach their rules and state that anyone wanting to avoid Ofcom action should ensure they do not make any (of these calls). 2
At 1.24, Ofcom summarises some of the proposed changes to the factors that they will take into account when assessing harm caused by misuse and prioritising cases for action. These include: - whether the misuse is repeated in respect of the same number or recipient, and the time period over which any repetition occurs - the time(s) of day any misuse occurs i.e. during unsociable hours - the time taken to connect recorded messages to called parties - whether CLI (caller line identification) numbers presented to call recipients enable them to make return calls in which they are able to identify the original caller and opt-out of future calls (without being subjected to marketing activity) - the management processes and practices callers have in place These are all additional factors that members will need to consider in their dialler policies, should these changes come into force. At 1.27, they mention proposed changes to the enforcement process, with a view to streamlining the process and making it quicker and more effective. 1.27 we propose that, where we issue notifications under section 128 of the Act setting out that we have reasonable grounds to believe a person has committed persistent misuse, we would, in appropriate cases, also give notice of the penalty we may be minded to impose under section 130. The recipient of this notification would generally have a chance to make representations on both matters at that stage At 1.29, Ofcom make clear that their provisional assessment of the costs that may be incurred in complying with these changes are justified, given that they are for the protection of consumers. The impression is that arguing the cost to businesses is likely to be an argument that is dismissed by Ofcom, particularly given the following statement at 1.31: 1.31 It is always liable to be more expensive for organisations to comply with the law than to break it. That they may only be able to achieve efficiency gains at the costs of non-compliance and harm to consumers would not, in our provisional view, justify those efficiencies. Section 2 Section 2 of the consultation focuses more on Ofcom s approach to the consultation process and the legal framework supporting their actions. Section 3 Under 3.13, Ofcom highlights the measures in the 2010 policy that they expect organisations to have taken in order to address abandoned or silent calls, particularly where those organisations are using a dialler system (referred to as an automated calling system or ACS). 3
Section 3 cites concerns about the management of predictive diallers and ineffective answer machine detection as being key factors in causing abandoned and silent calls. This section also looks at other potential factors that affect the level of abandoned and silent calls, including call centre agent conduct, and it looks at the consumer harm caused by these types of calls. This is summarised at 3.101: 3.101 Particular causes are likely to include the use of ACS, especially where it is poorly managed by call centres. They are also likely to include the use of AMD (answer machine detection). There do not appear to have been any significant developments in recent years which would improve its accuracy. The use of IVM (interactive voice messaging) technology also has the potential to cause abandoned calls in the same way as ACS. Section 4 Section 4 details the proposed changes to the statement of policy. The majority of these changes were highlighted in the summary at section 1, but this section provides more detail and more context for Ofcom s decisions behind the proposals. Silent and abandoned calls 4.28 sets out the proposed, expanded definition of a silent call, in order to address the apparent confusion of the 2010 policy: 4.28 We therefore propose a fuller definition of silent calls When the call recipient experiences one of the following, we consider that they have received a silent call, or a call equivalent to a silent call and which we are likely to treat as such: they hear nothing on answering the phone (silence); they are disconnected by the calling party as soon as or shortly after they pick up the phone; they hear background or distant noise, whether spoken or otherwise, such as chatter (but the conversation is not directed at the call recipient), breathing or electronic beeps; they hear something else which falls short of a message (whether spoken or otherwise) directed at the call recipient; or they experience a combination of the above, such as a short period of silence followed by disconnection by the calling party (known as a short duration call). 4.34 sets out that there will be no acceptable level of silent calls enforcement action against those who make any silent calls would be our highest priority. 4.36 and 4.37 mention that they do not consider answer machine detection software (AMD) to be sufficiently preventative, due to possible false positives and the limitations of the technology. They also indicate that they have had concerns about this in the past. The proposed changes would prevent AMD false positives being considered in the abandoned call rate; these would be treated the same as other silent calls (4.41). If members are using this and believe it does work, they may want to help us with any technical arguments. Ofcom predicts that those using AMD technology may face costs as a result of the proposals (4.45). At 4.46, Ofcom sets out how they believe companies using AMD and generating silent calls might be affected (either by having to ensure and demonstrate near 100% accuracy of their AMD ; ceasing their use of AMD to avoid generating silent calls caused by false positives ; or 4
using AMD and IVM in combination (albeit taking account of other factors such as whether it was appropriate to use ACS in this way and the number of repeat calls made). ) Their position on silent calls (and presumably abandoned calls, too) is summarised at 4.67: It is always likely to be more expensive to comply with the law than break it, but Parliament has decided certain conduct is not allowed and calling organisations should, accordingly, bear the costs of avoiding it. At 4.76, Ofcom sets out its proposals for revising the definition of abandoned calls, which covers three different scenarios: Abandoned calls can occur, for example: - in relation to live calls where the calling party makes calls, whether using ACS or not, with a view to live agents speaking directly to call recipients. The call may be abandoned because, for example, an insufficient number of agents are available to take the call. In this case, the call can be, and usually is, abandoned immediately when the call recipient answers the phone and the recipient hears an automated message; - in relation to automated calls involving interaction from the call recipient for example, where Interactive Voice Messaging ( IVM ) is used and the call recipient answers the phone and hears an automated message which asks them to press a button to speak to an agent or to answer a series of automated questions before being connected to an agent. Where the call recipient has indicated a preference to be put through to an agent, they may experience an abandoned call (for example, through a lack of agents to take the call) and instead hear an information message (which may or may not be after a period of being placed in a queue for an agent); - in relation to calls which would otherwise have been abandoned where the call recipient answers and would have heard an automated message (usually an information message) instead of being connected to a live agent. However, the call recipient disconnects the call themselves before the message is played. This could occur, for example, where the technology used by the calling party is capable of identifying when a call recipient has terminated the call before it starts to play the message. At 4.89, Ofcom mentions that there was little evidence supplied by respondents to the Call for Input to support opposition to a reduction in the threshold. Ofcom sets out how they will prioritise their enforcement action in connection with abandoned calls at 4.97, taking into account the number and rate of abandoned calls and giving higher priority to cases where ACR is above 3% or involves silent calls. At 4.102 they indicate that, whilst they are scrapping the 3% threshold, it is still likely to be a major factor in deciding to pursue enforcement action: 4.102 We also take account that our proposed position is not in any event a substantive change from the intended effect of the 2010 policy. That effect is that we prioritise for action those cases in which the ACR is above three per cent, but the current policy does not mean that we could or would not take action in cases where a calling organisation makes abandoned calls at a lower rate. 4.109 sets out that Ofcom will not just look at particular days on which ACR was high; they will consider all abandoned calls made during any period which is under investigation. 5
Other misuse policies Ofcom has proposed amendments to some of their examples of misuse of ACS. They propose that circumstances which may constitute misuse of IVM include where the person called chooses to speak to a live agent but has to wait a long time to be put through, or if during the wait time, the person is not given information about who is calling or if marketing content is included in that wait message (4.122). They are not prescribing a maximum wait/hold time, but businesses should consider whether complaints are being made in relation to wait times (4.126). They set out what they consider would be misuse of CLI for both outgoing and incoming calls in 4.131 and 4.132 (p.60): 4.131 As to the former, we propose to make clear that we regard the following as misuse of a CLI facility: displaying a CLI which is not authentic or valid; displaying a CLI which is unreturnable such that when called (and although there is a dialling tone), the number does not connect to an agent or an automated message; and displaying a CLI which is a controlled premium rate service (as defined in the condition regulating premium rate services under section 120 of the Act). This would be consistent with the idea that consumers should be able to use CLI facilities to protect their privacy in the ways described above and without undue cost. 4.132 As to the latter, we propose that the policy should make clear that we would regard it as misuse if any of the following happen to consumers who use CLIs to make return calls. That is, when they are connected to an agent or an automated message: no information is provided about the calling organisation (or that on whose behalf the call was made); an opportunity is not provided for the consumer to opt out of future calls or messages; or the call is used as an opportunity to market to the consumer in breach of the PECRs. Under Other forms of misuse they clarify that these examples are not exhaustive. They also mention that another example of misuse that has recently come to their attention and which will be incorporated into the revised policy is where call centre agents behave improperly towards call recipients, such as by behaving in a rude or intimidating manner. (4.139). Ofcom has also highlighted other factors that they think businesses will want to look at if they want to avoid enforcement action. This includes misuse repeated in respect of the same number or recipient, where calls are made more than once to the same number and in particular where those calls are made within 72 hours (4.143 and 4.144). They make specific reference to debt collection on this particular topic, stating that the responses they received suggest that this sector tends to make the highest number of attempts to contact the same recipient (4.146). The information at 4.150 (p.63) offers some useful guidance on what Ofcom considers reasonable calling times. They highlight the research they have done shows calls being made at particular times and then at 4.151 they indicate that calls are being made at reasonable times. It could therefore be assumed that the times noted in 4.150 could construe reasonable/acceptable times. Those times are between 8am and 9pm on weekdays; between 9am and 6pm on a Saturday; and between 10am and 6pm on a Sunday. Although this is not definitive, it is useful guidance for members. 6
Ofcom sets out further possible misuse of CLIs at 4.153, particularly where no CLI is provided; where the CLI provided requires the recipient to pay more than the minimum necessary to return the call; or where the calling organisation, without good reason, used more than one CLI. This latter point could have an effect on members if they are using a variety of numbers. It is a little unclear whether they consider trying to get the customer to answer a debt collection call as a good reason for using multiple CLIs. They acknowledge that this is a reason that collection agencies use this approach but there is no clarity on whether they think this constitutes reasonable grounds for its use. Their comment at 4.156 suggests maybe not: We noted that using CLIs this way may mislead consumers into picking up calls they may not otherwise have answered, and that this may have the potential to cause them annoyance. For marketing, that makes sense. But for debt collection, this could potentially assist in evading dealing with debt (and could even, arguably, be worse for the person in debt, if they continue to evade contact and are subsequently subject to enforcement action). They have proposed slight changes to the information message requirements in cases of abandoned calls. They propose that the information message should explain that there was an attempted call but that the caller was unable to connect the recipient to an agent and that the return contact numbers provided should be limited, mainly to a basic rate or free telephone number (4.183, p.68). Ofcom has proposed that in assessing harm and prioritising cases, they will take into account whether the organisation applied effective procedures to prevent and identify any issues which may cause misuse; rectify misuses in a timely manner were it to occur; and prevent further misuse (4.188). This also extends to businesses employing third party call centres and ensuring they audit them (4.189). This will feed into FCA SYSC requirements and should not have a major impact on members. Consultation questions Questions 1-5 relate to sections 1-3 (p.33-34): Q1: Should Ofcom s policy on persistent misuse continue to have as its main focus the tackling of silent and abandoned calls? Q2: Have we identified the main causes and effects of silent and abandoned calls, and are there any others we should take into account? Q3: Do you agree with the other forms of misuse we propose to include in the policy? Q4: Is there any other evidence we should take into account in relation to the causes and effects of the other types of misuse identified (misuse of ACS, misuse of a CLI facility and breaches of the PECRs)? Q5: Do you have any comments on: (a) the evidence of consumer harm from the forms of persistent misuse we propose to include in the policy (and on silent and abandoned calls in particular); and (b) our approach to estimating the consumer harm from those forms of misuse? 7
Questions 6-14 relate to section 4 (p.71-72): Q6: Do you agree with our provisional view that we need to make changes to the 2010 policy in order to address the causes and effects of persistent misuse in a more effective way? Q7: Do our proposed changes target the right forms of persistent misuse and their causes and effects? If not, which forms, causes and effects should we target? Q8: Do you agree with our proposed definitions of (i) silent calls and (ii) abandoned calls? Q9: Do you agree with the proposed policy on silent calls that these should be Ofcom s highest priority for enforcement action, however caused and in whatever number? Do you have any information that would help to quantify further the potential costs and benefits of the proposal? Q10: Do you agree with the proposed policy on abandoned calls: a) that cases where a caller s abandoned call rate is three per cent in any 24 hour period or more should represent a higher priority for enforcement and; b) where we take enforcement action, we should take into account all abandoned calls a caller makes in the period under investigation? Q11: Do you have any information that would help to quantify further the potential costs and benefits of this proposal? Q12: Do you have any comments on our proposed changes to the policy in relation to persistent misuse arising from: a) misuse of ACS; b) misuse of a CLI facility; and c) breaches of the PECRs? Q13: Do you agree with the way we propose to assess the harm from cases of persistent misuse and prioritise enforcement action? In particular, have we identified the right factors to take into account and do you agree with the way we propose to apply them? Q14: Do you have any further comments or views on other aspects of this consultation or the proposed policy set out in Annex 5 which are not covered above? In all your responses, please state your reasons and provide evidence to support your views. Ofcom ask that a cover sheet is used for all consultation responses; the cover sheet for consultation responses is available via web form and on p.77 of the paper. 8
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