Ofcom persistent misuse: silent and abandoned calls

Ofcom can take action where a person persistently misuses an electronic communications network or service. It has to publish a general policy on how it is likely to use those powers, and it has to have regard to that policy when it uses them. The current policy is the statement published on 20 December 2016. Ofcom's page for the review says the statement applies from 1 March 2017.

The powers Ofcom describes sit in sections 128 to 130 of the Communications Act 2003. Section 131 is the duty to publish the policy. The statement says Ofcom may issue a notification under section 128 where it has reasonable grounds for believing a person has persistently misused a network or service, and that a penalty can follow under section 130. The person notified can make representations. Ofcom may then require the misuse to stop and require a financial penalty.

The same statement says the Information Commissioner's Office enforces the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR). Ofcom's persistent-misuse work is separate from that. A campaign can raise questions under both regimes. See the TPS and CTPS screening guide for the marketing-call register rules.

Ofcom treats silent calls and abandoned calls as misuse, and as mutually exclusive. A call is one or the other, not both.

A silent call is one where the person who answers hears nothing directed at them: no information message and no other communication from the caller. Ofcom says these often come from an automated calling system that has over-dialled, so that every agent is busy when the person answers and the system disconnects the call. Answer-machine detection can also cause a silent call if it mistakes a person for a machine and disconnects.

An abandoned call is different. The caller dialled with a view to the person speaking to a live agent, but no agent is connected. Instead the caller plays a message, usually an information message. Ofcom also treats the call as abandoned if the person hangs up before that message plays, where the message would otherwise have been played. If nothing would have been played, Ofcom treats the call as silent.

Ofcom expects callers not to make silent or abandoned calls. It says both are misuse. It also says silent calls are likely to be more harmful, because the person is told less about who called and may find the call threatening. Where there are not enough agents for the calls that are answered, Ofcom expects an appropriate information message. Playing that message does not stop the call being abandoned, and making abandoned calls may still be persistent misuse. The message is there to avoid the further harm of a silent call.

In the prioritisation annex, Ofcom says: “Action against those making silent calls is likely to be our highest priority.” Action against persistent abandoned calls is also described as a priority. Ofcom says it may act in any case where abandoned calls are made.

When a call is abandoned, Ofcom may look at what the recorded message says. The statement says the message should identify the party on whose behalf the call was made (which may be a different organisation from the one that dialled), explain that the party tried to contact the recipient, and give a basic-rate number the person can call to decline further calls. It should not include marketing. A basic-rate number, in the statement, includes 01 and 02 numbers, 03 numbers charged at the geographic rate, a standard mobile rate, or a free number such as 080.

A later call from the person to that number should not be used as a chance to market to them without their consent. The statement is explicit about that.

Playing a proper message does not, in Ofcom's words, mean the call causes no unnecessary harm, and it does not stop persistent misuse occurring. It can tell the person who called, and give them a way to ask for no further calls.

A live call, in the abandoned-call-rate annex, is a call a live person answers that is then connected to a live agent. If that connection does not happen, the call is abandoned when an information message is played (or would have been), and silent when no message is directed at the person.

The two-second point in the current statement is about the message, not a rule that an agent must be on the line within two seconds. Ofcom says the time taken to connect the person to a message can aggravate misuse, and gives a delayed information message on an abandoned call as the example. It may consider whether the person is connected to a message as quickly as possible, and no longer than two seconds, after one of two moments. Where playing the message depends on the technology recognising a voice or other sounds in order to classify the call, the clock starts when the person begins to speak (the “start of salutation”). In any other case, it starts when the phone has been picked up.

The statement applies that timing to an information message, an automated message or an interactive message. It does not publish a separate two-second limit for connecting a live agent.

CLI is the number presented with the call. Ofcom says it helps the person decide whether to answer, call back, and report the call. Misuse of CLI, in the statement, includes withholding the number on marketing calls in breach of PECR, displaying a number that is not authentic or valid, displaying a number that cannot be called back to an agent or an automated message, and displaying a controlled premium-rate number.

Using several CLIs is not automatically misuse. Ofcom says there can be a proper reason, such as different numbers for different groups of customers. It may still treat the practice as misuse where the numbers mislead people about who is calling or are used to avoid detection.

Where a CLI is withheld, Ofcom says it will usually treat that absence as aggravating the harm, particularly on a silent call, because the person then has no information about the caller. Where a CLI is provided, Ofcom may look at whether it is a basic-rate number, whether more than one number was used, and whether a return call hears an information message of the kind described above.

The ICO's guidance on live marketing calls says you must display your number, or another number on which you can be contacted, and must not withhold your number when making direct marketing calls. You must also say who is calling, and give contact details or a freephone number if asked. That ICO guidance is under review because of the Data (Use and Access) Act.

Ofcom says repeated misuse of the same number, or the same recipient, is generally an aggravating factor. One way it may assess that is whether any further calls that constitute misuse are made within 72 hours of the first instance. Footnote examples of misuse in that paragraph are silent or abandoned calls.

If those further calls are made, Ofcom says it would consider the circumstances, including whether there are good reasons for the repeat, and whether the calling party guaranteed the availability of a live agent for the repeat call. If a live agent was not available for that repeat, Ofcom is likely to regard the repeated call as an aggravating factor. That is a factor in how seriously Ofcom treats the case. The statement does not describe it as a ban on every further call, and it does not name a number of calls per day that is allowed.

“Calls per day” in this policy is the unit used for the abandoned call rate, below: each calendar day, from midnight to midnight. Ofcom may also look at how many silent, abandoned or other calls were made, and at the rate, when it decides whether to act. It does not publish a daily cap.

The abandoned call rate (ACR) is one factor Ofcom may use when it has to prioritise abandoned-call cases. The statement says a higher ACR would indicate that a greater proportion of the calling party's conduct is misconduct, and that Ofcom may be more likely to act. It also says Ofcom may take action in any case where abandoned calls are made. The statement names no abandoned-call threshold.

Ofcom's formula is for each calendar day, meaning midnight to midnight. In words: abandoned calls divided by (abandoned calls plus live calls). A live call is one answered by a live individual and connected to a live agent. The denominator is the calls where a connection was established with a live individual: those live calls, plus abandoned calls where a live person answered and a message was played.

Left out of the calculation are silent calls, unconnected calls, and answer-machine calls. The answer-machine exclusions in the statement are: a machine picked up and then disconnected by answer-machine detection; a machine mistaken for a person and connected to an agent (a false negative); and calls abandoned to answer machines.

The rate can be looked at per campaign or per call centre, and Ofcom says it may aggregate or disaggregate those figures depending on the case. A campaign, in the annex, is calls for a single proposition to a single target audience. The same campaign can run from more than one centre and across more than one day.

Where the caller cannot split abandoned calls between live people and answer machines, the annex sets out an assumption: the share of agent-connected calls that were answer machines is also applied to the abandoned calls, and only the estimated live-person abandons go into the formula. The worked example in the statement is an illustration of that method. It is not a target rate.

Definitions of the terms, and how 626Dialler reports the rate you set, are in the abandoned call rate glossary entry.

626Dialler does not decide your abandoned-call target. You set it. Pacing eases off as the live rate approaches that target, and you can monitor the rate and report on it per campaign, per day. Predictive dialling is on Starter, Growth and Enterprise. Progressive and preview, which place one call per free agent or wait for the agent to dial, are on Growth and Enterprise. Answerphone detection can be tuned per campaign. A wrong classification can still leave a person in silence. The dialling modes guide compares those modes.

626Dialler places calls with the numbers you configure, including numbers you port in or bring on your own SIP trunk. Starter includes TPS and CTPS suppression, and the pricing page says TPS and CTPS suppression is on every plan. Alveus hosts 626Dialler for every customer. None of those controls is a substitute for reading the statement and deciding how your campaign should run.

Plan details are on the pricing page. Book a demo if you want to see the abandon-rate target, the information message and CLI settings on a campaign.