Ofcom has sent shockwaves through the telemarketing industry by pressing ahead with its zero tolerance approach to both silent and abandoned calls, despite claims that it had had a change of heart.
The regulator launched its consultation, reviewing how it uses its “persistent misuse” powers, in January last year.
Persistent misuse powers relate to organisations that misuse the telecoms network causing annoyance, inconvenience or anxiety to consumers. Ofcom has enforcement powers to prevent such harms affecting consumers.
The consultation document stated that 1.5 billion silent calls and 200 million abandoned calls are made every year. Ofcom received 44,900 complaints in the 12 months up to October 2015.
At the time, Ofcom claimed that the so-called 3% safe harbour rule – which meant companies must ensure that no more than 3% of calls are abandoned – had been interpreted by organisations as the threshold for enforcement action.
It pledged to take enforcement action whenever more than three single silent or abandoned calls are made.
Industry body the DMA met Ofcom to explain that the effect of this policy would be to effectively ban the use of diallers in contact centres in the UK.
Ever since that initial consultation and the DMA’s meetings with Ofcom in January and February 2016 the industry body has been awaiting a response, which has been delayed throughout the year.
However, in September sources suggested that Ofcom had performed a U-turn on the zero tolerance approach for both.
But Ofcom have doubled down on its previous position. Any abandoned call is classified as misuse, while the definition of persistent misuse has moved away from ‘three single abandoned calls’ to arguably a broader definition.
DMA director of external affairs Mike Lordan said: “Ofcom’s announcement has caused significant confusion and concern among the telemarketing industry. It will have a major economic impact on the legitimate marketing industry, in some cases making their businesses untenable, while leaving the rogue nuisance callers to continue ignoring the law when it comes to making silent or abandoned calls.”
The DMA pointed out in its meetings with Ofcom that this change in policy would have significant economic impact, something the regulator is duty bound to take into account.
Ofcom acknowledged that the economic impact of removing the 3% abandoned call rate will have costs, which may be significant. However, the regulator insists this economic cost is outweighed by Ofcom’s duty to protect consumers from harm and the large number of silent and abandoned calls consumers continue to receive, which cause harm and annoyance.
Regarding the 3% threshold as understood by the industry, Ofcom said: “We cannot create safe harbours allowing a certain amount of that conduct or unlawfully fetter our discretion to take action. The view held by respondents that the 3% abandoned call rate set out in the 2010 policy created a safe harbour is incorrect. Rather, it reflected a criterion for prioritising cases for action.”
This new policy will be enforced from 1 March 2017 so contact centres have less than 3 months to change their practices. The DMA is seeking an urgent meeting with Ofcom to discuss the proposed policy.
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