Statement issued by the Director General of Telecommunications – 18 January 2002

Contents  

Summary

Chapter 1 – Introduction and background

Chapter 2 – Responses to the consultation

Chapter 3 – Guidance

Chapter 4 – Conclusions

Chapter 5 – Consultation on the proposed licence modification

Annex A – List of respondents

Annex B – Modification to all PTO licences

Glossary

Summary

S.1 This statement sets out the Director’s conclusions following the Use of automatic calling equipment review consultation document published in June 2001.

S.2 The Use of automatic calling equipment licence condition (the ACE Condition) prohibits the use of automatic calling equipment (ACE) where the resultant call does not consist of live speech, unless written consent has first been obtained from the recipient of the call. The ACE Condition is intended to protect consumers from abuses, including:

• using ACE to deliver recorded messages;
• using ACE to initiate calls with insufficient operators available to take the calls when answered, resulting in customers receiving either a recorded message or just silence;
• using ACE to dial a series of numbers to identify fax machines, resulting in customers receiving fax tones or just silence; and
• using ACE to send unsolicited facsimile messages,

without obtaining the prior consent of the party called.

S.3 The consultation sought views on whether or not there remained a need for this consent to be provided in writing. The concern was whether the requirement, while ensuring adequate consumer protection against abuses of ACE, was at the same time unnecessarily inhibiting the development and launch of new products and services that could offer benefits to consumers. This would be contrary to Oftel’s strategy of ensuring that regulation is kept to the minimum necessary to obtain the appropriate outcome.

S.4 The Director’s view was that retaining the requirement to obtain consent meant consumers would remain adequately protected, but that requiring consent in writing was unnecessary. This approach would follow the requirements regulating the use of ACE for direct marketing purposes as set out in the Telecommunications (Data Protection and Privacy) Regulations 1999, which are enforced by the Information Commissioner.

S.5 The consultation proposed a licence modification that would have the effect of removing the requirement for consent to be provided in writing.

S.6 The Director has now reviewed the responses received from interested parties to the consultation. He remains satisfied that the modification will ensure that consumers remain adequately protected, while allowing more products and services to be offered that will enable consumers to receive the benefit of automated services should they wish to.

S.7 Subject to statutory public consultation, the Director has decided to modify the ACE Condition in all Public Telecommunications Operator (PTO) licences, as set out in Annex B. The Department of Trade and Industry will take the earliest opportunity to amend accordingly the ACE condition in the Self Provided Telecommunications Systems Licence (SPL), the Telecommunication Services Licence (TSL), the International Simple Voice Resale (ISVR) licence and the Cordless Class Licence (CCL).

S.8 The appropriate statutory public consultation Notice will be published on 18 January 2002.

Chapter 1 – Introduction and background

Introduction

1.1 In June 2001, Oftel published a consultation document, Use of automatic calling equipment review, that sought views on a proposed licence modification to remove the requirement for consent to be provided in writing in the Use of automatic calling equipment licence condition (the ACE condition). The responses received from interested parties to the consultation have been reviewed and this statement sets out the Director’s conclusions.

Background

1.2 Oftel believes that consumers should be protected from the intrusion of unwanted calls, which can constitute an irritating invasion of privacy.

1.3 Automatic calling equipment (ACE) is telecommunications apparatus capable of automatically initiating a sequence of calls to more than one number. The use of ACE has been specifically regulated because of the potential for abuse to take place on a very large scale. ACE enables a large number of calls to be made to a large number of recipients in a very short space of time and at relatively low cost to the initiator of those calls.

1.4 The ACE Condition appears as Condition 17 in all Public Telecommunications Operator (PTO) licences, Condition 5 in the Self Provided Telecommunications Systems Licence (SPL), Condition 9 in the Telecommunication Services Licence (TSL), Condition 9 in the International Simple Voice Resale (ISVR) Licence and Condition 9 in the Cordless Class Licence (CCL).

1.5 The ACE Condition currently only prohibits the use of ACE where the resultant call does not consist of live speech, unless written consent has first been obtained from the recipient of the call. It does not prohibit the use of ACE where there is a live operator waiting to take the call dialled, as such practices are often used by organisations for reasons of efficiency.

1.6 The ACE Condition is intended to protect consumers from abuses, including:

• using ACE to deliver recorded messages;
• using ACE to initiate calls with insufficient operators available to take the calls when answered, resulting in customers receiving either a recorded message or just silence;
• using ACE to dial a series of numbers to identify fax machines, resulting in customers receiving fax tones or just silence; and
• using ACE to send unsolicited facsimile messages,

without obtaining the prior consent of the party called.

1.7 The Telecommunications (Data Protection and Privacy) Regulations 1999 (the Regulations) regulate the use of ACE for direct marketing purposes and enforcement is the responsibility of the Information Commissioner. The ACE Condition does not apply where the Regulations apply.

The consultation

1.8 The review was carried out following a request from BT that the Director give his consent under the ACE Condition in BT’s licence, for BT to operate two services without first obtaining consent in writing from the recipients of the services. The two services are:

• Customer Initiated Line Testing (CILT), an automated service that tests a customer’s line following customers reporting a faulty line and requesting a line test; and
• Cleared not Closed (CNC), an automated service to obtain customer confirmation that a fault has been repaired.

1.9 Following consideration of these two services, the Director considered that they represented services offering clear consumer benefit with little potential for abuse of the kind that the ACE Condition was intended to prevent. As a result, he considered it appropriate to consult, not just specifically on the consent requested by BT, but more widely on the requirement for consent to be provided in writing contained in the ACE Condition. The concern was whether this requirement, while ensuring adequate consumer protection against abuses of ACE, was at the same time unnecessarily inhibiting the development and launch of new products and services that could offer benefits to consumers. This would be contrary to Oftel’s strategy of ensuring that regulation is kept to the minimum necessary to obtain the appropriate outcome.

1.10 The Director’s view was that retaining the requirement to obtain consent meant that consumers would remain adequately protected, but that requiring consent in writing was unnecessary. This approach would follow the requirements regulating the use of ACE for direct marketing purposes as set out in the Telecommunications (Data Protection and Privacy) Regulations 1999, which are enforced by the Information Commissioner.

1.11 The consultation presented three ways in which the Director could remove the requirement for consent to be provided in writing: licence modification, generic consent, and individual consent. For reasons of clarity and transparency, the Director proposed making a licence modification.

Chapter 2 – Responses to the consultation

2.1 Oftel received responses from the seven respondents listed in Annex A.

The removal of the requirement for consent to be provided in writing

2.2 Generally, all the respondents are in support of a licence modification to remove the requirement for consent to be provided in writing. One of the respondents would prefer that an individual consent is granted to BT. However, it has acknowledged that there is minimal risk of abuse if a licence modification is made.

2.3 The Director remains satisfied that the modification will ensure that consumers remain adequately protected, while allowing more products and services to be offered that will enable consumers to receive the benefit of automated services should they wish to.

2.4 Subject to statutory public consultation, the Director has decided to modify the ACE condition in all PTO licences to remove the requirement for consent to be provided in writing. The modification is attached at Annex B. The Department of Trade and Industry will take the earliest opportunity to amend accordingly the ACE condition in the SPL, TSL, CCL and ISVR licence.

Other issues

2.5 A number of respondents have raised separate and additional issues that were not considered in the consultation document. These are listed below.

2.6 The Director considers that issues C and D below require further consideration. However, he has decided not to delay making the above licence modification in order to allow BT to launch its proposed services. Under the proposed new European Directives, existing licences will be replaced by a new regulatory regime. Oftel intends to review all existing licence conditions as part of the process required for the implementation of these Directives. It is intended that issues C and D be fed into this review and implementation process.

A. Addition of the words ‘or continue’ after ‘to receive’ in X.2(a) of the ACE Condition

2.7 One respondent has requested the addition of the words ‘or continue’ after ‘to receive’ in X.2(a) of the ACE Condition. This would allow attempts to be made to deliver a call prior to obtaining the recipient’s consent. The ability to opt-out of continuing with the call would be presented once the recipient had answered the call. This change would, for example, permit the use of ACE to dial a number of recipients without their prior consent and only when the call was answered, would a recorded message ask for their consent to continue with the call. The respondent claims that without this change many new services with potential consumer benefit would unnecessarily be prohibited.

Oftel’s response

2.8 Removing the requirement to obtain the recipient’s prior consent would be an unacceptable relaxation of the current rules. Allowing all calls using ACE to be made in the first instance without the consent of the called party is likely to lead to increased numbers of consumers receiving unwanted calls constituting an invasion of their privacy. Such an approach would also confusingly differ from that adopted by the Regulations. The Director does not propose giving further consideration to this request.

B. The removal of the requirement that records be kept

2.9 One respondent has requested the deletion of the words ‘and which are identified by reference to Numbers which are used to make calls to those telecommunications systems’ in X.2(a) and the whole of X.2(b) of the ACE Condition. This would remove the requirement to identify recipients by reference to their telephone number and to keep records where consent had been provided. The respondent claims that this is the equivalent of written consent and that in certain instances it is not possible to keep records of consent.

Oftel’s response

2.10 The Director does not consider that the words referred to in X.2(a) and the whole of X.2(b) are equivalent to written consent. There should be a requirement that records of consent be kept in case consent is disputed. The Director does not propose giving further consideration to this request.

C. The clarification of a number of terms in the ACE Condition

2.11 A number of respondents have requested that terms contained in the ACE Condition be clarified, for example, ensuring that it is clear on the face of the ACE Condition that it covers situations where ACE is used and the recipient receives a silent call.

Oftel’s response

2.12 Oftel is aware that there may be terms in the ACE Condition that are less than clear. It is especially important that it is clear that the ACE Condition covers silent calls, as the occurrence of abuses such as ACE being used to identify fax numbers with no message or sounds being transmitted is increasing. Many consumers mistake these silent calls for malicious calls or telephone stalking. This will be addressed in the licence condition review process as explained in paragraph 2.6.

D. Including a requirement to provide CLI and contact details

2.13 A number of respondents have requested that the provision of CLI and contact details should be required by the ACE Condition to provide consumers with more information and consequently more protection from unwanted calls.

Oftel’s response

2.14 There would be value in ensuring that all users of ACE provide CLI and where a recorded message is left, provide contact details such as their name, address, and freephone number. The consultation document stated that Oftel expected those using ACE to provide CLI and contact details but did not propose to require this in the ACE Condition. The Regulations require that the name and address or freephone number of the calling party are provided. This will be addressed in the licence condition review process as explained in paragraph 2.6.

E. The relationship between the ACE condition and the Regulations

2.15 A few respondents have raised concerns that there appears to be a gap between the ACE Condition and the Regulations.

Oftel’s response

2.16 There is no gap between the ACE Condition and the Regulations. It is clear on the face of the licence condition that where the Regulations apply the ACE Condition does not. If the Regulations do not apply and the conduct falls within the terms of the ACE Condition, the Director will consider taking action, even if the use of ACE is for the purposes of direct marketing.

Chapter 3 – Guidance

The meaning of ‘consent’

3.1 The respondents who commented on the definition of ‘consent’ agree that it should be interpreted on the following basis:

• There must be some active communication between the parties. Consent cannot be inferred from a non-response to a communication;

• The adequacy of any consent or purported consent must be evaluated; for example, consent which was later found to be given under duress or on the basis of misleading information would not be valid;

• When consent has been given it will not necessarily endure forever. Individuals may withdraw consent; and

• Consent must be both specific and informed.

3.2 The Director does not consider written consent to be necessary. However, implied consent will not be sufficient.

Provision of CLI and contact details

3.3 As stated above, the issue of requiring the provision of CLI and contact details will be addressed in the licence condition review process taking place as part of the implementation of the proposed European Directives. In the meantime, the Director expects that operators will provide CLI when making calls using ACE, and, where a message is recorded, identify themselves and provide contact details. The recipient of the call should be able to contact the caller should they wish to obtain any information about the call.

Chapter 4 – Conclusions

4.1 Having taken account of the responses received, the Director has decided to modify Condition 17 in all PTO licences as set out in Annex B. The Department of Trade and Industry will take the earliest opportunity to amend accordingly the ACE condition in the SPL, TSL, CCL and ISVR licence.

4.2 The Director remains satisfied that the modification to remove the requirement for consent to be provided in writing will ensure that consumers remain adequately protected, while allowing more products and services to be offered to enable consumers to receive the benefit of automated services should they wish to.

4.3 The modification is subject to statutory public consultation and the appropriate Notice will be published on 18 January 2002.

Chapter 5 – Consultation on the proposed licence modification

5.1 Under Section 12 of the Telecommunications Act 1984, the Director is seeking comments on the proposed modification to all PTO licences set out in Annex B to this statement.

5.2 The Director will publish the appropriate statutory Notices on 18 January 2002.

5.3 Parties likely to be affected by the proposed changes to the PTO licences have until 18 February 2002 to make representations or objections to the proposed changes. Any representations or objections must be made in writing and, where possible, sent by e-mail to selina.chadha@oftel.gov.uk. However, copies may also be posted or faxed to the address below. If any affected parties are unable to respond in one of these ways, they should discuss alternatives with the Oftel manager named below:

Selina Chadha
Oftel
50 Ludgate Hill
London
EC4M 7JJ

tel: 020 7634 5307
fax: 020 7634 8847
e-mail: selina.chadha@oftel.gov.uk

5.4 In accordance with Section 12(6D) of the Telecommunications Act 1984, representations made against the proposed modifications shall be taken to constitute an objection only if a written statement that they are to be so taken accompanies them. The Director is required by Section 12(2) of the Act to consider any representations or objections on the proposed modifications duly made and not withdrawn. Subject to such consideration, the Director proposes to make the modifications as soon as practicable after the statutory consultation is completed.

Further copies of this document

5.5 This document can be viewed in the Publications section of Oftel’s website at www.oftel.gov.uk/publications/index.htm. Paper copies and alternative formats such as large print, Braille, disc and audio cassette can be made available on request. Please contact the Oftel Research and Information Unit on 020 7634 8761 or by e-mail at infocent@oftel.gov.uk for more information.

Publication of representations and objections

5.6 Representations and objections will be published, except where respondents indicate that a response, or part of it, is confidential. Respondents are therefore asked to separate out any confidential material into a confidential annex which is clearly identified as containing confidential material. Oftel will take steps to protect the confidentiality of all such material from the moment that it is received at Oftel’s offices. However, in the interests of transparency, respondents should avoid applying confidential markings wherever possible.

5.7 Non-confidential representations and objections can be viewed in the Publications section of Oftel’s website under classification Responses to Oftel consultations (www.oftel.gov.uk/publications/responses/index.htm) They may also be viewed in Oftel’s Research and Information Unit. Appointments must be made in advance (see contact details in paragraph 5.5).

Annex A – List of respondents

Oftel received responses to the consultation from the following:

• BT;

• Mr G Clatworthy (consumer);

• Consumer Communications for England (CCE);

• Independent Committee for the Supervision of Standards of Telephone Information Services (ICSTIS);

• Northern Ireland Advisory Committee on Telecommunications (NIACT);

• Orange; and

• Vodafone.

Annex B – Modification to all PTO licences

Condition 17 should be modified as follows:

Condition
17

USE OF AUTOMATIC CALLING EQUIPMENT

17.1 This Condition applies if the Applicable Systems, or any telecommunication apparatus comprised in them:

17.2 The Licensee shall, except insofar as the Director consents otherwise:

17.3 This Condition does not apply to any services which the Licensee supplies pursuant to Condition 19.

17.4 Paragraph 17.2(a) shall have no application where regulation 6 of the Telecommunications (Data Protection and Privacy) Regulations 1999 (S.I.1999/2093)(use of automated calling systems for direct marketing purposes) applies.

Glossary

ACE – Automatic calling equipment. Equipment or apparatus capable of automatically initiating a sequence of calls to more than one destination and are capable of transmitting sounds which are not live speech or facsimile messages.

CLI – Calling Line Identification. A facility that enables identification of the number from which a call is being made.

CILT – Customer Initiated Line Testing.

CNC – Cleared not Closed.