A consultation issued by the Director General of Telecommunications

Contents

Summary

Chapter 1 – Introduction

Chapter 2 – Consultation

Annex – The statement on persistent misuse

Summary

S.1 This document introduces Oftel's draft Statement of policy on the persistent misuse of an electronic communications network or electronic communications service. Such a statement is required to be published in accordance with clause 128 of the Communications Bill (version introduced into the House of Lords on 5 March 2003). The 'persistent misuse' clauses of the Bill give powers to the Director or Ofcom to take action against persons who misuse networks or services in a way that causes unnecessary annoyance, inconvenience or anxiety, but that falls short of the commission of a criminal offence.

S.2 Oftel is not statutorily required to consult on the statement. However it believes that it would be expedient to invite the comments of interested stakeholders on the statement and is therefore proposing an informal consultation, which will come to an end on 17 July 2003, so that the statement may be published on or before 25 July 2003.

S.3 This document contains an introductory background to the new powers, details of the informal consultation process as well as the statement itself, annexed.

Chapter 1 – Introduction

Persistent misuse

1.1 The Communications Bill, currently before the House of Lords, proposes to confer new powers on the Director of Telecommunications or Ofcom to regulate forms of behaviour which fall within the Bill's definition of persistent misuse of an electronic communications network or electronic communications service. The powers are set out in clauses 125 to 127 of the Bill, in the version introduced into the House of Lords on 5 March. The Bill is subject to change in its passage through Parliament.

1.2 The new concept of persistent misuse of an electronic communications network or electronic communications service supplements clauses in the Bill that create criminal offences relating to the use of networks and services which have essentially been carried forward from the Telecommunications Act 1984. These offences relate to:

• dishonestly obtaining electronic communication services;

• the possession or supply of apparatus that may be used to obtain such services fraudulently; and

• the improper use of a public electronic communications network by sending messages that are grossly offensive, indecent, obscene or menacing.

1.3 Persistent misuse is a category of behaviour intended to apply to activities that, although causing unnecessary annoyance, inconvenience or anxiety to another person, are not serious enough to be prosecuted as criminal offences. The new powers are a consumer protection measure that enables the Director or Ofcom to take action against persons whose use of networks or services has a detrimental effect on the public interest by their imposition of various types of nuisance on other users.

1.4 There is a presumption that the powers to take action against persistent misuse will not generally be used where there is an alternative legal remedy. Hence there are a range of activities which, although they undoubtedly involve the misuse of an electronic communications network or service and cause – at the very least – inconvenience to the public, are not covered by the statement. This is because Oftel believes that other legislation provides adequate remedies to deal with them. Such activities include:

• sending unsolicited commercial email or spam (data protection legislation);

• computer hacking or denial of service attacks (misuse of computers legislation); and

• threatening or abusive communications (legislation on malicious communications).

Background

1.5 The general background to the 'persistent misuse' legislation is the introduction of the new regulatory framework for electronic communications that takes effect from 25 July 2003. One of the major changes that the new framework will bring about is the replacement of licence conditions in individual and class telecommunications licences by a general authorisation, incorporating a set of general conditions, that will only apply to communications providers. In consequence the behaviour of corporate and residential end-users who do not provide communications services to third parties will no longer be regulated through licence conditions.

1.6 The withdrawal of telecommunications licensing from end-users could result in an unintended weakening of the Director or Ofcom's ability to protect consumers. There are a number of things that users can do over an electronic communications network or service that are likely to cause inconvenience to other users.

1.7 One example is the use of automatic calling equipment (ACE), which is equipment capable of being programmed to dial a series of numbers without further human intervention. A current licence condition, which applies to all business and residential users, prohibits the use of ACE to make calls that result in:

• recorded messages;

• short duration or silent calls (where a call centre generates a call to a number then drops it immediately after connection because no operator is available);

• fax-scanning calls (where a call is made for the sole purpose of establishing whether a fax machine responds on a particular number); and

• fax messages.

without the consent of the recipient or the Director.

1.8 A further example is the possible misuse of calling line identification facilities. At present there is a condition in the class licences which sets rules for those end-users who have private network equipment that enables them, in effect, to chose what CLI number will be associated with their calls. The rules are that any number used as a CLI number must be authentic (it identifies the caller), diallable (it must be possible to make a return call by using it) and must not be a premium rate number. A valuable consumer protection measure would be lost if it were not possible to enforce these rules under the new framework.

1.9 There are several other ways in which a network or service may be misused (see chapter 4 of the statement). The benefit of the 'persistent misuse' legislation is that it will enable the Director or Ofcom to take steps to protect consumers from the effects of the type of behaviour prohibited by these conditions as well as from the other forms of misuse identified in the statement.

The statement

1.10 Clause 128 of the Bill requires Oftel (because Ofcom has not yet assumed its powers and duties under the Bill) to publish a statement of its general policy with respect to the exercise of its powers under the persistent misuse legislation. A draft of that statement is published as an annex to this consultation. Although there is no statutory obligation on Oftel to consult on the statement it is fitting to expose it to an informal consultation process. This is particularly apposite as the types of behaviour that should be regarded as misuse and their relative seriousness is to some degree a matter of perception on which consumers should have an opportunity to make their input.

1.11 The statement begins by offering definitions of the two terms linked in the idea of 'persistent misuse'. It also lists and describes some examples of what Oftel believes to be persistent misuse. Sections also deal with the procedural aspects of the legislation, which include the giving of notifications of persistent misuse and enforcement notifications. The statement concludes with some ideas as to what might be required of notified persons to remedy the consequences of their misuse, which can include the payment of compensation to injured parties and the imposition of penalties.

Chapter 2 – Consultation

2.1 Oftel is publishing this consultation document so as to invite comments from interested parties on the draft statement. A wide range of stakeholders may well have an interest in the issues covered in the statement. Opinions from individuals, as well as from trade bodies, user groups and industry representatives are welcome.

2.2 The purpose of this consultation is to solicit the responses of stakeholders to the contents of the draft statement. Questions that respondents may wish to consider include:

• do you agree with Oftel's understanding of what 'persistent misuse' is?

• do you agree that the examples listed are representative of persistent misuse?

• are there any other ways of misusing a network or service that should be listed?

• do you think the sections on (a) compensation payments and (b) penalties are broadly along the right lines?

Respondents need not feel limited by these questions and should feel free to address other relevant topics. However it should be borne in mind that the scope of the consultation is limited to the statement, not to the proposed legislation that has inspired it

2.3 Where possible, comments should be made in writing and sent by e-mail to frank.phillips@oftel.gov.uk. They should be received no later than 17 July 2003. However, copies may also be posted or faxed to the address below. If any interested parties are unable to respond in one of these ways, they should discuss alternatives with the Oftel manager named below:

Frank Phillips
Oftel
50 Ludgate Hill
London
EC4M 7JJ

e-mail: frank.phillips@oftel.gov.uk

Further copies of this document

2.4 This document can be viewed in the Publications section of Oftel’s website at www.oftel.gov.uk, under classification www.oftel.gov.uk/publications/consumer/2003/mis0603.htm. Paper copies and alternative formats such as large print, Braille, disc and audio cassette can be made available on request. Please contact Oftel’s Research and Information Unit by phoning 020 7634 8761 or by e-mailing infocent@oftel.gov.uk.

Publication of comments made by stakeholders

2.5 On this occasion, Oftel is not programming a formal period during which interested parties may comment on the responses made by others. Nevertheless, in the interests of transparency, comments 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.

2.6 Non-confidential responses can be viewed on Oftel’s website in the Publications section under Responses to Oftel consultations. Comments can also be viewed at Oftel’s Research and Information Unit. Appointments must be made in advance.

e-mail notifications

2.7 Oftel has a free e-mail based mailing list to help people stay informed about the work that Oftel is doing. Each time an Oftel document is published and placed on Oftel’s website at www.oftel.gov.uk, subscribers to the list receive an e-mail alert. To register, please go to the What’s New section of the website and access the electronic form.

Next steps

2.8 Following the completion of this consultation exercise, Oftel will publish a statement setting out its conclusions and will publish the clause 128 statement on persistent misuse by 25 July 2003.

Annex – Statement of policy on persistent misuse of an electronic communications network or electronic communications service

Contents

1. Introduction

2. What, in Oftel's view, constitutes 'misuse of a network or service?

3. When, in Oftel's view, will misuse be viewed as 'persistent'?

4. Examples of persistent misuse

5. Oftel policy on the formal giving of notifications

6. The consequences of a notification

7. Oftel policy on penalties for persistent misuse

Chapter 1– Introduction

1.1 This is the statement of general policy that Oftel will be required to publish under clause 128 of the Communications Bill (the Bill) with respect to the exercise of its powers under clauses 125 to 127 of the Bill (References to the Communications Bill in this statement are references to the print of 5 March 2003. The Bill may be subject to change in its passage through Parliament). Because Ofcom has not yet assumed its powers and duties under the Bill, this statement sets out Oftel's policy which Ofcom will have to decide whether it wishes to adopt.

1.2 The purpose of this statement is to offer a degree of clarity about the operation of the 'persistent misuse' clauses 125 to 127 of the Bill. These clauses enable Ofcom to issue notifications where it has reasonable grounds for believing that a person has persistently misused an electronic communications network or electronic communications service. These clauses also set out enforcement procedures and penalties where there has been 'persistent misuse'. The Bill lays a duty on Ofcom (see note one below) to have regard to the statement in exercising the powers conferred on it by the relevant clauses. However the statement cannot bind Oftel/Ofcom absolutely in exercising those discretionary powers. Oftel may revise the statement from time to time as it thinks fit (see note two below).

1.3 The statement addresses the following policy issues:

• What, in Oftel’s view, constitutes ‘misuse’ of a network or service?

• When, in Oftel’s view, will misuse be viewed as ‘persistent’?

• Examples of persistent misuse

• What is Oftel's policy on the giving of clause 125 notifications?

• The consequences of a notification

• What is Oftel's policy on penalties for persistent misuse?

Chapter 2 – What, in Oftel’s view, constitutes ‘misuse’ of a network or service?

2.1 Clause 125(5) sets out two definitions of what constitutes misuse of an electronic communications network or electronic communications service. A person misuses a network or service if:

2.2 In both cases the significance of the words "likely effect" is that the effect has to be probable, not necessarily proven. The two cases may be distinguished insofar as the former requires the direct use of a network or service whereas the latter captures a wider category of behaviour which involves conduct dependent on the use of a network or service. An example of the former is where a person uses a telephone to make a short duration call (ie one where the person rings off before the called party has time to answer); an example of the latter is conduct that results in a person being led unknowingly to dial a premium rate service.

Chapter 3 – When, in Oftel’s view, will misuse be viewed as ‘persistent’?

3.1 To fall within the provisions of clauses 125 to 127 it is not sufficient to misuse an electronic communications network or service. The misuse must be persistent; in other words it must be ‘repeated on a sufficient number of occasions’. Clause 125(6) offers two ways of determining whether misuse has been repeated sufficiently to count as persistent. The misuse must either represent:

a pattern of behaviour or practice (see note five below); or

recklessness as to whether persons suffer annoyance, inconvenience or anxiety (see note six below)

3.2 The first test is met by instances of repetitive misuse. It is well-nigh impossible to define in advance what cycle of repetitive behaviour may reasonable be described as forming a pattern. This will need to be determined on a case by case basis. However any such pattern is likely to require a minimum of three instances of the conduct in question in order to be recognised as such. More generally, the episodes that compose a pattern are subject to three variables: those of number, frequency and regularity. 'x' instances of a short duration or silent call on successive days is more likely to be considered to form a pattern than '2x' instances at random intervals over a twelve month period.

3.3 The second test requires the misuse to represent 'recklessness' on the part of the misuser. A consideration of ‘recklessness’ will require some assessment of the state of mind or subjective intention of the misuser. This will need to be determined on a case by case basis. Although it is notoriously difficult to establish what was passing through someone's head at a given moment, evidence that points to recklessness could be that:

• the misuser was informed of the effect of his behaviour but continued with it; or

• the behaviour in question is so patently annoying (eg ringing someone repeatedly in the middle of the night) that no reasonable person could not have realised it would have that effect.

3.4 In determining whether misuse is persistent or not, the Bill makes it clear (see note seven below) that it is immaterial whether networks were used on some occasions and services on other occasions; that different networks or services were used on different occasions; and that the persons exposed to the misuse were different on different occasions.

Chapter 4 – Examples of persistent misuse

4.1 Having analysed the reasonable grounds for believing that a form of behaviour may represent persistent misuse, it will be helpful to identify six general areas within which such forms of behaviour typically occur. There is a degree of overlap between these areas; several forms of misuse will fall into more than one category.

4.2 The examples are intended to be illustrative rather than inclusive and will not prevent Oftel, where there is an overriding reason of public policy, from issuing a notification in respect of behaviour which is not identified by this statement. Such an overriding reason would exist where, for example, a new technology or new use of technology allowed for the operation of a form of misuse not previously known to Oftel, which has the potential to cause immediate and serious detriment to consumers. In these circumstances Oftel would take the necessary measures to prevent further detriment and also initiate a revision of the statement to incorporate the new form of misuse.

4.3 The six areas are:

• misuse of automatic calling equipment
• misuse by making silent or short duration calls
• number-scanning
• misuse of a calling line identification facility
• misuse for dishonest gain
• misuse of allocated telephone numbers.

4.4 Misuse of automatic calling equipment

4.4.1 Power diallers offer the possibility of initiating calls to a sequence of numbers in accordance with stored instructions without the need for each individual number to be dialled in turn. They are widely used in call centres. Within a regulatory environment power diallers are more commonly known as automatic calling equipment (ACE) with the additional qualification that the calls are made without human intervention. In this context, this means that the contents of the call does not involve an operator or live speech.

4.4.2 Under the existing Telecommunications (Data Protection and Privacy) Regulations 1999 (‘the 1999 Regulations’) it is an offence to use ACE to make unsolicited direct marketing calls. An example of such a call is a recorded message, where no operator present. It is likely that a similar provision, where calls do not consist of live speech, will be carried forward into new Regulations entering into force on or before 31 October 2003 which will implement the Directive (2002/58/EC) (see note eight below) on privacy and electronic communications (‘the Privacy Directive’).

4.4.3 The concept of direct marketing that the 1999 Regulations and the new Privacy Directive rely on is very broad and applies not just to the advertisement of goods and services but also to the promotion of an organisation's aims and ideals. It therefore applies to political and charitable, in addition to commercial, organisations. However there may be types of unsolicited recorded messages sent by ACE that cause annoyance or inconvenience but which, for whatever reason, fall outside the 1999 Regulations or the provisions of the Privacy Directive.

4.4.4 Under the existing regulatory framework based on the Telecommunications Act 1984 the use of ACE for purposes other than direct marketing is regulated under a licence condition included in both individual and class telecommunications licences which applies to all communications providers and end-users running a licensed system. The effect of the condition is to prohibit the use of ACE without the consent of called parties to initiate calls that consist of:

• recorded messages
• short duration calls
• fax-scanning calls
• fax messages.

4.4.5 As a result of consultation, it is not proposed to include a similar condition in the General Conditions of Entitlement (which will only apply to communications providers, not end-users) on the grounds that it represents disproportionate regulation and might limit the development of innovatory services which require some kind of automatic notification sent on an individual basis.

4.4.6 In its response to the consultation (see note nine below), Oftel explained that the provisions of clauses 125 to 128 (which have the advantage of applying to end-users as well as communications providers) and the restrictions on the use of ACE in the 1999 Regulations and the Privacy Directive will provide adequate protection for consumers against the misuse of ACE. Oftel believes that the persistent use of ACE to transmit recorded messages or to make short duration calls (see section 4.5) or fax-scanning calls (see section 4.6) is persistent misuse within the meaning of clause 125.

4.4.7 As the Oftel response also recognised, some uses of ACE offer benefits to the public. One example is the possibility of emergency authorities being able to send a recorded hazard warning to subscribers within a defined geographical area; a second is the kind of automated services offered by some communications providers that test a subscriber's line or obtain a subscriber's confirmation that a faulty line has been repaired.

4.5 Misuse by making silent or short duration calls

4.5.1 A silent call is one where a caller makes a call but then remains silent. A short duration call (hereafter a 'short' call) is one where a call is established and then immediately terminated by its originator before the called party is able to answer. The effect of either type of call on a called party is almost certain to cause inconvenience and is very likely to cause annoyance. This will be exacerbated where lack of CLI information precludes the possibility of a return call. Anxiety may also be caused, in particular when an individual has received a number of such calls over a short period, and may conclude that he/she is being specifically targeted.

4.5.2 There are a number of circumstances which give rise to silent or short calls. The most serious are silent calls made with a malicious intent to deliberately frighten or annoy the called party. In such cases, where intentionality can be demonstrated, the caller may be guilty of a criminal offence under clause 124. However, there are also less serious instances, where the behaviour may more fairly be judged as mischievous rather than malicious; an act of irresponsibility comparable to ringing a door bell and then running away. In such cases, where the behaviour is repeated, action under clause 125 would be justified.

4.5.3 The most common form of short duration call is not intentional but arises from the use of power diallers or ACE within call centres (see section 4.4 above). Calls are automatically generated but in the absence of an operator to speak to the called party, the call is abruptly terminated. This type of short duration call has no malicious intent. Nonetheless, properly run call centres will strive to ensure that they do not generate more calls than their operators can handle. A persistent failure to do so may lead to the issue of a notification under clause 125.

4.6 Number-scanning

4.6.1 Another example of the short call arises from the practice of number-scanning where calls are made to find out which telephone numbers, out of a range of numbers, are in service or not. As soon as a tone is received which establishes the status of a particular number the call is terminated. This activity is carried out so to develop lists of active telephone numbers. As well as the inconvenience caused to the recipient of an abruptly terminated call, such behaviour is detrimental to consumers in general by adding to network congestion without generating any revenue for providers.

4.7 Misuse of a calling line identification facility

4.7.1 Calling line identification (CLI) is a technology that identifies the number from which a call is made or enables a return call to be made. Oftel will regard the repeated forwarding of inauthentic or misleading CLI information as persistent misuse. A similar restriction is currently imposed on all end-users and some communications providers through a class licence condition. Where users have the ability to choose the CLI number that is forwarded (this is known as a Presentation Number), the deliberate sending of an inauthentic or misleading number from which it is not possible to identify the caller and which does not enable the recipient of a call to return a message is a form of misuse. This is without prejudice to a caller's right to preserve their anonymity by withholding their number.

4.7.2 It will also be regarded as a form of misuse to forward a CLI number that has been allocated to a Premium Rate Service provider. A return caller may suffer annoyance or inconvenience by unwittingly making a return call for which they are charged more than they may reasonably expect.

4.8 Misuse for dishonest gain

4.8.1 There are a number of activities associated with the use of electronic communications services and networks motivated by a desire for unscrupulous or dishonest gain. Although this statement will not fully describe all those that have been discovered (so as not to encourage their perpetration) and cannot describe schemes that have yet to be practised, these activities share certain common features.

4.8.2 The first feature they share is that they are primarily aimed at defrauding end-users, rather than communications providers. Although clause 122 of the Bill makes it a criminal offence dishonestly to obtain electronic communications services, there is no specific consumer protection measure within the Bill that makes it an offence to defraud end-users by means of an electronic communications network or service. Instead end-users have had to rely on the protection offered by general legislation against theft, fraud or obtaining money by false pretences which do not easily lend themselves to suppressing the types of scheme outlined here.

4.8.3 The second feature they share is the exploitation of premium rate or revenue sharing services. The essence of the scam is that users are deceived into phoning a number without realising that it is a premium rate or expense sharing service and so costs more than they expect. Examples of this that have come to light in recent years include:

• faxing a revenue sharing or premium rate fax number where the terminating fax machine has been set to run deliberately slowly thus increasing the duration of a call;
• the apparently-personal text message that invites a return call to a premium rate number; and
• making a silent call where any return call connects the caller to a premium or expense sharing number (this latter example is also misuse through silent calls and misuse of CLI facilities).

4.8.4 In some circumstances the deception that incites a caller to phone a premium rate number will be a form of direct-marketing and additionally subject to applicable legislation. For example, under Regulation 8 of the Electronic Commerce (EC Directive) Regulations 2002 any unsolicited commercial communication sent by electronic mail must be clearly and unambiguously identifiable as such as soon as it is received. Article 13(4) of the Privacy Directive prohibits the practice of disguising or concealing the identity of the sender of electronic mail used for direct marketing purposes. The definition of ‘electronic mail’ in the Privacy Directive is broad enough to apply to SMS or text messages as well as e-mail.

4.8.5 Oftel will regard the practice of tricking callers into phoning a premium rate or revenue sharing number as misuse, and if repeated, persistent misuse.

4.9 Misuse of allocated telephone numbers

4.9.1 Where end-users have been allocated telephone numbers, Oftel will regard their use in a way that is inconsistent with the National Telephone Numbering Plan (the ‘Plan’) as a form of persistent misuse. An example would be where Personal Numbers (070) are used for anything other than Personal Numbering (as defined in the Plan) or where revenue on a Personal Number was being acquired by the end-user (in contravention of a restriction Part B of the Plan). A further example would be where Mobile Numbers (077, 078 and 079) are used for services other than those which fall within the definition of ‘Mobile Service’ in the Plan. In this context, the allocation of telephone numbers needs to be distinguished from the more usual case where an end-user's telephone number is sub-allocated to them by their provider. In such a case the original recipient, ie the party who was allocated the numbers by Oftel, will remain responsible to Oftel for the use of those numbers under the Numbering General Condition.

Chapter five – Oftel policy on the formal giving of notifications

5.1 Clause 125 authorises Oftel to issue a notification to a person where it has reasonable grounds for believing that a person has engaged in persistent misuse of a network or service. This power is limited insofar as the Secretary of State may make an order that behaviour of a specified description is not to be treated as a misuse of an electronic communications network or service where there is an appropriate alternative means of dealing with it (see note ten below). There is a general presumption that a notification will not be given where an alternative legal remedy is available, although this needs to be balanced by an awareness of the provision (see note eleven below) that allows for the imposition of a penalty under the 'persistent misuse' powers in respect of the same conduct for which a person is also liable for an offence under clauses 122 to 124 of the Bill.

5.2 The notification must include the following elements (see note twelve below):

• a determination that a person has persistently misused an electronic communications network or electronic communications service;
• a specification of the use that Oftel considers persistent misuse; and
• a specification of the period within which the notified person may make representations.

5.3 Because Oftel views the 'persistent misuse' legislation as being principally directed at consumer protection, its policy on issuing notifications will generally be consumer-driven. It is expected that representations made by consumers will be the most likely way in which instances of persistent misuse are brought to Oftel's attention. Where Oftel receives complaints it will need to investigate them to ascertain whether there is sufficient evidence to provide reasonable grounds for believing that persistent misuse has occurred.

5.4 The determination will need to refer to the evidential basis that supports the occurrence of persistent misuse. As the notification is required to be given to the person who is responsible for the misuse it will also be necessary for Oftel to establish the identity of the persistent misuser. As a point of clarification, it will not be possible to take action under this legislation against a communication provider over whose network or service the persistent misuse takes place, unless the communication provider itself is responsible for perpetrating the misuse. A provider over whose network silent or short duration calls are made cannot be made responsible for those calls.

5.5 The specification will describe the actual behaviour that constitutes persistent misuse supported by the grounds for believing that this behaviour is likely to give rise to annoyance, inconvenience or anxiety.

5.6 The specification of the period during which the notified person may make representations must not normally be less than a month but may be as short as seven days, in urgent cases. An urgent case is one where the misuse is both continuing and causing a degree of harm that requires it to be stopped as soon as is practicable (see note thirteen below).

5.7 Whether or not the misuse is continuing is a matter of fact; the degree of harm that it is causing is necessarily a matter of judgement. The factors that would tend towards a shorter period for representations are the scale of the misuse, the number of consumers on whom the misuse is impacting and the degree of detriment caused. An example of an urgent case might be where ACE is being exploited to send a high volume of recorded messages seeking to influence voting in a TV phone-in.

Chapter six – The consequences of a notification

6.1 Once the period allowed for the making of representations has expired, Oftel has three options:

• it can issue an enforcement notification to the misuser under clause 126 of the Bill;
• it can impose a penalty under clause 127 of the Bill; and
• it can issue an enforcement notification and impose a penalty.

6.2 An enforcement notification is appropriate where Oftel is satisfied that (see note fourteen below):

• the person who has been notified under clause 125 (the notified user) has persistently misused an electronic communications network or service;
• the notified user has not, since the giving of the notification, taken all the steps that Ofcom considers appropriate to ensure that the misuse is ended and not repeated; and
• the notified user has not, since the giving of the notification, remedied the consequences of the notified misuse in a manner that Ofcom considers appropriate.

6.3 The enforcement notification imposes a requirement on the misuser to take the necessary steps:

• to end the misuse and not repeat it, and
• to remedy the consequences of the misuse.

It will impose clear and enforceable obligations on a misuser and allow a reasonable period for compliance with them.

6.4 The Bill makes compliance with an enforcement notification a duty of the notified person (see note fifteen below), and enables Ofcom to enforce that duty through civil proceedings which may lead to an injunction, a requirement for specific performance of a statutory duty or any other appropriate remedy or relief (see note sixteen below).

6.5 In order to remedy the consequences, a mis-user may be required to pay the person who has suffered the effects of misuse an appropriate sum of money. In determining what is an appropriate amount in the circumstances of a particular case Oftel may take account of how much is required to provide compensation for the loss and damage suffered, and/or for the annoyance, inconvenience or anxiety experienced.

6.6 A policy on quantifying compensation payments needs to recognise that in many cases of persistent misuse there will be no pecuniary loss or damage, say in the case of silent or short duration calls or where there has been misuse of ACE. However a degree of annoyance, inconvenience or anxiety will invariably be present. A second consideration is that even where a quantifiable loss has been registered, the sums involved may be negligible, say, where someone has been tricked into making a £5.00 premium rate call. Even where loss or damage has been suffered it is arguable that the 'victim' feels that the irritation or inconvenience experienced was more traumatic than the actual loss sustained, and merits compensation at a higher level. Oftel is likely to hear such claims sympathetically.

6.7 It is not appropriate for Oftel to propose an ex ante tariff of compensatory payments in advance of applying this legislation. The intention is that over a period of time a scale will be developed that is internally consistent and will offer a degree of expectation. The reason for this is that the amount of compensation will have to be weighed according to the factors of a particular case and should be proportionate to the distress that has been experienced. Clearly, where misuse has given rise to anxiety the compensation would normally be greater than in cases that have only caused annoyance or irritation. Another factor is the individual susceptibility of the person experiencing the misuse. It might be reasonable to assume that silent or short duration calls made to a rugby club bar would have a less distressing impact than similar calls made to an individual who is vulnerable as a result of their age or state of health.

6.8 Individual susceptibility will normally be a less significant factor when it comes to quantifying the compensation payable for misuse that has caused annoyance or inconvenience. A person does not deserve more compensation simply because they are irascible by nature. In these cases Oftel will need to be guided by a normative concept of the average or reasonable individual. In assessing the level of compensation due, Oftel would in general expect to follow ordinary principles of law relating to damages. Oftel will also seek guidance, where applicable, from comparable compensation claims passing through the civil courts.

Chapter seven – Oftel policy on penalties for persistent misuse

7.1 As either a supplement or an alternative to the clause 126 enforcement notification, Oftel will be able to impose a penalty on a persistent misuser, once the period for making representations has elapsed. Oftel may also impose a cash penalty where a notified misuser has contravened a requirement of a clause 126 enforcement notification. Additionally, the Bill (see note seventeen below)allows for the imposition of a penalty where a person is liable for an offence under clauses 122 to 124 of the Bill (these clauses relate to the offences of dishonestly obtaining electronic communication services, possession or supply of apparatus which may be used for dishonestly obtaining such services, or improper use of a public electronic communications network).

7.2 The Bill sets £5000 as the upper limit for such a penalty, although this amount may be changed by order of the Secretary of State (see note eighteen below). Oftel is required to determine an amount which is both appropriate and proportionate to the misuse (see note nineteen below). In making such a determination, Oftel must have regard to

• any representations made by the notified misuser;
• any steps taken by the misuser to bring the misuse to an end and not repeat it; and
• any steps taken by the misuser to remedy the consequences of the misuse (see note twenty below).

7.3 Clearly, where a misuser has taken the necessary measures to bring the misuse to an end and agreed to pay an appropriate level of compensation, this argues for a penalty toward the lower end of the scale or even no clause 127 penalty at all. Conversely, failure to do these things aggravates the misuse and argues for a higher penalty.

7.4 Where Oftel thinks that the imposition of a penalty is justified, it will take account of three factors in setting the appropriate level of penalty that will invariably be present in any case of persistent misuse. They are:

• the degree of persistency;
• the number of people exposed to the misuse; and
• the seriousness of the misuse.

7.5 There are varying degrees of persistency. Acts of misuse repeated ten times or one thousand times may both count as persistent but, other things being equal, the second example merits a higher penalty.

7.6 Oftel will also need to take into account the number of people affected by the misuse. Where ACE is used to send a recorded message it seems reasonable that the greater the number of people targeted the higher the penalty should be. Moreover, because the 'persistent misuse' powers are framed with a view to the protection of individual consumers, it would be inappropriate to apply a 'percentage' approach. Where a large call centre generates, say, 200 short duration calls a day, it will not be a mitigating factor that these calls represent only three pre cent of the call centre's output. From the standpoint of an individual who has received such a call, there is little comfort to be drawn from the knowledge that 97 other people did not. In this context, it is also worth drawing attention to the provision that makes it immaterial whether the persons who are the victims of any misuse are different on different occasions (see note twenty-one below). It will not be a defence to say that each person only received a single recorded message.

7.7 The seriousness of persistent misuse will be a key factor in determining a clause 127 penalty. However the development of a calibrated scale of seriousness involves a degree of subjective judgement and Oftel recognises that people will have differing perceptions of how various forms of behaviour should be ranked. Oftel intends to commission research into users' opinions in this area, not only on the forms of behaviour that should be treated as persistent misuse but also on their relative gravity.

7.8 However there are some objective elements which Oftel will take into account. Is this the misuser's first offence or do they have a previous history of persistent misuse? Other things being equal, repeated acts of misuse deserve a higher penalty (for the avoidance of doubt, a persistent misuser may be notified more than once). What was the misuser's intention? There is a clear line to be drawn between accidental misuse, such as a mistakenly-programmed fax machine making repeat calls to a wrong number and a scam motivated by greed. Has the misuser done everything required of him by the enforcement notification? Has good faith in making amends been demonstrated?

7.9 Aside from these considerations, many of the factors discussed in the section on compensation, as set out in paragraphs 6.6 to 6.8, will also come into play. How great is the damage done? Where does the misuse fall on the spectrum of distress that extends from inconvenience (I have to stop what I'm doing to get up to answer a single silent call) through irritation (I answer the phone several times to hear a caller chortling, who then rings off) to anxiety (I have recently emerged from an abusive relationship and receive several silent calls a day – I no longer feel safe in my new home)?

7.10 Although it is not possible, until confronted with the specific circumstances of an individual case of persistent misuse, to be more prescriptive about the exercise of Oftel's clause 127 powers, the intention is that these powers will be exercised in a way that is consistent over a period so that a tariff structure will become apparent that has been shaped by the above considerations.

Notes:

1. Clause 128 (4), Communications Bill (print of 5 March 2003)
2. Clause 128 (2), ibid
3. Clause 125(5)(a), ibid
4. Clause 125(5)(b), ibid
5. Clause 125(6)(a), ibid
6. Clause 125(6)(b), ibid
7. Clause 125(7), ibid
8. the DTI consultation on the draft Regulations is posted at
www.dti.gov.uk/cii/regulatory/telecomms/telecommsregulations/comms_dpd.shtml#consult
9. Oftel's response is posted at www.communicationsbill.gov.uk/pdf/Implementation_Con_Doc_AnnexB.pdf
10. Clause 125 (8), ibid
11. Clause 127 (8), ibid
12. Clause 125(2), ibid
13. Clause 125(4), ibid
14. Clause 126(2), ibid
15. Clause 126(5), ibid
16. Clause 126 (6), ibid
17. Clause 127 (8), ibid
18. Clause 127 (9), ibid
19. Clause 127(4), ibid
20. Clause 127(5), ibid
21. Clause 125(7)(c), ibid