Own-initiative investigation regarding the annoyance caused to consumers by silent and abandoned calls

31 October 2005

Complainant: Ofcom own-initiative investigation
Investigation against: Promote-IT Ltd ('Promote-It'), Toucan Telecom, The Listening Company Ltd ('The Listening Company'), Ant Marketing, Thomson Directories Ltd ('Thomson Directories'), Fax Information Services Ltd ('Fax Information Services'), Firestorm Marketing Ltd ('Firestorm Marketing').
Case opened: 16 June 2005
Case closed: 31 October 2005
Issue: Persistent misuse of electronic communications network(s) or service(s)
Relevant instrument: Sections 128 to 131 of the Communications Act 2003

Ofcom has completed its investigation into seven companies following complaints about silent and abandoned calls. Ofcom has concluded that there are reasonable grounds to believe that four companies under investigation (Thomson Directories, Ant Marketing, Fax Information Services and Promote-It) have each engaged in persistent misuse of an electronic communications network or electronic communication services in a way that causes annoyance, inconvenience or anxiety to consumers. This conduct contravenes section 128(5)(a) and section 128(6)(a) of the Communications Act 2003 ('the Act').

Notifications

Ofcom has therefore issued notifications to each of Thomson Directories, Ant Marketing, Fax Information Services and Promote-It under section 128 of the Act. Each notification sets out the reasons for Ofcom's decision in relation to the relevant organisation, and requires the recipient to take actions to protect consumers from further misconduct and provide Ofcom with information about future compliance against a defined standard of conduct.

Thomson Directories and Ant Marketing (both making voice calls) are each required to ensure that from 30 November 2005, the abandoned call rate on each individual campaign over any 24 hour period shall be no more than three per cent of live calls. They must also comply with other measures set out in the notifications.

Fax Information Services and Promote-It (both making fax calls) are each required to ensure that from 30 November 2005, unsolicited communications are not sent via fax to any telephone number unless that number has been 'cleaned' against the Fax Preference Service (FPS) file within the previous 28 days and the company's in-house suppression list. They must also comply with other measures set out in the notifications.

The notifications also require each of the organisations to report to Ofcom every month with evidence of compliance with the requirements set out in the notifications with the first monthly written report to be provided to Ofcom by 4 December 2005. Those companies are required to continue providing this information to Ofcom until 4 May 2006.

If an organisation does not comply with the section 128 notification within the specifed periods, Ofcom may issue an enforcement notification under section 129 of the Act and/or may impose a penalty on it under section 130 of the Act.

Representations concerning these notifications

Thomson Directories, Ant Marketing, Fax Information Services and Promote-It have until 30 November 2005 to make representations to Ofcom about the matters set out in the notifications.

Non-confidential versions of each of the section 128 notifications are available at the links below.

The other companies under investigation

Ofcom has closed its investigation into The Listening Company and Firestorm Marketing without reaching a final decision as to whether either organisation has engaged in persistent misuse.

Following discussions with Ofcom, The Listening Company has provided, and Ofcom has accepted, an undertaking to ensure that, amongst other things, an abandoned call rate that shall be no more than three per cent of live calls on each individual campaign over any 24 hour period and to provide Ofcom with monthly reports over six months regarding its performance against these measures.

During the investigation, Firestorm Marketing stated that it had ceased accepting contracts to send unsolicited fax communications. Ofcom's investigation into Firestorm Marketing's conduct was therefore closed on the basis of administrative priority.

Ofcom concluded that Toucan's conduct did not result in persistent misuse to a material extent.

Case Leader: Tanya Rofani (e-mail: Tanya.Rofani@ofcom.org.uk)
Case Reference: CW/00835/05/05

Text published when the case was opened

Own-initiative investigation regarding the annoyance caused to consumers by short duration and silent calls

Complainant: Ofcom own-initiative investigation
Investigation against: Promote IT, Toucan Telecom, The Listening Company Ltd, ANT Marketing UK, Thompson Directories Ltd, Fax Information Services Ltd, Firestorm Marketing Ltd.
Case opened: 16 June 2005
Issue: Persistent misuse of electronic communications network(s) or service(s)
Relevant instrument: Sections 128 to 131 of the Communications Act 2003

A “short duration” or “silent call” is a call which is usually initiated by automatic calling equipment ("ACE"), generally used by Call Centres making outgoing calls. The call is terminated by the ACE immediately after the called party answers (usually, because no live operator is available to speak to the called party).

A short duration call may also arise where companies attempt to send fax messages to telephone numbers that are not connected to terminal equipment capable of receiving fax messages. When the call is answered, the called party may hear a series of tones or the call may have been terminated.

Complaints

Ofcom has received complaints from members of the public about Promote IT, Toucan Telecom and The Listening Company Ltd regarding the annoyance caused to consumers by the making of short duration and/or silent calls.

In addition, Ofcom made a formal request for information relating to short duration and silent calls from British Telecommunications plc ("BT") in May 2005. The request was made under section 135 of the Communications Act 2003 (“the Act”). Following the receipt of the information from BT’s Nuisance Calls Bureau, Ofcom has identified ANT Marketing UK, Thompson Directories Ltd, Firestorm Marketing Ltd, and Fax Information Services Ltd as companies which have regularly made silent and/or short duration calls.

Ofcom has therefore decided to open an investigation to determine whether the companies identified above have persistently misused an electronic communications network or electronic communications service contrary to section 128 of the Act.

Sections 128 to 130 of the Act gives Ofcom the power to take action against persons or companies who persistently misuse an electronic communications network(s) or service(s) in any way that causes or is likely to cause unnecessary annoyance, inconvenience or anxiety.

Where Ofcom finds that a person or company is in breach of the above provision, it may issue an enforcement notification and/or impose a financial penalty on the misuser.

Case Leader: Tanya Rofani (e-mail: Tanya.Rofani@ofcom.org.uk)
Case Reference: CW/00835/05/05