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In the parliamentary debate of 29 June 2004 on the subject of rogue diallers, Sir George Young referred to “the growing problems of abuse” and to “the regulatory response” as being “wholly inadequate”. He complained of ICSTIS delay in responding to correspondence on behalf of a constituent where he had written to ICSTIS in October 2003 and despite two chasing letters, failed to get a response until March 2004. In emotive terms he referred to “the failure of the regulatory system” and the ICSTIS helpdesk as being “in meltdown because of a record volume of complaints”. He concluded that “what is needed is an effective, comprehensive and properly resourced regulatory regime with meaningful sanctions promptly enforced and an efficient compensation scheme for telephone subscribers who are ripped off by fraud”.
As we are all well aware, as I write this, Ofcom is undertaking a comprehensive review of the regulation of premium rate telephone services. It must be hoped that this review will give rise to practices and procedures that are transparent and fair to all concerned.
Crucially, there needs to be a clear demarcation of roles, a setting out of rights and responsibilities, susceptible of practical implementation and enforcement. Readers will welcome any steps designed to assist in improving the overall quality of the regulatory regime.
Ofcom is in a difficult position. It must respond to consumer concerns, but in doing so it is bound to have regard for the plethora of laws and regulations that now exist in this sector. There are limited resources available and it is important not only that there are not too many “feeding from the trough”, but also that those who do are not in effective conflict or competition with one another. Ofcom is clearly sensitive to this need as is well illustrated by their recent “Statement of policy on the persistent misuse of an electronic communications network or electronic communications service” (13 May 2004)(“the Statement”).
The Statement, required by the Communications Act 2003 (“the 2003 Act”), demonstrates the complexity that now exists both as to existing laws and regulations, and regarding who is responsible for doing what. The Statement is concerned with the persistent misuse by a person of a network or service. This happens if:
- The effect or likely effect of his use of the network or service is to cause another person unnecessarily to suffer annoyance, inconvenience or anxiety; or
- He uses the network or service to engage in conduct, the effect or likely effect of which is to cause another person unnecessarily to suffer annoyance, inconvenience or anxiety.
Persistent misuse must either represent a pattern of behaviour or practice or recklessness as to whether persons suffer annoyance, inconvenience or anxiety. The Statement identifies six general areas constituting such behaviour:
- 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; and
- Misuse of allocated telephone numbers.
Such activities are said to share common features, including being primarily aimed at defrauding end-users, rather than communications providers, and the exploitation of premium rate or revenue sharing services.
In passing, the Statement mentions that it is an offence under the Privacy and Electronic Communications (EC Directive) Regulations 2003 to use automated calling systems to make unsolicited direct marketing calls that do not consist of live speech. In respect of direct marketing, reference is made to Regulation 8 of the Electronic Commerce (EC Directive) Regulations 2002 whereby any unsolicited commercial communication sent by electronic mail must be clearly and unambiguously identifiable as such as soon as it is received.
The introductory notes to the Statement explain “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”. There is a presumption in the 2003 Act that Ofcom’s powers to take action against persistent misuse will not generally be used where there is an alternative legal remedy, such as:
- Sending unsolicited commercial e-mail or spam (data protection legislation);
- Computer hacking or denial of service attacks (misuse of computers legislation); or
- Threatening or abusive communications (legislation on malicious communications).
Ofcom acknowledges that the activities mentioned above are likely to be in breach of the ICSTIS Code of Practice and it is, by implication, clear that in terms of the ability to impose sanctions that “hurt” service providers, ICSTIS is not only better placed, but will be expected to use those sanctions in a purposeful manner, responsive to the concerns of the consumer.
Ofcom’s “armoury” in the case of persistent misuse by service providers comprises the issuing of a notification to the person concerned indicating that it has reasonable grounds for believing that they have engaged in persistent misuse of a network or service followed – depending on the response given by the person to the notice – by an enforcement notification and/or a financial penalty.
While the upper limit of the penalty (set by the 2003 Act at £5,000) may be varied by order of the Secretary of State, this figure is paltry when compared with the upper limit (again variable by order of the Secretary of State) of £100,000, which applies in the case of ICSTIS determinations.
The 2003 Act requires that Ofcom do not approve the ICSTIS Code of Practice unless they are satisfied that certain criteria are met, including being satisfied as to:
- The availability of adequate funding;
- The objective justification for the provisions in the code; and
- Provisions that do not unduly discriminate, and are proportionate and transparent.
The challenge is surely not only to ensure that the foregoing criteria is met, but that available resources are deployed in a manner that is most effective. Simply “throwing” more money at ICSTIS, for example, is no guarantee that the concerns that many in the industry have regarding ICSTIS, including their operating practices and procedures (both informal and as set down in the Code of Practice 10th Edition), will be resolved.
It is, therefore, to be welcomed that Ofcom is “taking a grip”, but it is important for all to appreciate that there will be no “overnight magic wand” with which all perceived woes will be addressed. While it is apparent that consumer concerns have stoked the political fires and that they in turn have raised temperatures within both Ofcom and ICSTIS, “the jury is out” as to whether, as is likely, a greater level of resource/power, allocated to ICSTIS, will prove effective. It will be crucially important that all interested parties, including Ofcom, ICSTIS, network operators and service providers, not only agree on the need for co-operation and allocate the resource, but also have confidence in the other to perform their respective roles in a manner that is consistently fair and to the highest standards.
Author: Peter Welburn is a solicitor and Telemedia Law specialist Information
e: welburn@welburn.co.uk |
