2010 Ofcom Consultation targets UK Premium Rate
Other examples of Persistent Misuse
A1.60 Having analysed the reasonable grounds for believing that behaviour may be persistent misuse, this section identifies five further general areas within which such forms of behaviour typically occur. There is a degree of overlap between these areas; several forms of misuse may fall into more than one category.
A1.61 Given the breadth of the legislation, some forms of misuse, say those involving the misuse of automated calling systems or scams, may also represent contraventions of other consumer protection legislation. Where such legislative overlap exists and Ofcom is faced by a particular instance of misuse, it shall determine in consultation with the relevant competent authorities which set of legislative requirement is more appropriate and may be more effectively deployed.
A1.62 The examples given are intended to be illustrative rather than inclusive and will not prevent Ofcom from investigating and issuing a notification in respect of behaviour which is not identified by this statement. That could occur if, for example, a new technology or new use of technology allowed for the operation of a form of misuse not previously known to Ofcom, which has the potential to cause unnecessary annoyance, inconvenience or anxiety to consumers. In these circumstances Ofcom would take the necessary measures to prevent further harm and also revise the statement to incorporate the new form of misuse.
Misuse of automated calling systems
A1.63 Under the Privacy and Electronic Communications (EC Directive) Regulations 2003 (the “2003 Regulations”), it is an offence to use automated calling systems to make direct marketing calls which do not consist of live speech unless the called person has previously notified the caller that for the time being they consent to such communications being sent. An example of such a call is a recorded message for marketing purposes where no operator is present.
A1.64 The concept of direct marketing that the 2003 Regulations 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 automated calling systems that cause annoyance or inconvenience but which, for whatever reason, fall outside the 2003 Regulations.
A1.65 Ofcom believes that the persistent use of automated calling systems to transmit recorded messages that are not marketing messages within the meaning of the 2003 Regulations or to make silent or abandoned calls (see the section on misuse by making silent or abandoned calls below) or fax-scanning calls may be persistent misuse within the meaning of section 128.
A1.66 However some uses of automated calling systems are beneficial, either to the general public or to the individual recipient. An obvious example of a public benefit would be where emergency authorities transmit a recorded hazard warning to subscribers within a defined geographical area. More limited cases, where the benefit is restricted to the individual, are the application of Interactive Voice Messaging (‘IVM’) technology to activate credit cards, check abnormal credit card use, arrange deliveries or remind for payments and appointments. Ofcom will consider each case on its own merits in terms of assessing whether misuse has occurred in the context of section 128(5) of the Act.
A1.67 Another type of silent call arises from the practice of number-scanning (also known as ‘pinging’) 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 in order to develop lists of active telephone numbers. As well as the inconvenience that may be 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. In a worst-case scenario high-volume number-scanning could overload either the originating or terminating local exchange thus depriving subscribers connected to that exchange of the ability to make or receive any calls at all
A1.68 A common variant of number scanning is fax scanning where a call is made to determine the presence of a fax receiver at the terminating end. This activity is motivated by the commercial value of a directory of validated fax numbers. Persistent number-scanning or fax-scanning both clearly fall within section 128.
Misuse of a CLI facility
A1.69 CLI (as defined earlier) is a technology that identifies the number from which a call is made or enables a return call to be made. Ofcom will regard the repeated forwarding of inauthentic or misleading CLI information as persistent misuse. 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.
A1.70 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.
Misuse for dishonest gain - scams
A1.71 There are a number of activities associated with the use of electronic communications networks or services 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.
A1.72 The first feature they share is that they are primarily aimed at defrauding end-users, rather than communications providers.
A1.73 The second feature they share is the exploitation of premium rate or revenue sharing services, or in some instances, where these services are not used, by directly billing the person who has been duped into making a call. In either case, the essence of the scam is that users are deceived into phoning a number without realising that it is a premium rate or revenue sharing service or may lead to a fraudulent bill and so costs more than they expect. Examples of this that have come to light in recent years include:
i) faxing a premium rate or revenue sharing fax number where the terminating fax machine has been set to run deliberately slowly thus increasing the duration of a call;
ii) the apparently personal text message that invites a return call to a premium rate or revenue sharing number;
iii) making a silent call where any return call connects the caller to a premium rate or revenue sharing number (this latter example is also misuse through silent calls and misuse of CLI facilities);
iv) the use of recorded ringing tone to deceive the caller that charging has not yet started; or
v) inviting people to telephone a revenue sharing number on the pretext that they have won a prize or need to take delivery of an important message or parcel.
A1.74 In some circumstances the deception that incites a caller to phone a premium rate or revenue sharing 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. Regulation 23 of the 2003 Regulations prohibits the practice of disguising or concealing the identity of the sender of electronic mail used for direct marketing purposes and additionally requires the provision of a valid address to enable the recipient to request the cessation of such communications. The definition of "electronic mail" in the 2003 Regulations applies to SMS or text messages as well as email.
A1.75 PhonepayPlus is the regulatory body for all premium rate telecommunications services. PhonepayPlus prohibits misleading behaviour and requires providers of premium rate services to ensure that consumers are fully informed of the terms of the service (including pricing). Ofcom considers that the deceptions identified in this section are also likely to be in breach of its Code of Practice, which is available at http://www.phonepayplus.org.uk
A1.76 Ofcom will regard the practice of tricking callers into phoning a premium rate or revenue sharing number, including numbers in the 08xx range, or non-revenue sharing service that leads to the presentation of a fraudulent bill as misuse and if repeated, persistent misuse.
Misuse of allocated telephone numbers
A1.77 Where end-users have been allocated telephone numbers, Ofcom will regard their use in a way that is inconsistent with designations and/or restrictions in the National Telephone Numbering Plan (“the Plan") as a form of persistent misuse by either the end-user or a relevant communications provider. An example would be where Personal Numbers (070) are used for anything other than “Personal Numbering” (as defined in the Plan) or Mobile Numbers (077, 078 and 079) are used for services other than those which fall within the definition of "Mobile Service" (as defined in the Plan). Condition 17 of the General Condition of Entitlement requires the range holder and any other communications provider using the number to take all reasonably practicable steps to secure compliance by their customers.
maybe we should have a consultation as to whether responsibility for protecting the public from this 'industry' is taken away from Ofcom and PhonepayPlus and handed to a more above board and honest organisation.
Last edited by El Gringo; 24-June-2010 at 22:27.
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