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The Ofcom regulations have been around for a long time and have gone through numerous iterations and changes over the years. We have noticed that this has started causing a lot of confusion around what the current regulations are. Indeed, some of the older regulations are only documented back in 2010, and there is no real complete version of all the regulations in one place. It is also essential to understand Ofcom’s main objectives, along with how they are currently proposing to tackle them, another area that is becoming less and less common knowledge through the industry, such as carrier call blocking or termination endpoint blocking.

With that in mind below is a no-nonsense guide on all current regulations surrounding the use of automatic calling equipment (ACS) and accompanying Ofcom and ICO literature in one place.

Remember Ofcom and the ICO do not see ignorance as an excuse or defence “I didn’t know” will not work, and with fines over £3,000,000 handed out in 2018 it is essential to be knowledgeable in this area.

For reference:
ACS = Dialler software
Abandon call = dropped call
Connect = Live call passed to an agent

Let us start with a big one…

Drop rate target and the 3% myth.

In 2010 these two statements were made by Ofcom:

This will not be addressed :
“Companies should ensure their abandoned call rate is less than 3% of all live calls. The Direct Marketing Association had previously set this threshold at 5%. In the 2006 Statement, we stated that the 3% target over a 24 hour period was ‘achievable, proportionate and represented a move in the right direction’”

“In this regard, the current policy for abandoned calls – most notably to include an information message and to guarantee the presence of a live operator if they make repeat calls to that number in the following 72 hours – do not address these types of repeat silent calls. In this regard, our current policy criteria does not protect consumers receiving these types of calls as, in theory, an ACS user using AMD can continue to make these calls indefinitely – provided it remains within the 3% abandoned call rate threshold.”

Reference: 2.33 & 3.21

These two statements resulted in the industry thinking if you were under 3% dropped (or abandoned) calls you were safe; this was a misinterpretation of the above statements. Ofcom has since clarified that the 3% was a measuring stick and the target is 0%, and you can still come under scrutiny with any amount of dropped calls. Though this was clarified, a lot of people don’t realise this is the case and think they are safe if under 3% – some even run the dialler to 3%. We have also seen some suppliers of dialler equipment advertise that this is what they do and it is compliant – it is not. This is why we developed our un-droppable algorithm, which helps maintain 0% drops even in blended environments.

Reference:
https://www.ofcom.org.uk/__data/assets/pdf_file/0024/96135/Persistent-Misuse-Policy-Statement.pdf – Section A4.12

Drop Call calculation

Knowing how to calculate the drop call rate is also essential, there are still quite a few systems that do this wrongly, by either using the wrong formula or, very cheekily adding inbound and manual dial connects into the connects part of the formula, artificially reducing the drop call rate. The formula is:

Drop rate = Drops/(Drops + Connects)

Even with AMD on, well if you do, you are doing it wrong, and you need to look at the link below.

Please see Ofcom’s guidance on calculating the drop call rate with an example with both AMD on and off.

https://www.ofcom.org.uk/__data/assets/pdf_file/0024/96135/Persistent-Misuse-Policy-Statement.pdf – Section A3.8

15s minimum ring time

You have to call a number for a minimum of 15s before disconnecting as a no answer or on some systems an “early disconnect”. This was introduced a long time ago and was brought in to prevent people “pinging” numbers to see if they were live or not. Pinging was a practice when people would produce numbers in Excel, import them and ring a number for 1 second which still generated a missed call. The next day they would dial all the numbers that were “live”, yes this used to happen, hence the regulation. The only contentious point around 15s minimum ring is on a preview call, the regulations don’t clarify if it is required, it says calls from an automated calling platform, which even in preview dial it is, but also there is no real difference from a manual dial which does not have this restriction. Because of this, it is open to interpretation on whether you need a minimum ring time of 15s on preview calls.

https://www.ofcom.org.uk/__data/assets/pdf_file/0024/96135/Persistent-Misuse-Policy-Statement.pdf – Section A2.15

Rotating CLI

Not long ago, a trend appeared to rotate CLI’s or “local call” people. The system would present a Manchester number when calling a Manchester number, a Newcastle number when calling a Newcastle number and so on. This was primarily done to increase connect rates, and it worked pretty well, to be honest, it also rotated the numbers, so people didn’t recognise you. However, because Ofcom and the ICO base complaints on the CLI presented, it was seen as a way of avoiding investigation because contact centres were presenting 150+ different numbers. So complaints to a single number were low whereas complaints about the call centre as a whole could have been very high. Though not directly banned, it is now the responsibility of the carriers to not automatically rotate numbers (we are responsible), this ultimately banned the practice because telecommunications carriers can’t take the risk of non-compliance. You can, however, present different numbers if you have a valid reason, let’s say you are a well-established car dealership who has branches all around the UK but a central call centre, you can present your local dealer’s number.

https://www.ofcom.org.uk/__data/assets/pdf_file/0024/96135/Persistent-Misuse-Policy-Statement.pdf – Section A1.20 – A1.23

Answer Machine Detection (AMD)

There is a lot of stigma surrounding AMD and its use since Ofcom enforced taking the false positive rate into consideration of the drop rate. This was done because inadequate systems with poor AMD were causing silent calls on false positives, i.e. when the system thought a live person was an answering machine, it would be a silent call as no message played and the call was not passed to an agent (see below on leaving a message). AMD use, however, is not banned, it can play an essential role in the productivity of contact centres increasing efficiencies by 100% in some cases, so it does still have a vital use if done correctly.

Ofcom suggested they were removing FP from Drop Rate calculation?
https://www.ofcom.org.uk/__data/assets/pdf_file/0014/82040/persistent_misuse.pdf – Section 4.41

Two Second CPA rule

What is it? CPA stands for (Call Progress Analysis) and forms part of AMD. It is the amount of time you get from salutation to determine if the called party is an answering machine or a live person. A lot of providers say this is not possible and thus advise you can’t use AMD compliantly, however this is not the case. If we can’t determine whether the answered call is an answering machine or not, we pass the call through to an agent and play it safe. If your current system “holds” onto the call longer than 2 seconds, which a lot do well, unfortunately, you are non-compliant, which is why you often get recommended to turn AMD off rather than the vendor resolving the problem.

https://www.ofcom.org.uk/__data/assets/pdf_file/0024/96135/Persistent-Misuse-Policy-Statement.pdf – Section A2.19

Leaving messages

A big part of tackling complaints from Ofcom was silent calls, to address this in conjunction with dropped call messages it was recommended that an answerphone message is left, that way if there were a false positive it would not result in a silent call. The resulting problem generated from leaving answer machine messages is that it can also cause consumers harm from leaving too many messages, but Ofcom’s number one priority is to tackle silent calls so this is down to the choice of the contact centre, but also helps with carrier blocking (see below).

https://www.ofcom.org.uk/__data/assets/pdf_file/0024/96135/Persistent-Misuse-Policy-Statement.pdf – Section A1.6, A2.16

Drop call message

When dialling predictively you are calling more people than you have agents, here and there you may get more connects than you have agents available so what do you do with the call, well you have to drop it (see 2-second rule). This causes silent calls, and this is why Ofcom specifies a drop call message needs to be played to the consumer with guidelines on what should and shouldn’t be said.

https://www.ofcom.org.uk/__data/assets/pdf_file/0024/96135/Persistent-Misuse-Policy-Statement.pdf – Section A1.14

False Positive 

What is a false positive, in this context around AMD, well it is when the system gets a positive result, i.e. detects an answer machine, but it is isn’t, it’s a person, hence false positive. This results in silent calls and complaints from consumers. The recommendation from Ofcom here was also to answer machine message, though this would result in a hangup at least it would not be a silent call and you should be playing who you are why you are calling similar to a dropped call message. Again the impact and potential consumer harm surrounded leaving people too many messages.

https://www.ofcom.org.uk/__data/assets/pdf_file/0024/96135/Persistent-Misuse-Policy-Statement.pdf – Section A1.6 – 1.8

Call blocking from carriers

This is a relatively new addition, and though you are not responsible, I feel it is important everyone is aware of it as it impacts everyone. As mentioned in all the articles below it is becoming a big part of Ofcom’s plan to tackle nuisance and silent calls. What it means is the carriers or termination endpoint carriers which is more accurate can block you if they think you are creating nuisance calls to their clients. So this is not the carrier you are using to make calls, it is EE, Vodafone, BT or Telefonica (o2) it is the people you are calling that block you calling their clients.

There is now even a shared database across carriers where once added everyone blocks you, and this does happen. So how and why can they do this I here you ask?

Well this is automatic by the carriers, someone isn’t sitting there adding your number to be blocked, the two main factors for this and reasons are:

Connect rate or ASR (Answer Seizure Ratio)

If your connect rate is low to say Vodafone, i.e. below aren’t answering the phone, then Vodafone will view this as people don’t want to talk to you.

ACD (Average call duration)

Again let’s say you are calling Vodafone numbers, if once someone does answer the phone the call duration is low, then Vodafone would view this that once answered their clients don’t want to speak to you. This is typically deemed low id it is less than 30 seconds, and is also a reason why leaving an answer machine message can help, as it increases the average call duration.

These are the two main factors and generally will result in an automatic calling block to Vodafone numbers from your CLI.

The only way to get around this is to change you number and I would strongly advise to make a complaint to the termination carrier if this is happening to you wrongly.

How can they do this, well read below, its actively being encouraged:

https://www.ofcom.org.uk/__data/assets/pdf_file/0026/44909/jap_update_dec2015.pdf – Page 6 – Technical Measures (Ofcom forms Strategic Working Group)

https://www.ofcom.org.uk/__data/assets/pdf_file/0026/44909/jap_update_dec2015.pdf – Page 5 – Strategic Working Group (Ofcom confirms the SWG has blocked a large number of nuisance calls since its formation)

https://www.ofcom.org.uk/__data/assets/pdf_file/0023/110957/nuisance-calls-joint-action-plan-2018.pdf – Page 4 Formal Blocking Directions

https://www.ofcom.org.uk/__data/assets/pdf_file/0029/139970/nuisance-calls-joint-action-plan-2019.pdf Document outlining blocking is working and this will be a new focus

Automatic System Recalls 

An old one but a good one and still sometimes interpretation can be wrong. You are not allowed to call drop calls within 72hrs or answer machines the same day (note not 24hrs), unless, you can guarantee an operator is present. Meaning I can preview or manual dial them, which is one of the reasons we have mixed-mode dialling, preview in predictive and we can automatically move records based on these settings from “predictive” to “preview” and back again.

https://www.ofcom.org.uk/__data/assets/pdf_file/0027/96309/Persistent-Misuse-Policy-Statement-edit.pdf – Drop Calls – Section A2.9

https://www.ofcom.org.uk/__data/assets/pdf_file/0025/46690/Tackling-abandoned-and-silent-calls-Statement.pdf 3.107 meaning behind 24hr recall on AMD is the same calendar day with justification

Harassment

This is not defined and again is open to interpretation, “reasonable amount” is generally used, well what is that no one knows. I feel this needs clarifying by Ofcom as it has been a deal of frustration for some, Ofcom will ask for recall values during an investigation. Based on the AMD requirements being once a calendar day would suggest that is deemed acceptable? Who knows? It needs clarifying, and can be down to the nature of the calls, debt collectors have a valid reason for calling but is five times a day too much, I would say it is. We have seen agreements in place with the FCA and some contacts centres for x times per day but no more than y times per week.

Maximum attempts to a user

Again this is not defined in the regulations and another area I think better clarification is required, common sense should come in here along with the nature of a call.

If you are calling someone 100 times this would be a problem, also take into account the number of times per week, per day as discussed above. Fifteen calls in a week are high, but 15 calls in 60 days, would not be as bad.

DNC list

Do you need one, regulatory wise no, but it is good practice to have one as not to annoy people and keep re-importing the data even if they are not on the TPS list. There does need to be a way for people to remove themselves from calling lists either from speaking to someone or more commonly now through self-service IVR’s.

The mention of DNC lists is here:
https://www.ofcom.org.uk/__data/assets/pdf_file/0024/96135/Persistent-Misuse-Policy-Statement.pdf – Section A1.25

What causes silent calls?

There are three main causes of silent calls 1) false positives 2) abandon calls (with no message) 3) agents receiving calls and not speaking or being on mute, which is a reasonably significant cause.

https://www.ofcom.org.uk/__data/assets/pdf_file/0024/96135/Persistent-Misuse-Policy-Statement.pdf – Section – Silent Calls (Page 4)

TPS

If you are not checking TPS you have a severe problem, the ICO has taken over this side of the regulations, and they are serious. All recent fines have been around TPS breaches, and it’s easy to prove if you are not complying and it is a requirement unless specific consent for the call has been given which supersedes when the consumer was added to the TPS. As a recommendation, if you are using a 3rd party data supplier and they are saying they screen against TPS, you have to ensure they are doing so and I would recommend that you spot check the data, we have seen circumstances where the suppliers said they were but weren’t and you are still liable for due-diligence.

https://www.ofcom.org.uk/__data/assets/pdf_file/0024/96135/Persistent-Misuse-Policy-Statement.pdf – Section A1.25

https://www.tpsonline.org.uk/tps/index.html – TPS Website

https://ico.org.uk/for-organisations/guide-to-pecr/electronic-and-telephone-marketing/telephone-marketing/ – ICO Website

If you have made it this far well done, the results of all the above is working, latest published Ofcom statistics show complaints are reducing:

If you are doing all of the above you should have no possibility of silent calls, recalls should be good, maximum attempts should catch too many repeat calls, and if using the MaxContact solution, dropped calls should be nearly 0. Everything else is easy to set up, and once done generally doesn’t get touched again. Ignorance is not a defence, and if you are operating automatic calling equipment, it is expected you know the regulations surrounding its use. If you are struggling with this or any other aspect surrounding regulations or compliance, or want to know how we turn new regulations into an advantage, please feel free to contact us.

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