Posted by: Malcolm Jarvis
Uncertainty, we are told, is bad for business. Uncertainty over Brexit is bad, uncertainty over exchange rates is bad, uncertainty over unpredictable world leaders is bad. As of March 1st 2017, there’s a new type of uncertainty being introduced into the world of outbound calling. The previously clear guideline of a 3% maximum abandoned call rate is set to silently disappear overnight on the 28th February. So just how uncertain a world are we stepping into, and how bad for business is this for companies in the business of outbound calling?
So What’s Actually Changed?
The source of this uncertainty is Ofcom’s revised policy statement in relationship to the enforcement of its powers regarding “persistent misuse”. This document, which was finalised just before Christmas 2016, is where Ofcom set out their policy for using their powers to take action against companies they regard as misusing various forms of electronic communication. This includes live phone calls, recorded voice messages and text messages.
If you’re looking for a silver lining to this particularly unwelcome cloud, the new statement is actually a lot better written than the one it replaces from 2010. At least is no longer mixes technical explanations in amongst the policy items.
The other consolation is that very little has actually changed. Broadly speaking, there are nine forms of misuse that Ofcom are concerned about and are involved in taking enforcement action against:
- Silent Calls
- Abandoned Calls
- Scams
- Misuse of CLIs
- Misuse involving a breach of the PECRs (TPS etc - primarily the domain of the ICO)
- Misuse resulting from (poorly implemented) technology
- Misuse of allocated telephone numbers (e.g. presenting an 07 number from a call centre)
- Number scanning (still not allowed under any circumstances)
- Anything else seen to annoy, inconvenience or distress the great British public
Of these, Ofcom have said quite clearly that tackling companies generating silent calls is their number one priority. However, going after companies generating abandoned calls is their number two, and this is where the uncertainty starts.
Changes to Abandoned Call Guidelines
While nearly every aspect of Ofcom’s policy has remained unchanged from the 2010 version and most of the text around abandoned calls has remained the same, the previous “safe harbour” of maintaining a daily abandoned call rate of less than 3% is gone, and has been replaced with… nothing.
(The 24-hour rule relating to retrying numbers that have been automatically hung-up on by answer machine detection (unless there was a guaranteed agent available to speak to the customer should they answer) has also mysteriously disappeared. This may or may not have been replaced by merging it with the 72-hour rule which previously only applied to abandoned calls, but the wording is a bit fuzzy. See Annex 2, section 2.9 if you fancy a go at interpreting it yourself.)
Reading between the lines, it appears that Ofcom have possibly had a hard time from MPs seeking to get some good headlines about being tough on the scourge of “nuisance callers”. The 3% abandoned call rate appears to have been created by Ofcom themselves without guidance from parliament, and my guess is that Matt Hancock MP, or more likely his predecessor Ed Vaizey MP, on being told that there’s an acceptable volume of abandoned calls that the industry can generate legitimately has instructed that this be removed in order to protect British consumers from harm.
This is most evident if you read the response that Ofcom has given (in Annex 4, A4.12 onward - recommended reading) to input received from over 50 respondents from across the industry during the consultation. In their response to the comments from industry, Ofcom state that “a common theme of the responses” was in relation to the 3% rule. While it’s clear that teams from businesses large and small across the country have given eloquent and logical justifications for why the 3% rule was worth keeping, to paraphrase, Ofcom’s response basically reads, “nah”.
(The only change that was conceded was that the proposed new acceptable limit of three abandoned calls (ever) was dropped, to be replaced with zero. Not exactly a win when you consider the hours and effort that must have been invested in preparing the responses sent to Ofcom’s “consultation”.)
All Bets Are Off
So, where does that leave us? Unsurprisingly, a few enterprising dialler companies have had their salesforces running around for the last few weeks suggesting that they alone have the only dialler that will allow you to continue dialling predictively while staying within Ofcom’s new rules. This, unfortunately, is bollocks. The new rule is that all abandoned calls are considered to cause “harm” and are therefore misuse. Considering that Ofcom’s definition of harm is “unnecessary annoyance, inconvenience or anxiety”, this gives them a very broad brush with which to bash companies doing outbound calling. If your electronic communication activities cause someone to be inconvenienced, or perhaps unnecessarily annoyed, then you’ve probably just broken the guidelines and Ofcom can take action.
However, at no point in the new guidelines does it explicitly state that Ofcom are demanding companies stop generating abandoned calls. All the language is about reducing the harm caused by abandoned calls, and a considerable volume of the policy is dedicated to defining what an abandoned call message should contain, how to calculate your abandoned call rate, and how silent calls are much worse than abandoned calls due to their potentially threatening nature. If Ofcom genuinely intend to prosecute companies for making any abandoned calls, why include so much detail about how to do an abandoned call “properly”?
Ofcom state (in Annex 4 section A4.17) that their intention is to act “reasonably and proportionately” and to focus on organisations causing the most harm to consumers, with a particular focus on organisations flagrantly or deliberately acting in a non-compliant way. They also state that the new policy is not different “in relevant ways” to the one that it replaces, and go on to state that they basically don’t want to hamstring themselves in regarding any volume of abandoned calls as acceptable when taking enforcement action.
So, if they’re not exactly saying that abandoned calls are now forbidden, but that the volume of any abandoned calls generated will be taken into account when considering/taking enforcement action against a company, what on earth should we do?
Where Do We Go From Here?
One solution would simply be to turn off predictive dialling on all campaigns and dial progressively until some clearer guidance or interpretation emerges. In fact, if you’re in a heavily regulated industry, and/or appetite for risk in your company is very low, and/or a fine of 8% of turnover would be terminal, and you can afford to take the hit on productivity, you may want to do just that until something clearer emerges from the fog.
However, this course of action would seriously impact productivity in many call centres, potentially forcing their closure or offshoring. If this isn’t an option for your business (and I’d guess it won’t be for most), then our five recommendations in light of the new Ofcom policy are as follows:
- Don’t Do Unnecessary Harm
- Take Active Steps to Minimise Misuse
- Don’t Generate Too Many Complaints
- Don’t Attempt to Hide
- Be a Good Corporate Citizen
Here’s the rationale. Ofcom have limited resources. They have 1.5 billion silent calls a year to deal with and they’ve clearly stated that they’ll be prioritising action against “cases liable to cause the greatest consumer harm”. Ofcom’s most recent research showed that abandoned calls made up just 5% of calls received by participants in their survey, against 36% silent calls and 18% voice broadcast calls. The same research also highlights how little progress they’ve made tackling these misuses year-on-year, suggesting current approaches to reducing silent calls aren’t working and no-doubt prompting the flurry of recent announcements targeting companies irresponsibly carrying out outbound calling.
At Greenlight, our feeling is that if you’re a company generating zero silent calls and doing no voice-broadcasting, with a compliant abandoned call message and legitimate number displayed, unless there’s a significant volume of complaints being generated in respect of your business activities, simply generating a low volume of abandoned calls is unlikely to get you on Ofcom’s radar. For evidence, let’s take a look at previous enforcement action that Ofcom has taken:
Company: HomeServe
Year: 2012
The gist of it: An unnamed outsourced call centre generated an undisclosed volume of silent calls and 14,756 abandoned calls over the 7 week period investigated. This was due to answer machine detection (AMD) hanging up on customers that had actually answered calls (i.e. generating “false positives”) which to the consumer answering the phone is a silent call. 36,218 calls over the same period were made in breach of the 24 hour rule (customers can’t be retried up to 24 hours after AMD is used to hang up a call).
Fine: £750,000
Company: TalkTalk
Year: 2013
The gist of it: Seven outsourced centres were investigated and action taken in respect of two. One had exceeded the 3% abandoned call rate (ACR) on at least 4 occasions, the other had been generating silent calls and had no records of the volume due to some rather optimistic answer machine detection rate claims from their dialler provider. There was also evidence of failing to follow the 24-hour rule mentioned above. This activity continued even after initial queries from Ofcom began.
Fine: £750,000
Company: Debt Masters t/a XS Remarketing
Year: 2015
The gist of it: 55,193 abandoned calls, of which 53,757 were silent calls. 427,765 numbers were dialled in breach of the 24-hour rule. The companies abandoned call message (ACM) was also found to be non-compliant.
Fine: £150,000
Company: MYIML
Year: 2015
The gist of it: 30,296 abandoned calls placed over the 45 day period investigated. On every day, the abandoned call rate was over 3%. Again, the ACM used was non-compliant.
Fine: £20,000
Company: Green Deal Savings (no enforcement notice available)
Year: 2015
The gist of it: 12,703 silent calls generated over the 7 week period investigated including 420 abandoned call in one 24 hour period.
Fine: £20,000
Company: Sambora Communications
Year: 2015
The gist of it: 4,320 silent and abandoned calls, an ACR of between 3% and 4% on 6 separate dates, and a non-compliant abandoned call message. This is an interesting case as it seems Ofcom almost decided against a financial penalty as Sambora seem to have taken every step possible to ensure future compliance. However, Ofcom felt they didn’t go far enough as although they wrote to all affected consumers to apologise they didn’t include gift vouchers or similar as compensation for the annoyance (page 25 section 3.25 if you don’t believe me).
Fine: £8,000
If you can find any further enforcement actions by Ofcom that mention abandoned or silent calls, then please do get in touch, but as far as I can see, that’s it - six enforcements over five years. The ICO, which has to date been much more active than Ofcom in this field, has taken action against far more companies, and it could be that the same companies that are generating abandoned and silent calls are being handled by the ICO for breaches of TPS rules. Going back to the 1.5 billion annual silent calls figure, it’s easy to see why Ofcom’s actions so far have been perceived as ineffective.
What’s noticeable about each of these cases is that none of them involve only abandoned calls. Silent calls, mostly generated by AMD “false positives” (hanging up live calls because the system decided incorrectly that it had been answered by an answer machine), non-compliant abandoned call messages, and breach of the 24-hour rule following an AMD-generated hang-up are present in all these cases and are all listed in the new policy as being sources of greater consumer harm than abandoned calls.
Our 5 Suggestions For Staying On The Right Side of Ofcom
Assuming that you’re not going to turn off predictive dialling and therefore you are going to continue generating some level of abandoned calls, it would seem sensible to do as much as possible to stay off Ofcom’s radar. If you do get on their radar, being able to demonstrate that your business does everything possible to minimise "consumer harm" will hopefully help avoid full enforcement action. This is where our recommended approach to life after the removal of the 3% rule comes from. As mentioned there are now no guarantees, but with that in mind let’s look at each of our five recommendations in detail:
1. Don’t Do Unnecessary Harm
Going back to Ofcom’s definition of “harm” - annoyance, inconvenience or distress, anything you can do to reduce these factors would be a step in the right direction. Some folks are going to complain regardless in response to a “nuisance call” and there’s not much you can do to avoid that, but most people will take more provocation to go to the additional effort of lodging an actual complaint.
Ensuring that your abandoned call message is clear, follows the rules, and, most importantly, gives people an easy way to opt out of further calling that actually works would be a good starting point. Connecting inbound calls to agents trained to handle them efficiently and courteously (and again be happy to remove callers that don’t wish any further calls) will help, as well as ensuring that the actual content of your calls (your product/service and the people promoting it) aren’t doing anything that could be considered annoying or distressing. Good QA practices with a process in place to swiftly action call quality feedback is your friend here.
2. Take Active Steps to Minimise Misuse
OK, so let’s say you’re going to continue to use a predictive dialler on all or some of your outbound campaigns. That’s going to generate abandoned calls meaning you are officially guilty of misuse in Ofcom’s eyes. Ofcom have stated that they will prioritise their enforcement action based on the level of harm, so what can we do to keep the misuse well below that of other less enlightened call centres?
Firstly, it would be a good idea to ensure that all other rules are being strictly followed. My last article on Ofcom compliance dealt with all the items you need to follow and these haven’t changed. As far as answer machine detection goes, unless you’ve a system that’s guaranteed to be 100% accurate, you’re going to generate silent calls and Ofcom have stated clearly that they’ll have no sense of humour if you’re generating any at all. Turn it off - good diallers will be able to cope without.
Secondly, if you are going to generate some abandoned calls, take action to investigate how low you can bring your target maximum abandoned call rate without adversely affecting productivity too much. For larger campaigns, you should be able to set your maximum considerably lower than 3% without significantly damaging the productivity of your agents. Perhaps investigate whether smaller campaigns be combined and agents cross-trained to create larger campaigns and provide a similar opportunity?
Either way, if Ofcom genuinely haven’t changed anything (they insist the 3% rule never existed), then the 3% red-line presumably still exists in some form, though we’ll not know for sure until some enforcement action is taken and some documentation confirms this. As a guideline though, we’d suggest a baseline of a maximum 2.5% abandoned call rate as a good starting point for small campaigns, bringing it down to 1% on larger ones. The volume, and not just the rate, of abandoned calls is a common theme in past enforcement actions, so taking a small hit on productivity on large campaigns to get a big reduction on the number of abandoned calls seems like a smart move.
3. Don’t Generate Too Many Complaints
If Ofcom manage their prioritisation the same way that the ICO does (fairly likely as the two bodies work closely together), then action will be prioritised against the companies generating the highest volumes of complaints. So what sort of things generate complaints?
Not following the PECRs (rules relating to TPS, automated voice messages, opt-ins etc) is guaranteed to get you on the ICO’s radar, which will probably be fatal in itself, especially if the new powers promised last year to the ICO come into force. Demonstrable, acceptable opt-ins are going to become more and more important and this needs to be a big part of your data strategy if you’re relying on opt-ins to call numbers registered on the TPS.
Calling numbers back after an abandoned call only to generate another abandoned call would be a good way to get a complaint, so why not treat customers who’ve had an abandoned call as “VIP” customers and ensure any future calls are guaranteed to connect to a live agent regardless of how much time has passed? Failing to remove customers from further calling after they ask to be removed (a combination of effective systems and agent training), calling numbers too soon following a no-answer or answer machine, poorly trained or rude agents - all of these are easily avoidable and good business practice anyway, so why risk it?
4. Don’t Attempt to Hide
One thing that seems guaranteed to get Ofcom really upset is any attempt to hide the identity of the company on whose behalf calls are being made. Omitting or fudging this information on your abandoned call message, or the information message played or information given by agents when a customer calls back is guaranteed to be seen as an aggravating factor should you end up on the wrong side of an enforcement action.
Apart from looking suspicious before a customer has even answered the phone, withholding your number was banned last year anyway, and while regional CLI presentation (showing a number with an area code close to the number being called) has a number of legitimate uses, using this simply to conceal your true location is not going to go down well either.
5. Be a Good Corporate Citizen
Ofcom have reiterated that they’ll take into account good management practices when they’re prioritising a case. This means that they’ll want to know (and presumably see proof) that:
- Dialling systems are tested when they’re set up or changed
- Diallers are managed by a competent person
- The dialling rate is set at a rate appropriate to the number of agents employed
- Agent performance is monitored
Good record keeping for things like volumes of abandoned calls and live calls, evidence of the accuracy of answer machine detection used (if you’re optimistic enough to carry on using it), and anything else covered in Ofcom’s policy document needs to be in place and go back a minimum of six months.
Having policies and documentation that address each of these points will presumably be seen as a mitigating factor and should help move your company down the priority list if the preliminary stages of an investigation are launched.
A Brave New World
It would be great if at Greenlight we could tell you that we had updated our systems to ensure that you could continue to dial predictively and remain 100% Ofcom compliant. The new reality, as of 1st March, is that this is simply no longer a thing. Anyone telling you otherwise is either misinformed, hasn’t understood the policy, or is trying to pull the wool over your eyes while putting your business in a dangerous position. Until we start seeing some enforcement action being taken, there’s simply no way to know how Ofcom intend to use this change in policy, and even then the rules seem heavily discretionary and are apparently to be interpreted on a “case-by-case basis”.
Based on the causes of actions that Ofcom have taken in the past, the scale of the problem they’re trying to address with 1.5 billion silent calls being made every year, and the sheer number of companies making no real effort to follow the rules at all, I’m confident that following our suggestions above will keep you out of Ofcom’s crosshairs. Of course, there are no guarantees, and if you’re not convinced then progressive dialling is always an option, at least until more information becomes available.
Uncertain times are ahead, but as always we’ll do our best to keep our customers as compliant as anyone can possibly be these days.