Culture, Media and Sport CommitteeWritten evidence submitted by The Telephone Preference Service Limited
The Telephone Preference Service (TPS)
Executive Summary
TPS is a free service that allows people to register their landline and/or mobile telephone number if they no longer wish to receive unsolicited live sales and marketing calls to those numbers. It is a legal requirement that organisations screen the list of telephone numbers they wish to call against the TPS file before making any unsolicited sales and marketing calls.
Reputable companies use TPS and take the legislation very seriously. The problem we have is with rogue companies who are willing to ignore the law.
TPS has no enforcement powers: it is the Information Commissioners Office (ICO) that has responsibility for enforcing the legal requirements relating to the TPS. TPS collects complaint information from people still receiving unsolicited sales and marketing calls to the numbers they have registered on TPS and passes this to the Information Commissioners Office who can issue civil monetary penalties of up to £500,000. We welcome the recent enforcement action from the ICO and would like to see much more.
There is no single solution to the problem of nuisance calls: it requires a number of changes from regulators, businesses and telcos. See section 12
1. History
1.1 The Telephone Preference Service was created by The Direct Marketing Association (UK) Limited (DMA) in 1996 as a way of helping consumers manage the number of calls they received as telemarketing grew more popular. It was also a way for the industry to demonstrate that it was doing something positive by reacting to the changing perception of this type of marketing. The DMA had previously been very successful with The Mailing Preference Service, a similar product aimed at direct mail.
1.2 In 1999 legislation was passed to give TPS legal status under the Telecommunications (Data Protection and Privacy) Regulations. The 1999 Regulations were replaced by the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR), which were further amended in 2004 and 2010.
1.3 The Telephone Preference Service Limited (TPSL) the company that runs TPS is a wholly owned subsidiary of the DMA, which has won the contract from Ofcom to run the TPS on three occasions since 1999.
2. The Service
2.1 The Telephone Preference Service (TPS) is a central opt out register on which individuals can register their landline and mobile telephone numbers if they do not wish to receive unsolicited live sales and marketing telephone calls. This can be done on our website www.tpsonline.org.uk or by phoning 0845 070 0707. Telephone numbers are only removed from the file if we are informed by the service provider that the number is no longer in use.
2.2 Registering a landline or mobile telephone number on TPS will not prevent recorded messages, SPAM SMS, silent calls or scams.
2.3 Unsolicited recorded marketing messages are prohibited under PECR and complaints about these are the responsibility of the Information Commissioner’s Office (ICO).
2.4 The rules on silent calls are set out in Ofcom’s Revised Statement of Policy on the persistent misuse of an electronic communications network or service 2010 [http://stakeholders.ofcom.org.uk/binaries/consultations/silentcalls/SilentCalls.pdf] and are enforced by Ofcom.
2.5 Mobile messaging services, including SMS, are covered by rules in PECR and are enforced by the ICO.
2.6 TPSL refers consumer complaints it receives about scams to Action Fraud, the UK’s national fraud and internet crime reporting centre or Trading Standards.
2.7 Organisations that are making live unsolicited telemarketing voice calls to landline or mobile telephone numbers must screen the list of numbers they are calling at a minimum of once every 28 days under PECR. Some organisations screen their list of numbers to be called more frequently. The file is updated every day and is available for licensees to download. The relevant legislation is PECR.
3 The Effectiveness of the Telephone Preference Service
3.1 TPS’s own research in 2008 showed that it reduced the number of nuisance calls by 54% (Brookmead Report 2008).
3.2 The research done by Which? this year reported a reduction in the number of illegal sales and marketing calls received by people whose telephone numbers were registered on TPS but this was not quantified. (Which? press release 10 June 2013—Government must call time on nuisance calls and texts.)
3.3 As a general rule, any organisation that values its reputation and respects the wishes of its customers or potential customers will use TPS and takes seriously its compliance with the laws on telemarketing. The problem we have is with rogue organisations that are willing to break the law to take advantage of short term financial opportunities.
4. Enforcement
4.1 The TPS itself has no enforcement powers under PECR for breaches of the rules relating to TPS, over non-compliant organisations, but we do work closely with the ICO whose role it is to enforce the rules relating to TPS under PECR. TPS offers a complaint handling service for consumers who may still receive live unsolicited sales and marketing voice call to their landline or mobile numbers even though they have registered the number(s) on TPS. The first point of contact for consumers wishing to complain about a live sales or marketing call is the TPS. We collect the information from the consumer and where possible contact the organisation that made the call. We remind them of their legal obligations, ask them to add the consumer to their own in-house “Do Not Call List” and ask them to respond as to why the call was made. After 14 days we then pass all the information including any response from the company to the ICO.
4.2 We also meet with both the ICO and Ofcom on a regular basis to discuss operational issues and progress on enforcement.
4.3 The ICO have always had a range of enforcement powers under PECR for breaches of the TPS rules. However under the 2010 amendments to PECR those powers were increased allowing them to issue a civil monetary penalty of up to £500,000 for breaches under PECR. The ICO has now issued fines in excess of £750,000 for breaches of the TPS rules under PECR.
4.4 TPS believes that enforcement is a deterrent for many organisations and we would be happy to see the ICO take more enforcement action against organisations who are persistently and wilfully breaching the rules on TPS in PECR.
5. TPS Licensees
5.1 Licensees pay the TPS an annual licence fee to have access to the file of numbers registered on the TPS. Partial, ad-hoc and associate licences are also available for organisations who may carry out a one off telemarketing campaign or if the telemarketing campaign is restricted to a particular region. In this way the organisations that benefit from telemarketing are the ones that fund the TPS service.
5.2 There are approximately 250 TPS licensees. Of course, there are many companies who either obtain their data from bureaux who have pre-screened it, or who use telemarketing technology which will not allow numbers to be called that are on the TPS register. Some of these carry out telemarketing campaigns: others are data processing bureaux that provide a service whereby organisations that carry out telemarketing campaigns can screen the list of telephone numbers they are calling against the TPS.
6. Complaints
6.1 The recent growth of complaints to the TPS started around September 2011 rising from around 3—4,000 per month to a peak of over 10,000 in February 2013 [Appendix 2].
7. Why are complaints increasing?
7.1 The TPS does not work as a block on the telecommunications network that prevents organisations from calling telephone numbers registered on the TPS. In order for the TPS to work in the opt-out system for unsolicited live sales and marketing calls currently under UK law, organisations must meet their legal requirements to screen their list of telephone numbers they are planning to call against the telephone numbers listed on the TPS file. Of course, organisations can choose to ignore the law and many have done so in the past because the risk of the ICO taking enforcement action was very low. This meant that calling telephone numbers that were registered on the TPS was a lucrative way to generate sales as some consumers were likely to respond in a positive manner as they received fewer sales and marketing calls because of the registration. Hopefully organisations will now be more willing to comply with the TPS rules, given that the risk of the ICO taking enforcement action is higher and that it has increased enforcement powers including the ability to issue civil monetary penalties of up to £500,000.
7.2 SMEs may not be aware of the legal requirement to screen the list of numbers to which they are making unsolicited live sales and marketing voice calls against the TPS file. Hopefully the publicity given to the recent enforcement action by the ICO for breaches of the TPS rules will increase awareness amongst SMEs.
7.3 There is also a particular problem with organisations trying to generate sales leads or gather information to sell on to other organisations for services such as PPI, accident claims and home improvements. Such organisations may mistakenly think that such calls are for research purposes and therefore that they do not have to screen the list of telephone numbers they want to call against the TPS file. However, if such organisations are making telephone calls for lead generation purposes, then such calls will be classed as marketing calls and therefore the list of numbers to be called must be screened against the TPS.
7.4 Organisations can make it very difficult for the TPS or the ICO to contact them about the complaints received because either they do not provide Caller Line Identification, which enables the recipient of a call to know who has called them, either by using 1471 or by the number being displayed on their caller display. Alternatively, organisations can provide a Caller Line Identification number which is not linked to a particular organisation. There is no legal requirement to display a valid Caller Line Identification Number, although it is a requirement under the DMA Direct Marketing Code of Practice. They may also use a false or generic sounding organisational name making it very difficult or impossible to make a positive identification of the organisation.
8. The Scale of the Problem
8.1 Recent research published by Which? showed that 85% of people receive unsolicited calls, with as many as 8% of people getting up to 50 unwanted calls per month. Whilst registering a telephone number on TPS will reduce the number of calls a person receives, it is unlikely to stop them all. (Which? press release 10 June 2013—Government must call time on nuisance calls and texts.)
8.2 Which?’s research also showed that only 17% of people who received a nuisance call made an official complaint. (Which? press release 25 July 2013—Help for consumers to complain about nuisance calls.)
9. One Regulator?
9.1 Mike Crockart MP who has his own campaign against nuisance calls has asked that one regulator should look after all aspects of nuisance calls so that the consumer knows where to go for information and to make a complaint. We agree that a single regulator may make things easier for people to locate information but it will have little effect on stopping the organisations that are breaking the law.
9.2 The ICO is the regulator with the power to issue fine. The TPS has welcomed the fines that the ICO has given to some of the worst offenders over the last 6 months and we are very keen for this to continue. It has been suggested that the criteria for issuing a fine are too strict. We agree that it would help the ICO to use its power to fine more effectively if the requirement to prove ‘significant damage or distress’ could be reduced to a more manageable ‘proof of nuisance’.
10. Practical Measures by Telcos to Curtail Such Communications
10.1 Improved technology makes it easy for organisations to make large volumes of calls at a very low cost. It also makes tracking down law-breaking organisations very difficult.
10.2 Currently a telco cannot trace a call that originates with a different service provider. The most important thing that telcos could do to assist in the fight against nuisance calls would be to collaborate on a way of tracing the organisation which instigated a call in breach of the TPS rules, whether a CLI was presented or not. The telcos could then report this information to the appropriate regulator
11 What can be done?
11.1 TPS believes that there is not one single solution to this problem. What is needed are a number of changes from regulators, industry and telcos. Some of these changes could be made relatively quickly: others may be longer term.
Continued enforcement and an increase in the number of fines from the ICO.
A change to the legislation to require an organisation to display a CLI for any marketing or sales call.
A change to the legislation to make it easier for the ICO to issues fines.
An obligation to be placed on organisations to show that they had consent to call people registered on TPS.
A requirement for organisations to know the source of the data they are using and take responsibility for their suppliers.
A requirement for telcos to develop ways of tracing the source of calls resulting in a complaint to TPS so that they can pass this information to the appropriate regulator.
Name and shaming by regulators of those organisations that they enforce against or that receive high volumes of complaints.
A campaign to inform consumers about the sort of calls that they should and should not expect to receive and what to do if they want to stop any of these calls.
Businesses to be informed of their legal obligations with specific information around the gathering and use of data for telemarketing.
August 2013
Appendix 1
TPS COMPLAINTS
Appendix 2
TPS FILE SIZE
Appendix 3
TPS MONTHLY INCREASE
Appendix 4
TPS REGISTRATION, DATABASE BUILD AND DISTRIBUTION FLOWCHART
Appendix 5
TPS COMPLAINT MANAGEMENT FLOWCHART
