Case Study 10 - Optic Communications – persistent unsolicited marketing phone calls
The marketing activity of a telecommunications service provider caused a number of complaints to be made to my office in the middle of the year. It was claimed that Blueridge Telecom Systems, trading as Optic Communications (Optic), was making persistent marketing phone calls despite being told not to call again.
In all cases the complainants were businesses who had instructed Optic by phone, fax or mail that they did not want to be called again but who were still in receipt of such clearly unsolicited phone calls. This is contrary to Regulation 13(4) (a) of Statutory Instrument 535 of 2003, which states
“A person shall not use, or cause to be used, any publicly available electronic communications service to make an unsolicited telephone call for the purpose of direct marketing to the line of a subscriber, where -
(a) the subscriber has notified the person that the subscriber does not consent to the receipt of such a call on his, her or its line”.
A failure to comply with Regulation 13(4) (a) is an offence for which the offender can face prosecution by this Office. It is also worth noting that this Regulation applies to both natural persons and to business users of phones. This is the first time that data protection rights have been provided to non-natural persons.
Upon investigating the matter it became clear that, in certain cases, Optic Communications had contacted businesses without consent. However, a number of issues caused problems for my investigation. In some cases, although head offices had clearly instructed Optic Communications not to contact them, Optic later phoned branch offices which referred them to head office. Optic took these referrals as overriding earlier instructions from the head office. This is a farcical and simplistic approach, but could result in sufficient doubt being created that a Court would be reluctant to convict the defendant.
A more serious problem was the nature of Optic’s presence in the State. Although Optic is authorised to provide a telecommunications service in this State, it is not required to have a physical presence here. Optic uses another Telecommunications Service Provider in order to provide a service to its customers and uses a Dublin postal address to forward mail to its head office in the USA. Optic argued that it was not and is not subject to Irish data protection law in that it is not established in Ireland and in that the marketing calls in question were made from either the USA or Egypt.
I informed the Commission for Communication Regulation that the system for authorising telecommunications service providers was resulting in difficulties for my office where the service provider had an unclear presence in this State. Whilst accepting that this new system may have been desirable in order to deregulate the telecommunications sector, it appears to have had one undesirable consequence.
Notwithstanding this, I was satisfied that I could still take enforcement action against Optic through its agent(s) in this State, though this would still be difficult. However, as a result of the actions of my office and of ComReg, Optic ceased all telephone marketing operations on 1 September 2005. Given that compliance is my primary objective, I did not consider that it warranted initiating Court action when the problem appeared to be resolved.
It may be worth noting that my office was also the target of such calls from Optic and that these calls were persistent, aggressive and at times abusive in content. I find it difficult to see how a company could expect to sell a service using such techniques and hope that other companies engaged in telephone marketing pay more respect to their potential customers.
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