Wednesday, 31 December 2014

Telephone Preference Service out of date?

The TPS maintain a register (on behalf of OFCOM) of numbers of people that do not want to receive direct marketing calls.

This is based on The Privacy and Electronic Communications (EC Directive) Regulations 2003, but sadly, like most of those regulations the enforcement is crap and done via the ICO.

There is a similar register for fax numbers (FPS).

The TPS/FPS have caused me no end of trouble, including:-

  • Failing to send the annual reminder of our commercial numbers that are registered.
  • Deleting our commercial numbers even though they have no cause to think that they are no longer allocated - an action which I would argue is against the regulations.
  • Failing to pay the costs (even just of postage) resulting from such breaches, costs which the regulations say we can require to be paid. OFCOM refused to pay as well, but we will soon have a bill from OFCOM for numbering and I plan to deduct what they owe from the payment and see what happens.
  • Refusing to register numbers in the FPS unless they were "fax numbers", but failing to understand that we were getting marketing fax call attempts to numbers answered by a telephone and we wished not to get those, and that the notion of a "fax number" is daft. I could connect any line to a fax machine at any time, and even (as we were, to tell it was marketing faxes) transfer the call to a fax machine, so all numbers were "fax numbers" in that respect. They eventually relented, but no annual reminder on those either.
So, I am having a bit of fun with them, but also highlighting that they need to move with the times.

There are now many ways I can be "called", not just via a simple phone number but via FaceTime audio, or over FaceBook (I think) or using a direct SIP URI. Any of these could be used for marketing calls, and I am sure it will not be long before we see this sort of thing.

So I have written, formally requesting that they list a "number" like
(some of you may know my actual SIP URI, and the company publish SIP URIs on the web site)

I expect they will not understand, not cope, and not register it, but no reply yet - so next step is letter to OFCOM next week.

Now, some of you may say that it is not a number, but the Communications Act is quite clear that numbers do not have to be digits - they can (like car registration numbers) be data of any kind.

So, it seems to me, they must register that SIP URI, and also my email address that can be used on FaceTime, and any other contact "numbers" that I have and want to register. They need to move with the times!


  1. It does seem that the definition within Regulation 18 of PECR has not been applied to Regulation 25. I wonder if this is an oversight.

    "In this regulation, “telephone number”has the same meaning as in section 56(5) of the Communications Act 2003 but does not include any number which is used as an internet domain name, an internet address or an address or identifier incorporating either an internet domain name or an internet address, including an electronic mail address."

    1. Oh, that is an odd definition, which I missed. But surely as conventional numbers are in enum domain space that would outlaw "normal" phone numbers as well. Hmm

  2. On a separate note, have you ever looked at Article 13(6) of 2002/58/EC, the directive which PECR predominantly implements? I know you have had some challenges in trying to enforce the UK's anti-spam laws, on the basis of the individual v. company email address, and this part jumps out:

    "6. Without prejudice to any administrative remedy for which provision may be made, inter alia, under Article 15a(2), Member States shall ensure that any natural *or legal person* adversely affected by infringements of national provisions adopted pursuant to this Article and therefore having a legitimate interest in the cessation or prohibition of such infringements, *including an electronic communications service provider protecting its legitimate business interests,* may bring legal proceedings in respect of such infringements. Member States may also lay down specific rules on penalties applicable to providers of electronic communications services which by their negligence contribute to infringements of national provisions adopted pursuant to this Article."

  3. Basically, if I have it wrong, and SIP URI is not included, then that means the regs are massively out of date and need updating. If it does include a SIP URI then TPS/FPS have to allow such to be listed.

    1. As an additional thought, the definition of "calls" within the TPS File Licence ( is "Any unsolicited call for direct marketing purposes using a public electronic communications service ... including but not limited to the use of Voice Over Internet Protocol."

      Unfortunately, as Ofcom has noted in other contexts, referring to "VoIP" is not hugely helpful, since many services may use VoIP but not be regulated services. I suspect, if you were to push the TPS on this, they would say that using a VoIP-based service to make calls to the PSTN *is* within scope, but not, say, using Skype to call another Skype user "within" Skype.


  4. Apologies: this has turned into a bit of an essay.

    > the regs are massively out of date and need updating

    I would take that as a given!

    Regulation 21 sets out the prohibition on unsolicited calls for direct marketing purposes, and prevents calls where "the number allocated to a subscriber in respect of the called line" is on the regulation 26 register.

    This would seem to suggest that the register is to hold "numbers" which are "allocated to a subscriber" in respect of one of more "lines".

    The notion of "number allocation" is generally well-understood, although "allocation" usually relates to the licensing of a block of numbers from an NRA to a communications provider, rather than from a provider to a subscriber, but ho hum.

    What is a "number"?

    I could not find in the Communications Act the reference behind your point that it "is quite clear that numbers do not have to be digits". s56(5) does not explicitly say that a "number" is limited to "digits", but my feeling is that this is how Ofcom would enforce it?

    What is a "line"?

    This gets a bit messy, I think.

    There is no definition of "line" itself within PECR, but regulation 2(4) of PECR provides that "[a]ny reference in these Regulations to a line shall ... be construed as including a reference to anything that performs the function of a line".

    As such, "line" thus not only "a line", but anything that "performs the function of a line".

    But what is a "line"?

    The only definition I can think of in the overall regulatory framework is within the Telecommunications Code, under Schedule 2 of the Telecommunications Act 1984 (as amended), which defines "line" as:

    "any wire, cable, tube, pipe or similar thing (including its casing or coating) which is designed or adapted for use in connection with the provision of any electronic communications network or electronic communications service;"

    This definition puts "line" very much in the physical world. And, of course, this is not surprising: the telecommunications code exists to deal with physical world issues pertaining to the deployment of infrastructure.

    However, we have the tweak in PECR: "line" includes "anything that performs the function of a line". Where does that leave us?! That a "line" is a "wire or similar thing, designed or adapted for using in connection with the provision of an ECN or an ECS, or something which performs that function".

    Importantly, I think it leaves it uncertain whether a "line" must be something physical. From the code definition, I would say "yes", but "performs the function of" would seem to permit a non-physical instance, provided that the functionality part was met.

    What is the function of a "line"?

    Is to be used as a conduit for the conveyance of signals (i.e. a constituent part of a ECN)? Possibly, perhaps even probably. More than that, I'm not sure at the moment.

    However, without knowing what a "line" might be, we cannot assess whether the number dialled by the calling party is a "number allocated to a subscriber in respect of the called line".

    I suspect it gets worse, as the regime prohibits calls to certain "subscribers". A "subscriber" is a " person who is a party to a contract with a provider of public electronic communications services for the supply of such services" (Regulation 2(1)). It is grounded in protecting those using (well, subscribed to), public electronic communications services. (continued)

  5. ctd

    If the service on which you receive the call is not a public electronic communications service, chances are it is out of scope of protection.

    If the service in question is not a public electronic communications service, it falls outside regulation 21. I suspect it would be hard to argue that a system which was not prohibited by regulation 21 should be treated as within the scope of regulation 26.

    Which brings us to the question as to whether FaceTime, or Facebook Messenger, or RTP traffic to a SIP (if that kind of makes sense) "public electronic communications services"? My feeling is that they are not: my thoughts are here (with more to come in due course): and Ofcom, via what was the Expert Regulators Group, seems to have a similar approach — see paragraphs 3.5 and 3.19 of

    If they are not PECS, I would see them as being outside regulation 21, and so outside regulation 26.

    However, ADSL (for example) broadband *is* a public electronic communications service, in my view, and someone using FaceTime over a PECS would be using that underlying PECS for the purpose of direct marketing, and so their behaviour would still be prohibited under regulation 21.

    And, perhaps, round in a circle we go again...

    1. Comms Act 2003, 56(10): “number” includes data of any description.
      56(5): lists purposes of numbers, including identifying the destination for, or recipient of, an electronic communication; which covers a SIP URI
      151(1): “telephone number” has the meaning given by section 56(5)

    2. Thank you.

      I agree that "number" clearly means "data of any description".

      However, is a SIP URI a "telephone number" for the purposes of s56(5)? I'm less sure:

      A "telephone number" includes any data used for "identifying the destination for ... an electronic communication".

      Is a SIP/RTP/IAX service an "electronic communication"? s56(10) defines "electronic communication" as a "communication for transmission by means of an electronic communications network", which is broadly similar to the definition of an "electronic communications service" (s32(1)).

      If the definitions within s56 are intended to refer to "electronic communications services", we get back into the loop above, as to whether a SIP/RTP service is an "electronic communications service". Part of me feels like it is — when I am logged in to my SIP endpoint, I can make calls to the PSTN, since there is an asterisk trunk set up to do that. Conversely, Skype has argued repeatedly that Skype is not an ECS, notwithstanding the availability to users of SkypeIn and SkypeOut services, and I am not aware that Ofcom has disagreed with this.

      I would be very interested in you did decide to try to take this further!

    3. Indeed. In my case the SIP URI goes to the office and then comes to me via the registered SIP connection used for my other numbers such as my Bracknell phone number. I am not a subscriber for the SIP URI based service, but can be. Indeed, I'll add that to what A&A (a telco) bills me for.

    4. It strikes me that your cause of action is going after Ofcom under regulation 30, or, more broadly, for breach of statutory duty.

      I suspect that Ofcom would argue that you have chosen to make available a SIP extension in such a manner that a third party can address traffic to that extension via SIP is not an "electronic communications service", such that a SIP URI is not a "number" for the purposes of the Communications Act 2003.

      I'm not sure whether treating that as an ECS would be desirable or not.

    5. I started this as a bit of a poke at the TPS, but you are right that this is a much bigger issue. It is hard to see how the SIP URI is any different to a sequence of digits in the legislation (given comms act definition of number) but is the service used to allow calls to get to me an ECS or not. In some ways it would be better if VoIP was totally out of scope. VoIP should be no different to accessing a web page or sending an email, as a totally "over the top" service using underlying communications networks. OFCOM, for example, decided that providing iMessage as a service under a contract with UK consumers did not mean Apple had to have ADR, indeed then did not understand the question, yet if Vodafone provide an identical service using SMS protocols they consider it is.

    6. Indeed. And, after this year, which I am spending on my PhD thesis on the regulation of over the top communications services, perhaps I might have more of an answer, or, more likely, some proposals.

      I already have a note to reference SIP2SIM :)

  6. Not to forget that the TPS and FPS are opt in on behalf of the answers.
    A good company wants to stay good, but a bad company won't subscribe to them and so is safe to ignore them with no ramifications.

  7. I'd just like to take this opportunity to go on a closely related rant: the cost of using the TPS.

    As I understand it, the TPS is nothing but a list of phone numbers, that people can register their numbers with. However in order to see the list, telemarketers are required to pay £2200/year.

    This service would be be considerably more valuable to the consumer if the data were freely available to telemarketers, making them more likely to use it, and more accurately reflecting a reasonable cost of maintaining it. I would go so far as to offer to offer to run the TPS service as a free public service.

    Am I missing something?

    1. You're missing that telemarketers are legally required to use TPS, so TPS can charge whatever the hell they like since you have to pay it.

      A slightly tangental rant: I develop internet filtering/auditing systems for schools. Back when BECTA existed, their requirement was that filtering systems had to make use of the IWF blacklist - IWF claims to be supported by "voluntary donations", but a closer look shows that in order to use their block list you are required to make a "voluntary donation", and they set the size of the "donation" based on factors like the size of your company, etc. The "donation" requirements range from a few tens of thousands of pounds, to a few hundred thousand pounds. I would argue that something you are required to pay in order to get hold of a product is not a "voluntary donation", but is instead a "purchase price". Anyway, long story short: as a small company there was no way we could afford this disproportionately high price, so we instead offered our customers an optional licence for a third party system, which did all the IWF stuff and would interface with our product - no customer has ever taken us up on the offer, instead opting not to use the IWF block list at all.