LIVE CONVERSATION SERVICES CODE OF PRACTICE


Contents    
1 INTRODUCTION 4 COMPENSATION SCHEME RULES
2.1 Monitoring 5 PROCEDURES AND SANCTIONS
2.2 Employment and Training 5.1 Standard procedure
2.3 Introductory messages 5.2 Emergency procedure
2.4 Content of conversations 5.3 Disclosure of information
2.5 Expert or specialist services 5.4 Oral hearings
2.6 Under age callers 5.5 Adjudication
2.7 Unauthorised use of the telephone 5.6 Reviews
3 PROMOTIONAL MATERIAL AND ADVERTISING 5.7 Sanctions
5.8 Administrative charge


LIVE CONVERSATION SERVICES CODE OF PRACTICE


Premium Rate Services involving two way live speech* are regulated by this Code which is recognised by the Director General of Telecommunications ('the Director'). It supersedes all previous Codes recognised by the Director.

There is also a general code (called 'the ICSTIS Code of Practice') mainly covering recorded services, the provisions of which (excluding those which clearly only have application to recorded services) also apply to Live Conversation Message Services. You need to read both these Codes.

*These services are described as Controlled Services, an expression which includes Live Conversation Message Services, both defined in the Telecommunications Act licences which refer to this Code.


PART ONE: INTRODUCTION

1.1 The purpose of this Code is to govern the provision of Live Conversation Message Services (to be referred to in this Code as 'Live Services') within the meaning of the relevant conditions in the licences granted to Network Operators.

1.2 This Code has been recognised for the purposes of the relevant conditions in Network Operators' licences on 19th January 1998 by the Director. It supersedes all previous Codes dealing with Controlled Services and is effective from 9th March 1998. This Code may be amended by ICSTIS from time to time following consultation with Network Operators and other interested parties, but unless the Director has given his written consent to such an amendment, in which case the amended Code shall have effect from the date of such consent, no amendment to this Code of Practice shall come into effect for the purposes of any licence condition applicable to any Network Operator until two months have elapsed from the date on which ICSTIS has provided the final text of such amendment to the Director.

1.3 The provisions of this Code form part of ICSTIS' own Code of Practice. The Network Operators' standard contracts for the provision of premium rate services oblige Service Providers to comply with the ICSTIS Code of Practice.

1.4 A Service Provider must not provide any Live Service unless it has first obtained a certificate from ICSTIS giving the Service Provider permission to provide that service. Service Providers must not continue operating a Live Service in the event that no certificate is in force.

Such permission may be subject to any conditions that ICSTIS may consider appropriate, to ensure that the particular service does not cause consumer harm. Such conditions may relate, for example (but not to restrict the generality of the provision), to the content, advertising or recording of calls. Services provided for entertainment or services charged at the Higher Rate (see ICSTIS Code paragraph 2.3.1) are likely to be subject to additional conditions. Further information is provided in Guidelines annexed to this document which may be revised from time to time.

1.5 In what ICSTIS considers to be appropriate cases it will not issue a certificate unless it is satisfied that compensation arrangements exist (as set out in Part Four of this Code) which will enable the prompt and effective provision of compensation to any subscriber whose telephone has been the subject of unauthorised use involving calls to the relevant Live Service(s) and in respect of which the Adjudicator has made an award under Part Four of this Code.

1.6 Part Two of this Code governs the operating procedures which must be observed by those Service Providers who are required to have compensation arrangements in place. Part Three describes the rules relating to promotional material and advertising. Part Four sets out the procedures for dealing with claims for compensation, the Compensation Fund Rules and the duties and powers of the 'Adjudicator' (referred to in paragraph 4.2) who decides on claims for compensation.

1.7 Breaches of the Code by a Service Provider are drawn to ICSTIS' attention either by complaints or through monitoring. Once alerted, ICSTIS implements the procedures set out in Part Five of this Code.

1.8 Where a Service Provider can demonstrate that any requirement of the Code (except paragraph 1.5) can be adequately satisfied by alternative means ICSTIS may give prior written permission for the service to be provided incorporating such alternative means.

1.9 TRANSITIONAL ARRANGEMENTS

1.9.1 If, after the date on which this Code comes into effect, a complaint is raised against a Service Provider, that complaint shall be considered on the basis of the substantive provisions of the Code in force at the time when the circumstances giving rise to the complaint occurred, but shall be dealt with as to procedure and sanctions in accordance with Part Five of this Code.

1.9.2 All Live Services in operation on the date on which this Code comes into effect and which:

(a) are operated by Service Providers which are members in good standing with the Compensation Fund and have lodged a Compensation Scheme Bond with ICSTIS in accordance with paragraph 4.1, or

(b)have obtained an Oftel exemption in respect of that service,

are deemed to have been granted permission by ICSTIS under paragraph 1.4 of this Code, such permission being subject to conditions requiring, in the case of members of the Compensation Fund, continued membership of the Fund and the application of paragraphs 2.1.2(a) - (b) and 2.1.3(a) - (e), and in the case of Service Providers who obtained Oftel's exemption, any conditions imposed by Oftel. In either case, the remainder of this Code shall apply fully and such deemed permission may be withdrawn by ICSTIS upon reasonable written notice.


PART TWO: OPERATING PROCEDURES

2.1 MONITORING

2.1.1 The purpose of the operating procedures in this Part is to ensure that Service Providers and their employees ('Operators') act in accordance with the Code and to facilitate monitoring and effective investigation in the case of complaint.

2.1.2 ICSTIS may set down such conditions as it deems appropriate (further information is provided in Guidelines annexed to this document which may be revised from time to time) in the granting of a certificate under paragraph 1.4 (which may include conditions relating to operating procedures) and without prejudice to that general power ICSTIS may require that Service Providers:

(a) ensure that all conversations are listened to continuously by an Operator (who is the person acting on behalf of the Service Provider to whom a caller speaks when accessing the Live Service);

(b) ensure that all lines are continuously recorded to allow investigation of complaints.

2.1.3 Where recording of conversations has been required, such conditions as ICSTIS may think appropriate may apply but in particular Service Providers may be required:

(a) to use recording equipment approved by ICSTIS such as to enable the time, date and content of Live Services to be accurately identified from the recording, such recordings being at all times compatible with ICSTIS replay facilities. Service Providers shall also conform with such other reasonable specifications as required by ICSTIS.

(b) to immediately disconnect the services if recording should cease at any time for any reason;

(c) to retain such recordings for a period of at least six months and deliver them to ICSTIS and the Adjudicator, intact, within three working days of request;

(d) before the commencement of service and in the event of any subsequent change to the recording equipment and/or the number and use of the lines, to submit the following to ICSTIS:

(i) a statement from the individual installing the recording equipment which identifies the type of equipment and the number of lines that have been connected to that equipment;

(ii) a written declaration, in a form prescribed by ICSTIS, providing the following:

(1) the telephone number(s) associated with each line, as referred to in paragraph 2.1.3 d (i);

(2) the recording channel associated with each line, as above;

(3) the type, and nature, of Live Service associated with each line, as above;

(iii) a statement from the relevant Network Operator giving all the telephone numbers, and numbers of lines in respect of each, supplied to the Service Provider;

(e) to permit representatives of ICSTIS to visit their premises with or without notice at any time to investigate whether this Code is being complied with in all respects and to inspect the recording equipment, and to give such information and co-operation as ICSTIS may reasonably request which pertains to compliance with this Code.

2.2 EMPLOYMENT AND TRAINING

At the time of entering into employment, every Operator must be given a copy of this Code. After adequate training (which should be for a minimum of four hours) and in addition to on-the-job supervision, the Operator must sign a document to confirm that s/he has read this Code and has had its contents and significance explained and that s/he will comply with its provisions. A copy of this signed document must be retained by the Service Provider and should be produced on request from ICSTIS. No Operator shall be under the age of 18, and ICSTIS will retain the right to impose a condition that Operators should be of a higher age.

2.3 INTRODUCTORY MESSAGES

All Service Providers must ensure that on connection each caller receives a brief introductory message giving details of all the call costs, the name of the Service Provider providing the Live Service and a warning that rules apply governing disallowable conversation content which will be applied by Operators. If applicable, the caller must also be informed that a recording of the conversation may be required to be made available to ICSTIS and the Adjudicator.

2.4 CONTENT OF CONVERSATIONS

2.4.1 Service Providers must not provide any false, out-of-date or misleading information or communicate any information unlawfully.

2.4.2 Service Providers must use all reasonable endeavours not to allow any talk of a kind or do anything that is likely to:

(a) encourage or incite any person to commit a criminal offence;

(b) cause grave offence by reason of sexual or violent content;

(c) involve the use of foul language;

(d) debase, degrade or demean;

(e) induce or promote racial disharmony;

(f) encourage, incite or suggest to any person the use of harmful substances;

(g) encourage or incite any person to engage in dangerous practices;

(h) induce an unacceptable sense of fear or anxiety;

(i) result in any unreasonable invasion of privacy;

(j) mislead any person with respect to the content or cost of the service being offered;

(k) prolong or delay the service unreasonably.

2.4.3 Service Providers must actively discourage callers from seeking or giving out surnames, places of work, addresses or telephone numbers, or arranging or attempting to arrange any meeting while connected to a Live Service. ICSTIS may give an exemption in respect of this requirement for business advice or information services where the giving of such information is a necessary part of the service.

2.4.4 Service Providers must ensure that Operators cut off any caller who does not comply with the requirements set out in paragraphs 2.4.2 or 2.4.3.

2.4.5 Service Providers must not seek to take improper advantage of any characteristic or circumstance which may make consumers vulnerable.


2.5 EXPERT OR SPECIALIST SERVICES

2.5.1 Live Services which provide information or advice involving the skill and judgment of an expert or specialist must indicate clearly at the beginning of each call the identity, current status and any relevant professional qualifications and experience of the person(s) or organisation(s) supplying the specialist information or advice.

2.5.2 If the information or advice is given by a person with no relevant qualifications or experience, the service should explain its source and the communication must be prefaced with a statement that the recipient of the communication should not act upon such advice without first consulting a suitably qualified practitioner in the particular field of the relevant specialism.

2.5.3 The information or advice should be conveyed in a manner that properly reflects the seriousness of its subject matter.

2.6 UNDER AGE CALLERS

2.6.1 Operators shall do everything practicable in accordance with the procedure set out in this Code to prevent persons under 18 years of age taking part in any Live Service.

2.6.2 If an Operator has reasonable grounds to suspect that the caller is under 18 the following procedure must be adopted:

(a) ask the caller his/her age and date of birth; and

(b) ask the caller such other relevant questions as the Operator deems appropriate; and

(c) if the caller hesitates in responding or the replies do not correlate or the Operator is still not satisfied, then the caller should be regarded as being under 18 and be cut off.

2.7 UNAUTHORISED USE OF THE TELEPHONE

2.7.1 The Service Provider shall take all reasonable steps to identify and cut off calls made without the authority of the telephone subscriber and in order to satisfy this obligation shall adopt the following procedure:

(a) Any caller who appears to be using the Live Service excessively, either due to the length of an individual call made or due to the frequency with which calls are made, must be warned by the Operator of the potential costs arising from such usage.

(b) A caller who, having received a warning in accordance with sub-paragraph (a) above, remains on the line should be asked whether s/he is responsible for paying the telephone bill or has permission to use the telephone line. If there is any reason for the Operator to doubt the truth of the response, then the caller's name, address and telephone number should also be obtained and checked promptly. The telephone number should then be dialled in a further attempt to verify the authenticity of the caller. The Operator may take such further or other steps as seem helpful in establishing the authenticity of the caller.

(c) If a caller refuses to answer the above questions then s/he should be immediately cut off.

2.7.2 Operators should adopt the following procedure if a caller has been connected to the Live Service for a significant amount of time and has not spoken:

(a) The Operator should prompt the caller to speak.

(b) If there is no response the Operator must inform the caller of the costs that arise from overuse of the service.

(c) If there is still no response the Operator must inform the caller that unless the caller offers the form of identity described in paragraph 2.7.1 (b) above, then the caller will be cut off. If no response is forthcoming the caller must be cut off.

2.8 ICSTIS will engage in random monitoring of conversations to check that the conditions of this Code are being complied with. ICSTIS will, in cases where conversations are required to be recorded, also call for random samples of those recordings for the same purpose.


PART THREE: PROMOTIONAL MATERIAL AND ADVERTISING

3.1 Service Providers must also comply with the provisions of the British Codes of Advertising and Sales Promotion which are supervised by the Advertising Standards Authority. In addition the following rules shall apply:

(a) The Service Provider shall ensure that the charge for calls to each service advertised is clearly stated in all promotions. Prices shall be noted in the form of a price per minute inclusive of VAT, or the total maximum cost to the consumer of the complete message or service.

(b) Textual pricing information must be legible, prominent, horizontal and presented in a way that does not require close examination.

(c) For any promotion the identity and address of either the Service Provider or Information Provider, where not otherwise obvious, must be clearly stated. This should include at least the Service Provider's name, street name and number or a PO Box number (PO Box numbers cannot be used in the case of employment services) and full postcode of the main place of business.

(d) The promotional material must not be misleading in relation to the service actually provided.

(e) The promotional material must not seek to take improper advantage of any characteristic or circumstance which may make consumers vulnerable.

(f) The promotional material should not encourage children or young people to call the service.

(g) No promotion may be directed primarily at persons under 18.

(h) The promotional material must state clearly that conversations are being constantly recorded where there is such a requirement.

(i) The promotional material in relation to expert or specialist services must indicate the current status and professional experience of the person(s) involved in providing the relevant services.

3.2 Promotional material on radio, television, cable, telephone or any other form of transmission will be required to observe these rules to the extent reasonable and appropriate to the technology employed.



PART FOUR: COMPENSATION SCHEME RULES

4.1 The ICSTIS Compensation Scheme requires Service Providers to contribute to the Live Conversation Service Providers Compensation Fund ('the Compensation Fund') and to enter into a contract with the Trustees of the Compensation Fund in a form agreed by ICSTIS and to lodge a Bond with ICSTIS as security against meeting compensation claims (a 'Compensation Scheme Bond').

4.2 The Compensation Scheme Bond is a document under seal whereby a third party guarantees the fulfilment by the Service Provider of their obligation to pay any sum awarded by the Adjudicator to the claimant. Such Bond must be provided by a body acceptable to ICSTIS in such form and in such amount as ICSTIS shall require and shall be expressed to remain in force for one year from the date on which the Service Provider shall cease to provide Live Services in respect of which such Bond was required.

4.3 A claim for financial compensation must be in the form of a pro forma written claim available on request from ICSTIS. When claims are received by ICSTIS the relevant Service Provider will be given an opportunity to settle them to the satisfaction of the claimant.

4.4 If the Service Provider does not settle the claim to the satisfaction of the claimant within such time as the Adjudicator considers reasonable, the ICSTIS Secretariat will investigate the claim and prepare a report on each case which will be passed to the Adjudicator for adjudication. The ICSTIS Secretariat will provide the Adjudicator with such assistance as s/he may require.

4.5 Where in a claim made by an individual subscriber (but not in respect of a claim made by a subscriber which is a limited company or a business subscriber) the Adjudicator has been unable to identify any firm evidence to support either acceptance or rejection of a claim, s/he shall normally give the benefit of the doubt to the claimant. However, the Adjudicator may decide against a claimant if s/he believes that a decision in favour of the claimant would represent an injustice.

4.6 The Adjudicator must be a person appointed by ICSTIS, but must not have any interest in any Service Provider of a Live Service.

4.7 The Compensation Fund is under the control of trustees who are authorised to make payments to claimants when so directed by the Adjudicator. The Trustees must be separate and independent of ICSTIS and the Adjudicator, but ICSTIS must be consulted before a new trustee is appointed and may veto the appointment.

4.8 ICSTIS will provide such guidance and help to claimants as they may require (having particular regard to any special difficulties or needs of disabled persons). Claims will receive immediate attention by the ICSTIS Secretariat and will be passed on to the Adjudicator as soon as practicable in the event that the Service Provider does not settle the claim to the satisfaction of the claimant.

4.9 In reaching decisions the Adjudicator must apply the following principles and procedures:

4.9.1 Proceedings will always be conducted on the basis of a written claim and any written response made by the Service Provider, but in appropriate cases the Adjudicator may wish to meet the claimant and/or the Service Provider and ask for oral representations to be made. Failure of the claimant to agree to a meeting will not however of itself prejudice his/her claim.

4.9.2 The Adjudicator may take whatever steps (either personally or through ICSTIS) the Adjudicator considers helpful to the adjudication including (but without limiting the Adjudicator's powers) consultation with any relevant person or body.

4.9.3 Claims must be dealt with as promptly and regularly by the Adjudicator as the number of claims reasonably permits.

4.9.4 Subject to paragraph 4.5 the Adjudicator shall adjudicate entirely as s/he sees fit on the basis of all the material before him/her and (entirely without prejudice to the foregoing) the Adjudicator may disallow any claim made by a subscriber who the Adjudicator in his/her sole discretion considers to have a significant level of business or commercial expertise or resources.

4.9.5 The Adjudicator shall formulate a set of guidelines, a copy of which will be available on request from ICSTIS, which s/he may have regard to in making his/her decisions.

4.9.6 Where the Adjudicator concludes that the claim should be met s/he shall pass his/her conclusion and direction to ICSTIS. S/he shall also stipulate the appropriate level of compensation (if any) to be paid. Such award of compensation may at the Adjudicator's sole discretion include legal and other costs and expenses of the claimant and may include an award under paragraph 4.9.8.

4.9.7 ICSTIS has no power to alter any such decision of the Adjudicator.

4.9.8 In any case, the Adjudicator may direct ICSTIS to inform the claimant of the availability of suitable call-barring equipment or facilities and of the availability of itemised billing and may make an award relating to the cost of such equipment or facilities. The Adjudicator may give such further or other advice as s/he sees fit.

4.10 If an award is made:

4.10.1 The Adjudicator shall so inform ICSTIS who shall inform the relevant Service Provider of the award and any applicable administrative charge. The Service Provider shall promptly make payment to ICSTIS of the sum awarded to the claimant and any administrative charge. If the Service Provider fails to pay promptly such failure will amount to a breach of this Code and ICSTIS will enforce the Compensation Scheme Bond lodged by the Service Provider and pay to the claimant the sum awarded and to itself any administrative charge from the proceeds of the Bond. After deducting all reasonable costs and expenses arising from and in relation to such enforcement ICSTIS shall retain any balance remaining for such period (being not less than one year) as shall appear to it in its absolute discretion to be necessary to cover any possible further awards and administrative charges in respect of services operated by that Service Provider.

4.10.2 If it is necessary for ICSTIS to take steps to enforce a Bond the Service Provider concerned must forthwith cease to provide any Live Services.

4.10.3 In the event that the total of the award made by the Adjudicator and/or such further awards or administrative charges raised against a Service Provider cannot be met from the proceeds of the Compensation Scheme Bond provided by that Service Provider then ICSTIS shall direct the trustees of the Compensation Fund to pay any such outstanding award or balance of award. Once directed to effect a payment, the Trustees will pay it out by virtue of the provisions of the Trust Deed.

4.10.4 In the event that the Adjudicator decides that no award should be made or that the award made should be no greater than a sum previously offered (unconditionally save as to time for acceptance) by the Service Provider to the Claimant prior to investigation by ICSTIS and which was not accepted by the claimant then any administrative charge made by ICSTIS in respect of such case shall be paid by the Trustees by virtue of the provisions of the Trust Deed.

4.11 Service Providers, ICSTIS, and the Adjudicator shall provide the Director with such information as s/he may reasonably require regarding the operation of the Compensation Scheme.

4.12 The Adjudicator shall prepare an annual report which shall be presented to ICSTIS for inclusion in ICSTIS' published annual report.


PART FIVE: PROCEDURES AND SANCTIONS

5.1 STANDARD PROCEDURE

5.1.1 Normally when the ICSTIS staff (called 'the Secretariat') receives or initiates a complaint that there has been a breach of this Code, the 'Standard Procedure' will be invoked:

(a) The Service Provider will be given all necessary information about the complaint including details of the service or promotional material which gives rise to the apparent breach of the Code, and will refer the Service Provider to the relevant provisions in the Code.

(b) The Service Provider will then be given a reasonable time in which to respond and to provide any information requested. In the absence of any special circumstances, this response will be required within five full working days. In special circumstances, a shorter time limit may be set - but this will be no less than 24 hours.

(c) If the Service Provider fails to respond within the required period then ICSTIS will proceed on the assumption that the Service Provider does not wish to respond.

(d) The Secretariat will prepare a report together with relevant supporting evidence which will be placed before the Committee for adjudication.

5.2 EMERGENCY PROCEDURE

5.2.1 Where it appears to the Secretariat that a breach of the Code has taken place which is serious and requires urgent remedy the 'Emergency Procedure' will be invoked:

(a) The Secretariat will undertake an immediate investigation of the complaint.

(b) On completion, the Secretariat will notify its findings to three members of the Committee.

(c) If all three members agree that there appears to be a serious breach of the Code requiring urgent remedy, the Secretariat will then telephone the Service Provider and advise him that his service appears to be in breach of the Code, that the Emergency Procedure has been invoked and that unless the service is removed immediately, the network operator will be advised of the breach and requested to bar access to the relevant number(s) forthwith.

(d) If the Secretariat is unable to contact the Service Provider, ICSTIS will advise the network operator of the apparent breach of the Code and recommend that access to the relevant number(s) should be barred forthwith. The Network Operator will also be advised that in the event that access is not barred, a recommendation will be made to the Director for him to direct the Network Operator to bar access.

(e) Once the service has been removed or access barred, the Service Provider will be provided with all necessary information relating to the complaint and will be referred to the relevant provisions of the Code. The Service Provider will then be required to respond in writing within three working days.

(f) All relevant information will be laid before the Committee within 14 days from the date of the initial reference.

(g) The time limits set out in this section may be extended at the Committee's discretion if the Committee considers that their strict application might cause injustice.

5.3 DISCLOSURE OF INFORMATION

5.3.1 During complaint investigations the Secretariat may request the Service Provider to disclose to ICSTIS, in confidence and within a reasonable time period, any additional relevant information or documents required for the completion of the investigation. This may include information about call volumes, patterns and revenues, details of the numbers allocated to an information provider, details of services operating on particular premium rate numbers or recordings of services.

5.4 ORAL HEARINGS

5.4.1 ICSTIS may, at its discretion, hear oral representations.

5.5 ADJUDICATION

5.5.1 On the basis of the evidence presented, the Committee will decide whether there has been a breach of the Code. Each case will be considered and decided on its own merits.

5.6 REVIEWS

5.6.1 ICSTIS may, at its discretion, review adjudications in the light of new information.

5.6.2 ICSTIS may, at its discretion, review any sanction imposed following an adjudication. Following a request from the Service Provider, either the Chairman or three members of the Committee may decide to suspend the sanction imposed, pending a review by the Committee.

5.7 SANCTIONS

5.7.1 Once ICSTIS has adjudicated on the complaint in question, the Secretariat will put before the Committee the Service Provider's details - these will include a list of relevant breaches upheld and sanctions imposed and the numbers of lines and numbers allocated to the Service Provider.

5.7.2 ICSTIS has a range of sanctions which it will apply according to the degree of seriousness with which it regards the breach. Having taken all relevant circumstances into account ICSTIS may:

(a) require the Service Provider to remedy the breach; and/or

(b) require an assurance from the Service Provider, or any associated individual, relating to future behaviour in terms determined by ICSTIS; and/or

(c) require the Service Provider to submit certain or all categories of services and/or promotional material to ICSTIS for prior approval for a defined period; and/or

(d) recommend to the relevant Network Operator that access to some or all of the numbers allocated to the Service Provider should be barred for a defined period; and/or

(e) recommend to the relevant Network Operator that the Service Provider should be prohibited from providing a particular type or category of service for a defined period; and/or

(f) impose an appropriate fine on the Service Provider to be collected by ICSTIS. Non-payment of a fine will be considered to be a breach of the Code and may result in further sanctions being imposed, in addition to a recommendation to the relevant Network Operator to withhold and pass over to ICSTIS the sum(s) due from the Service Provider's outstanding payments; and/or

(g) recommend to the relevant Network Operator that the service provider should no longer be permitted to provide any premium rate service for a defined period; and/or

(h) in the most serious cases recommend to the Director that he should make an appropriate direction to the Network Operator (or to the Network Operators) to cease to provide (or as the case may be, not to provide) the Service Provider with any service enabling it to provide Live Services.

5.8 ADMINISTRATIVE CHARGE

5.8.1 All Service Providers found to be in breach of the Code may be invoiced for the administrative and legal costs of the work undertaken by ICSTIS. Non-payment will also be considered to be a breach of the Code and may result in further sanctions being imposed, in addition to a recommendation to the relevant Network Operator to withhold and pass over to ICSTIS the sum(s) due from the Service Provider's outstanding payments.