Telecomblog published comments by Olga Borisova upon violation of the Law on advertisement
26 October 2012
Rostelecom will not be penalized for notorious calls to home telephones of many citizens of Saint Petersburg. Notwithstanding the fact that the Department of Federal Antimonopoly Service (UFAS) has found violation of the law “On advertisement” in the said calls, Federal Arbitration Court of North-West Circuit nullified the said UFAS resolution.
One of subscribers of Rostelecom brought a claim in UFAS for Saint Petersburg in 2011 against the company’s actions. Having examined the claim, the antimonopoly service accused Rostelecom of distribution of their services (connection to the Internet) advertisement by addressed telephone calls without prior consent of the subscriber. The advertising continued even after the subscriber had announced his unwillingness to receive such information.
The Company was given the instruction to stop the said actions. Besides, the UFAS resolution provided for transfer of materials to court for initiation of a proceeding of administrative offence under part 1 clause 14.3 of Administrative Code of the RF.
Rostelecom contested the acts adopted by UFAS in Arbitration Court of Saint Petersburg and Leningrad Region. Position of Rostelecom was based on the fact that according to Federal Statute “On advertisement”, advertisement is the information distributed by any methods in any forms, using any means and addressed to indefinite circle of persons. However, the information in the discussed case was brought to the definite circle of persons which, according to data of the Company’s informational billing system, is limited to the subscribers and users of services of Petersburg Branch of Rostelecom.
Federal Arbitration Court of North-West Circuit after legal proceedings between UFAS and Rostelecom in several court instances nullified the resolutions and instructions of the antimonopoly authority and canceled them on 17.10.2012.
“According to point 1 clause 3 of Statute No 38-FZ, advertisement is understood as the information distributed by any method in any form, using any means, addressed to indefinite circle of persons and aimed at drawing attention to the object of advertisement, forming or supporting interest to it, and its promotion in the market”, as Olga Borisova, a lawyer of “S&K Vertcial”, commented.
She also noticed that according to “Procedure of subscriber informing dialog about presence of technical feasibility of connection to services under PON technology”, extracts from which were quoted in the court acts, Rostelecom Company brought to the citizens’ notice, along with the information about replacement of the communication lines and the change in the service provision technology, also the information about actions and advantageous offers of connection to the Internet and TV; the latter can be construed as drawing of attention to services of Rostelecom.
“In addition, the matter is that the court of cassation could construe provisions of Statute “On communication” wrongly, as if the said provisions allow Rostelecom Company distributing disputable information. So, the conclusion of the court of first instance and court of cassation about illegality of the resolution and instruction issued by antimonopoly authority is not quite indisputable, but definite conclusion who was right and who was not in the said situation can be made only on the basis of scrupulous study of documents”, as Olga Borisova said.