Comments made by Yevgenia Yevdokimova to an article titled “Megaphon sent sms with “tails” to another operators' subscribers. Telecom blog

13 July 2011

Megaphon used to send messages to their subscribers which may be regarded as promotional SMS. According to experts and market participants, such messaging violates federal legislation on advertising and inter-operator agreements.

Data on services supplied by Megaphon have surprisingly shown up in some information messages arriving from Megaphon to other operators’ subscribers. For instance, should a person call some unobtainable number belonging to Megaphon, they shall then receive a standard information message on this subscriber being online again, however, this message was followed by an addition concerning Megaphon rates or services.

“Megaphon began to add "tails" to these messages,” told a representative of a mobile operator.

Naturally, neither MTS nor Vympelkom (Beeline brand) was pleased with such messaging; they regarded it as violation of federal legislation on advertising, and are currently investigating legal permissibility of the said activity.

Darya Pyatkova, commercial lawyer of Rightmark group, has made the following comment: “cl. 18 of the Federal Law of 03/13/2006 no. 38-FZ on advertising stipulates that any dissemination of advertising via telephonic/ mobile radiotelephonic communication is only allowed on condition of the prior consent of subscriber/ destination to receive advertising (including in cases of information service via mobile radio telephone communication, as in the case at hand). This being said, there is a presumption of dissemination of advertising without the subscriber/destination prior consent. (I. e., subscribers are expected to be unwilling to receive advertising information; it is the advertising distributor who shall prove the contrary – subscribers’ consent to receive advertising)

However, to apply the said bans, one should first find out whether information circulated via sms-messages is of an advertising nature.

Should one consider, as an example, the message quoted by mass media, as follows: “Megaphon/beep: J. Jay-Casablanca:*770*240 #/60р”, one shall be able to say that this message is very likely of an advertising nature. Judging by the text, it contains operator’s name, as well as an explicitly stated rate (of services), one may also suppose what service is offered to subscriber. Moreover, it is uncontroversial that such mailing is clearly aimed at attracting attention to the service promoted by the sms-message and at forming interest in this service. One may also note that messages with such content are circulated within an undefined set of people which is also indicative of their advertising nature”.

Yevgenia Yevdokimova, a lawyer in the law firm S&K Vertical agreed with that and added: “It appears that subscribers of MTS and Vympelkom which received advertising information enclosed with technic messages from Megaphon, did not consent to receive such advertising, consequently, in this case there are grounds for believing that Megaphon is in breach of cl. 18 of the Law on advertising. Subject to p.1 cl. 14.3 of the Administrative Violations Code any breach of legislation on advertising committed by an entity shall entail a fine at a rate from one hundred roubles to five hundred thousand roubles”.

Anna Aybasheva, the Vympelkom spokesperson has told Telekomblog that the said mailing also violates the inter-operator agreement which expressly states that an operator is not authorized to use short messages communication to carry out mailing to other operator’s subscribers aimed at spreading information which may expressly or implicitly contain data on services provided by the first operator.

MTS managers say they are going to carry out legal review of the mailing.

The Megaphone press office refused to speak about this situation. According to some reports, no disputable messaging with "tails" is carried out anymore.

Aleksey Tsoy 

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