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Fontanka publishes comments made by lawyer Yevgenya Yevdokimova concerning faulty operation of St.-Petersburg network of MTS

22 September 2011

On September, 21, thousands of St.-Petersburg subscribers of MTS, were disconnected from the communication for several hours; they even were unable to call emergency services or to use any other telecommunication services. The mobile operator has reluctantly acknowledged the failure, however, they tried to underestimate the accident scope. However, should the damaged parties successfully prove that the company is in breach of obligations, they shall likely fail in recouping themselves for lost time and damaged nervous system. This being said, the company already begun to accrue small compensation amounts to almost all the concerned persons. Subscribers of the largest mobile operator have first encountered problems circa 02: 00 P. M. All the antennas shone on the screens of mobile phones, but one was unable to make/ receive calls, to send an sms, or to go on-line. Even 12 hours on the failure wasn’t completely eliminated.

Play a trick on yourself

At first, the press-service of OAO “Mobilnye Telesystemy” has completely denied communication interruption. Then they were bound to recognize that a failure occurred, but they stated that the failure only affected no more than one thousand subscribers, and that communication was completely reestablished by 17 o'clock. Following the logic of the company representatives, this one thousand should include all the employees of “Fontanka” and all the employees of some other newspapers subscribed to MTS, as well as all citizens which won’t stop calling editorial offices, workers of partnership firms (legal, consulting and other companies). Yulia Nemenova, the expert of public relations in the branch “MTS Severo-Zapad” was also unavailable for several hours.

As to the operator’ call center, they actually admitted failures which occurred throughout St.-Petersburg from the first minutes. They promised to solve the issue by 08:45 P. M., and recommended subscribers to “reboot their cell phones”. Nevertheless, according to consultant named Anastasia, as of 1 o'clock in the morning “many subscribers faced restrictions when using cell phones”, and the company promised to eliminate all the aftereffects only by eight o'clock in the morning.

According to the call center, the accident was caused by routine maintenance works on the equipment as well as works aiming to upgrade software, that is, by scheduled measures. Anyway, the operator neglected to send SMS notices or to post a message on their Website about scheduled communication interruption. “Next time we will certainly inform people about it”, stated the company representative.

Experts do not believe in this version as to the causes of accident. “Unfortunately, the accident is a not a one-off event. MTS often faces technical bugs. This being said, they cannot attribute the bugs to routine maintenance, because the latter is carried out at night and not at busy hours. And the automated failover should be used,” said Denis Kuskov, the head of Information Analysis Agency TelecomDaily.

Though I am guilty, I will declare myself guiltless

Regardless of the reasons of failure, subscribers should not mind about them. The law stipulates that mobile operator shall not be responsible for failures in communication networks, unless the presence of force-majeure events (terrorist attacks, earthquakes, tsunami, etc.) is proved. Any technological disturbances or disruptions caused by partners (including collapses in electric power systems) will not justify telecommunication companies and will not relieve them of responsibility.

Lawyers are confident that in this case MTS has violated obligations to subscribers. “In all likelihood, the issue is not force majeure circumstances,” believes Yevgenia Yevdokimova of lawyer office Vertikal (which also was disconnected from the communication yesterday). “However, it will be rather difficult to obligate the mobile operator to indemnify subscribers for damages caused by absence of communication. To do that, one should prove causal connection between subscriber’s unability to call and the losses incurred, and to establish the extent of losses. The law of the RF “On consumer protection” provides the possibility to claim compensation for moral damages, however, once again, only in case of fault of the counterpart. That is, subscribers will face significant difficulties when proving the presence of damage and of causal connection”.

Moreover, mobile operators try to protect themselves from potential reasonable claims by including some tricky but not always legal stipulations into contracts with users (they are included in separate documents titled rules, conditions of use, etc). For instance, MTS has specified in the contract, that “subscriber’s unability to use the services should be confirmed by documents” (?!). And, according to conditions of Megafon, they are “not responsible for unavailability of separate stations (site) or network/networks (including the Internet), administered by third parties”.

The legal practice confirms speculations of lawyers. Judges more often try to relieve mobile operators from responsibility, even when the latter do not deny the fact of violation. For instance, after the cutoff of stationary phone (and, consequently, the cutoff of the Internet channel linked to it), a citizen of St.-Petersburg was bound to use GPRS-access. He submitted the complete account statement to the court, and demanded to collect any extra expenses from the fixed-line operator. But the court did not consider this as a sufficient proof, since the claimant could work from outside his home.

This being said, one does not necessarily have to fulfill these conditions. The judicial decision which came into effect a week ago it is confirmed unlawful nature of exception imposed by ОАО Megafon: “Operator shall be relieved of responsibility only provided that they prove that the said infringement resulted from force majeure. This being said, the mobile operator, when rendering services stipulated by the contract, is responsible for the quality of these services, based on contractual relationship with other mobile operators aimed at performance of obligations related to rendering roaming services to subscribers.”

Such practice also testifies that a client, if they desire so, can easily “avenge” themselves on the dishonest company by applying to regulatory agencies (Roskomnadzor or Rospotrebnadzor). Clients can point to real violations (such as disconnection), as well as to formal infringements (crippling terms are contained in contracts of all operators). Any such violation with regard to a subscriber may result in penalty imposed on mobile company in an amount equal to 10 thousand roubles (as a minimum), and even up to 30 - 40 thousand roubles. Any repeated infringement of consumer rights within a year may lead to dissolution of the company.

Hush money

Denis Kuskov believes that MTS will get clear away, by offering some free SMS to clients at the most. Such form of compensation is practiced by all mobile operators. For instance, Moscow subscribers of OAO “Vympelkom” (“Beeline” trade mark) on September, 6 were disconnected from communication for several hours, and Vympelkom offered to all clients residing in Moscow the possibility to send short messages free of charge during one Saturday (September, 10). And in 2003 subscribers of TELE2 were offered free local calls during two days as compensation, since TELE2 network ceased to operate because of fire in the building where switching system was located.

MTS subscribers who displayed perseverance, even those who did not use their phone yesterday, can bargain for a “gift”. For instance, a consultant promised a bonus of 50 roubles to be accrued to the account of an owner of the USB-modem who was allegedly compelled to use more expensive services provided by another mobile operator due to absence of communication, and who has later applied with the call-center.

Judging by official statements made by the by press-service, the mobile operator is in no haste to apologize to all the subscribers. This being said, its behavior could result not only in material damage: failures made emergency services (including medical ambulance, police, and fire fighting brigades) unavailable for several hours. And any delay in arrival of emergency services brigades call spell death.

Anton Odynets,

Fontanka.ru 


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