Alina Vislobokova, the lawyer of S&K Vertikal made comments for Telecom Daily concerning infringement of consumer rights by Vympelkom
29 November 2011
Roskomnadzor: one should not pay for “non-conversation”
The Rospotrebnadzor Administration of Chelyabinsk region considered that Vympelkom tariffs infringe on consumer rights: the mobile operator charges their subscribers for maintenance of telephone numbers
During scheduled inspection, the Rospotrebnadzor Administration of Chelyabinsk region discovered a clause in tariff plan of the local branch of Vympelkom stipulating that should no income/outcome calls/messages be detected on subscriber’s number within 90 days, the subscriber shall be charged a fee of 5 roubles per day. Should the subscriber start using their number again or should money on his account become exhausted, then the line rental shall not be charged .
An administrative action was brought against Vympelkom, and a n order was made out to them to cease such practice. The mobile operator attempted to appeal against this decision, however, arbitration court agreed with arguments made by Rospotrebnadzor.
Anna Aybasheva, the press-secretary of “Vympelkom” informed us that inclusion of line rental into operator’s price plan is a part of price conditions, offered by provider of mobile communication. “Our price plans actually provide for mixed rating: time rating and line rental fee. Analogically, operators of local exchange networks will charge subscription fee to users, regardless of scope of services actually provided. Line rental is adopted sue to the fact that, despite the lack of activity at subscriber’s numbers which may result in writing money off their personal accounts, mobile operator will, all the same, incur costs related to maintenance of communication network, to ensure readiness to provide communication service,“ said she, then added that courts delivered positive judgments concerning the issue of “Vympelkom”. “Currently we are thinking about our next steps,” said Aybasheva.
According to Yulia Dorokhina, the press-secretary of “Megafon”, the mobile operator shall not charge a subscriber, should they refrain from using communication services upon the expiry of 90 days. Aleksandr Bakhorin, head of Division of Federal Communications at Tele2 Russia group said that, should a subscriber refrain from using their number for 120 days, then a line rental fee of 1 rouble per day shall be written off their personal account, until the balance is zeroised.
According to Anton Bogatov, an expert in telecommunications law, Rospotrebnazdor did not take into consideration some economic aspects of communication service, which has two aspects - urgent and potential. “We pay both for our actual talking and for our right to to talk,” noted Bogatov. He believes that claims of Rospotrebnadzor are groundless, because in this particular case, the service is actually provided. “This being said, arguments of Vympelkom are unconvincing, as costs incurred by contractor do not necessarily subject customer to liability,” added the expert.
Alina Vislobokova, the lawyer of S&K Vertikal disagreed with him. As she said, the fact that a fee is charged for a period when subscribers do not use operator's communication services obligates consumers to use operator's communication services and infringes on free choice of services which is the right of every consumer. Moreover, “Mobile operator is required to conclude additional agreements with the consumer before making any changes in the contract, i. e., to obtain consumers' affirmative express consent before providing any communication service to them,” explained Vislobokova.
She pointed out that in accordance with the Consumer Protection Law, contractor (in this case: operator) is not entitled to provide services on a fee-paying basis without consumer's consent. “At the same time, subject to civil law, non-response generally implies refusal, consequently, the consumer should, on their own initiative perform some acts to continue using communication services,” believes Vislobokova.