About "BIZ limit" tariffs and not only
Recently, “unlimited” tariffs at quite low prices have become popular among providers and cellular operators. However, the happy owners of such tariffs soon realize that there is no free cheese, and the bandwidth of the provider is limited. The provider, in turn, restricts users. This can be done in different forms, most often after reaching a certain amount of downloaded speed drops sharply until the end of the month. At the same time, the subscriber is still allowed to use the connection, so that formally the tariff continues to meet the definition of “unlimited”.
However, something exotic also occurs: for example, one of the cellular operators blocked the subscriber with reference to Article 10 of the Civil Code, which tells about “abuse of the right”, that is, such actions that are carried out “solely with the intention to cause harm to another person”. Let's see if you can object to the provider in such cases.
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In order to have an idea of the applicable legislation, we need four basic regulatory acts. Firstly, this is the law “ On Communications ” - in its seventh chapter it defines the basic rules for the provision of services in this area. In addition, the provision of Internet access is described in the “ Rules for the provision of communication services for data transmission ” and the “ Rules for the provision of telematic services ”. If we are talking about mobile operators, then the “ Rules for the provision of mobile communication services ” apply. However, there is a conflict between the two last “rules” if the mobile operator provides access to the Internet.
In the interests of the operator to assert that his services are regulated only by the latest “rules”, since their conditions are less beneficial for the subscriber. This is probably why most of all claims arise from those who use the services of cellular operators. In general, communications regulations are full of strange nuances that "work" against consumers. What is only one time in sixty days, during which the operator can consider the claim of the subscriber - this is twice the thirty-day period, which is set to answer citizens from the authorities.
Or, for example, the requirement to notify citizens about new tariffs contained in the twenty-fifth paragraph of the Rules for the provision of mobile services. Notification should be made through the media - that is why all the official sites of mobile operators are registered as such. Announced the tariff on the site - notified subscribers through the media. It seems that the law has been observed and everything is correct, but in fact - mockery. Therefore, it is important to remember that the subscriber who decided to argue in such a situation will be confronted not only by the legal department of the provider or the mobile operator, but also by some features of our laws, decrees and other documents.
All the mentioned “rules” define a “tariff” as “a set of price conditions” on which a provider or operator provides its services. Behind this difficult to understand formulation lies the following: formally, under “tariff” legislation only means the scope of the services provided and their price. The quality of services, in particular, connection speed, simply does not fall under this definition. When it comes to the price of a contract, the procedure for changing it, in accordance with article 424 of the Civil Code, must be specified in the contract itself or in the law.
In addition, the aforementioned “rules for the provision of services” provide for a list of essential conditions that must be defined in the respective contracts in order for them to be considered to be concluded. And here we are waiting for another surprise: the “tariff plan” as a significant condition is provided only in the “Rules for the provision of telematic communication services”, all other “rules” allow not to specify it in the contract at all.
The rules of telematic services and rules for data transmission include the technical characteristics of communication services to the usual (i.e., non-material) contract conditions: for example, for data transmission, this is the bandwidth of the line, that is, the connection speed. But for contracts for cellular services there is not even such a requirement.
One more unpleasant moment follows from this: since the “tariff plan” is a “set of price conditions”, article 424 of the Civil Code of the Russian Federation permits changing it, as already mentioned above, it is enough to stipulate the order of such a shift in the contract. The main thing is to inform about this in the “mass media”, which, as you remember, are usually the sites of providers.
By the way, since we are talking about a contract - try to remember when the mobile operator last gave you a copy of it. Usually, everything is limited to a copy of the "subscriber card" and "rules for the provision of services." The author of this article has two copies of the contract: the first one is framed according to all the rules, but issued already in 2003. The second, from the operator Tele2, is not filled out and not signed, as appropriate, by the parties. In 2003, the signing of a contract for cellular communication was more serious, since it cost more then. Now, when the price of most contracts does not exceed hundreds of rubles, these trifles are taken more lightly.
As you probably guessed, and this particular connection design has an unpleasant consequence for the subscriber. The fact is that both the law “On Communications” and the “rules” that were discussed in the article provide for the submission of a claim by the subscriber before going to court. You can sue the operator only after its consideration. A copy of the service contract must be attached to this claim. No, this does not mean that the operators do not consider the complaints sent to them. But when the subscriber decides to go to court, an ambush awaits him here: it turns out that the procedure for filing a claim is not followed by them and he cannot sue.
As you can see, the domestic communication legislation provides for operators tremendous opportunities for the very “abuse of right” mentioned at the beginning of the article: the Civil Code does not limit this concept, providing for “abuse of the right in other forms”. "Abused", as a rule, cellular operators: to them, our legislation, as already mentioned, more favorably.
Nevertheless, it is quite possible to punish the operator in such a situation, if not in court, then after filing a complaint with supervisory authorities, for example, with the Federal Service for Supervision in the Field of Communications (“Rossvyaznadzor”).
As an example, although not entirely from this region, one can cite one of the cases considered by the Arbitration Court of the Novgorod Region. It dealt with appealing by Megafon to bringing to administrative responsibility under Part 3 of Article 14.1 of the Administrative Code ("Doing business with violation of the conditions provided for by a special permit (license)"). Megafon disconnected one of its subscribers, motivating it by the fact that he made an abnormally large number of calls to his own number from Tele2 operator in order to receive "bonuses" for incoming calls. It would seem that “abuse of the right” in its pure form - however, this fact did not matter to the court: in his opinion, outgoing calls do not violate the rules for the provision of MegaFon services, no matter how many.
After the “Megafon” subscriber disconnected, he turned to Rossvyaznadzor, which brought the operator to justice. Megafon appealed this decision, was refused by the court, he filed an appeal, but the decision of the court was upheld.
Artificial restriction of information may violate the law " On Advertising ". The seventh part of his fifth article prohibits the dissemination of advertising, in which "there is no part of essential information about the advertised product, about the conditions of its purchase or use, if this distorts the meaning of information and misleads consumers of advertising." The description is, of course, vague, but the silence that the connection speed at the "unlimited" tariff can change, and significantly, completely falls under it.
The fight against violations of the law on advertising is the area of activity of the Federal Antimonopoly Service, where you should complain. In addition, the requirement to provide the consumer with “necessary and reliable information about goods (works, services), ensuring the possibility of their correct choice” is contained in the tenth article of the law “ On Protection of Consumer Rights ”. This is also a rather non-specific requirement, but nevertheless, it’s quite realistic to declare its violation in court.
As an example, a court decision on a lawsuit against Beeline, published in one of the legal forums, can be given. In it, the court found the information about the tariff conditions unreliable, despite the fact that representatives of Beeline argued that we are talking about the so-called "navigators", that is, brief promotional materials, which set out only the basic terms of the tariff plan.
So, despite the difficulties that may occur on the way of the consumer, it is quite possible to fight with such tricks of providers
However, something exotic also occurs: for example, one of the cellular operators blocked the subscriber with reference to Article 10 of the Civil Code, which tells about “abuse of the right”, that is, such actions that are carried out “solely with the intention to cause harm to another person”. Let's see if you can object to the provider in such cases.
We study materiel
')
In order to have an idea of the applicable legislation, we need four basic regulatory acts. Firstly, this is the law “ On Communications ” - in its seventh chapter it defines the basic rules for the provision of services in this area. In addition, the provision of Internet access is described in the “ Rules for the provision of communication services for data transmission ” and the “ Rules for the provision of telematic services ”. If we are talking about mobile operators, then the “ Rules for the provision of mobile communication services ” apply. However, there is a conflict between the two last “rules” if the mobile operator provides access to the Internet.
In the interests of the operator to assert that his services are regulated only by the latest “rules”, since their conditions are less beneficial for the subscriber. This is probably why most of all claims arise from those who use the services of cellular operators. In general, communications regulations are full of strange nuances that "work" against consumers. What is only one time in sixty days, during which the operator can consider the claim of the subscriber - this is twice the thirty-day period, which is set to answer citizens from the authorities.
Or, for example, the requirement to notify citizens about new tariffs contained in the twenty-fifth paragraph of the Rules for the provision of mobile services. Notification should be made through the media - that is why all the official sites of mobile operators are registered as such. Announced the tariff on the site - notified subscribers through the media. It seems that the law has been observed and everything is correct, but in fact - mockery. Therefore, it is important to remember that the subscriber who decided to argue in such a situation will be confronted not only by the legal department of the provider or the mobile operator, but also by some features of our laws, decrees and other documents.
What is a "tariff"?
All the mentioned “rules” define a “tariff” as “a set of price conditions” on which a provider or operator provides its services. Behind this difficult to understand formulation lies the following: formally, under “tariff” legislation only means the scope of the services provided and their price. The quality of services, in particular, connection speed, simply does not fall under this definition. When it comes to the price of a contract, the procedure for changing it, in accordance with article 424 of the Civil Code, must be specified in the contract itself or in the law.
In addition, the aforementioned “rules for the provision of services” provide for a list of essential conditions that must be defined in the respective contracts in order for them to be considered to be concluded. And here we are waiting for another surprise: the “tariff plan” as a significant condition is provided only in the “Rules for the provision of telematic communication services”, all other “rules” allow not to specify it in the contract at all.
The rules of telematic services and rules for data transmission include the technical characteristics of communication services to the usual (i.e., non-material) contract conditions: for example, for data transmission, this is the bandwidth of the line, that is, the connection speed. But for contracts for cellular services there is not even such a requirement.
One more unpleasant moment follows from this: since the “tariff plan” is a “set of price conditions”, article 424 of the Civil Code of the Russian Federation permits changing it, as already mentioned above, it is enough to stipulate the order of such a shift in the contract. The main thing is to inform about this in the “mass media”, which, as you remember, are usually the sites of providers.
By the way, since we are talking about a contract - try to remember when the mobile operator last gave you a copy of it. Usually, everything is limited to a copy of the "subscriber card" and "rules for the provision of services." The author of this article has two copies of the contract: the first one is framed according to all the rules, but issued already in 2003. The second, from the operator Tele2, is not filled out and not signed, as appropriate, by the parties. In 2003, the signing of a contract for cellular communication was more serious, since it cost more then. Now, when the price of most contracts does not exceed hundreds of rubles, these trifles are taken more lightly.
As you probably guessed, and this particular connection design has an unpleasant consequence for the subscriber. The fact is that both the law “On Communications” and the “rules” that were discussed in the article provide for the submission of a claim by the subscriber before going to court. You can sue the operator only after its consideration. A copy of the service contract must be attached to this claim. No, this does not mean that the operators do not consider the complaints sent to them. But when the subscriber decides to go to court, an ambush awaits him here: it turns out that the procedure for filing a claim is not followed by them and he cannot sue.
As you can see, the domestic communication legislation provides for operators tremendous opportunities for the very “abuse of right” mentioned at the beginning of the article: the Civil Code does not limit this concept, providing for “abuse of the right in other forms”. "Abused", as a rule, cellular operators: to them, our legislation, as already mentioned, more favorably.
How to be?
Nevertheless, it is quite possible to punish the operator in such a situation, if not in court, then after filing a complaint with supervisory authorities, for example, with the Federal Service for Supervision in the Field of Communications (“Rossvyaznadzor”).
As an example, although not entirely from this region, one can cite one of the cases considered by the Arbitration Court of the Novgorod Region. It dealt with appealing by Megafon to bringing to administrative responsibility under Part 3 of Article 14.1 of the Administrative Code ("Doing business with violation of the conditions provided for by a special permit (license)"). Megafon disconnected one of its subscribers, motivating it by the fact that he made an abnormally large number of calls to his own number from Tele2 operator in order to receive "bonuses" for incoming calls. It would seem that “abuse of the right” in its pure form - however, this fact did not matter to the court: in his opinion, outgoing calls do not violate the rules for the provision of MegaFon services, no matter how many.
After the “Megafon” subscriber disconnected, he turned to Rossvyaznadzor, which brought the operator to justice. Megafon appealed this decision, was refused by the court, he filed an appeal, but the decision of the court was upheld.
Artificial restriction of information may violate the law " On Advertising ". The seventh part of his fifth article prohibits the dissemination of advertising, in which "there is no part of essential information about the advertised product, about the conditions of its purchase or use, if this distorts the meaning of information and misleads consumers of advertising." The description is, of course, vague, but the silence that the connection speed at the "unlimited" tariff can change, and significantly, completely falls under it.
The fight against violations of the law on advertising is the area of activity of the Federal Antimonopoly Service, where you should complain. In addition, the requirement to provide the consumer with “necessary and reliable information about goods (works, services), ensuring the possibility of their correct choice” is contained in the tenth article of the law “ On Protection of Consumer Rights ”. This is also a rather non-specific requirement, but nevertheless, it’s quite realistic to declare its violation in court.
As an example, a court decision on a lawsuit against Beeline, published in one of the legal forums, can be given. In it, the court found the information about the tariff conditions unreliable, despite the fact that representatives of Beeline argued that we are talking about the so-called "navigators", that is, brief promotional materials, which set out only the basic terms of the tariff plan.
So, despite the difficulties that may occur on the way of the consumer, it is quite possible to fight with such tricks of providers
Source: https://habr.com/ru/post/106991/
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