On the activation period of the MTS SIM card. Legal aspect
In one of the December days of 2010, a citizen was walking with his wife. Having entered the MTS sales office, they decided to buy several sets of connections to the operator’s mobile network. The purchase was due to the fact that he came across an advertisement for the sale of sets with so-called gold numbers. As a result, connection sets for Maxi Plus, Super Zero 2011 and Ultra tariff plans were purchased for a total of 2100 rubles. The need to activate one of the Sim-cards arose only a year later, in December 2011. But, as it turned out, this is impossible to do. Then the citizen (also together with his wife - Sim-cards were issued in her name), turned to the communications salon, where they purchased the kits. In the salon they were literally told to go and throw out the cards in the trash, because they can only be activated within six months. If about the six-month period of validity of the Sim-card were said politely, calmly and sympathetically, then the story would have ended there. But rudeness begets (and should, in my opinion, generate) reciprocal actions. Arriving home, the citizen flipped through the booklet of the terms of the contract and did not find there any mention of the period during which the Sim card should be activated. And with a view to sorting out the question that had arisen, I applied for legal assistance: not for the sake of two thousand rubles, but because I had enough. .
First of all, a claim was sent to OJSC Mobile TeleSystems OJSC, Moscow. The claim, written in simple human language, contained a description of the situation and stated that the contract attached to the Sim-cards did not contain conditions for activation during any period. Consequently, the essential information about the product, provided for by Article 10 of the Law on Consumer Protection, was not communicated, which led to the loss of money paid for the goods. The complaint contained a request to replace the acquired Sim-cards with others with “gold” numbers, and if this option is not possible, return the money paid in the amount of 2,100 rubles. The stated requirements are quite reasonable.
A little more than a month later a response was received with a refusal. The main argument justifying the refusal was a reference to Clause 18.1 of the MTS Communication Services Provision Rules, according to which the Subscriber’s unilateral refusal to perform the Agreement is:
- non-receipt of the Subscriber’s Personal Account during the term specified in the Tariff Plan of the Subscriber’s term in the amount sufficient to achieve a positive balance on the Personal Account after suspending the provision of the Services in accordance with the settlement terms;
- non-use by the Subscriber of paid services during the period specified in the Subscriber's Tariff Plan.
At this stage, everything looked quite logical. The rules contain a reference rate for the conditions of the tariff plan. In response to the claim, this tariff plan is allegedly cited:
“The subscriber number ********** was serviced under the tariff plan“ Super Zero 2011 ”. In accordance with the terms of service of this tariff, if during a period of 150 days, the subscriber does not make use of paid services and does not make payments, the number of the tariff plan is changed to the Basic tariff. If during the period of 180 days, the subscriber does not make use of paid services, this circumstance means the client’s unilateral refusal to perform the contract. ”
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On the MTS website of the Tver region (the region of card purchase), we read the conditions of the tariff plan and find several other conditions:
“In case you do not use communication services (including free ones) and do not make any payments within 150 days (5 months), you are transferred to the tariffing of communication services in accordance with the terms of the Basic Base tariff plan.” This turns off the service "On full confidence"
Attention! The tariff "Basic" provides a monthly fee for the tariff, which is written off before the subscriber’s account reaches a zero balance. "
And here the first logical question arises. From what moment should these days be counted? Common sense dictates that they should be counted from the day the Sim card is activated. You insert it into the phone, enter the pin-code and then the provision of communication services, subscription fees, etc. begins. But I did not manage to find confirmation of “common sense” in any documents. On the contrary, clause 3.1 of the MTS Communication Services Provision Rules states that the Contract enters into force and becomes binding on the parties from the time of its conclusion. That is, it turns out that by purchasing a Sim-card with a tariff plan that includes a monthly fee, it starts to accrue from the moment you sign the contract! A good way to get money on the "legitimate" grounds!
But back to the answer from the MTS. Suppose that the contract really began from the moment of the conclusion and after 150 days from the moment of purchase of the Sim-card it was transferred to service at the Basic tariff. Therefore, the relationship of the parties should be governed by this tariff. And from its conditions, it follows that in case the subscriber does not use communication services and there is no payment within 150 days, billing will be carried out in accordance with the terms of the Basic 09 tariff plan. Well, we get acquainted with the conditions of the tariff fee "Base09". Here our attention is drawn to the fact that under this tariff plan there is a monthly fee of 3.35 rubles per day. Given that the account was 450 rubles, then the cancellation will be made for 450 / 3.35 = 134 days. It further states that if the balance reaches zero and within 31 days the subscriber does not use at least one paid service or replenishes the balance, this will mean a unilateral refusal of the subscriber to fulfill the contract. It turns out that if you follow the logic of the MTS, the validity period of the SIM card should be: 150 days at the Super Zero 2011 tariff, 150 days at the Basic tariff, 134 days for Basic 09, 31 days after reaching zero balance. Total 465 days.
As for Sim-cards with Maxi Plus and Ultra tariffs, the arguments were as follows: “in accordance with the terms of the data services provided, these tariffs, if during the period of 60 days, the number does not receive payments sufficient to achieve positive on the Personal Account balance, it also indicates a unilateral refusal of the subscriber to fulfill the terms of the contract. " That is, here the operator is guided by the logic that the charging of the subscription fee begins from the moment of conclusion (read - signing) of the contract, reaches zero and then 60 days are considered after which the contract is considered to be terminated. And no "activation" of the SIM card is required!
But in fact, all these arguments are wrong, and here's why. If we take into account clause 12.2 of the MTS Communication Services Provision Policy, then it states: “the settlements are made by the Subscriber for the Services actually rendered in the Billing Period”, “advance payments made to the Subscriber’s personal account are used to pay for services as they are consumed Subscriber. But what actual services can we talk about if Sim-cards have not been activated and two of them are generally attached to a plastic frame from which they need to be removed before inserting into the phone?
These arguments were presented in a more detailed and detailed form in the new claim, which was received at MTS, according to the letter of receipt, on January 25, 2012. Was a response received? Was not. Prepared a claim and demolished in the world court.
Conclusion: MTS has no legal basis for not activating the SIM card purchased by the subscriber after some period of time has expired.
This situation can be avoided only by including this provision in the text of the contract or tariff plan in an explicit form. Why this is not done, I do not know. Whether there is a negligence here or is it a way to mislead the subscriber - it's hard to say.
But most of all in similar situations the following afflicts. When the solution of a controversial issue costs a penny, why is it necessary to aggravate the situation, not to offer options for a compromise exit from it? This article would not appear, not nahami seller customer. And it wouldn’t have happened if MTS responded to the claim, let's say that it is not possible to restore the work of the SIM cards you purchased, but are ready to compensate, say, a thousand rubles by crediting it to your account. About the fact that the answer to the second claim was not received, where it was necessary to bring counter arguments to logical arguments, I can’t say anything at all. In fact, this is the same rudeness. To tolerate which is becoming more difficult.
First of all, a claim was sent to OJSC Mobile TeleSystems OJSC, Moscow. The claim, written in simple human language, contained a description of the situation and stated that the contract attached to the Sim-cards did not contain conditions for activation during any period. Consequently, the essential information about the product, provided for by Article 10 of the Law on Consumer Protection, was not communicated, which led to the loss of money paid for the goods. The complaint contained a request to replace the acquired Sim-cards with others with “gold” numbers, and if this option is not possible, return the money paid in the amount of 2,100 rubles. The stated requirements are quite reasonable.
A little more than a month later a response was received with a refusal. The main argument justifying the refusal was a reference to Clause 18.1 of the MTS Communication Services Provision Rules, according to which the Subscriber’s unilateral refusal to perform the Agreement is:
- non-receipt of the Subscriber’s Personal Account during the term specified in the Tariff Plan of the Subscriber’s term in the amount sufficient to achieve a positive balance on the Personal Account after suspending the provision of the Services in accordance with the settlement terms;
- non-use by the Subscriber of paid services during the period specified in the Subscriber's Tariff Plan.
At this stage, everything looked quite logical. The rules contain a reference rate for the conditions of the tariff plan. In response to the claim, this tariff plan is allegedly cited:
“The subscriber number ********** was serviced under the tariff plan“ Super Zero 2011 ”. In accordance with the terms of service of this tariff, if during a period of 150 days, the subscriber does not make use of paid services and does not make payments, the number of the tariff plan is changed to the Basic tariff. If during the period of 180 days, the subscriber does not make use of paid services, this circumstance means the client’s unilateral refusal to perform the contract. ”
')
On the MTS website of the Tver region (the region of card purchase), we read the conditions of the tariff plan and find several other conditions:
“In case you do not use communication services (including free ones) and do not make any payments within 150 days (5 months), you are transferred to the tariffing of communication services in accordance with the terms of the Basic Base tariff plan.” This turns off the service "On full confidence"
Attention! The tariff "Basic" provides a monthly fee for the tariff, which is written off before the subscriber’s account reaches a zero balance. "
And here the first logical question arises. From what moment should these days be counted? Common sense dictates that they should be counted from the day the Sim card is activated. You insert it into the phone, enter the pin-code and then the provision of communication services, subscription fees, etc. begins. But I did not manage to find confirmation of “common sense” in any documents. On the contrary, clause 3.1 of the MTS Communication Services Provision Rules states that the Contract enters into force and becomes binding on the parties from the time of its conclusion. That is, it turns out that by purchasing a Sim-card with a tariff plan that includes a monthly fee, it starts to accrue from the moment you sign the contract! A good way to get money on the "legitimate" grounds!
But back to the answer from the MTS. Suppose that the contract really began from the moment of the conclusion and after 150 days from the moment of purchase of the Sim-card it was transferred to service at the Basic tariff. Therefore, the relationship of the parties should be governed by this tariff. And from its conditions, it follows that in case the subscriber does not use communication services and there is no payment within 150 days, billing will be carried out in accordance with the terms of the Basic 09 tariff plan. Well, we get acquainted with the conditions of the tariff fee "Base09". Here our attention is drawn to the fact that under this tariff plan there is a monthly fee of 3.35 rubles per day. Given that the account was 450 rubles, then the cancellation will be made for 450 / 3.35 = 134 days. It further states that if the balance reaches zero and within 31 days the subscriber does not use at least one paid service or replenishes the balance, this will mean a unilateral refusal of the subscriber to fulfill the contract. It turns out that if you follow the logic of the MTS, the validity period of the SIM card should be: 150 days at the Super Zero 2011 tariff, 150 days at the Basic tariff, 134 days for Basic 09, 31 days after reaching zero balance. Total 465 days.
As for Sim-cards with Maxi Plus and Ultra tariffs, the arguments were as follows: “in accordance with the terms of the data services provided, these tariffs, if during the period of 60 days, the number does not receive payments sufficient to achieve positive on the Personal Account balance, it also indicates a unilateral refusal of the subscriber to fulfill the terms of the contract. " That is, here the operator is guided by the logic that the charging of the subscription fee begins from the moment of conclusion (read - signing) of the contract, reaches zero and then 60 days are considered after which the contract is considered to be terminated. And no "activation" of the SIM card is required!
But in fact, all these arguments are wrong, and here's why. If we take into account clause 12.2 of the MTS Communication Services Provision Policy, then it states: “the settlements are made by the Subscriber for the Services actually rendered in the Billing Period”, “advance payments made to the Subscriber’s personal account are used to pay for services as they are consumed Subscriber. But what actual services can we talk about if Sim-cards have not been activated and two of them are generally attached to a plastic frame from which they need to be removed before inserting into the phone?
These arguments were presented in a more detailed and detailed form in the new claim, which was received at MTS, according to the letter of receipt, on January 25, 2012. Was a response received? Was not. Prepared a claim and demolished in the world court.
Conclusion: MTS has no legal basis for not activating the SIM card purchased by the subscriber after some period of time has expired.
This situation can be avoided only by including this provision in the text of the contract or tariff plan in an explicit form. Why this is not done, I do not know. Whether there is a negligence here or is it a way to mislead the subscriber - it's hard to say.
But most of all in similar situations the following afflicts. When the solution of a controversial issue costs a penny, why is it necessary to aggravate the situation, not to offer options for a compromise exit from it? This article would not appear, not nahami seller customer. And it wouldn’t have happened if MTS responded to the claim, let's say that it is not possible to restore the work of the SIM cards you purchased, but are ready to compensate, say, a thousand rubles by crediting it to your account. About the fact that the answer to the second claim was not received, where it was necessary to bring counter arguments to logical arguments, I can’t say anything at all. In fact, this is the same rudeness. To tolerate which is becoming more difficult.
Source: https://habr.com/ru/post/284716/
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