Replacing sim-cards. Chapter III. Fighting with bureaucracy

This article is written on the comments to the first and especially the second part. There is interest and, unfortunately, while the flow of misfortunes for the replacement of sim has not slept much. In addition, very soon it will all go into applications for two-factor authentication and will become quite "interesting."

So, at least from 2012 to 2017. mobile operators: Megafon , Beeline , MTS (possibly others, have not learned the practice of them) illegally changing their sim cards. Suppose you follow the security tips, having a separate phone “by the type of brick” and generally think that you are far from this threat. Let's say.

But everyone has mothers, fathers, grandparents, children and many other relatives, friends, acquaintances, just good people around. And here, as experience shows, not everything is so smooth. Of course, even for business, the court is not always a blessing , let alone those whom the law calls consumers. But still...
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Today I want to continue and write about those "thin" places that OSS is used to protect their interests . So, in order and with examples.

01. According to Art. 55 of the Federal Law "On Communication" must be presented within 6 months from the moment of sim replacement (I write in a simplified way so as not to go into the legal jungle: who wants to get into them - you can do it yourself). And here, the OSS just do everything so that you do not file this complaint on time. How? I will list some "finds":

1. Of course, you will be sent to the police. Do this, but remember that this structure will quickly accept the application, but further - further, as practice shows, little will do. So do not expect that the case will be resolved quickly. Immediately go to the post office (the one that is not very fond of, although it changes ) and send it to the legal address (you can learn it, for example, here ), claiming that you comply with all the formal requirements of art. 55 of the Federal Law "On Communications" (that is, you need to attach documents confirming financial losses; an agreement; describe what you want from OSS, etc.)
   
   
2. Responses to claims (complaints) will come extremely long. Therefore, be sure to send them not only through the office (if you want to), but also the post offices. I advise clients to send with an inventory - there is no excess paper, you can, of course, get by with just a registered letter. All checks and receipts - save. If you call those. support (and you can call, because this process causes a lot of emotions in many), fix it - when you called, preferably - with whom you spoke. I will put the question about recording a conversation out of the brackets - this is a separate and big topic. If, nevertheless, any complaints (claims) are transmitted through the offices, please note that they are not usually occupied by OSS employees, but by employees of agent companies. For example, MTS has RTK. Therefore, all statements write strictly “in the name of” MTS. It is important.
   
   To prove later that you wrote exactly MTS is possible, but difficult. It is better not to bring this up.
   
   
3. Remember, the main task of the OSS is to do everything for you to wait for something: answers from them, from the police, from agent companies, from a bank or EPS. Your task is to cover your complaints as completely and quickly as possible and send them in writing to legal (this is important) and other (eg, actual) addresses. The rule is the following: it is better to send the first time earlier and less than later and more, because otherwise, there is no time left. Again - there are exceptions, but I will not talk about them.
   
   
4. Very often, OSS give answers not by mail, but by email or even by telephone. There were also such options, when the impudence of the OSS reached the stage where you, having called 8-800, suddenly find out that you have allegedly already been called and provided the answer. The solution is simple - take a printout, certify it at the operator's office (in this case, I generally advise using the number of another OSS for conversations) and write again the complaint, enclosing the written evidence. And most importantly - demand an answer: the OSS do not like to give it and violate the deadlines, but demand. This is usually important evidence in the process.

02. Another trick I often see in court practice is offices : the fact is that, as I said above, it is not the OSS employee who often sits in the office, but an employee of the OSS agent. And therefore you try, you file complaints and claims to OSS, and in court you are told: “it’s not we who changed the sim-card ... This is our agent”. Deadlines claim - missed. The lawsuit - denied. And you or a person close to you go with a bowed head. But stop! Do not despair: there are excellent norms in Russian legislation. Here they are:

1. Of course, art. 1005 of the Civil Code of the Russian Federation : “under a transaction concluded by an agent with a third person on behalf of and at the expense of the principal, the principal and rights arise directly from the principal”;
   
   
2. Why just OSS? Firstly, under the Law on Licensing (Art. 1-4, and, of course, Art. 8), only OSS has the appropriate license - this is on the one hand; and, secondly, under the Law “On Communications” (for example, clause 12 of Article 2), no one other than OSS can provide communication services. Is sim replacement a communication service? About this is just below. I hope to clarify that such a systemic interpretation is not necessary? If necessary - write in the comments, be sure to answer.
   
   
3. And yes - always read the agreements with operators: they are rather poorly composed, but they, as a rule, cite the provisions of the same article. 1005 GK, and once said themselves, then more is needed.

03. Further - about the main thing . Recently published an article calling for OSS. Reactions on their part - zero. But what is interesting is that even among users who may themselves become victims of ugly scammers, there is a perception that: “the replacement of a sim card is not a communication service”. I will try to debunk this myth :

1. Let us turn to the same Federal Law “On Communications”: p. 32, Art. 2 stipulates that “communication service is an activity of receiving, processing, storing, transmitting, delivering telecommunications messages ...”.
   
   
2. Further, we read in Decree No. 1342 (its full name is “On the provision of telephone communication services”): paragraph 2 says literally the following - “subscriber number is a telephone number that uniquely identifies (identifies) the terminal element of a communication network or is connected to a mobile communications network station (subscriber unit) with identification module installed in it (in it) ”. What is the identification module? We also find there: “an identification module - an electronic storage medium installed in a subscriber station (subscriber device), with which the subscriber is identified by the telecom operator, the subscriber station (subscriber device) is accessed to the mobile communications network, and protection is provided against unauthorized use of subscriber numbers. "
   
   
3. Already caught? Again, the systemic interpretation tells us that the SIM (the same identification module) is what provides the telephone services on the one hand, and on the other, the SIM itself is a service.
   
   
4. Do not believe me? Then let us turn to the main judicial body (besides the RF CC) - to the Supreme Court: this is what the opinion of the Judicial Board on Civil Cases (see Definition of the Armed Forces of the Russian Federation of December 8, 2015 No. 5-15-164): “SIM card ( electronic storage medium) in addition to the information providing the performance of the above functions, may contain additional information about the subscriber, his telephone conversations and short text and other messages, in particular, the subscriber’s telephone book, lists of incoming / outgoing calls and messages, texts of short texts x messages (SMS messages), information about the connected services, etc., ”and then — generally nectar:“ simultaneously with the issuance (replacement, restoration) of the SIM card, the relevant information is transmitted, and the mobile network can be accessed due to the appropriate subscriber number, the ability to receive incoming messages on this number, including one-time password verification, and the ability to use connected to this number of services ", and as a result - the conclusion:" the conclusion of the appellate court on nd that the issuance (replacement) SIM card is not a communication service, based on a misinterpretation of the above legal norms. "

04. Another factor to which neither my “colleagues” from OSS, nor colleagues from law firms, nor even the users themselves very often pay attention - this is ... conscientiousness. I will explain:

1. In 2015, the Plenum of the Supreme Court passed a Resolution , in which the concept of good faith was given to just a lot of attention. Surely not casual? In the opinion of the Supreme Court, in order to understand whether a party is acting in good faith “... one should proceed from the behavior expected from any participant in civilian traffic, taking into account the rights and legitimate interests of the other party that promotes it, including in obtaining the necessary information”.
   
   
2. What is it for me? To find the practice of 2012-2017. (I won’t even make a list - these are hundreds of cases and thousands of full-fledged complaints) for any operator of the Big Three - it’s not difficult. Is it possible to consider the conscientious behavior of the company, which, for 5 years, receives from various judicial and other state institutions notice that the replacement of sim causes tremendous material (for example, there are cases when quite old people withdrew all savings from SB online - Google will give the necessary information) and moral (for example, there was a withdrawal of funds from the account, the money on which was intended for the disabled boy) harm to users-subscribers, but the OSS does not do anything?
   
   
3. I will say at once that our courts do not like such syllogisms, but it is necessary to put pressure on sore points: that the Armed Forces of the Russian Federation tried by issuing this Resolution; what he did with the aim of normalizing judicial practice on this issue; and, finally, to operate with the fact that the notion of good faith derives directly from the requirements of the laws above (as well as those described in the first article).

05. The next point, which is loved by the OSS, is that they provide the security of communication services, simply these security methods (methods) do not assume that “the sums will be so large”. Here it is necessary not only to return to art. 7 of the RFP, which does not mean that security should be determined by the amount of funds in the account, but also to apply for mobile payment services. What for?

1. The first is that with the help of this service it is possible to pay those tens of thousands of rubles that allegedly never pass through the OSS;
   
   
2. Secondly, in addition to the mobile payment itself, many today also have additional banking services (you can look at dengi.mts.ru, or at the Alpha and Beeline joint terminal ruru.ru, or on the Megaphone card).
   
   
3. Third, be sure to ask OSS, and what has the operator and his staff generally done to protect the sim replacement process. The statistics is such that in 9 out of 10 cases the answer is silence or the like; 1 out of 10 is the minimum set of common phrases. However, judging by the “results” of Beeline and Megaphone, who invented in 5 years to block all users who have replaced the sim, this is not surprising. However, the MTS has not thought of (so far) even before that. It would be interesting to look at the clients of our company who would be simply blocked while providing services. But in the OSS this is considered a blessing, for domestic users are not picky.

06. There is another amazing moment that I learned about from a recent court hearing. But before - I quote the rate of art. 44 of the Federal Law “On Telecommunications”: “the telecom operator is obliged to verify the accuracy of the subscriber’s information , including the subscriber’s information contained in the contract sent by the person acting on behalf of the telecom operator.” Do you know what the OSS do (I can’t vouch for everyone, but there is one often?) Do they check the details? No, they simply transfer it to their agents, that is, an excellent recursion is obtained: the agent received from the pseudo-client pseudo-data that does not deal with those in the database, and the OSS will not even check it, since the agent himself will do this. This approach is particularly striking in view of the fact that the OSS themselves claim that the employees of agents are often low-skilled personnel.

07. I will not paint much, but I highly recommend to look at art. 19 of the Federal Law "On Personal Data". Find a lot of interesting things about what they could, but don't do OSS. How to use it in court? At your discretion, but I have already applied these provisions twice in current processes.

08. Finally, the most important thing is about the court : remember that the Russian court is formal, merciless and always overwhelmed with production. What is produced? Paper, of course. Therefore, a few simple tips:

1. Write : if not very competently (not from the point of view of spelling, but so-called legal), but write. Judges always like when “there is something and where to put it.”
2. Remember that judges are far from impartial and unemotional. Creek - this is the best of what has occurred in practice, especially - deep in the province. Just remember this.
3. Always , always, right every time - take all the documents with you, because there is a special “breed” (I don’t know how else to call it - the term is absolutely neutral) of judges who like to “shuffle” you in the case, in the style of “where is this indicated?”. And yes - the laws are also better to keep handy.
4. And most importantly - be on the lookout: literally yesterday, an OSS representative, right at the end of the court session, tried to make a forgery of an important document through a petition, hoping that I would miss it. I will not write for a long time this incident, I will say only that the procedural superiority is what OSS will beat for subscribers for a long time.

With the support of interest in the materials - I think, I will also publish information on when and how to fight with banks and EPS in the same circumstances (according to the general rule for me: only 20% of 100% of cases).

I think for now - everything. I tried to state systematically. In the end - three articles that very well complement the one that you just read:

1. My first article on the fight against OSS;
2. About technical means - it is better to convey to all relatives and friends of people;
3. Article appeal to the OSS (not helped yet).

Questions? Ask.

PS For those who constantly ask: “why do I need this?” , I answer that I really want positive changes. And where I can reach them, I try to reach them. By the way, if we compare 2017 and, say, 2012, something has already been implemented. Partly on this is written in the second part. Partially - I'll write more.

PPS Special thanks to those who have already passed on their experience and to those who have told more about similar cases: this greatly helps to unify the practice.