LMonoceros “How Megaphone Burned on Mobile Subscriptions”, I was wound up and annoyed by the current practice, when the largest cellular operator in Russia allows itself to make similar earnings schemes.
It didn’t touch me directly - I personally haven’t yet written off Megaphone for money. Simply, in recent years, living in Russia, I feel less and less protected. I am sure that my feelings are shared by many readers of Habr.
Really, we can not do anything? - I asked myself, - is there really no way to fix everything and we are doomed to slipping into a totalitarian dystopia? Or our fate is not predetermined - and we still have a chance?
It seemed to me that I know the answer. Like all of us, I guess. Therefore, preparing to move to Thailand.
The literary activity made me change my mind. When every day, in addition to your life, you live the life of a fictional character, it is difficult not to succumb to his influence. The confidence of the hero, that you can find a way out of any situation, was gradually transferred to me. And I decided to try to fix the world. Let not all, not immediately and not entirely. But at least that I can.
“One desire is not enough,” the meticulous reader will say, “we need a working plan.” Do you have it?
- Do I have a plan? Do I have a plan? Yes, I have three plans! - I will repeat after the well-known private detective I, - let's discuss them!
Before proceeding to the discussion of the actual plans, I want to share my bewilderment and ask the lawyers for advice.
Being a MegaFon subscriber, I signed a contract with them, which, I confess, I did not immediately read. This is also because I did not see the point: the reality is that I can either conclude an agreement on the terms of an operator, or do without cellular services.
Having decided to figure out exactly what I signed, I went to the mobile phone shop and asked for a copy of the contract I signed. And he was utterly surprised: “The Service Agreement” was extremely laconic and consisted of only a couple of sentences:
I, the subscriber, confirm that I have read and agree with the terms of the provision of Megafon communication services, the terms of the selected tariff plan and other parts of the contract. (Section 2.1.13 of the Terms).
I was surprised that the contract, in fact, does not contain anything. Terms of communication services - may be changed by Megaphone in their favor at any time. Or they have already been changed - the document lying on the site is named: “usloviya_01.07.2018” - that is, this version of the document is not the version with which I agreed, signing the contract in 2013.
The conditions themselves, however, are extremely incorrect. Even such a crucial moment: whether the operator can put me in debt, they are omitted:
The Subscriber pays for the Services by means of an advance payment system (advance payment), if the Contract, the Tariff Plan, the conditions for the provision of certain Services or the supplementary agreement to the Agreement do not establish the conditions and procedure for applying the credit payment system (deferred payment) or a combination of the above payment systems (payments). br/>
In fact, this means that I, due to a device malfunction, for example, can owe a million rubles to Megaphone. And this is not a joke or speculation:
The Leninsky District Court of the city of Vladimir on February 22, 2011 rejected the claim of the operator “Megafon” to its subscriber Galina Pustinskaya for the recovery of the roaming debt in the amount of 1 million rubles.
In the summer of 2011, Roman Simonov and his wife purchased a 3G modem with a SIM card from MegaFon, signed a contract for the mother-in-law, and went on a honeymoon trip to Greece. There, they discovered that the modem works on the local 3G network. With it, the couple went to MegaFon’s website and tried to find out the tariffs for 3G roaming in Greece, but did not find such information (there are only GPRS roaming prices on the site).
Then the couple considered that they could use the Internet until the end of the funds on the account, which was about 700 rubles, and began to download the series to the computer.
The next day, a representative of the security service of MegaFon phoned Galina Pustinskaya and said that her debt for communication services exceeds 1 million rubles. In "Megaphone" explained that they could not turn off the modem immediately after care in the negative, so information about Internet roaming comes to the operator with a delay of several days. However, the newlyweds refused to pay the bill, citing the fact that they are subscribers of the advance tariff plan, and the maximum amount of "trust", to which MegaFon subscribers can go into minus, is 900 rubles.
Information about the features of Internet roaming pricing is not in the contract, but in the supplementary agreement to it, which is posted on the operator’s website, and which does not warn the subscribers when concluding a contract, Simonov adds.
As a result, Megafon filed a lawsuit against Pustynskaya to collect the debt, demanding, due to its insolvency, to seize the apartment and the garage belonging to it.
Regarding the court decision, MegaFon stated that they did not agree with him, and they would appeal against it. “No one doubted that Megafon would sue us further,” Roman Simonov said in response.
And now I have a question for lawyers: how legitimate is this situation at all when I, in concluding an agreement, in essence, buy a cat in a bag? According to paragraph 1 of article 432 of the Civil Code, in order for a contract to be recognized as concluded, it is necessary that an agreement has been reached between the parties on all essential conditions.
How can there be a contract in which, in fact, there is no one of the essential conditions and which can be changed by one of the parties at any time? Using the services of MegaFon, I do not know how much they will cost and whether I will have to sell an apartment, in which case.
Well, and funny: "Terms of communication services" contain the following paragraph: The operator provides communication services on the basis of licenses for the provision of the relevant type of services issued by the Federal Service for Supervision in the Field of Communication. Copies of these licenses are presented by the operator at www.megafon.ru.
But, having decided to familiarize myself with the licenses, I found that all the licenses I found on the site are expired. The freshest ended on August 1, 2017. I sincerely hope that licenses exist, and their absence on the site is explained by the laziness of the administration, and not the provision of unlicensed services.
But, back to mobile subscriptions. How does Megafon explain their existence? As I understand it, mobile subscriptions are regulated in Megaphone by the document entitled “Terms of Service with the use of“ short ”numbers”.
These terms and conditions for the provision of services using “short” numbers (hereinafter referred to as the Terms) in accordance with article 435 of the Civil Code of the Russian Federation are an offer addressed to MegaFon subscribers.
Let's look at how true this is. As you know, the usual practice of MegaFon is a situation where a subscriber, against his will, is connected to a paid (with a free period) service. Some time passes, the free period ends, and the subscriber begins to write off money.
How does this compare with the statement that these services are an offer? No way. The concept of the offer is detailed in the Civil Code. And contains, among other things, such a thing as an acceptance - that is, the answer of the person to whom the offer is addressed, about its acceptance.
The Civil Code specifically states that: "Silence is not an acceptance." That is, if I was connected to the service, the fact that I ignored it does not mean at all that I agreed with it.
But suppose that Megafon does provide services for subscriptions and other paid access to the “Services organized by Content Provider partners” on the basis of the provisions of the Civil Code relating to the offer. On this basis, my first plan works:
Plan # 1. Acceptance Recall
Article 439 of the Civil Code: Acceptance withdrawal. If the notice of withdrawal of the acceptance has been received by the person who sent the offer, earlier or at the same time as the acceptance, the acceptance is considered not to have been received.
Thus, if I, in writing, notify Megafon that I refuse in advance of all services for the sale of content that it offers now and intends to offer in the future, this should be enough so that all my further actions are not perceived by Megaphone as acceptance.
Since the law specifies the validity period of an acceptance response, I can indicate the end of the century by the end date of the acceptance response. Now I don’t have to send SMSes every three months to stop imposing services:
How effective is this? I dont know. As for me, the whole situation when the regulatory authorities turn a blind eye to such an operator’s behavior makes me assume that my review will be ignored by Megaphone.
So, I do not quite understand how I can notify Megaphone that I sent them my ban. Hand over the painting to the operator in the booth? Will this be a legally relevant notice? Send by registered mail? How to convince the court that the letter was a ban, not a postcard? Send by registered mail with an inventory of the attachment, prescribing in the description of the shipment that this is exactly the withdrawal of an acceptance from a specific person with a specific number?
In general, I am waiting for your advice and comments. In this case, the option of delivery under painting to the secretary in the office, please do not offer. It is about finding a solution that would work for all residents of Russia, including residents of small cities.
Plan # 2 Digital Signature
The “Terms of Communication Services”, which I agreed to by signing an agreement with MegaFon, do not contain a ban on transferring the phone to other people - parents, children, family members, friends and acquaintances. With the present state of affairs, by transferring the telephone, I automatically agree with all the actions that these persons will perform on my behalf. That, in general, is completely unacceptable.
Let's separate the chops from the flies. By transmitting the phone, I realize that another user will make several calls or use the Internet. But I do not give him the right on my behalf to accept offers or change the terms of the contract with the operator.
I believe that the operator is obliged to take measures to identify the person concluding the contract (accepting the offer). This method is, for example, a simple electronic signature, which through the use of codes, passwords or other means confirms the fact that an electronic signature has been generated by a certain person.
Accordingly, I send a letter to Megafon, where, on the basis of clause 2, article 160 of the Civil Code, I notify about the insignificance of transactions concluded on my behalf, in case Megafon did not identify the person making the transaction.
Plan No. 3 Caution children!
Recently, our state has taken many laws in which it significantly restricted civil rights and freedoms under the pretext of protecting children.And you know what? This game can be played together.
Incredibly, but the fact is that despite all the rhetoric of deputies, in Russia there are still no children's telephone numbers. There are children's bank cards, but there are no children's numbers. I can't come and buy a room for my child. I can be more precise, but it will be considered my number - lottery offers will be poured onto it, the child with its help will be able to pay for mobile subscriptions, etc., etc., etc.
In this case, the number, of course, can be disabled due to the actions of the child at any time. Exhausted balance - let's say goodbye. Although the presence of a permanent connection with the child - a direct and explicit protection against unlawful acts in his direction.
I want to send a letter to the children's ombudsman, in which they directly require the introduction of a children's phone number - in which there are obviously no and cannot have subscriptions, advertising and other mobile dating from the SIM card menu.
These methods are just the beginning of the struggle, which is absolutely not a fact that it will end with something significant. Personally, I undertake to participate in this by the principle - I will not catch up, so at least I will get warm. I'm sick of being limp victim of circumstances.
At the same time, I do not guarantee that I will bring the matter to the end - I am a stubborn person, but I also have a personal life, which may require me to be more focused on my family and work. Therefore, I propose to take this article as one of the steps in the right direction, which may be supported by other fellow citizens.
Specifically, I do not need to take my actions as a personal war with Megaphone. In this case, Megafon is one of the operators that allows such actions and is chosen at random.