The court fined the operator for being a content provider

The Arbitration Court of the Magadan Region found the mobile operator MTS guilty of illegally debiting funds from a subscriber's account when using short SMS numbers. Until now, liability in similar situations was borne by content providers who rented such numbers from operators. If the courts take into account the decision of the Magadan arbitration, mobile operators will face serious fines: in 2009, fraudulent schemes through SMS payments accounted for $38-45.6 million.

According to the court decision (available to Kommersant), at the end of last year, MTS subscriber Anton Smalia complained about the operator to the Rospotrebnadzor department for the Magadan region. When trying to download a movie from the website 94tb.ru, Mr. Smaliya was asked to enter his phone number to receive a promotional code and agree to the terms of the service. As follows from the court decision, the subscriber agreed to the conditions, after which he received a free SMS message with an access code to the resource. However, it later turned out that in this way Mr. Smalia activated a subscription to sending paid SMS messages worth 136 rubles. 33 kopecks for one message. In total, the subscriber received nine such messages. But during all this time he did not receive an SMS warning that he could refuse the paid service imposed by the operator on the subscriber. By doing this, the operator violated licensing requirements, the plaintiff claims.

MTS claims that it is not the operator who is to blame, but its partner, the content provider First Alternative (A1). “We applied severe penalties to the provider who allowed such a situation. And we imposed a ban on their use of the mailing service,” says Elena Kokhanovskaya, director of the MTS public relations department. When the subscriber first contacted MTS, the paid content subscription service was disabled. After an internal investigation, MTS blocked the numbers from which the SMS messages were coming and returned the entire amount written off for incoming SMS messages to Mr. Smaliya’s balance. However, the court did not agree with the operator’s arguments and decided to bring MTS to administrative liability, obliging them to pay a fine of 30 thousand rubles. MTS will appeal the court's decision to the appellate instance, says Ms. Kokhanovskaya.

According to a preliminary estimate by AC&M Consulting partner Oksana Pankratova, the volume of the micropayment segment (SMS payments for services on the Internet) in 2009 amounted to $380 million. Fraudulent schemes accounted for 10-12% of this, or $38-45.6 million. Among the main participants of the micropayment market, Ms. Pankratova names content providers A1, Inkor Media, iFree, Neva-Line, SMS-Online.

A1 refused to comment on the court’s decision, citing the fact that the company “was not involved in the consideration of this case.” But representatives of other content providers say that this is the first such decision in their memory. “The court’s decision is twofold: formally he is right - the subscriber entered into an agreement with the telecom operator, but, on the other hand, the micropayment service is provided by the content provider,” points out Artem Litvinov, general director of the Neva-Line company. Mr. Litvinov agrees that the number of cases of fraud in this area has reached a critical mass: “But both content providers and operators are struggling with such services. Since December last year, the number of complaints from subscribers has decreased tenfold.” According to the managing director of i-Free, Kirill Petrov, responsibility for SMS fraud should be borne not by telecom operators, but by the scammers themselves.

According to Planet3 CEO Sergei Tulaev, 34% of fraud cases involve deliberately incorrect information about the cost of a particular service, 16% involve multiple charging (instead of one message you have to send several); The share of viruses and non-existent services such as an x-ray camera accounts for about 5%. Elena Kokhanovskaya from MTS says that fines to providers range from 9 to 90% of the total income for the short number indicated in subscriber complaints. In 2009, the total amount of fines issued by MTS to providers amounted to 36.6 million rubles.

Representatives of VimpelCom and MegaFon do not comment on the decision of the Magadan Region Arbitration Court. But a lawyer for one of these companies notes that this is an unusual situation that the operator has not yet encountered.

Anna Balashova; Boris Gorlin, St. Petersburg

MTS paid for SMS message