FAS has found a violation of the law in the tariffs of operators for SMS-mailing

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In the near future the authorities may require the largest mobile operators to revise the tariffs for the service of SMS mailings for banks, retail and other clients. Operators also face fines of up to RUB 2 billion for their overstatement

The Commission of the Federal Antimonopoly service (FAS) has found indications of violation of the Antimonopoly legislation in the case against mobile operators — MTS, “MegaFon”, “VimpelCom”, “T2 mobile” (“daughter” of “T2 RTC Holding”, providing services under the Tele2 brand) and a number of companies open on the application of the insurance company “SOGAZ-Med”. This is stated in the conclusion on the circumstances of the case from March 3, 2017 (a copy of the document is at RBC).

“SOGAZ-Med” appealed to the FAS after the change of tariffs of operators for SMS-mailing. Until mid-2014, the insurance company has been mailing its customers by aggregators. This scheme allowed the client to get the service at a discount because the aggregators ordered SMS operators “in bulk” for multiple clients. In addition, aggregators could reduce the total cost of distribution by sending SMS from networks of regional operators, whose rates for such service was lower. In mid-2014 came into force amendments to the law “About communication”, after which the cellular companies began to demand the conclusion of direct contracts with customers on their terms.

At the end of 2014, “MegaFon” and MTS, and in 2015, “VympelCom” and “T2 mobile” changed the tariffs for SMS. New conditions have made impossible the Union of customers into pools, which led to growth of cost of services for each of them.

As a result, according to the Commission of the FAS in 2015 for “SOGAZ-Med” tariff for sending SMS to MTS subscribers increased by 176%, “Megaphone” — 116%, “VympelCom” — 77%, “T2 mobile” — 33%. But opt-out customers did not, despite the rising prices, indicates the Agency — the number of ordered companies of communications increased in the range from 5.52% to 125,11%.

The Commission came to the conclusion that the change cell phone companies tariff policy in terms of SMS-mailing must be qualified as violation of part 1 article 10 of the law “On protection of competition”, which prohibits acts or omissions of the company occupying a dominant position, which can be a restriction, elimination of competition, infringement of interests of other persons in the sphere of entrepreneurial activities or of indefinite range of consumers. By calculations FAS, the total share of MTS, “Megaphone”, “VympelCom” and “T2 mobile” on the mobile market at the end of 2015, over 70%. According to the analytical company AC&M, the four at the end of 2015 and end of 2016 total occupied 99% of the mobile market.

Prior to the announcement of a productive part of the Commission’s decision the parties may submit their explanations, evidence and arguments. According to the source RBC, close to one of the parties to the proceedings, the effective part of the solution can be presented on 4 April.

The head of Department of regulation of communications and information technologies of the FAS Elena zaeva confirmed the information contained in the conclusion on the circumstances of the case “SOGAZ-Med”. What will be the outcome, she predicts. She only mentioned that in her personal practice in Antimonopoly service have not yet been cases where the final decision would be the opposite conclusion about the circumstances. Although the FAS they were, said zaeva. If operators eventually recognized to have violated the competition law, they will be obliged to eliminate the violation, i.e. to revise the tariff policy for SMS-mailing, said Elena zaeva. In addition, operators will have to pay a fine. It will be negotiable or fixed — depends on the final decision.

The quantity of recycled fines can range from 1% to 15% of the revenue in this market. Evaluation of AC&M, in 2016 the market volume of SMS-informing in Russia, excluding Sberbank amounted to 14,026 billion RUB (an increase of 27% compared to 2015). The bulk of our revenue accounted for by MTS, “Megaphone”, “VympelCom” and “mobile T2”, that is working fine for them a total to 2.1 billion rubles. For comparison, MTS ‘ revenues in 2016 in Russia – 400,6 billion.

The representative of “MegaFon” said that the company has changed the scheme of interaction with customers due to changes in legislation and “does not understand the claims of the FAS”. “We also do not agree with the market analysis, which was conducted by the FAS. Market information and promotion includes not only SMS, such services are provided by e-mail, through instant messengers, apps, and other services”, — said the representative of “MegaFon”.

In “SOGAZ-Med” did not answer the questions of RBC. Representatives of MTS, “VympelCom” and “T2 mobile” refused to comment.

SMS without spam

For 2016, the total volume of SMS-spam in Russia has increased by 7 percent to 25.3 billion messages. According to analyst AC&M Oksana Pankratova, if mobile operators will be obliged to return to the old pricing model (including working with aggregators), this will lead to an increase in the number of SMS spam. “The current model for the market almost perfect — the operators can monitor every SMS sender, including on the subject of spam,” — said Pankratov. The peak of such SMS came in 2013, she said.

This opinion is not accepted by the Chairman of the National financial markets Council (NSFR) Andrey Emelin. “2013 has been changed the system itself, has imposed a number of regulatory and technological measures to counter spam. If those who send SMS will be allowed to join the pools, and there will be a technological partner in the status of the agent is primarily to be convenient,” he said. According to Emelina, in the beginning of the year NSFR sent to the Bank of Russia the offer on amendments to the law “About communication” providing a statutory definition of the different types of messages. For example, under the law banks are obliged to inform customers about certain transactions, sending a transactional message. “It would be good if these messages cost the customer much cheaper than advertising. The Bank of Russia is extremely negative attitude to impose the cost of these messages to customers, so banks often compensate her at the expense of other services, which ultimately is indirectly reflected, for example, the interest rate on the loan for the customers”, — said the head NSFR.

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