Once I came across this. Fortunately, the amounts were small (within 20 rubles), I silently “swallowed” the insult and did not go to sort it out. But what if a bill arrives in which the amount is substantial, but the person did not make conversations? (usually companies bill international calls this way)
You should contact the telephone company and ask them for a full listing of calls from your number for the period of interest. It should also indicate the time of calls and the numbers by which these calls were made. If the numbers in the accounts are not familiar to you or you couldn’t physically call at the indicated time (were at work, etc.), then ask to check your line for unauthorized connections. And, by the way, making sure that the shields from where the wires to the apartments diverge are closed are the company's responsibility.
We had such a case - bills began to come on those days when we were not in the city at all. It turned out that our neighbor, when he was sure that we were not, connected to our line and called the intercity. His friends live in the same city as my grandmother. If it were not for the huge amounts and not the numbers in the accounts, I would not even notice that this is not mine. They showed me printouts with the date, time, number and duration of the conversation - it turned out that I talked with my grandmother exclusively at night (what kind of beast I was - did not let a pensioner sleep).
In general, when you find out everything, and it turns out that the accounts are not related to you, then you can write a statement of claim to the court and take the copy to the TC - they are usually not interested in the trial and will try to resolve the conflict themselves.
How to act if you received a bill for telephone calls that you did not conduct
1. Check the information in the received paper:
• codes of phone numbers you allegedly called, and time of calls,
• if possible, find out if the numbers really exist (make a request to the embassies, consulates or representative offices about the existence of the numbers in the territory of the indicated country).
2. Call a telephone company specialist to check the line for unauthorized connections. In case of detection, request to draw up an act.
3. In no case do not pay the bill if you did not call the numbers indicated.
4. Write a statement to law enforcement.
5. Check for an agreement and an additional agreement with the telephone company for international connections - if you have not signed it, then the company cannot provide you services.
6. Find out who and on what basis rendered the paid service (information, entertainment services, etc.) and whether it provided it at all (which is why it is useful to know which number you called).
7. If the operator explains the large amounts of the bill by the fact that the connection was via the Internet, make a request to the provider that provides you with the Internet connection services to find out if the connection was made, when and from which computer it was made. Then proceed as in the case of a telephone bill.
8. Upon receipt of the subpoena, be sure to go to court and present the collected documents proving the inappropriateness of invoicing. He who does not fight does not win!
Is it possible to dispute data from the operator’s equipment How to use the IP-address data in a dispute with a telecom operator What arguments will help prove the guilt of a telecom operator
Anna Varenikova, finalist
Age : 28 years.
City : St. Petersburg.
Education : Samara State University.
Work experience as a company lawyer : 5 years.
Main professional achievement : lack of lost cases.
ITECO North-West LLC (hereinafter referred to as the respondent, subscriber) entered into agreements for the provision of local telephone services, intra-zone telephone communications and a range of communication services with one operator and an agreement on the provision of long-distance and international telephone communications services with another (since the first one lacked the necessary license). Over the weekend, hackers attacked the equipment of the first operator: unidentified persons, using a subscriber number, made international calls for a large sum of money. The communications operator (hereinafter referred to as the plaintiff) appealed to the Arbitration Court of the Murmansk Region with a request to collect debts from the defendant for payment of their services (case No. A42-8728 / 10). To win the trial, the lawyer had to understand not only the legal, but also the technical nuances of the case.
Features of the legal regulation of telephone services
Legislation on telephone services has its own specifics primarily because of the technological features of their provision. Understanding these features helped the lawyer defend the interests of the company in court. So, the defendant was able to successfully build his position, knowing that voice information can be transmitted in two main ways.
The first way: telephone networks . The peculiarity of the organization of the provision of telephone services lies in the procedure for connecting communication networks of different levels to each other. Because of this, the equipment of the respondent has a direct connection only to the local network. This means that the telephone number is allocated to the subscriber by the local telephone network operator. The provision of these services is governed by the Rules for the provision of local, intrazonal, intercity and international telephone services (approved by Decree of the Government of the Russian Federation No. 310 dated 05/18/05).
Second way: data network . Data services are divided into communication services for the transmission of data for the purpose of transmitting voice information (unofficial name - “IP telephony”) and communication services for the transmission of data, with the exception of communication services for the transmission of data for the purpose of transmitting voice information. The possibility of transmitting voice information in this way is provided for in clause 8 of the Rules for the provision of communication services for data transfer (approved by Decree of the Government of the Russian Federation No. 32 of January 23, 06, hereinafter referred to as the Rules for the provision of data services)
The distinction between telephone services and data services is made by the technology for the implementation of these services (see table on page 97). In the first case, channel switching technology is used, and in the second, information packet switching technology is used. Of great importance in distinguishing these services is the type of equipment used and the way it is physically connected.
As you might guess, collecting evidence was particularly difficult in this matter. Information about what is happening in the communication network is recorded by the equipment and executed in special log files. It would seem that you can request them from the operator. But the problem is that the information in the log files is not protected from editing and a knowledgeable user can freely change it. Since the basis for making payments for communication services is the testimony of communication equipment, taking into account the volume of services provided by the operator, as well as the terms of the contract for the provision of communication services concluded with the user, the parties are initially in an unequal position (Clause 2 of Article 54 of the Federal Law of 07.07.03 No. 126-ФЗ “On Communications”, hereinafter referred to as the Law on Communications). The operator is not obliged to provide the subscriber with this information, which means that it will be practically impossible for the latter to refute the forged evidence or to prove their falsification.
Legal position of the plaintiff: the subscriber must be responsible for the actions of third parties
Since hackers connected to the communication network directly, bypassing the equipment of the defendant, they caused losses by their actions directly to the plaintiff. However, in this situation it was impossible to recover damages from the perpetrators of harm. Therefore, instead of filing a claim for damages to the hackers, the plaintiff decided to request the recovery of this amount as a subscriber's debt.
Firstly, the plaintiff decided to use the so-called billing rule (clause 2 of article 54 of the law on communications). According to this norm, the basis for making payments for communication services is the testimony of communication equipment. The legislation does not provide for any exceptions to this rule, therefore, operators often abuse this rule and cover their losses at the expense of the subscriber. So in our case the claimant-operator referred to the fact that the billing system recorded calls by the subscriber number, which means that the subscriber must pay them.
Secondly, according to the plaintiff, the access of third parties to the communication network became possible due to the use by the respondent of equipment that does not have a certificate of conformity or a declaration. The plaintiff claimed that under the agreement on the provision of local communication services, the defendant was provided with telephone services with access via a data transmission channel. The key point that is beneficial for the plaintiff in such a position is the absence in this contract of a condition for identifying the subscriber by IP address. When providing telephone services, it is sufficient to differentiate access by a subscriber number, which allows you to uniquely identify the subscriber. At the same time, when providing communication services for data transmission, the use of a telephone number as a unique identification code is expressly prohibited (paragraph 28 of the Rules for the provision of data transmission services). Failure to comply with this condition has led to the possibility of unauthorized third-party access to the communication network.
Defendant's arguments: legal and technical nuances
To build a line of defense, the defendant had to understand not only legal, but also technical nuances. Only with their help it was possible to prove the non-involvement of the subscriber to the perfect calls.
In fact, data services were provided, not communication services . During the trial, it was found that a data channel, rather than a telephone line, was used to connect the defendant's equipment to the communication network. The plaintiff allegedly provided the defendant with access to telephone services. However, the defendant proved that the actual communication services provided should be qualified precisely as data services.
This issue was of fundamental importance, since the choice of the substantive law applicable to the legal relationship that arose, and as a result the fate of the entire dispute, depended on its decision. Its significance lies in the fact that if the services actually provided are not telephone services, they are not subject to accounting as telephone services under the relevant agreement. Since the services provided were actually data services, the plaintiff did not have the right to invoice telephone services to the defendant, and the invoices issued had no legal basis.
The connection is made from someone else's equipment . The defendant in advance sent to the plaintiff, as well as the higher provider, requests for credentials containing the IP addresses of the equipment from which the connections were made. Thanks to the information about IP addresses received on these requests, the respondent proved that the access was not through the equipment of the respondent company (its IP address did not appear in them). An analysis of these data showed that the connections were made from equipment located in France, Italy and Greece.
After that, the plaintiff changed his tactics and stated that the court was not provided with evidence of the defendant's possession of a permanent IP address or evidence of assigning a specific IP address to it, than the defendant, according to the plaintiff, misled the court regarding the significance of the requested evidence. However, by comparing the terms of the contract and the previously provided data, the defendant was able to prove that the plaintiff, from his own numbering resource, provided the defendant with a permanent IP address, which confirms that the calls were made not by the defendant, but by other persons.
Services provided to third parties . To the plaintiff’s argument about the application of the billing norm, the defendant cited the following counterargument: the recipient of the services was not the defendant, but third parties, and in accordance with the law, the subscriber is obliged to pay for the services that are provided directly to him (Clause 1, Article 781 of the Civil Code of the Russian Federation). This means that the claim against the defendant to pay the specified amount is illegal. A similar conclusion can be seen in another case with similar circumstances: as a result of unauthorized use of the respondent’s login to access the Internet, services were rendered not to the defendant, but to other persons. Since the plaintiff did not prove the provision of services to the defendant, the court indicated that there were no grounds for satisfying the claim (determination of the Supreme Arbitration Court of the Russian Federation of 08.04.11 No. ВАС-3978/11).
The operator did not provide protection against unauthorized access to the network . The telecommunications operator must ensure the protection of the defendant’s communications from unauthorized access to them (paragraph 3 of article 7 of the communications law). If he did not do this and at the same time did not prove the scope of the services rendered to the defendant, the court may refuse him a claim for debt collection (decision of the Federal Arbitration Court of the East Siberian District of 04.04.11 in case No. A33-10266 / 2010). As part of the criminal case, it was established that third parties had access directly to the plaintiff’s communication network, and not to the equipment of the defendant. Thanks to this, the plaintiff acknowledged that there is no separation of access rights by IP address on its networks. It is important that in the presence of such a restriction, access to the communication network from equipment whose IP address differs from the specified one is completely excluded. Therefore, this fact confirmed the guilt of the plaintiff himself in the unauthorized access to the communication network.
The lawyer was able to successfully defend the interests of the company. The trial in the court of first instance ended with the signing of a settlement agreement. Under its terms, the plaintiff refused the claim in full and undertook to reimburse the legal costs. Moreover, the court considered that the circumstances established in the framework of this trial could have prejudicial significance in other cases, therefore, until the court of first instance passed the judgment in this case, the proceedings in similar cases pending before the same arbitration court were suspended ( Cases No. A42-8727 / 2010 and No. A42-1416 / 2011). QUESTION IN THE TOPIC Is the operator obliged to comply with the claims procedure during the judicial recovery of debts for communication services? No, it is not required. The subscriber (user) is obliged to comply with the claims procedure, but not the operator (clause 4 of article 55 of the communication law, section 5 of the Telephone Communication Rules (approved by the RF Government Decree of 05/18/05 No. 310), section 5 of the Data Transfer Rules (approved . by resolution of the Government of the Russian Federation dated January 23, 06 No. 32), resolution of the Federal Arbitration Court of the Volga Region dated April 28, 10 in case No. A12-19178 / 2009).
COUNCIL IN THE TOPIC
The subscriber is not obliged to pay for the services provided after the termination of the contract for the rental of premises.
Termination of the rights to own and use a telephony room entails termination of the contract with the subscriber (paragraph 126 of the Rules for the provision of communication services, approved by Decree of the Government of the Russian Federation No. 310 dated May 18, 2005). Failure to notify the operator about the termination by the subscriber of the lease and refusal of communication services does not indicate the provision of such services and does not impose an obligation on them to pay for them (determination of the Supreme Arbitration Court of 23.11.10 No. VAS-15466/10).