On 13 June 2013 the Federal Antimonopoly Service (the “FAS”) issued Letter No. AK/22976/13 “On Considering SMS-messages from Communications Operator an Advertisement.”
According to the Advertising Law and the Resolution of the Plenary Session of the Supreme Commercial Court No. 58 dated 8 October 2012 “On Certain Issues in Connection with the Application of the Federal Law “On Advertising” by Commercial Courts” (see our Special Alert for February 2013), distribution of advertising is allowed only with the subscriber’s prior consent. The FAS has now clarified when information about the services of the communications provider rendered under the contract with the subscriber constitutes advertising. Thus, for the purposes of the Letter, the services are nominally divided into “basic” and optional. The distribution of information about “basic” services is not advertising, while the distribution of information about optional services is.
“Basic” services include, in particular, services providing (including the roaming area) voice communication, exchange of messages, and Internet connection. In this regard, the distribution of information about, among other things, (i) the change of the service price in the subscriber’s tariff and the change of the procedure for the payment for the services if such change is not related to the attachment of optional services for an additional price; (ii) supporting the services with free tools (e.g., “Missed Call,” “Check Balance,” “I Am Available”); and (iii) the subscriber’s entering the roaming area, may not be considered advertising.
The distribution of information about optional services may constitute advertising if an SMS-message contains, in particular, an offer to (i) purchase for additional payment mobile content (tunes for ringtones or tones, subscription for the news, the weather forecast, etc.); (ii) change the tariff; and (iii) refer to the mobile tool (portal) if this would allow the subscriber to purchase for an additional payment mobile content or optional services.
According to the Letter, SMS-messages sent by the communications operator to the subscribers of another communications operator, if such messages include an advertising item, should be considered advertising in any case.
The Letter is available at www.consultant.ru