Many types of activities require mandatory permits and licenses by law. Otherwise, the company may face serious problems.
IN Lately One of the most common types is a telematics license, which is associated with the field of communication and data processing services.
What areas does this permit cover?
Unfortunately, the law does not provide a clear interpretation of the definition of telematic communication services. The only thing defined by law is telematic electronic communication. It refers to one or more telecommunication messages that contain information structured according to an exchange protocol.
Due to the fact that there is no clear definition, the following companies are required to obtain this license:
- Internet providers;
- Internet cafe;
- Companies providing hosting services;
- Business of organizing instant messaging services (sms);
- Companies related to transport monitoring.
What legislation governs this area?
Telematics services are regulated by various federal laws. Since their definition has not yet been formed, there is a fairly large number of norms that must be relied upon when organizing such activities.
So, among them we can highlight Law “On Information, Informatization and Information Protection”, which was adopted in 1995. It is also the media law of 1991. the federal law, concerning communication services, also regulates the field of telematics.
Additional acts related to the area under consideration are the 1996 law “On participation in international information exchange”, the law “On advertising” adopted in 1995, as well as laws on copyright and the protection of computer programs and databases. It is important to understand that all these laws are adjusted from time to time.
Who needs a telematics license?
In general, the decision on the need for a permit rests with the company providing such services. To obtain it you will need to fill out a large number of documents. If there is no license, the owner will be held liable in the form of a large fine.
In some cases, a person may face criminal liability for such violations.
However, there is one way to bypass the existing requirement. This is possible if the company provides services under an agency agreement. But in this case, the created organization is only an intermediary that will receive a very low percentage of profit.
That is why obtaining permission is necessary for any company involved in providing hosting, GPS monitoring, selling content of various types using instant messaging services, providing Internet access, etc.
The process of obtaining permission through a special company is presented in the video:
What is required to obtain a permit
First of all it is necessary submit a corresponding application to Roskomnadzor. In addition, the owner of the company must prepare a certificate that will confirm the registration of the company. The company must be a legal entity, and a copy of the registration certificate must be certified by a notary.
The owner will have to provide a copy of the articles of association, which must also be certified. To obtain a license, you must pay a fee to the state. Accordingly, you will need to bring the original payment order. Finally, you must provide a certificate of registration to the tax authority.
Step-by-step registration procedure
In order to obtain a permit for telematics services, you will need to complete a number of steps. To increase the likelihood of obtaining a license, it is best to contact specialized company. So, you will need to do the following:
- Prepare constituent documents to create a company.
- Register a legal entity.
- Prepare a complete set of documents for submission to Roskomnadzor.
- Pay the state fee.
- Provide documents to Roskomnadzor.
- Monitor the documentation processing process.
- Get a license.
It is important to understand that in addition to providing a new license, it may be reissued or extended. The latter can be carried out no less than 6 months and no more than 30 days before the expiration of the old permit. Re-registration can be carried out in cases where the company’s details, the list of services it provides, as well as the territory in which the services are provided change.
Cost and terms
Depending on whether the company prepares documents independently or by contacting a specialized company, the time frame and price for obtaining a permit will change. So, The state fee is 7,500 rubles. At the same time, the preparation time for all necessary documentation will be about 1-2 months.
If you turn to professional services, the period for consideration of the application by Roskomnadzor is reduced. In this case it will be about 45 days. If you submit an application yourself, the likelihood of obtaining a license decreases, and the review period increases by 1.5-2 times. At the same time, the period for re-issuing and extending a license is slightly lower.
The cost of services from companies that help obtain a license varies from 6,500 to 15,000 rubles, depending on the location and level of involvement in the process of obtaining a permit.
Thus, the process of obtaining a license, the need for which is established by the laws of the Russian Federation, is quite complex and time-consuming. However, this important step, which can guarantee that there are no problems during unexpected checks.
Now it’s hard to even imagine life without home internet, access to global network at the workplace, internet cafe. Internet access services are becoming increasingly in demand. Accordingly, more and more new providers are appearing, ready to connect users to the Internet. One of the types of services discussed is access to the Internet via dial-up and leased lines, provision of space for downloading files and ensuring the operation of sites (hosting), provision of client e-mail, placement of equipment belonging to the client with the provider (colocation) and much more.
To provide services for providing Internet access, that is, to be an Internet provider, you need a license to provide Internet services. This license is also called telematics. This provision is contained in the legislation Russian Federation, dedicated to lensing individual species activities and communications.
The Law “On Communications” contains the basic concepts used in legislation in the field of communications. Communication service means the activity of receiving, processing, storing, transmitting, delivering telecommunication messages or postal items. In order to provide the population paid services communications, a license to provide Internet services is required. Acting in the absence of an appropriate license is a criminal offense and is provided for in Article 171 of the Criminal Code.
Attached to the application are copies of the constituent documents contained in the registration file of the legal entity, certified government agencies carrying out maintenance of the unified state register legal entities, a document confirming the fact of making an entry about a legal entity in the unified state register of legal entities, or its notarized copy, a certificate of state registration as an individual entrepreneur or its notarized copy (for individual entrepreneurs); a notarized copy of the certificate of registration of a legal entity or individual entrepreneur with the tax authority; communication network construction diagram and description of communication services, document confirming payment of the state fee for issuing a license.
Our company specializes in legal support procedures for obtaining licenses for communication services have been in place for many years. During this time, we have helped more than one company providing communication services start their activities.
Cost of obtaining a license: 8,000 rubles. When using radio frequencies plus 3000 rubles. The fee is paid separately.
The period for consideration of an application for a license is 30 days.
The development of new technologies contributes to the entry into the market economic activity new types of services. The state tries to control some of them for quality and compliance with the established requirements of the persons providing them, especially if the end consumer is individuals.
On January 1, 2008, new Rules for the provision of telematic communication services directly related to the Internet were introduced. However, not all related services are classified as telematic and require a license.
State control is expressed in the introduction of special procedures, the completion of which is confirmed by appropriate licenses. The service for subscriber access to the Internet and services directly related to it are not new, but until recently they were the least regulated in terms of the regulatory framework.
Services provided by Internet providers, content providers and other operators, including Internet access services, hosting services, services for creating and providing e-mail for use, are not specified in Federal Law No. 128-FZ of August 8, 2001 “On licensing of certain types of activities” (hereinafter referred to as the Law on Licensing), which is considered the main one in the field of licensing. However, the absence of listed services does not mean that a license is not required.
The fact is that the mentioned Law, in accordance with paragraph 1 of Art. 1 regulates relations arising only in those types of activities that are listed in paragraph 1 of Art. 17. However, its effect does not apply to those types of activities that are listed in paragraph 2 of this article, including activities in the field of communications.
The main regulatory document regulating relations in the communication services market is the Federal Law of July 7, 2003 No. 126-FZ “On Communications” (hereinafter referred to as the Law “On Communications”), Article 29 of which provides for the licensing of activities for the provision of paid communication services and confirmation of compliance means of communication. Services related to Internet access are recognized as communication services.
Communication facilities and lines
Internet access services are provided through a communication network, defined in the Law “On Communications” as technological system, intended for both telecommunications and postal services.
A communication network includes communication facilities and lines. The Communications Law includes technical and software tools used for the formation, reception, processing, storage, transmission, delivery of telecommunication messages or postal items, and other hardware and software tools used in the provision of communication services or ensuring the functioning of communication networks. .
And communication lines according to the Law are transmission lines, physical circuits and line-cable communication structures.
Line-cable communication structures mean part of more general concept- communications structures, which include engineering infrastructure facilities, including buildings, structures created or adapted for the placement of communications equipment and telecommunication cables. The main characteristic feature of these structures, which distinguishes them from other communication structures, is that line-cable communication structures and other engineering infrastructure facilities are created or adapted to accommodate communication cables.
Licensed types of activities
To obtain a license, you should contact the licensing authority, that is, Rossvyazohrankultura. This department is entrusted with licensing powers in the field of telecommunications in accordance with Decree of the Government of the Russian Federation dated June 6, 2007 No. 354.
The list of names of communication services included in licenses and the corresponding lists of license conditions is established by Decree of the Government of the Russian Federation dated February 18, 2005 No. 87 “On approval of the List of names of communication services included in licenses and lists of license conditions” (hereinafter referred to as the List). Until January 1, 2008, services of “access to information of global and regional information and telecommunication networks, including the Internet” were subject to licensing.
This List was recently updated by Decree of the Government of the Russian Federation dated September 10, 2007 No. 575 “On approval of the Rules for the provision of telematic communication services” (hereinafter referred to as the Rules).
According to this Resolution, from January 1, 2008, a license for telematic communication services is issued to the following types activities:
· access to the licensee’s communication network;
· access to information systems of information and telecommunication networks, including the Internet;
· reception and transmission of telematic electronic messages.
Access to the Network, receiving and transmitting messages
The concept of access to the licensee's communication network is not disclosed in the Rules. However, this document contains the concept of “providing access to a data network,” which is understood as a set of actions by a telecom operator to form a subscriber line, connect user equipment with its help to a communication node of a data network, or provide the ability to connect user equipment to a data network using a telephone connection or a connection via another data transmission network in order to provide the subscriber and (or) user with telematic communication services.
Access to information systems of information and telecommunication networks, including the Internet, the Rules define as ensuring the possibility of receiving and transmitting telematic electronic messages (exchange of telematic electronic messages) between the subscriber terminal and information system information and telecommunication network.
The activity of receiving and transmitting telematic electronic messages includes the reception and transmission of one or more telecommunication messages containing information structured in accordance with the exchange protocol supported by the interacting information system and the subscriber terminal.
Thus, the main type of service that is now covered by a license for telematics services is Internet access.
The provision of services provided for in the List may be accompanied by the provision of other services that are technologically inextricably linked with these services and aimed at increasing their consumer value, unless a separate license is required for this.
Hosting and Maintenance
Regarding hosting and email services with the adoption of the new Rules, the answer is not clear-cut. The definition of hosting itself is not contained in the legislation. It is usually understood as a service for hosting someone else’s website on your own web server or someone else’s web server on your own “site”. However, this concept often includes the simultaneous provision of Internet connection services. Depending on what services are actually provided by the hoster, the issue of licensing is resolved.
In addition, both hosting and e-mail are associated with the storage and processing of information, and not with the reception and transmission of electronic messages, as required by the license terms.
Therefore, we believe that it is necessary to obtain a license for telematics services if the hosting service is associated with the provision of access to the licensee’s communication network and/or access to information systems of information and telecommunication networks and/or with the reception and transmission of electronic messages.
Activities for servicing servers and computers of subscribers connected to the Internet, setting up software on computers, server monitoring, preventive work, maintenance of peripheral devices, as well as the creation of websites and their subsequent implementation are not communication services. Article 17 of the Law “On Communications” on licensing does not contain these services. At the same time, if an organization, in addition to the services provided, provides Internet access services, for example, servicing computers connected by the same operator to the Internet, then a license for telematics services must be obtained only because the services provided include a licensed type of activity.
According to the new Rules
Licensing of activities in the field of provision of communication services has been carried out since 2005, when the Government approved the List of communication services. In connection with the introduction of changes relating to the List from January 1, 2008, the question arises about the fate of those licenses that were issued to organizations under the old rules.
The Law “On Communications” does not provide for automatic changes in the conditions of already issued licenses, even on the basis of a Decree of the Government of the Russian Federation. To amend the license at the initiative of the licensing authority in accordance with clause 3 of Art. 36 of the Law “On Communications” requires notification of the licensee. Until this is done, the license terms remain as they are written in the issued license.
The validity of the license is guaranteed subject to compliance with the conditions established in it, and both the licensing authority and the Government of the Russian Federation do not have the right to change these conditions in an arbitrary manner. Therefore, organizations that received licenses prior to the changes may continue to operate in accordance with the specified license terms. New sample licenses according to the new Rules are issued to applicants who applied after the changes entered into force, that is, after January 1, 2008.
EXAMPLE 1
If the list of services includes a service for providing access to the licensee’s communication network or access to information systems of information and telecommunication networks, a license is required.
EXAMPLE 2
Providing hosting services, which includes providing access to the licensee’s networks and/or the Internet, without a license constitutes a criminal offense under Art. 171 of the Criminal Code of the Russian Federation (illegal entrepreneurship).
Even IT specialists cannot say exactly what telematic services, TM communications, etc. are, let alone lawyers. But we still decided to tackle complex terms and consider them from the point of view of legislation. A kind of mix of jurisprudence and computer science. We will not touch on what is in Wikipedia; we will try to consider only what is not there.
The legislation of our Fatherland does not give us an idea of what is meant by telematic communication services. But the concept of a TM message has been defined: this is a telecommunication message containing information structured in accordance with an exchange protocol supported by an interacting information system and a subscriber terminal - this includes almost everything except telephone and telegraph. A logical question arises: who needs a license to provide telematic communication services? Now I’ll explain everything!
Let us turn to the Law “On Communications”. In it we see that “the activities of legal entities and individual entrepreneurs in the provision of paid communication services are carried out only on the basis of a license to carry out activities in the field of provision of communication services.”
This law refers us to the resolution of the Government of the Russian Federation, which states the following: “the provision of communication services for sending telematic messages is included in the list of services subject to licensing.”
That is, those who provide:
- access to the communication network;
- access to the Internet;
- services for receiving and transmitting messages.
EXAMPLE
In Kurgan region individual entrepreneur was held accountable, as the court indicated, for providing information services, namely for sending out an astrological horoscope for the next calendar month, as well as a weather forecast.
CONCLUSION
Both online stores and information services, because both of these types of Internet businesses regularly send messages to their customers or clients.
Roskomnadzor, using such a broad wording of the telematic message and the absence of a clearly defined list of telematic communication services, has the opportunity to be very creative in choosing the basis for punishing Internet entrepreneurs.
Those who are involved in the Internet business should not neglect obtaining a telematics license, moreover, given its relatively low cost. As you know, ignorance of the law does not exempt you from liability, and online business, like business in general, is obliged to anticipate risks and take measures to prevent violations of the law in order to avoid future problems.
PROBLEMS
Article 14.1 of the Code of Administrative Offenses of the Russian Federation provides that the implementation entrepreneurial activity without a license, if it is mandatory, entails:
- Imposition of an administrative fine on legal entities - from 40,000 to 50,000 rubles.
- Confiscation of manufactured products, production tools and raw materials is possible.
- In the worst-case scenario, the activity may be declared illegal and the court may prohibit it from engaging in such activity until a telematics license is obtained, which could ruin the business.
For online stores and various information services, obtaining a license can be avoided by concluding an agency agreement with a company or service that is included in the Roskomnadzor Register on the basis of an existing telematics license, which will send messages to clients and customers.
It must be said that such a license must be issued in conjunction with a license for communication services for data transmission, with the exception of communication services for data transmission for the purpose of transmitting voice information.
I hope this information was useful to you.
Ilya Lvov, leading lawyer at Zartsyn and Partners and also the modest author of this opus.
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