Many types of activities are legally required to obtain permits and licenses. Otherwise, the company may face serious problems.
V Lately one of the most common types is a telematics license, which is related to the field of communication and data processing services.
What areas does this license cover?
Unfortunately, the law does not give a clear interpretation of the definition of telematic communication services. The only thing that is defined by law is a telematic electronic message. It is called one or more telecommunication messages that contain information structured according to the exchange protocol.
Due to the fact that there is no clear definition, the following companies fall under the need to obtain this license:
- Internet providers;
- Internet cafe;
- Hosting companies;
- Instant messaging services (sms) business;
- Transport monitoring companies.
What laws govern this area?
Telematics services are subject to various federal laws. Since their definition has not yet been formed, there are a fairly large number of norms that need to be based on when organizing such activities.
So, among them are law "On Information, Informatization and Information Protection" which was adopted in 1995. In addition, this is the Mass Media Act 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 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 permission rests with the company providing such services. To get it, you will need to fill out a large number of documents. In the absence of a license, the owner will be held liable in the form of a large fine.
In some cases, a person may be subject to criminal liability for such violations.
However, there is one way around 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, which will receive a very low percentage of profit.
That is why obtaining permission is necessary for any company engaged in the provision of hosting, GPS monitoring, the sale of various types of content 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 an appropriate 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 in favor of the state. Accordingly, it will be necessary to bring the original payment order. Finally, you must provide a certificate of registration with the tax authority.
Step by step procedure
In order to obtain a permit for telematic services, it will be necessary to complete a number of steps. To increase the likelihood of obtaining a license, it is best to contact specialized company. So, you need to do the following:
- Prepare the founding documents for the establishment of the company.
- Register a legal entity.
- Prepare a complete set of documents for submission to Roskomnadzor.
- Pay the state fee.
- Submit documents to Roskomnadzor.
- Supervise the documentation process.
- Get a license.
It is important to understand that in addition to granting a new license, it may be reissued or renewed. 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 change, the list of the services it provides, as well as the territory in which the services are provided.
Cost and terms
Depending on whether the company prepares the documents on its own or with an appeal to a specialized company, the terms and price of obtaining a permit will change. So, the amount of the state fee is 7500 rubles. At the same time, the preparation time for the entire necessary documentation will be about 1-2 months.
In the case of turning to professional services, the time for consideration of the application by Roskomnadzor is reduced. In this case, it will be about 45 days. In the case of self-submission of an application, the probability of obtaining a license decreases, and the consideration period increases by 1.5-2 times. At the same time, the period for reissuing and renewing a license is somewhat lower.
The cost of services of companies helping to obtain a license varies from 6,500 to 15,000 rubles, depending on the location and the level of involvement in the process of obtaining a permit.
Thus, the process of obtaining a license, the need for which is enshrined in the laws of the Russian Federation, is quite complex and time-consuming. However, this important step, which can ensure that there are no problems with unexpected checks.
Now it's hard to imagine life without home internet, access to global network workplace, internet cafe. Internet access services are becoming more and more popular. Accordingly, there are more and more providers ready to connect users to the Internet. One of the types of services that were discussed is access to the Internet via dial-up and leased lines, providing a place to download files and ensure the operation of sites (hosting), ensuring the operation of the client's e-mail, placing equipment belonging to the client at the provider (colocation) and much more.
To provide Internet access services, that is, to be an Internet provider, you need a license to provide Internet services. This license is also called a telematics license. This provision is contained in the legislation Russian Federation dedicated to lensing certain types activities and communications.
The Law "On Communications" contains the basic concepts used in the legislation in the field of communications. A communication service is understood as the activity of receiving, processing, storing, transmitting, delivering telecommunication messages or postal items. In order to provide the public paid services connection, a license to provide Internet services is required. Activity in the absence of an appropriate license is a criminal offense and is provided for in article 171 of the Criminal Code.
The application shall be accompanied by copies of constituent documents contained in the registration file of the legal entity, certified government bodies that maintain 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 a notarized copy thereof, 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 a tax authority; a scheme for building a communication network and a description of the communication service, a document confirming the payment of the state fee for issuing a license.
Our company specializes in legal support procedures for issuing licenses for communication services for many years. During this time, we have helped to start the activity of more than one company providing communication services.
The cost of obtaining a license: 8000 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 emergence on the market economic activity new types of services. Some of them the state tries to control for the quality and compliance with the established requirements of the persons providing them, especially if the end consumer is an individual.
Since January 1, 2008, new Rules for the provision of telematic communications services that are directly related to the Internet have been introduced. At the same time, not all services related to it are classified as telematic and require a license.
State control is expressed in the introduction of special procedures, the passage of which is confirmed by the relevant licenses. The Internet access service and directly related services are not new, but until recently were the least regulated in terms of the regulatory framework.
Services provided by Internet providers, content providers and other operators, including services for accessing the Internet, hosting services, services for the creation and provision of e-mail, are not named in the Federal Law of 08.08.2001 No. 128-FZ “On Licensing 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 the listed services does not mean at all that a license is not required.
The fact is that the said Law, in accordance with paragraph 1 of Art. 1 regulates relations that arise only for those types of activities that are listed in paragraph 1 of Art. 17. At the same time, its effect does not apply to those types of activities that are listed in clause 2 of this article, including activities in the field of communications.
The main regulatory document regulating relations in the communications services market is Federal Law No. 126-FZ of 07.07.2003 “On Communications” (hereinafter referred to as the Law “On Communications”), Article 29 of which provides for licensing activities for the provision of communication services for a fee and confirmation of compliance means of communication. Services related to Internet access are recognized as communication services.
Means and lines of communication
Internet access services are provided through a communication network, defined in the Law "On Communications" as technological system designed for both telecommunications and postal communications.
The communication network includes means and communication lines. Communication means The Law "On Communications" refers to hardware and software used to generate, receive, process, store, transmit, deliver telecommunication messages or mail, and other hardware and software used in the provision of communication services or the operation of communication networks .
And communication lines, according to the Law, are transmission lines, physical circuits and line-cable communication structures.
Line-cable communication facilities are understood as part of more general concept- communication facilities, which include engineering infrastructure facilities, including buildings, structures created or adapted to accommodate communication facilities 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 have been created or adapted to accommodate communication cables.
Licensed activities
To obtain a license, you should contact the licensing authority, that is, Rossvyazohrankultura. This department is entrusted with the authority to license in the field of telecommunications in accordance with Decree of the Government of the Russian Federation dated 06.06.2007 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 of February 18, 2005 No. 87 “On approval of the List of names of communication services included in licenses and lists of license conditions” (hereinafter - the List). Prior to January 1, 2008, the services "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 of 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 Decree, from January 1, 2008, a license for telematic communication services is issued for 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.
Network access, receiving and sending 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 transmission network", which is understood as a set of actions of a telecom operator to form a subscriber line, connect user equipment with its help to a communication node of a data transmission network, or provide the ability to connect user equipment to a data transmission 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, is defined by the Rules as ensuring the possibility of receiving and transmitting telematic electronic messages (exchange of telematic electronic messages) between a subscriber terminal and information system information and telecommunication network.
The activity of receiving and transmitting telematic electronic messages includes receiving and transmitting one or more telecommunication messages containing information structured in accordance with the exchange protocol supported by the interacting information system and the user terminal.
Thus, the main type of services that are now covered by a license for telematic services is access to the Internet.
The provision of services provided for by 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 e-mail services with the adoption of the new Rules, the answer is not unequivocal. The very definition of hosting is not contained in the legislation. It is commonly understood as a service for hosting someone else's website on your web server or someone else's web server on your "platform". However, this concept often includes the simultaneous provision of Internet connection services. Depending on what services are actually provided by the hoster, the licensing issue 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 telematic services if the hosting service is associated with providing access to the licensee's communication network and/or access to information systems of information and telecommunication networks and/or receiving and transmitting electronic messages.
Maintenance of 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 sites with 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 a service for accessing the Internet, for example, servicing computers connected by the same operator to the Internet, then a license for telematic services should be obtained only because the services provided include a licensed type of activity.
Under the new rules
Licensing of activities in the provision of communication services has been carried out since 2005, when the List of Communication Services was approved by the Government. 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 terms 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 paragraph 3 of Art. 36 of the Law "On Communications" requires notification of the licensee. Until this is done, the license terms are retained in the form in which they are recorded in the issued license.
The validity of a license is guaranteed subject to the conditions established in it, and the licensing authority and the Government of the Russian Federation are not entitled to change these conditions arbitrarily. Therefore, organizations that received licenses before the changes were made can continue to operate in accordance with the specified license conditions. Licenses of a new type under the new Rules are issued to applicants who apply after the changes come into force, that is, after January 1, 2008.
EXAMPLE 1
If a service for providing access to the licensee's communication network or access to information systems of information and telecommunication networks appears in the list of services, a license is required.
EXAMPLE 2
The provision of hosting services, including the provision of access to the networks of the licensee and / or the Internet, without a license forms a criminal offense under Art. 171 of the Criminal Code of the Russian Federation (illegal business).
What are telematic services, TM-communication, etc., even IT specialists cannot say for sure, let alone lawyers. But we still decided to take a swing at 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 on 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 is defined: this is an telecommunication message containing information structured in accordance with the exchange protocol supported by the interacting information system and the user terminal - this includes almost everything except the telephone and telegraph. A logical question arises: who needs a license to provide telematic communication services? Now I'll explain everything!
Let's turn to the law "On Communications". In it, we see that "the activity of legal entities and individual entrepreneurs in the provision of communication services for a fee is 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 decree 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, it is necessary to obtain a license for those who provide:
- access to the communication network;
- access to the Internet;
- services for receiving and transmitting messages.
EXAMPLE
In the Kurgan region individual entrepreneur was held liable, as the court pointed out, for providing information services, namely for sending out an astrological horoscope for the next calendar month, as well as a weather forecast.
CONCLUSION
A license is needed for both online stores and information services, because both of these types of Internet business carry out regular mailing of messages to their customers or customers.
Roskomnadzor, using such a broad formulation of a 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 engaged in the Internet business should not neglect obtaining a license for telematics, besides, given its relatively low cost. As you know, ignorance of the law is no excuse, and the Internet business, like business in general, is obliged to foresee the 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 required, 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 recognized as illegal and the court will be banned from engaging in such activity until the moment a license for telematics is obtained, which can ruin the business.
For online stores and various information services, obtaining a license can be avoided if you conclude an agency agreement with a company or service that is in the Roskomnadzor Register on the basis of an existing telematic license, which will send messages to customers and buyers.
It must be said that such a license must be issued in conjunction with a license for data communication services, with the exception of data communication services for the purposes of voice information transmission.
I hope this information was helpful to you.
Ilya Lvov, leading lawyer of Zartsyn and Partners and concurrently a modest author of this opus.
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