Nghị định 49/2017/NĐ-CP sửa đổi hướng dẫn Luật Viễn thông

THE GOVERNMENT

Decree No. 49/2017/ND-CP dated  April 24, 2017 of the Government on amending  the Article 15 of the Government’s Decree No. 25/2011/ND-CP elaborating and guiding the implementation of the law on telecommunications, and Article 30 of the Government’s Decree No. 174/2013/ND-CP on penalties for administrative violations in posts, telecommunications, information technology and radio frequency sectors

Pursuant to the Law on Government Organization dated June 19, 2015;

Pursuant to the Law on Actions against Administrative Violations dated June 20, 2012;

Pursuant to the Law on Telecommunications dated November 23, 2009;

At the request of Minister of Information and Communications;

The Government promulgates this Decree providing amendments to Article 15 of the Government’s Decree No. 25/2011/ND-CP dated April 06, 2011 elaborating and guiding the implementation of the Law on Telecommunications, and Article 30 of the Government’s Decree No. 174/2013/ND-CP dated November 13, 2013 on penalties for administrative violations in posts, telecommunications, information technology and radio frequency sectors.

Article 1. To amend the Article 15 of the Government’s Decree No. 25/2011/ND-CP dated April 06, 2011 elaborating and guiding the implementation of the Law on Telecommunications (hereinafter referred to as Article 15 of Decree No. 25):

“Article 15. Conclusion of standard form contracts or contracts containing general terms and conditions, retention and use of subscriber information

1. The conclusion of standard form contracts or contracts containing general terms and conditions (hereinafter referred to as the “Contract”) must be performed at points of telecommunications services (hereinafter referred to as the “POS”), consisting of:

a) POS with determined address established by telecommunications enterprises;

b) Mobile POS established by telecommunications enterprises;

c) POS with determined address established by another enterprise with the authorization of the telecommunications enterprise under an authorization contract to conclude Contracts for supply of telecommunications services (hereinafter referred to as “Authorized POS).

2. A POS is eligible for performing the conclusion of Contracts when it satisfies all of the following requirements:

a) Have a signboard showing the following information: “Point of Telecommunications Services”; name or trademark of the telecommunications enterprise that establishes or gives authorization to the POS; address; contact telephone number;

b) Post the standard form contract and the contract containing general terms and conditions for supply of telecommunications services; process of concluding Contract; the original or the certified copy of the authorization contract signed by and between the telecommunications enterprise and the enterprise establishing the authorized POS;

c) Equip enough equipment for inputting paper-based information of clients; digitizing their documents; taking photos of persons concluding Contracts (for mobile telecommunications services) and transmitting information, digital representations of documents and photos to the telecommunications enterprise’s centralized database. Documents and photos must be clearly and sharply digitized and taken; digital representations must include sufficient information specified in paper documents presented by clients when concluding the Contracts; photo must include date and time of taking photo;

d) Ensure that the employees who are responsible for performing the conclusion of Contracts have successfully completed training courses in process and procedures thereof.

3. When concluding a Contract, a client is required to present the following documents:

a) For individual clients: the original of unexpired passport or ID card or citizen’s identity card (if the client is a Vietnamese citizen), or passport which is still valid for use in Vietnam (if the client is a foreigner) (hereinafter referred to as “identity papers”);

b) For organizational clients: the original or certified copy of establishment decision or business and tax registration certificate or investment license or certificate of enterprise registration (hereinafter referred to as “certificate of legal entity). The organizational client is also required to present the list of its employees (enclosed with certificates of employment) who are allowed to use mobile telecommunications services which are provided under the Contract signed by and between the organization and the telecommunications enterprise, and identity papers of each employee. If the Contract is concluded by a person who is not the legal representative of the organization, he/she must present the power of attorney granted by the legal representative and his/her identity paper;

c) If a person aged under 14 or ward as defined in the Civil Code uses telecommunications services, he/she must have a Contract concluded by his/her parent or guardian.

4. After receiving documents presented by the client for concluding Contract, the POS is entitled and obliged to:

a) collate documents/ identity papers presented by the client who is going to perform the conclusion of Contract under provisions in Clause 3 of this Article;

b) refuse to conclude Contract with the client that fails to present all of documents as prescribed in Clause 3 of this Article or whose documents/papers are unclear and unable to be digitized;

c) fully and exactly input subscriber information as prescribed in Clause 5 of this Article;

d) conclude Contract with the client whose documents/papers presented conform to regulations herein;

dd) store subscriber information on the POS’s subscriber information database and transmit it to the centralized database of the telecommunications enterprise;

e) maintain the access to the POS’s subscriber information database available to serve the inspection of subscriber information of clients who have concluded Contracts with the POS upon the request of a competent state authority;

g) ensure subscriber information security under regulations of law.

5. Subscriber information includes:

a) Subscriber numbers; user of each subscriber number: for individual client (subscriber number for the client himself/herself; for his/her biological or adopted child aged under 14; for his/her ward; for equipment); for organizational client (subscriber numbers for its employees; for equipment);

b) Individual’s information as shown in his/her identity paper, including: full name; date of birth; nationality; number, date of issue, issuing authority or place of issue of identity paper; place of permanent residence (if client is a Vietnamese citizen);

c) Organization s information as shown in documents, including: name of organization; head office s address; information in identity paper presented by the person concluding the Contract, and information in identity paper of each employee of the organization in line with the subscriber number used by such employee (if the organization grants power to its employee to use the subscriber number) under provisions in Point b of this Clause;

d) Digital representations of documents presented by clients when concluding Contracts;

dd) Photos of persons who directly conclude Contracts (for mobile telecommunications services); digital representation of certificate of subscriber information or certificate of subscriber information bearing electronic signature (for prepaid telecommunications services);

e) Billing method (prepaid or postpaid);

g) Full name of advisor; time of concluding Contract; time of updating subscriber information (if subscriber information is updated by the client); the POS’s address and telephone number.

6. SIM cards for mobile subscribers (SIM card is an equipment which is associated with a determined subscriber number and stores other relevant information concerning the supply and use of mobile telecommunications services) is only provided to clients at the POS upon the satisfaction of requirements specified in Clause 4 of this Article. A telecommunications enterprise licensed to establish public land mobile network/ satellite mobile network and supply services thereof (hereinafter referred to as “mobile telecommunications service provider”) shall supply services to subscribers after it has checked, verified and ensured that information of such subscribers has been input and stored in the centralized database in accordance with the law.

7. The conclusion of Contracts with users of prepaid services of each mobile telecommunications network is performed in accordance with the following regulations:

a) For the first three subscriber numbers, the client must present required documents and sign the paper-based or electronic certificate of subscriber information. The certificate of subscriber information must include types of information prescribed in Points a, b or Point c Clause 5 of this Article;

b) For the fourth subscriber number forwards, the client must conclude a standard form contract with the mobile telecommunications service provider.  The mobile telecommunications service provider must inspect and ensure that subscriber numbers provided to such client must be used in compliance with regulations in Points b, d Clause 9 of this Article.

8. Responsibility of telecommunications enterprise:

a) Ensure that its POS strictly complies with regulations in Clauses 2, 4 of this Article.  Telecommunications enterprise shall assume responsibility under the law for subscriber information collected, collated, stored and managed at the POS as regulated; 

b) Establish technical system and centralized database to input, store and manage information collected in course of supply of services to subscribers, including: subscriber information as prescribed in Clause 5 of this Article; the commencement date when the service is available for the subscriber; subscriber status: active, one-way deactivation (receiving incoming calls only) or two-way deactivation (this subscriber number can neither make nor receive calls); the quantity of subscriber numbers; date of termination of services (in case of termination or transfer of right to use the services).  Information concerning subscribers that terminate or transfer the right to use the services must be stored within duration of at least 2 years;

c) Connect its centralized database with the database of Ministry of Information and Communications and that of Ministry of Public Security as regulated by law;

d) Provide sufficient information; demonstrate that subscriber information stored in its centralized database has been properly collected, collated, stored and managed as regulated; arrange personnel and technical facilities at its branches to serve the inspection of subscriber information upon the request of a competent state authority; 

dd) Formulate and implement internal procedures for checking subscriber information stored in its centralized database to ensure the strict adherence to regulations;

e) Give notification in five consecutive days, once every day, to subscribers whose information fails to comply with regulations herein, and request them to conclude new Contracts under provisions mentioned in Clauses 3, 4, 6 and 7 of this Article.

After 15 days as from the date of the first notification, one-way service shall be suspended if the client fails to make response, and the client is also informed that after 15 days as from the date of suspension of one-way service, two-way service shall be suspended if no response is made.  

After 15 days as from the date of suspension of one-way service, two-way service shall be suspended if no response is given by the client, and the client is also informed that after 30 days as from the date of suspension of two-way service, the Contract shall be finalized if the telecommunications enterprise receives no response from such client.

After 30 days as from the date of suspension of two-way service, the Contract for supply of telecommunications services shall be finalized if no response is given by the client;

g) A Contract for supply of mobile telecommunications services must include specific provisions on contract finalization and termination of service supply in case the subscriber fails to conclude a new Contract as prescribed in Point e of this Clause;

h) The telecommunications enterprise may provide subscriber numbers of which Contracts have been terminated as regulated in Point e of this Clause to other clients;

i) The telecommunications enterprise must instruct prepaid mobile subscribers to check their subscriber information by accessing its website or sending an instant message "TTTB" to 1414, and reply subscribers request by a message including the following information: full name, date of birth, number and issuing authority of identity paper, and the list of subscriber numbers used by an individual subscriber, or name of organization and certificate of legal entity of an organizational subscriber.  The subscriber shall only check information concerning his/her subscriber number and cannot check the information of other subscribers.

k) Conclude new Contracts upon the request of subscribers under provisions in Clauses 4, 7 of this Article;

l) When receiving request from a client for termination of services supplied to subscribers that use information in identity paper or certificate of legal entity of such client, the telecommunications enterprise must verify and request such subscribers to update their subscriber information as regulated in Point e of this Clause, and give a response to the requesting client;

m) Ensure subscriber information security as regulated by law;

n) Publish on the telecommunications enterprise’s website the list of POS in provinces or cities, including the following information: POS’s name and address; type of POS (POS with determined address, mobile POS or authorized POS); name of authorized enterprise; duration of authorization; telephone number; operating duration (for mobile POS).

9. Rights and responsibility of subscriber:

a) Present required documents/papers when concluding Contract in accordance with regulations in Clause 3 of this Article and assume responsibility for the legality of presented documents/papers;

b) Only conclude Contract for using subscriber numbers for himself/herself, his/her biological or adopted children aged under 14 and his/her wards as regulated by law (if subscriber numbers are used by persons); for personal or family equipment (if subscriber number is provided to equipment). Organize the conclusion of Contract for subscriber numbers provided to employees and equipment of organizational subscriber;

c) Assume responsibility under the law for use of subscriber numbers provided;

d) In case of transfer of right to use subscriber number, the transferor and the transferee must conclude a new Contract for using such subscriber number with the telecommunications enterprise;

dd) Update subscriber information when having change to documents presented at the time of concluding Contract or as requested by the telecommunications enterprise as regulated;

e) Check subscriber information stored in the telecommunications enterprise’s centralized database as regulated in Point i Clause 8 of this Article; ensure the accuracy of subscriber information in comparison with that in identity paper or certificate of legal entity of the subscriber. The subscriber is responsible for updating/correcting subscriber information upon the detection of inaccurate information or as requested by the telecommunications enterprise as regulated.

g) Request the telecommunications enterprise to finalize the Contract and terminate services provided to other entities using the information of the subscriber’s identity paper or certificate of legal entity.

10. Subscriber information shall be used for:

a) serving the guarantee of national security and social order;

b) serving the state management of telecommunications operations;

c) serving the management of professional operations, network operations and supply of services by telecommunications enterprises.

11. Prohibited acts:

a) Forging or using identity paper or certificate of legal entity of another entity to conclude Contract with telecommunications enterprise.

b) Pre-inputting subscriber information; activating prepaid mobile services for SIM cards when the conclusion of Contract is not yet completed as regulated;

c) Trading or selling SIM cards of which subscriber information has been already input or prepaid mobile services have been activated;

d) Revealing or using mobile subscriber information in contravention of law;

dd) Using universal SIM cards or device with function to activate SIM cards without taking the SIM card out to input subscriber information, or to activate prepaid mobile services for SIM cards.”

Article 2. To amend the Article 30 of the Government’s Decree No. 174/2013/ND-CP dated November 13, 2013 on penalties for administrative violations in posts, telecommunications, information technology and radio frequency sectors:

“Article 30. Violations against regulations on conclusion of standard form contracts or contracts containing general terms and conditions, retention and use of subscriber information

1. A fine ranging from VND 200,000 to VND 500,000 shall be imposed for any of the following violations:

a) Forging or using documents/papers of other entities to conclude a Contract;

b) Failing to conclude a new Contract with the telecommunications enterprise when transferring the right to use a subscriber number as regulated.

2. A fine ranging from VND 800,000 to VND 1,000,000 per subscriber number shall be imposed on the mobile telecommunications service provider, provided that total fine shall not exceed VND 200,000,000 for each violation, for one of the following violations:

a) Supplying services to a subscriber who fails to provide information as prescribed in Clause 5 Article 15 of the Decree No. 25/2011/ND-CP, amended in Article 1 herein;

b) Concluding Contracts in contravention of any of regulations in Clauses 4, 6, and 7 Article 15 of the Decree No. 25/2011/ND-CP, amended in Article 1 herein.

3. A fine ranging from VND 10,000,000 to VND 20,000,000 per POS shall be imposed on the mobile telecommunications service provider, provided that total fine shall not exceed VND 200,000,000 for each violation, if the POS commits one of the following violations:

a) Failing to comply with any of regulations in Points a, b, c, d Clause 4 Article 15 of the Decree No. 25/2011/ND-CP, amended in Article 1 herein;

b) Failing to get signature of the subscriber owner or of the legal representative of the organization, or of the authorized person on paper-based or digitized or electronic certificate of subscriber information;

c) Concluding Contracts outside the POS;

d) Failing to hang a signboard or hanging a signboard containing insufficient information as prescribed in Point a Clause 2 Article 15 of the Decree No. 25/2011/ND-CP, amended in Article 1 herein;

dd) Failing to post or insufficiently posting types of documents prescribed in Point b Clause 2 Article 15 of the Decree No. 25/2011/ND-CP, amended in Article 1 herein;

e) Failing to have equipment/facilities as prescribed in Point c Clause 2 Article 15 of the Decree No. 25/2011/ND-CP, amended in Article 1 herein;

g) Digital representations or photos are not clear and sharp, or photos do not contain date and time of taking photo.

4. A fine ranging from VND 20,000,000 to VND 30,000,000 per POS shall be imposed on the mobile telecommunications service provider, provided that total fine shall not exceed VND 200,000,000 for each violation, if the POS commits one of the following violations:

a) Accepting documents which fail to satisfy requirements mentioned in Clause 3 Article 15 of the Decree No. 25/2011/ND-CP, amended in Article 1 herein, when concluding Contracts with clients;

b) Failing to strictly comply with regulations in Point dd or Point e Clause 4 Article 15 of the Decree No. 25/2011/ND-CP, amended in Article 1 herein;

c) Failing to provide or insufficiently providing information, or failing to prove subscriber information stored in the POS’s centralized database as regulated in Point a Clause 8 Article 15 of the Decree No. 25/2011/ND-CP, amended in Article 1 herein.

5. A fine ranging from VND 30,000,000 to VND 40,000,000 shall be imposed for any of the following violations:

a) Selling SIM cards but failing to get the authorization to conclude Contracts from the mobile telecommunications service provider;

b) Selling SIM cards with subscriber information already input or prepaid mobile services activated;

c) Selling terminal devices without SIM card with subscriber information already input or prepaid mobile services activated;

d) Trading, exchanging or using universal SIM cards or devices with function to activate SIM cards without taking the SIM card out to input subscriber information, or to activate prepaid mobile services for SIM cards;

dd) Failing to publish on the telecommunications enterprise s website the list of POS or publishing the list of POS containing insufficient information as regulated.

6. A fine ranging from VND 40,000,000 to VND 60,000,000 shall be imposed for concluding Contracts without obtaining the authorization as regulated by law.

7. A fine ranging from VND 80,000,000 to VND 100,000,000 shall be imposed on the mobile telecommunications service provider for any of the following violations:

a) Granting authorization to other entities to conclude Contracts in contravention of regulations in Point c Clause 1 Article 15 of the Decree No. 25/2011/ND-CP, amended in Article 1 herein;

b) Accepting subscriber information provided by POS other than the authorized ones;

c) Failing to notify or request subscribers whose subscriber information fails to meet requirements to conclude new Contracts;

d) Failing to implement or improperly implementing regulations in Point e Clause 8 Article 15 of the Decree No. 25/2011/ND-CP, amended in Article 1 herein with respect of subscriber numbers whose information do not met requirements;

dd) Failing to notify or request the individual subscriber to conclude the Contract when using more than 03 prepaid subscriber numbers;

e) Failing to provide subscriber information as requested by a competent state authority;

g) Failing to provide methods of self-checking subscriber information or providing insufficient subscriber information to the subscriber owner for self-checking as regulated;

h) Failing to comply with the request of a competent state authority for checking of subscriber information stored in the telecommunications enterprise s centralized database to ensure the adherence to the law.

8. A fine ranging from VND 180,000,000 to VND 200,000,000 shall be imposed on the mobile telecommunications service provider for any of the following violations:

a) Failing to establish technical facilities or centralized database to input, store and manage subscriber information under provisions in Point b Clause 8 Article 15 of the Decree No. 25/2011/ND-CP, amended in Article 1 herein;

b) The centralized database on subscriber information fails to store all types of subscriber information and types of information prescribed in Point b Clause 8 Article 15 of the Decree No. 25/2011/ND-CP, amended in Article 1 herein;

c) Failing to store or insufficiently storing subscriber information as regulated;

d) Failing to adopt internal procedures for reviewing and checking subscriber information stored in the database;

dd) Failing to connect the centralized database of the telecommunications enterprise with the database of Ministry of Information and Communications and that of Ministry of Public Security.

9. A fine ranging from VND 80,000,000 to VND 100,000,000 shall be imposed on the legal representative of the mobile telecommunications service provider for failure to: 

a) arrange personnel and technical facilities to ensure the access to its centralized database for inspecting subscriber information upon the request of a competent state authority;

b) formulate internal procedures for checking subscriber information stored in its centralized database to ensure the strict adherence to regulations.

10. A fine ranging from VND 80,000,000 to VND 100,000,000 shall be imposed for providing or adopting information technology applications to forging of information, or photos of documents of organization or individual, or photo of the person concluding Contract for use of telecommunications services.

11. Additional penalties:

Confiscate exhibits of administrative violations, excluding the organization or individual’s documents, if any of the violations prescribed in Clause 5 of this Article is committed.

12. Remedial measures:

a) Enforced transfer of total amount top up primary accounts of SIM cards of mobile subscribers using mobile telecommunications services as from the date of entry into force of this Decree if any of the violations prescribed in Clause 2, Points a, b, c Clause 5, Point dd Clause 7 and Clause 10 of this Article is committed.  In case it is unable to determine total top-up amount, the amount payable is calculated by applying the following formula: VND 100,000 x total months in which the violation occurs;

a) Enforced transfer of total amount top up primary accounts of SIM cards after 12 months as from the date of entry into force of this Decree for mobile subscribers that use mobile telecommunications services before the date of entry into force of this Decree and commit any of the violations prescribed in Clause 2, Points a, b, c Clause 5, Point dd Clause 7 and Clause 10 of this Article is committed.  In case it is unable to determine total top-up amount, the amount payable is calculated by applying the following formula: VND 100,000 x total months in which the violation occurs.”

Article 3. Effect

This Decree takes effect on the signing date.

Article 4. Transitional provisions

1. Within duration of 03 months as from the date of entry into force of this Decree, telecommunications enterprises are responsible for concluding Contracts with authorized places of supply of telecommunications services; reviewing, notifying and finalizing Contracts, and recalling SIM cards which have been delivered by telecommunications enterprises to their agents. Over the said duration, the subscriber information management and actions against administrative penalties shall be governed by regulations of this Decree; existing subscriber information registration offices and SIM distributors that fail to conclude Contracts with telecommunications enterprises as regulated herein must stop receiving requests for subscriber information registration and selling SIM cards.

2. Within duration of 12 months as from the signing date of this Decree, mobile telecommunications service providers shall review, instruct and request their clients who use prepaid mobile subscribers but fail to provide sufficient subscriber information as regulated Clauses 5, 7 Article 15 of the Decree No. 25/2011/ND-CP amended in Article 1 herein to perform the conclusion of Contracts in accordance with this Decree.     Other than POS prescribed in Clause 1 Article 15 of Decree No. 25/2011/ND-CP amended in Article 1 herein, telecommunications enterprises may appoint their employees to directly contact existing subscribers to instruct them in implementing regulations in Clauses 3, 4 Article 15 of Decree No. 25/2011/ND-CP amended in Article 1 herein. If the telecommunications enterprise has reasonable grounds to affirm that subscriber information is accurate and it is not necessary to conclude new Contracts with such subscriber owners, it shall assume responsibility under the law for the accuracy of such subscriber information, supplement photos and extract or update subscriber information in conformity with regulations in Clause 5 Article 15 of the Decree No. 25/2011/ND-CP amended in Article 1 herein. After 12 months as from the date of entry into force of this Decree, telecommunications enterprise must ensure that subscriber information stored in its centralized database complies with regulations herein.

3. With respect of subscribers who are supplied with mobile telecommunications services before the date of entry into force of this Decree, Clause 2 and Point dd Clause 7 Article 30 of Decree No. 174/2013/ND-CP amended in Clause 2 herein shall be applied after 12 months as from the date of entry into force of this Decree.

4. As from the date of entry into force of this Decree, the Circular No. 04/2012/TT-BTTTT dated April 13, 2012 by Minister of Information and Communications on management of prepaid subscriber numbers shall be null and void.

Article 5. Implementation organization

1. Ministry of Information and Communications shall take charge of and cooperate with relevant ministries and regulatory bodies in instructing and organizing the implementation of this Decree.

2. Ministers, heads of ministerial-level agencies, heads of the Government’s affiliates, Chairpersons of people’s committees of central-affiliated cities or provinces, and relevant organizations and individuals shall be responsible for implementing this Decree./.

For the Government

The Prime Minister

Nguyen Xuan Phuc