Ask The Fray: What’s The Legal Definition of ‘Subscribe?’

In the correction Cingular offered on our, “Break Your Cingular Contract Without Fee, Thanks 2 Txt Msg $ Raise” post, Cingular contends that text-messaging is not a service that users “subscribe” to.

Kelleigh Scott, a Cingular PR rep, told The Consumerist,

“Cingular only promised to let customers out of their contracts if we raised the price of a service they “subscribe” to. Pay per use SMS is not a service customers subscribe to. Pay-per-use SMS is an ala carte purchase…”

Here is the line from the Cingular TOS:

“IF WE INCREASE THE PRICE OF ANY OF THE SERVICES TO WHICH YOU SUBSCRIBE… YOU MAY TERMINATE THIS AGREEMENT WITHOUT PAYING AN EARLY TERMINATION FEE…”

Isn’t Cingular’s providing a way to wireless transmit signals a service to which customers subscribe? — BEN POPKEN


PREVIOUSLY:
Cingular Responds
We Interview Cingular About Cancelling Over Text Message Plans
What Cingular Tells Customers Canceling Over Text Message Rates
Cingular Foils Reader’s Attempt To Break Contract
Break Your Cingular Contract Without Fee, Thanks 2 Txt Msg $ Raise

Comments

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  1. robbie says:

    I think the end is near for those hoping to get out of their contracts due to the SMS price change.

    Paying Cingular for access to their network-via an airtime subscription-is different from paying for other features (the key word). Regardless of whether SMS is turned on by default, it is not a subscribed service–in fact, that’s the point. If they raised the price of your airtime package, or overage charges, users might be eligible to terminate without penalty. But Cingular has left for itself the opportunity to change (legally) the price of all the little nickel/dime features.

    Even if you title SMS a service, you don’t subscribe to it unless you have a text-message package which would qualify for early termination only if they raised the package price.

    In sum: subscriptions include such services as airtime and text-message packages. All of the others add-ons are only available with a subscription but are not subscribed services themselves. This means they are flexible enough that anyone can stop paying for them at any time (by not using them), which is why they do not qualify for exemption from termination charges.

    I do not work for Cingular! (But I do love my Verizon.)

  2. MonkeyMonk says:

    Does Cingular offer a way to send text messages to people without any cingular subscription at all? If not, it certainly sounds like a service that people are subscribing to.

  3. Smoking Pope says:

    Let’s say I want to get cable TV and my choices are:

    Cable: 100 channels, PPV movies at $3.00 a pop, monthly cost $30.00

    DirecTV: 100 channels, PPV movies at $2.00 a pop, monthly cost $30.00

    Now let’s say that I go with DirecTV because movies are a buck less, then a week after doing so they raise the price of PPV to $10.00 each.

    Although PPV is an a la carte “service”, it played greatly in my original decision to choose them over cable.

    This is similar to what’s going on with Cingular. Customers can legitimately claim that their choice to subscribe hinged on the price of texting, even though it was a la carte.

    Legal niceties aside, not letting people out of their contract is flat out wrong. I’d really enjoy seeing someone with a lot of time & money launch a class action on them, if for no other reason that it would offset any profits they make by screwing over customers.

  4. AlwaysPonder says:

    Smoking Pop – sadly the contract we all signed with Cingular specifically states that we agree to give up our right to partcipate in any class action.

  5. AlteredBeast (blaming the OP one article at a time.) says:

    While I am interested in this, at the same time I feel like we are texting a dead horse.

  6. robbie says:

    Again, I argue that an à la carte service is not a subscribed service merely because it requires a subscription to something else before you can use it.

    It reminds me of On-Demand movies: whereas a subscription to a monthly digital cable package is required to use them, on-demand movies (each) are not actually subscribed services. They are à la carte options.

    The fact that you cannot do anything on the Cingular network without being a subscribed Cingular customer does not mean that everything they offer to customers is thus a subscribed service. There is a difference between the subscribed service (the bare-minimum airtime package) and everything else they add on top of it.

    dixi

  7. Smoking Pop – sadly the contract we all signed with Cingular specifically states that we agree to give up our right to partcipate in any class action. I don’t think they can do that…surely it can’t be legal to force someone to give up the right to sue.

    I think Smoking Pop nails it though. A similar argument is taking place over GPL and M$/Novell right now. Perhaps the wording of the contract is legally in Cingular’s favor (though I don’t think so), it is still against the intent the customer had when siging the contract. Intent is important. Cingular may win this legal battle, but they are losing the PR battle.

  8. DeeJayQueue says:

    If you use the phone in the back of the headrest on the plane, it costs a certain amount. Usually they require a credit card to use it but it’s feasible that they could tie the use of the phone to your assigned seat and bill you for it later.

    Now, let’s say that they decided to jack up the price of using the phone because they felt like it while in midair. You can’t go asking for your money back for the whole flight because of it, and you can’t just get off the plane either. Also, you can’t use those phones unless you’re on a plane in the first place., so by using them it’s assumed that you’ve bought a ticket and are on a flight somewhere.

    It’s the same with the text message thing. Yes, most phones come with text messaging turned on by default as well as data services. But you can turn those features off if you don’t want to pay for them.

    They’re not changing something that you don’t have a choice in using, like regular calling time rates or when nights and weekends “start” or how many minutes are included in the plans you pay for. Those would all be changes worthy of cancellations.

  9. FLConsumer says:

    AlwaysPonder: Many states disallow contracts from forcing customers to sacrifice their right to go to court. I know Florida specifically allows people to take things to court, even if the contract states arbitration is the only solution.

  10. orielbean says:

    Remember kids, contracts are not laws. Even when the judge finds them legally binding, enforcing the terms can still be fought. I call TOTAL BS on that “no class action” clause. You could put the same thing on a pack of smokes or handgun and it would not survive the discovery process in court. No way!

    The lawyers are tasked with trying to cover their butts in as many ways as possible when they write a contract.

    They aren’t interested in what is unreasonable or harmful, only what is prohibited by law. We the consumers have done a poor job of bribing our legislators to protect us and not buisness, whether it be regarding net neutrality, infrastructure improvements, these phone contracts, our precious credit data, and the list goes on.

    We need some grassroots fundraising to rise up and not slay the lobbying beast but rather throw a saddle on that sucker and put it to work for us again. As Lincoln said, “without Labor, there IS no Capital.”

  11. Crim Law Geek says:

    Crayonshinobie/Smoking Pop:
    There is a concept in contract law called the “Parol” (pronounced like parole without the “e”). It basically says that a contract signed between two parties is a final statement for their intentions. So if you and I agree for you to buy my house, including furniture for $1,000, and the contract we end up singing say you are buying the house without furniture and for $5,000, then that is our final agreement.

    There are a few exceptions to this rule. The first one is “mistake” (either unilateral or bilateral), but not reading the contract does not count as “mistake”. The other is that the contract does not make mention of a particular aspect of the agreement (I’m recovering form a [legitimate] Nyquill high, so the actual term eludes me). Basically, if the contract makes no mention of an aspect of the agreement (say, our sales contract makes no mention of furniture), then we can either make a side agreement (so long as it does not go against an aspect of the original contract), or a court can figure it out.

    The punch-line is, your intention before signing the contract will probably not make a difference, but one can make a legal argument if the contract does not specify what does and does not count as a “subscribed service”. Something tells me that Cingular has smart lawyers (or at least people that have graduated from law school) writing these things, so I’m sure they have taken care of this.

    Disclaimer: IANAL (but IAALS), the above was not legal advice, if you rely on it you deserve to lose your pants in court, loren ipsum, blah, blah, blah.

  12. Sudonum says:

    DeeJayQueue, I believe I read on some earlier posts on this same subject that Cingular does indeed charge you for receiving unsolicited text messages. And even if you opt out of text messaging they cannot guarantee you still won’t receive them and be charged for them. I do not know if this is true or not, but if it is, IMHO then you have a case for canceling without the ETF.

  13. coreyk72 says:

    Here’s what is in their terms & conditions for “GoPhone”, their prepaid service. This information for whatever reason does not appear for postpaid in their terms & conditions but I have the rate brochure for GSM FamilyTalk (my postpaid plan) and this exact same quote appears in my brochure:

    “If you cancel the Text /Instant Messaging service, you will not be able to send and receive messages, but Cingular does not guarantee all incoming messages will be blocked.

    read it for yourself here:
    http://www.cingular.com/cell-phone-service/legal/plan-term

    So, by their own admission, TEXT MESSAGING IS NOT OPTIONAL.
    It is something you will receive whether you like it or not. End of story.

    As for the no trial by jury (class action clause), I think Cingular customers should file for arbitration. Cingular says they will pay for the cost of arbitration, which is at least $125.

    If thousands of people go this route, they will lose any sort of profit the text messaging price gouge is generating.

    Plus, it seems as there is precedence for allowing law suits despite such a clause.

    Cingular needs to learn that we will not stand for this. If the customers sit and accept this price hike, Cingular will start charging for all the other “features” of service like voicemail, call waiting, long distance or roaming???

  14. Smoking Pope says:

    I’ve been thinking about this (you can tell by the smoke coming out of my ears). When you sign up with Cingular, what you are getting, in essence, is the ability to communicate.

    It seems to me that any change in the way that communication happens (or costs) would be a change to the underlying service that is being performed. In other words, I would argue that this change is a change to the fundamental reason the contract was signed to begin with.

    The example of jacking up rates for in-flight phone calls would be different, as the primary reason for purchasing an airline ticket is transportation, not communication.

    So, all you lawyer types… Assuming that the wording in the contract is not iron-clad (and it doesn’t seem to be), how would this play into a judge or arbitrator’s decision?

  15. NZDave says:

    Hmm, I work for a rather large international mobile operator… by any telco standard “SMS” is a service. A customer is a “subscriber” and each service (voice, data, SMS, PTT, etc) is subscribed to. Whether this is “opt in” or a default subscription makes little difference.

  16. coreyk72 says:

    Of course we are subscribers.

    As it has been pointed out more than once in the various postings & comments over the last few days, when you enter into the contract with Cingular (or T-Mobile, Verizon, etc.) for phone service, you do not need to opt (nor do they ask you) to also have text messaging available to you. Also, in order to send a Cingular text message over Cingular’s network, one must be a Cingular subscriber.

    Finally, this one just occurred to me…since they do not sell a text only device, you must use a phone to send a text and therefore texting and voice are not mutually exclusive.