Cingular Denies Contract Termination Without Penalty Request Based On Supposed Difference Between The Words "Revised" And "Modified"

William tried without success to cancel his Cingular contract without early termination fee based on the info in “Script For Escaping Cingular Contracts Without Fee, Based On New Arbitration Clause.”

He turboed up to executive customer service rep Nathanial Camper, who currently denies William’s request based on a supposed difference between the words “Revised” and “Modified.”

Cingular’s January bill says, “We are pleased to advise you that Cingular has revised the ARBITRATION CLAUSE”

The CTIA Cingular subscribes to says, “Carriers will not modify the material terms of their subscribers’ contracts in a manner that is materially adverse to subscribers.”

Based on this, Nathaniel Camper feels that the CTIA doesn’t apply, as the change is a “revision” and not a “modification.”

It doesn’t matter what word you use, it’s a material change to contract and the terms are materially adverse. Therefore, by the legal terms of the agreement that Cingular itself drafted, customers can end the contract without penalty. End. Of. Story.

Our advice to William is to call back again and try hammering at other reps. Maybe you’ll get a weaker one, or one that doesn’t think he’s a professional semanticist.

Or, go for the gusto and sue Cingular. That’s what they’re basically asking for with this coyness anyway. Take inspiration from this man, who sued Dell by serving the papers to a Dell mall kiosk . When they didn’t show up to court, he won by default. — BEN POPKEN

William’s letter:

After spending sometime researching an issue authored by the Consumerist, it seems as Cingular is unilaterally changing material contract terms and pricing in violation of their policies in material changes to the wording of the contract. In addition is is changing the pricing structure for text messaging from $.10 to $.15 changing the pricing of the service.

Executive Customer Service, Nathaniel Camper, from Cingular refuses to acknowledge a break in contract by Cingular in modifying material changes in the text of Dispute Resolution and Arbitration without the required fourteen days of notification.

Nathaniel Camper’s argument yesterday evening hinged arguing that it is a “revision” and not a “modification” (see below).

In regards to the change in price of text messaging, Nathaniel Camper’s argument yesterday is using the terminology that it is changing the price of a “feature” not a “service”. Last I checked Text Messaging as setup as part of the account and incoming messages are charged to the account regardless if it is from a person I know or do not know.

As I have exhausted all logical means of this addressing this issue with Cingular short of Arbitration itself as in Dispute Resolution proceedings the cost of arbitration is most likely on the consumer and selection of the arbitrator is most likely by Cingular. This would seem to indicate a process that is not exactly an impartial. Cingular seems to be attempting changing contract terms in violation of its own policies and refuses to acknowledge such when clear and logical evidence is presented of them doing so.

What would you recommend?

Notice in January Bill from Cingular:

    “NOTICE OF DISPUTE RESOLUTION AGREEMENT IN CONTRACT. We are pleased to advise you that Cingular has revised the ARBITRATION CLAUSE in our standard Wireless Service Agreement to make it even better for consumers. The revised arbitration clause can be found at ww.cingular.com/disputeresolution. This revision is effective immediately.”

CTIA Section 7

    “Provide customers the right to terminate service for changes to contract terms. Carriers will not modify the material terms of their subscribers’ contracts in a manner that is materially adverse to subscribers without providing a reasonable advance notice of a proposed modification and allowing subscribers a time period of not less than 14 days to cancel their contracts with no early termination fee.”

Previously:
Cingular Arbitration Escape Script Addendum
Script For Escaping Cingular Contracts Without Fee, Based On New Arbitration Clause

Comments

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  1. Charles Duffy says:

    The Cingular arbitration clause lets you go with small claims rather than the arbiter should you be so inclined. That’s the route I’m going to go.

  2. dantsea says:

    So their attitude is basically “Screw you, go ahead and sue us,” because they know most consumers won’t. Go ahead and sue them in small claim.

    Here’s the fun thing about small claims courts in most jurisdictions: They’re not courts of law, they’re courts of equity that do not set legal precedents but settle community disputes.

    The Cingular rep — if they show up — can argue contract law until he’s blue in the face, the judge can say “what you’re doing isn’t fair,” and enter judgment for the plaintiff.

    There is an appeals path to the lowest court at law, but since that’s when things start to get more expensive than small claims is worth, most losers won’t bother.

  3. Merlesneed says:

    My research (sample size of one) leads me to conclude that cellphone carriers have supplanted used-car salespeople, timeshare sales operations and late-night infommercials guys and gals, as the sleaziest operators around.

  4. LatherRinseRepeat says:

    I don’t see the point in arguing legal language with a customer service rep. You’re spinning your wheels and getting no where. Just take them to court and let the lawyers duke it out.

  5. ViewFromHere says:

    @dantc: Not all states allow appeals from Small Claims court. I live in Oregon where the decision by the judge in Small Claims court is final. The individual parties to the case present their evidence to the judge–no lawyers allowed–which makes it a much more level playing field when a consumer is taking on a corporate giant.

    Many local courts have websites. Consumers should check with their local courts for more information about how to file a Small Claim.

    Good luck, William!

  6. royal72 says:

    well i tried as well and in so many words got the same thing. in my case i kept getting “it’s not part of the contract, as it’s an optional service.” two hours later, i’m waiting for a “supervisor” to call me back.

    i have neither the time, nor money to take these clowns to court, so i’m hoping for a class action lawsuit to tag along with.

  7. phildeaux says:

    This is very interesting because Cingular and Verizon and T-Mobile and all the other carriers use these arbitration clauses and bans on class actions in every lawsuit to try to defeat the class action.

    They constantly argue that these bans on class actions are enforceable. And that Customers agreed to the bans. We spend years arguing over the enforceability of arbitration clauses and usually go through multiple appeals.

    And now they say that the change is not material? Talk about doublespeak. If it isn’t material, why do they post the notice on the website at all. This problem, as well as Cingular’s refusal to allow customers to cancel based on the change in TXT messaging could form the perfect storm for a class action…

  8. dwj119 says:

    I was planning on calling Cingular to break out of my contract without paying the early termination fee using the information I found on this site. By reading past comments, I’m getting the feeling its pretty much worthless. Should I even spend the time and try using the script based on the text message rate increase? Is anybody having any success?

  9. Jobeleca says:

    Sorry, but we just laugh at people who try this. That only applies to something you are billed for monthly, not usage charges. Nice try though.

  10. singularone says:

    I followed your script last night with a Cingular rep — tier 2. It was an entirely frustrating and ultimately futile process.

    The first twenty minutes were spent arguing whether this was a change to the contract at all. I kept pointing him to the words “revised the ARBITRATION CLAUSE in our standard Wireless Service Agreement” and he kept saying it was not a change to the service agreement. He finally broke dwon and agreed it was a change to the agreement but still denied that it affected the “service part of the agreement” (?!?!)

    Other nonsensical assertions: This revision benefits you the consumer (um, that isn’t the issue whether you THINK it benefits me) and then his assertion that I received notice in the November bill that there would be a change to the clause. (I am not sure if this is true or what effect it would have.)

    I would love to figure out how to terminate the agreement without a fee since the service itself is abysmal and they have twice supplied my wife with a phone that does not work (and now want to charge her for a new phone.)