Read This Before Considering a Lawsuit!

[ZaphodB]

So you're unhappy with your cell service. If you've read anything in the last ten years, you already know that you are one of a very large class of people. Readers of the Wirelessadvisor.com forums see thousands of threads from people just like you who are fed up with substandard service, and a large number of them threaten small-claims or class-action lawsuits.

In the interest of lowering everyone's blood pressure, here are some guidelines for you to take before filing suit against your carrier. If you follow this and still end up suing, you will at least look like someone who exhausted other possibilities before clogging up the arteries of Justice. Remember, a lawsuit is neither the best nor the fastest way to resolve an issue. Finally, all of this takes time, and as we all know, time is money. At some point it becomes more worth it to just pay the early-termination fee and port away to a different carrier.

Legal note: This should not be construed as legal advice. Your decision to follow these guidelines, while admirable, is your decision alone. The information here has not been verified, nor is it guaranteed. Neither the author nor Wirelessadvisor.com is responsible for damages or financial loss of any kind caused by your choice to follow these guidelines. If you feel you have been wronged by your carrier, you should seek competent legal advice from a qualified attorney-at-law.


STEP 1: ELIMINATE ONE OF THE POSSIBLE CAUSES

Find other people with your cell phone service and enquire whether they have the same problem. Make sure to ask people who have the same type of service as you (i.e., if you have TDMA service, you'll want to compare to another TDMA user on your provider).

If you have a GSM phone with a SIM ("Smart") card, take your SIM card out of the phone and put it in a friend's GSM phone (must be same provider). Try using your friend's phone. If the problem doesn't happen, it's your handset, and proceed to Step 2. If it still happens, it may be your account, your SIM card, or a network issue.

Ask customer service to open a trouble ticket for you. This is easy to do, and gets your question out of the hands of the customer service representatives, who can only read scripts, and into the hands of technical support staff, who may be able to better help you. Escalate the issue to management, if required. At each contact, get the name and employee number of each person you talk to and take notes.

STEP 2: REPLACE THE HANDSET

The problem is probably your phone -- this is just a statistical probability. Phones under a year in service are still under warranty and you can have them replaced for free. Call 611 and arrange for a handset replacement. Usually this involves getting a phone through the post along with a way to return your existing phone (via post -- this called RMAing a phone, RMA standing for Return Merchandise Authorisation). If the phone is older, call 611 and see if they'll do a courtesy replacement, or if you're eligible for a handset upgrade.

STEP 3: WRITE LETTERS

Write a letter to the Customer Relations department of your carrier. Write a letter to the CEO of your carrier (you can find this information if you Google for it). Be nice. Do not threaten anything. State the problem, state whom you talked to, when, and what they said. Ask them to assign someone to take ownership of your issue, or if they choose, to release you from your contract without charge. Then wait. These letters are not answered immediately, so you are going to have to wait 30 or even 60 days for a response. If you include a telephone number or an e-mail address you stand a better chance of quicker response.

STEP 4: USE THE GOVERNMENT

Assuming the response is not satisfactory, you can write your state's public-services commission. In California it's the California Public Utilities Commission (CPUC); in New York it's the New York Public Services Commission (NYPSC); in Iowa it's the Iowa Corporations Commission (ICC). The overseeing agency will probably be printed in very small print on your bill.

Bear in mind that if you file an official complaint with your state's public-services commission about incorrect billing, you must write a cheque to your carrier for the disputed amount and forward it to the commission. If the case is decided in your favour the cheque is returned to you; if the case is decided in your carrier's favour, the cheque is turned over to them and cashed.

If nothing else, your complaint is tallied and at the end of the year, when the totals of complaints against the carriers are totted up, yours will have increased your carrier's "demerit marks" by one. This does have effects, though probably too late to be pertinent to you -- in 2003, the California Public Utilities Commission levied the largest fine ever set by a regulatory commission against Cingular Wireless for misleading advertising.

STEP 5: CONSIDER A LAWSUIT

Class action lawsuits are expensive, they take years, and almost certainly more resources than you have at your disposal. As much as it's satisfying to think about millions of people rising up against your carrier, it's unrealistic. After five years or so, the carrier would probably settle, the lawyers would get millions of dollars, and you'd get a $5 bill credit and a coupon for a free accessory.

Small-claims court is faster, more likely to settle in your favour, and much cheaper, often under $100 to file the suit.

That said, do not file in small-claims court without doing a LOT of homework. If you lose, you can be compelled to pay your carrier's legal fees. That is entered as a judgment against you on your credit record, which is very, very bad.

Also, bear in mind that if you go straight from "the customer service representative wouldn't help me" to "lawsuit", you have skipped several steps that could help. The judge is impartial and is not going to pity you because you are a lowly consumer against a corporate monolith. The judge, in fact, is likely to tell you that you have other options for remediation.

Next, if you decide to file a lawsuit, you have very little legal standing unless you have suffered quantifiable, provable financial damage. Tort claims require that you actually suffer a measurable loss. This means that "the service is bad at home" is not a valid tort. "The service was bad, I cancelled because the service was bad, and they charged me $200 early-termination" is a better cause of action. "The service was bad, I cancelled, refused to pay the early-termination fee, and they trashed my credit" is also a valid tort claim, but only if you have been refused credit, asked to pay a deposit based on negative information provided in your credit report by your wireless provider, or refused money, credit or credit-line increases that would have been available to you if the negative reporting by your carrier had not been there.

Finally, read your contract. All of it. There is a lot of fine print in there that can affect how you interact with your carrier and whether you have a cause of action in court. Remember that you signed this contract, and whether or not you read it is irrelevant if it comes to court. Some carriers, in some states, may have required you to waive your right to sue in favour of binding arbitration. All carriers have fine print about service not being guaranteed. Some carriers even have clauses that allow them to terminate service for any reason or no reason, or to refuse service to anyone for any reason; so if you sue, don't be surprised if you find a notice of termination in your mailbox one day.

Dealing with your wireless carrier can be a headache, it can cause frustration, and it can leave you feeling like a peon, but jumping straight into court without following due process is a sure way to increase that frustration.

[Tony E!]

great post and advice Zaphod.....thanks.

[visa666]

Great advices!

[dgallinger]

Interesting reading.. One other point to consider, I have in the past redlined certain paragraphs in contracts because they were either un-enforcable or placed requirement on me that realistically violated my Constitutional rights. The worst was a morality clause. Not that I would have violated it, but morality is subjective to a society as a whole. I pointed this out to the rep and had him initial and date the modification. I realize that this may be legally questionalble but if the rep is having people sign contracts then he is acting as an officer for that company. Realizing that having the power to negotiate a contract and being a worker bee is vastly different. I'll would rather go into court showing that I had contested the point and the rep allowed the modification. Gotta keep the sharks on their toes ya know!

[WirelessBeachBum]

Originally Posted by dgallinger

Interesting reading.. One other point to consider, I have in the past redlined certain paragraphs in contracts because they were either un-enforcable or placed requirement on me that realistically violated my Constitutional rights. The worst was a morality clause. Not that I would have violated it, but morality is subjective to a society as a whole. I pointed this out to the rep and had him initial and date the modification. I realize that this may be legally questionalble but if the rep is having people sign contracts then he is acting as an officer for that company. Realizing that having the power to negotiate a contract and being a worker bee is vastly different. I'll would rather go into court showing that I had contested the point and the rep allowed the modification. Gotta keep the sharks on their toes ya know!

I know for a fact that Verizon does not allow and redlining of a contract, in fact any changes in contract terms have to be approved by the legal department....most of the contracts also state somewhere in them that they are the "entire contract" and no verbal or written agreement by a sales rep would supercede that document....at least something to that effect.

But most people never read their contracts and even less understand the reasons for them.

[KevinJames]

What any company's policy allows or disallows does not change the fact that two parties entering a contract have equal rights to amend that contract. Verizon may decline the amendments and the client has the right to find another vendor. I have personally amended several contracts. They always complain. Too bad. I have rights too.

[chuikov]

Good post.

To consumers: I'd like to emphasize how much of an impact your local (city, boro, township etc) government has on your wireless service. Your local ordinances and zoning board decisions affect your service more than any other factor.

If your service stinks, go to the Township building and read the wireless ordinance and check past decisions.

In addition to applications for new sites being rejected outright, other factors restricting covrage include (but are not limited to):

1. highly restrictive height regulations in commercial and industrial zones - e.g. 40ft max.
2. fraudulent zoning maps - e.g. zoning a 20 acre D.O.T depot as "residential"
3. some towns allow cell sites on municipal property only (NJ esp). This delays deployment and leads to less than ideal siting and poor coverage.
4. setbacks: a 100% or 125% setback in an area that has only 1 acre lots means that the antenna support structures can only be about 50' high - max.
and on and on...

It's usually not a lack of willingness on the part of the carriers to build new sites - Often, it's just against the "law" to do so.

[walkguru]

yes, good post, and advice. thanks for sharing.

[prepaidblog]

Great Advice. I had a few annoying experiences in a row with cellular plans so I promote prepaid service.

Case for prepaid

Another Case for Prepaid

I did get upset, but I am paying them back by promoting prepaid. It has changed recently and now is a good deal for even medium users and not just light or credit challenged users. If you don't like your prepaid provider, just go to another without worrying about the contract.

[hps]

This is my first post so hopefully I am in the right forum to get some feedback.

As a member in a class action suit against Sprint I received notice that as a proposed settlement I can receive a credit when I continue to use Sprint and a lesser amount if I accept a prepaid phone card(1.50-3.00)

Why should the courts encourage claimants to continue to use a service provider who has violated the law? The court, by endorsing this type of settlement, is allowing itself to become a marketing tool for Sprint and in effect rewarding Sprint for violating the law.

As we all know as a participating member of a class action suit our reimbursement is miniscule compared to the lawyers fee. I don't begrudge the lawyers getting paid but perhaps we can get them to make the reimbursements more meaningfull. I would like to propose an option be given to class participants that they can choose to have their settlement be donated to a charity(approved by the court) in the form of a dollar amount.

Think of the impact that these funds could have on a charity. While the individual amounts paid to individuals is small, if a large number of the class selected this option, it could run into millions. And perhaps the more enlightened attorneys representing the class might evn donate part of their fee to the charity as well.

I would welcome any thoughts on this proposal.

I wish this had been around to read when I had my problem with Cingular.

[bbm636]

Please tell me if I have a case.

In March of 05 I purchased 2 verizon phones with a 2 year contract through a third party vendor called letstalkamerica.com. Two days after purchasing the phones (I hadn't even received the phones in the mail yet) I decided I could get a better deal buying them directly from verizon. I called the 3rd party vendor to cancel my contract. They told me to ship the phones back as soon as I receive them, and once they got the phones back they would credit back my purchase and cancel my account with no early termination fee. I did as they told me to do and got confirmation that my account was closed.

Shortly after that, I opened another account with verizon directly. At this point, I assume everything is going accordingly. A month goes by and I get two bills in the mail. The account that was supposedly closed was still open. I called verizon immediately to resolve the issue. I fax over documents from letstalkamerica.com stating that the phones were received and my credit card was credited. Verizon then told me they would close the account with no early termination fee and apologized for the inconvenience. Another month goes by and I get another bill in the mail for the same account that was supposed to be closed. I call verizon again to get the situation resolved. The rep. I talked to the previous month obviously didn't do her job because I had to fax the docs over a second time. This time I get confirmation that my account was credited.

Now, a year later, (since then my family has moved out of our apartment and into a house) we are applying for an equity loan and I am informed that there is a judgement against us for about $350 from verizon. It took me awhile to realize that it was probably the account that was supposed to have been closed. The reason why this went on as long as it did was because they couldn't contact us due to the fact that we moved. I call verizon a year later, and again, have to fax over the same documents and go through the process all over again. Meanwhile, our credit score has gone down 40 points and we have an account in collections THAT DOES NOT BELONG THERE. This all happened last week. I call verizon today, and the account is still not credited because the people over there are totally incompetant and never follow through with what they're supposed to do. I am wondering if I have grounds for a good small claims lawsuit. There really is no amount of money they can credit us to compensate for our credit score going down and the fact that I can't even get a home equity loan because of this. I would appreciate any input as to what I should do.

[nKrypteD1]

Originally Posted by bbm636

Please tell me if I have a case.

In March of 05 I purchased 2 verizon phones with a 2 year contract through a third party vendor called letstalkamerica.com. Two days after purchasing the phones (I hadn't even received the phones in the mail yet) I decided I could get a better deal buying them directly from verizon. I called the 3rd party vendor to cancel my contract. They told me to ship the phones back as soon as I receive them, and once they got the phones back they would credit back my purchase and cancel my account with no early termination fee. I did as they told me to do and got confirmation that my account was closed.

Shortly after that, I opened another account with verizon directly. At this point, I assume everything is going accordingly. A month goes by and I get two bills in the mail. The account that was supposedly closed was still open. I called verizon immediately to resolve the issue. I fax over documents from letstalkamerica.com stating that the phones were received and my credit card was credited. Verizon then told me they would close the account with no early termination fee and apologized for the inconvenience. Another month goes by and I get another bill in the mail for the same account that was supposed to be closed. I call verizon again to get the situation resolved. The rep. I talked to the previous month obviously didn't do her job because I had to fax the docs over a second time. This time I get confirmation that my account was credited.

Now, a year later, (since then my family has moved out of our apartment and into a house) we are applying for an equity loan and I am informed that there is a judgement against us for about $350 from verizon. It took me awhile to realize that it was probably the account that was supposed to have been closed. The reason why this went on as long as it did was because they couldn't contact us due to the fact that we moved. I call verizon a year later, and again, have to fax over the same documents and go through the process all over again. Meanwhile, our credit score has gone down 40 points and we have an account in collections THAT DOES NOT BELONG THERE. This all happened last week. I call verizon today, and the account is still not credited because the people over there are totally incompetant and never follow through with what they're supposed to do. I am wondering if I have grounds for a good small claims lawsuit. There really is no amount of money they can credit us to compensate for our credit score going down and the fact that I can't even get a home equity loan because of this. I would appreciate any input as to what I should do.

I'm sorry to see that nobody every replied to this, I'm not sure if you're still interested in what users have to say about your quandry but I believe someone should comment for archival purposes, so I shall.

While you have a damages suit (small claims) it couldn't possibly equal out to the damages that have been incurred. However, a small claims suit could have that collection account easily expunged from your credit history, sadly you would need to go after both the agent (at the very least via written complaints to the BBB and state organizations as posted above) and Verizon. Before you do that I have to ask though, how well prepared are you and do you have any evidence to give supporting your claims that verizon had cancelled the account prior. I don't mean to sound condascending but always remember the burden of proof, if you can't proove that your point is correct never expect a civil judge to side with you.

[gubak]

Originally Posted by prepaidblog

Great Advice. I had a few annoying experiences in a row with cellular plans so I promote prepaid service.

Case for prepaid

Another Case for Prepaid

I did get upset, but I am paying them back by promoting prepaid. It has changed recently and now is a good deal for even medium users and not just light or credit challenged users. If you don't like your prepaid provider, just go to another without worrying about the contract.

Thank you your advice!

[zdoyle35]

the answer is ALLTEL!

[Fire14]

Originally Posted by zdoyle35

the answer is ALLTEL!

That isn't the answer for everyone for a couple of reasons. 1 & most important is they don't provide service everywhere, they are considered a regional carrier & not a National one. As an example here in NJ we can not get Alltel service.
2nd is not every carrier works for everyone, everyone needs to try different carriers to find the one that works best for them, and until there is 100% coverage for everyone on some carriers that will always be the best advise to give people, once there is full coverage by all the carriers then it comes down to price & options.

[zdoyle35]

fair enough you cannot get every area code... i am hoping something good comes of these 700 mhz auctions

[hf1khal]

Excelent post and hopefully every one that has complained reads this thread as it for sure should open the user's eye and guide him/her before taking any action.

[tajzai]

nice read.
thank you!@#!#