Cingular-- Breach of Contract

"Jerome Zelinske" <[email protected]> wrote:
> When I or someone else replies to your post, we are replying to you, to
> what you said, not to what someone else posted. If we want to reply to
> what someone else said, we will reply to that post, not yours.

When threads get mixed up and replies don't always post in sequence, it is
always better to include (a portion of) the comment you're commenting about.

> What is happening to the original poster with cingular is similar to what
> happened to me with Sprint PCS... since I was out of contract ...

Your situation is somewhat similar to the OP's, but for one major
difference -- he was not out of contract.

> cingular is doing the same kind of thing that insurance companies do.
> An insurance company can take an entire class of plans and raise the
> rates or drop coverage.

Wireless isn't like insurance. You can cancel your insurance at any time
(even if there are no material changes to the plan) without a penalty,
whereas you cannot do that with a wireless contract.

> cingular is dropping tdma. In many areas they do not have analog,
> and are not willing to pay analog roaming. They therefore are
> dropping entire classes of plans, gait plans and tdma plans.

They are apparently phasing out only GAIT at the moment because of the extra
infrastructure requirements to support it. And, if you talk to the right
people, they're making allowances on new service.

> cingular very plainly states that at present they are a gsm
> service provider period.

For new service, they can be a CDMA carrier for all anyone cares. They do,
however, have an obligation to uphold their end of the contract. For
example, people make significant investments (accessories, etc.) based on
the expectation of two years with a given handset/service plan.

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› See More: Cingular-- Breach of Contract

"troyboy30" wrote:
> Scott Wrote:
> > I think that the company is just as responsible for upholding the
> > terms of the original agreement, not just ending service and
> > allowing the customer to walk. Why should they be allowed to
> > offer only a solution that costs the customer more money, when
> > they expect the consumer to pay the amount originally agreed
> > to by both parties.
>
> you might want to read the little 'opt out' clause in your contract!

Which one do you speak of? Care to quote the language? Who are you saying
can "opt out?"

There has been a big change in the services they are offering. They
are changing the contracts to reflect that. They are not doing it to
one customer. They are doing it for an entire class of customers, tdma
customers. If the customer can find a better deal elsewhere, he has
been freed to do it.

"Jerome Zelinske" <[email protected]> wrote:
> There has been a big change in the services they are offering. They
> are changing the contracts to reflect that. They are not doing it to
> one customer. They are doing it for an entire class of customers, tdma
> customers. If the customer can find a better deal elsewhere, he has
> been freed to do it.

Then ALL of those customers with UNEXPIRED contracts have a cause of action
to enforce the remainder of the deal or to get comparable terms on the new
service. What you're missing, Jerome, is that Cingular grabbed market share
and locked people in with attractive rate plans for a long term. So far, I
haven't seen anyone insisting they keep the GAIT system up. All anyone has
been asking has been to keep a comparable rate plan -- something Cingular
can do easily and at negligible cost (because the marginal cost of minutes
approaches zero).

AFAIK, they're only pulling down GAIT customers. Do you have specific
knowledge -- other than CS rep speculation (which, admittedly, got me for a
while) -- that TDMA is being pulled right now anywhere?

[ a m z ] wrote:
>
> The fact that the customer cannot simply "walk away" from the terms of the
> contract, but the carrier can (or can alter terms at will) makes the
> contract unfair on its face.
>
>

You make a valid point. The cellular business is not nearly as
regulated as was POTS. The Government's position is that there are
choices available, and the marketplace will regulate everything.

Unfortunately, the cellular carriers all impose the same provisions in
their contracts, so the consumers' choices are virtually non-existent.

In article <[email protected]>,
[email protected] says...
So.... if I understand your letter right.... you want to force Cingular
to stick to the contract no matter...... BUT YOU STILL want to have
early termination option??
Personally I think they acted fair allowing you exit contract without
termination fee since they do not offer your plan anymore.

You have basically two options
- continue with Cingular on new plan
- terminate contract

Personally I would not want to stay with company that I HAVE TO FORCE to
work with me. It is plain simple. You like them - stay with them. You
dont like them - move to competitor


AP

"AP" <[email protected]> wrote:
> [email protected] says...
> So.... if I understand your letter right.... you want to force Cingular
> to stick to the contract no matter...... BUT YOU STILL want to have
> early termination option??
> Personally I think they acted fair allowing you exit contract without
> termination fee since they do not offer your plan anymore.
>
> You have basically two options
> - continue with Cingular on new plan
> - terminate contract

I don't recall the OP saying he wanted to keep the early termination option
or that keeping GAIT is a deal-breaker. He just wants to have a comparable
plan on the new system. I had the EXACT same situation, but had excellent
luck with the "Office of the President." They were nothing but quick,
courteous and effective.

One of my biggest issues was that I had made a significant investment in
accessories (batteries, desk charger, etc.) with the belief that my
phone/plan combo would be good for two years. I also bound myself, just
like the OP, to a two year deal because of the attractive rate plan.
Cingular came up with a "close enough" tweak on a new rate plan + gave me a
partial credit toward my new phone and I was happy. They could do it if
they really wanted to. Think of the MasterCard commercial:

Credit toward new equipment: $25 - $100*
Extra minutes on the plan: $0**
Signing a once-again-happy customer
to a new 2-year deal: PRICELESS


* - depending on how strong an argument you can make

** - the marginal cost of extra minutes approaches zero and, in fact, IS
zero if you don't use them. It is more of an "insurance policy" than
anything.

Jeremy wrote:

> [ a m z ] wrote:
>
>>
>> The fact that the customer cannot simply "walk away" from the terms
>> of the
>> contract, but the carrier can (or can alter terms at will) makes the
>> contract unfair on its face.
>>
>>
>
> You make a valid point. The cellular business is not nearly as
> regulated as was POTS. The Government's position is that there are
> choices available, and the marketplace will regulate everything.
>
> Unfortunately, the cellular carriers all impose the same provisions in
> their contracts, so the consumers' choices are virtually non-existent.

With Cingular, if you bring a compatible handset, you can activate
service WITHOUT a contract. Your plans aren't greatly downgraded,
either from new customers who sign new contracts. I don't see how
that's so bad.

I don't know if Sprint still does, but they did offer a no-contract
service for an additional $10/month. Not so bad for someone who needs
only 2 or 3 months of service.

TH

Whether the customers are under contract or not, is not a "cause of
action". They are being let out of the contract. It is a new service.
It has it's own set of plans. Choose one. They are not required to
add plans for you.

"Jerome Zelinske" <[email protected]> wrote:
> Whether the customers are under contract or not, is not a "cause of
> action". They are being let out of the contract. It is a new service.
> It has it's own set of plans. Choose one. They are not required to
> add plans for you.

If the contract term has expired, you're out of luck. If the contract has
not expired, BOTH parties to a contract have an obligation to perform. If
the customer arbitrarily wants out, Cingular would hit them with a fee. Why
shouldn't the provider be held to the same standard. What gives them higher
standing than the customer?

the contract does, since it states they can opt out anytime they want.

"troyboy30" wrote:
>
> the contract does, since it states they can opt out anytime they want.

And if the fine print of the contract said they get your firstborn child as
an "early termination fee," you'd do it? A contract is a contract is a
contract -- until challenged. A judge can view a contract as unfair and
order "specific performance" or appropriate compensation.

Even those in this NG who believe the contracts would generally stand up in
court have acknowledged that the OP has a valid cause.

[ a m z ] wrote:

>>your contention is that the contract is extremely unfair to the consumer.
>
>
> So, "Cingular can void the contract at will and with no penalty, but
> consumer can't" is a FAIR contract?

It is if you agreed to it. If this is an unacceptable clause to you,
then your choice is to other go prepaid with no contract, or not get
service through cingular at all.

> I'm guessing you work for one of the
> wireless companies??

Oh, the shill argument. How convenient.

Well, *I* don't work for the wireless companies. I'm not even a
Cingular customer anymore, and have no incentive or personal investment
in defending them. However, people refusing to use common sense and
read contracts, or to own up to a certain level of responsiblity for the
terms of the agreements they bind themselves into annoys me greatly.

>
>>all of the above recognize that the contract is fair and valid and wqould
> stand
>>up to a legal challenge?
>
>
> Or maybe because nobody has ever brought a case (or at least without
> settling and sealing).

Total BS argument. There are plenty of siren chasers out there who
would LOVE to sink their teeth into the income possibilities afforded
them from a class action lawsuit respresenting millions of cell phone
customers over "unfair" contracts, IF they had a case. And they've even
sued cell phone companies on behalf of customers, and won over things
like poor performance of phone insurance. Yet not a single one about
the service agreements themselves has surfaced. That's probably because
there's no case to be had.

> I'm not going to Google to try and prove a negative.

Probably because you know you won't find anything? Google's easy. It
doesn't cost you anything except a couple of keystrokes.

> In court, the burden
> would be upon Cingular to show legal precedent for upholding the contract.

IF they were being legally challenged. Where's the legal challenge?




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"Isaiah Beard" <[email protected]> wrote:
> [ a m z ] wrote:
>
> >>your contention is that the contract is extremely unfair to the
consumer.
> >
> > So, "Cingular can void the contract at will and with no penalty, but
> > consumer can't" is a FAIR contract?
>
> It is if you agreed to it. If this is an unacceptable clause to you,
> then your choice is to other go prepaid with no contract, or not get
> service through cingular at all.

Actually, no judge will uphold a contract that isn't fair. If you agreed --
even on paper -- to sell your car to someone for $5 and then backed out, the
judge wouldn't hold you to it. The rest is a matter of "slippery slope."


> > I'm not going to Google to try and prove a negative.
>
> Probably because you know you won't find anything? Google's easy. It
> doesn't cost you anything except a couple of keystrokes.

Uhhh... you're making my point for me. I'm saying there AREN'T any
precedent-setting cases that say that specifically say the one-sided "out"
clauses are fair and legal. If you know of a case that upholds that part of
a contract -- or that says the provider can materially alter the terms at no
penalty to itself -- go ahead and cite it. As you say, it only takes a few
keystrokes.

I think they would uphold it, unless it could be proved that you agreed
to sell it for $5 under some form of duress brought on by the buyer.
Then again there are some cars I would not pay $5 for. hihi