Year: 2008

Categories
Legal, Laws, and Regs

Monetary damages and cellphone contracts

Recovered from the Wayback Machine.

AKMA writes on a situation too many people still face: unreasonably long cellphone contracts and outrageous termination fees. I wrote of my own experiences with cellphone termination fees last year. After reading AKMA’s post, I thought now would be a good time to provide an update to the story.

First, I paid the outrageous early termination fee bill. Regardless of whatever action I would or would not take, not paying this bill puts the account into collections and that way lies a whole other nightmare. If you don’t pay the fee, you’ll get a late payment mark in your credit report, and the cellphone companies almost immediately turn the account over for collection.

Once in collection, you’ll be hounded day and night, as mystery charges get tacked on until the final bill is so bloated, it’s like a minnow has suddenly been transformed into a whale. You’ll also most likely get sued–unpaid cellphone bills account for a significant proportion of the collection law suits filed in state courts–which gives the collection company and/or the cellphone company the edge, legally. So, not paying the fee was not an option.

I then went to town, researching the laws surrounding cellphone termination fees, how to file a small claim case in Missouri, as well as people’s experiences with termination fees (usually detailed in weblogs or forums). It was when reading through weblogs that I discovered an interesting fact.

Did you know that in many states, you can’t be charged a termination fee above and beyond the actual monetary damages suffered by the party with whom you’re terminating said contract? Even if the contract includes a clause that specifies a given amount to terminate the contract early, that amount has to bear some relationship to actual, real damages suffered by the other party.

In contract law, a provision specifying termination damages is called a liquidated damages provision. The purpose of such a provision is to state what damages would be in cases where actual damages might be difficult to assess. However, when challenged the entity behind the contract must be able to defend such a provision, either by demonstrating the difficulty or impossibility of proving such damages, or by demonstrating that the charge closely matches the actual damages suffered. From the FreeAdvice site:

Sometimes business contracts contain a “liquidated damages” provision, providing for payment of a certain fixed amount in the event of a breach. These provisions typically are upheld if the actual damages would have been extremely difficult to ascertain and the amount of the liquidated damages is reasonable. Courts generally do not enforce liquidated damages that are intended to serve as a penalty or are far in excess of the amount of damages the parties may reasonably forecast.

In all my personal investigations into consumer law, one thing I’ve discovered over the years is that contracts are not ironclad or immutable. In other words, a company can write a contract and you can sign it, but that doesn’t mean the contract or any part of it is enforceable, or that you’re forced to comply with the provisions without any other recourse.

A great disservice has been done to the American people in the last hundred or so years. We have been brought up to believe that contracts are law, as well as acts of honor, a belief reinforced by companies such as Verizon and Sprint. After all, one only has to call customer service of either of the aforementioned company to hear how the how enforceable is the company’s contract, how defenseless we are to debate or quibble with any part of it.

However, it is up to the courts to truly determine the enforceability of the contracts (a right, I want to add, which companies have been attempting to erode by adding arbitration clauses). If a contract or any part of it is not enforceable, and we research our case and come to court prepared, the courts are just as likely to side with us as the companies.

As for the indoctrinated sense of “honor” when it comes to contracts, tell me how honorable is it to charge a $500.00 fee for two cellphones, 3 and 8 years old, and failing? Or to arbitrarily change contract terms? Or force a renewal of a contract, just because you want a cellphone that works? To corporations, there is no honor in contracts, only corporate benefit and enforceability.

I digress. Returning to the concept of “liquidated damages”, the reason that cellphone companies ostensibly give for the cellphone termination fee is that the cellphone company is subsidizing the cost of the equipment, i.e. the cellphones. However, as the current spate of class action lawsuits against most cellphone providers are stating, if this is true then the termination fee should prorate, reflecting the prorated value of the equipment so provided, over time.

It is ludicrous to assume that the monetary costs to the cellphone company based on them giving you a cellphone would suddenly accrue the last month you have your contract. No, the value of the equipment, and their investment in it, would depreciate over time. The termination fee should reflect this depreciation.

(Perhaps what I should have done is offer Sprint $1.83 to cover any perceived value for two cellphones. I imagine this would be more than adequate to cover any income derived from scrapping both phones.)

Armed with anecdotal accounts and actual examination of Missouri state law, I was ready to take my case against Sprint to Small Claims court. First, though, I did a look up using Missouri’s own Case Net to see how successful people were against Sprint. Lo and behold, I found that everyone who had filed against Sprint–and there weren’t many–had won a default judgement. Why? Because it costs Sprint more to defend against the case in small claims court than to just pay the judgement.

Now, I imagine that buried in all of the agreements Sprint had sent out over the years was a clause insisting on the use of arbitration rather than the courts if people like you and me want to sue the company. However, there’s another fact about arbitration that comes into play with companies like Sprint: if I initiate a suit in small claims court, Sprint would have to send in a lawyer and file a response to have the case removed to arbitration. Then, Sprint and I would go, back and forth, about arbitration law and applicability–not to mention whether Sprint’s arbitration clause was conscionable (equally fair) and so on–until the courts either sided with me, or with Sprint.

While all this back and forth is going on, Sprint is paying for the services of a lawyer who would probably charge in the first two hours the same amount as my claim–and I can guarantee taking up more than two hours. Just because the Supreme Court has bent over backwards to kiss corporate butt in favor of arbitration doesn’t mean we have to roll over and play dead. There are arguments and defenses one can make against arbitration. Nor, since the suit originated in small claims court and according to Missouri law, can I be forced to pay the lawyer’s fees even if I lose the case. I would only lose the filing fee: $35.00.

In fact, it is the cost of the attorney as compared to the possible value of an award that leads many companies, and most likely Sprint, too, to *add a provision to their arbitration clauses that would allow small claims actions. Telecommunication, manufacturing, and most other companies outside of the finance industry add arbitration clauses to prevent class action lawsuits, not “nickel and dime” small claims cases like mine. Well, not nickel and dime to me, definitely nickel and dime to Sprint.

With all this in mind, I decided I would give Sprint another chance before going to court. I submitted a claim to the Better Business Bureau, detailing not only the problem, but also the course I would be forced to take if resolution could not be satisfied via intervention by the BBB. The important aspect of all of this is that the course I would take was one I would follow. I was not bluffing, and it was important to communicate the sincerity of my intent.

Sprint did respond just before the BBB deadline, denying my claim. The BBB asked if I would be willing to compromise. I responded back that at one point in time I was willing to compromise but Sprint was unwilling. Now, there would be no compromise: I wanted a refund of the entire termination fee and state and local taxes or I would have no recourse but to take this to court.

This week I received a check from Sprint for a full refund. I’d like to think that the reason I got the check is that Sprint is beginning to realize that it would be a more successful company working with customers, rather than “trapping” us into untenable contracts enforced with unreasonable fees. Verizon was the first cellphone company to make this determination, prorating termination fees based on how far into the contract the customer is. Other companies have followed suit, including Sprint, though its prorate program came after my termination.

I’d like to think the company saw the light, but I don’t think Sprint, or any of the cellphone companies, is there yet. Until they are, challenging the contract terms and termination fees via the BBB and small claims court, though not the ideal path, did work, at least in this instance.

I’m not advising AKMA to take the same course I did. I won’t give out legal advice, as I’m not a lawyer and I’m not qualified. Hopefully though, AKMA and others with similar cellphone termination fee problems will discover some ideas in regards to their own situations from this recounting.

*I found a copy of the most recent Sprint agreement. It does allow for small claims court cases.

Categories
SVG

Graphics tools

I really kick myself now for not including a mention of gnuplot in “Painting the Web”. I had one chapter on graphics and data, and it would have been a nice fit. However, it does need a nice installation environment for the Mac, and that was one of the criteria for including mention of tools.

We’re told that a Mac-specific installation of gnuplot is coming. When it does, I’ll include a link in the graphics tools section of the book’s supplementary site.

Another handy graphical tool is svgfig, which allows you to draw mathematical figures in SVG using Python. This tool should be very simple to install if you have Python installed. Using it, though, does require an understanding of math. Of course.

I would say that 2008 is the year of SVG in addition to the year of semantics. Works for me, though perhaps I should have called my book, “Painting the Semantic Web”.

(Thanks to Michael Bernstein for mention of svgfig)

Categories
Events of note

Local chaos

Recovered from the Wayback Machine.

The shootings in Kirkwood happened about five miles from us. Kirkwood borders our community. My roommate and I were both shocked to hear of the shootings last night, especially since Kirkwood is considered a healthy, somewhat affluent, long-time community. It has great schools, thriving local businesses, good homes. What would make a man like Charles Thornton commit such an act in this quiet little community outside of St. Louis?

What confuses me more is the killer’s brother seeming to justify such killing. “Going to war”, over what? Parking tickets? Construction without permits and in violation of city building codes? Because he couldn’t disrupt community meetings?

In one of the local forums, a couple of people who were familiar with these community meetings mentioned that Thornton thought the community leaders were racist and were targeting him because he was black. That’s a serious charge, and if true, he should have worked with the state Attorney General and others to investigate whether prejudice was a factor, and he was being targeted. Yet he, seemingly, did nothing except show up for the meetings and call the council members and the mayor donkeys and accuse them of “plantation mentality”, bray during the meetings, and refuse to leave the meetings until he was arrested.

A St. Louis Today article did get more specific, and stated that he felt he was being targeted for performing work without a permit and parking tickets. His mother states that it was wrong for him to kill, but it was wrong for others to drive him into killing. His brother mentioned that he was frustrated because he didn’t know the law.

Driving him into killing? Doesn’t know the law?

At one of the St. Louis Today talk threads, one person wrote:

Perhaps some of the prayers should be reserved for the cause of this event. The focus is always put on bullying in schools but what happens when those bullies grow up and then take positions on City Councils, Business Mgmt, etc.? They obviously pushed this man too far for someone to take this extreme measure. Kirkwood has a tendency to be uptight whites that have an issue with feeling superior to everyone else and I would say that attitude is common in several sub-communities in the St. Louis area – i.e. Chesterfield, Sunset Hills, Town and Country….. These communities need to look at how they are viewed externally. Sure many native St. Louisan’s have this problem also so they should step back also and realize in the grand scheme of things they are really nobody to push anyone else around.

First, and foremost–no one would take a gun into a city council and shoot people who is not mentally unbalanced. There is no ‘pushing’ into this kind of action. There is no excuse for what Thornton did, and I would be appalled at anyone who would think this action somehow justified.

I wonder, though, at the repercussions from this event. St. Louis and the surrounding communities do have problem. There isn’t enough diversification. The lines between black and white are too sharp. There is a tendency of the white governing bodies to ignore the black community and the problems of poverty that plague much of the community. Worse, there seems to be an underlying belief on the part of some community members, black and white, that nothing can fix the problems we have. That this community-based segregation will never end, never go away.

From what those who knew him have said in forums and elsewhere, Charles “Cookie” Thornton was a successful, well connected community member, with a loving family and friends. To go from that to cold bloodily shooting several people, killing at least five, is a disconnect I just can’t bridge with what we’re reading in today’s news accounts. I have a feeling this is only the start of the story.

Sad and troubling times in the neighborhood.

Categories
Political

My candidate has won

Summary:   At the end of my considerations, I couldn’t see the differences between Clinton and Obama. All I can see is the goodness in both. The hope each brings to this election. How desperately we need them, both of them. Whatever each has done in that past that I don’t like is not as important as what I believe they will do for us in the future. I thought to myself last night, “Which of all of the presidential candidates will best represent me in the next four years?” I then got a call from a state representative hawking McCain, and found my answer.

I spent the last week looking at differences between Clinton and Obama. I thought about what they’ve done in the past, what there was about each that I didn’t like. I focused on their weaknesses in an attempt to determine which deserved my vote.

During that same time, I received call after call from the Republican party about Huckabee, McCain, and Romney. In the end, I couldn’t “see” the differences between Obama and Clinton, because of the huge gaps between both of them and the Republican candidates.

The Republican candidates all emphasize their ‘strength’, and determination to fight terrorism. I look around the country today and frankly, terrorism is the least of my long list of concerns. Clinton and Obama, on the other hand, emphasize the issues that do worry me. More importantly, they talk of the people, as a whole, while the Republicans talk about groups: the Christians, the pro-lifers, the terrorists, other governments.

The Republican candidates promise change, but bring the same thing to this election that they brought to the last: keep the people focused on the differences between us, so that we’re blind to what’s happened in this country to all of us. All of the people. We the people.

We the people…words we’ve heard before. Words we don’t hear enough, now. Regardless of religious beliefs, region, country of our birth and our ancestry, sex or sexual preference, even income, we have forgotten in these last eight years that we are a people united by the same concerns and worries. What impacts any one group of us, impacts all of us.

One out of five of us doesn’t have health insurance. Both Clinton and Obama have promised universal health care, and though there are differences in the implementation, in the long run, both have promised to take the steps necessary to make this happen. None of the Republicans have even made this attempt.

Both Obama and Clinton have promised an end to the current state in Iraq, and though their methods are different, at least they have promised to take the first steps necessary to make this happen. None of the Republicans have even made this attempt. The opposite in fact: there isn’t a Republican candidate I trust not to do the same thing in Iran that we’ve done to Iraq. This thought terrifies me.

The Republicans talk of building a 2 billion dollar fence between us and Mexico, and I think what has happened to us that our biggest concern is placing barbed wire between some poor soul and a job picking apples for 8 dollars an hour? This, while we condone torture, indiscriminate wiretapping, and a bloated, useless agency that can’t even handle the natural disasters we do face every year?

Neither Obama nor Clinton have declared open war on corporations in this country, but each has said that the free ride corporations have had in the last eight years is over. On the other hand when the Republican candidates are asked about holding corporations responsible for their actions, they respond with assertions about how they are pro-life and have a belief in God, as well as promise to continue the fight against terrorism. The same fight against terrorism that led to companies like Blackwater thinking themselves above the law, both inside and outside our country. The same fight against terrorism that led us to invade a country, not because it was a threat but because it had oil. The same fight against terrorism that led to laws benefiting corporations at the expense of the environment, our privacy, and our rights under the constitution.

In eight years, the only “trickle down” I’ve seen of the economics practiced by the Republicans are the tears on the faces of those who have lost their jobs, their homes, and their hopes.

The Republican candidates point, with fear, to socialism. What about corporatalism? Why is it so much better to give to the corporations than to the people? How much more of our national soul will we give, so that corporations can reap obscene profits with little oversight?

What an election the Presidential election of 2008 will be. For the first time in history, we go into this presidential election with a candidate who is not a symbol of the ruling elite. Regardless of who wins the Democratic nomination–Obama or Clinton–his or her fight for the presidency will be long and difficult. Too difficult to start it with being disappointed because the candidate we have is not the other.

At the end of my considerations, I couldn’t see the differences between Clinton and Obama. All I can see is the goodness in both. The hope each brings to this election. How desperately we need them, both of them. Whatever each has done in that past that I don’t like is not as important as what I believe they will do for us in the future. I thought to myself last night, “Which of all of the presidential candidates will best represent me in the next four years?” I then got a call from a state representative hawking McCain, and found my answer.

Tomorrow, people will talk about the primary results and what they mean, and ask each other whether their candidate won. I’m lucky, because I don’t have to wait until tomorrow. I already know my candidate has won

Categories
Weblogging

A note on comments

Recovered from the Wayback Machine.

I noticed increased rumblings in Planet Intertwingly against anonymous commenters. I maintain a short lease on anyone commenting who doesn’t provide a real email address or who I don’t know, primarily because I don’t know if the person is putting an innocuous comment in to bypass ‘must have approved comment’ security for later spam. Other than that, though, I’m not adverse to anonymous comments.

I have, however, put all comments into moderation. I’m still attempting to make the comments XHTML-bullet proof, and ‘bad’ characters or markup in a comment breaks the page for everyone. With moderation, I can catch such breakage before it hits the published page. When I feel I have robust filters in place, I’ll turn open comments back on.

In addition, comments about spelling or grammatical errors, as well as those noting problems with the site technology, while appreciated and welcome, won’t be published. I consider comments of that nature more of a private note to me.

Yes, the SVG clock now reflects your time, not mine.