*Disclaimer: This post discusses general legal issues, but does not constitute legal advice in any respect. No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction. Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.
So were you one of the lucky ones this morning? Were you able to pre-order yourself an iPhone 6 or an iPhone 6+? I was successful in getting an iPhone 6, a gold one with 128 GB if you are interested. However, I was also able to get a copy of my Wireless Customer Agreement with AT&T, which I find interesting. Usually, when I make large purchases online I like to copy and paste the agreements in a MS Word document so that I can analyze them and truth be told consider utilizing their language in my agreements. Attorneys are always looking for drafting language, copying and pasting speeds up the process for clients, but also for the attorney, it allows us to see how other agreements try encompass a transaction and reduce it to writing (at least for a business attorney). Further, when we are developing a new transaction for a client it helps to see what is out there already in the marketplace. Basically, do we have something novel or is someone else already doing it that way.
Anyway, this post is not about analyzing attorneys, but rather I thought it would be interesting to see how a giant wireless company drafts its agreement and what you are agreeing to, as I find for smaller businesses they are always curious what the "big boys" do for their agreements. Also as I stated, transactional attorneys will use drafting language from another company's agreement if their client is doing the same or similar, then modify to the client's needs (not to mention in B2C agreement, if the customer already understands a competitor's agreement it makes it easier for them to understand if the language is the same). My last rationale is that in our TL;DR social media culture, I thought I would highlight some provisions I thought were interesting if you were just curious as a fellow user of wireless services.
So here is the pdf version of the Wireless Customer Agreement that popped up on my screen that AT&T made me agree to to get my iPhone 6 on preorder, so you can follow along.
I. 2nd Paragraph = Please Read - Are we Tracking You? and You are Agreeing to Arbitration.
Right off the bat, in the second paragraph, in big, bold letters, AT&T's agreement states:
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION, INCLUDING OUR USE OF YOUR LOCATION INFORMATION (SEE SECTION 3.6). THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
A. Privacy Issue
So what's all of that mean? Well, if we go down to Section 3.6, we soon discover that this all about how they handle information that they receive from your "Device" (your phone). One of the relevant parts states the following:
We use that information, as well as other usage and performance information also obtained from our network and your Device, to provide you with wireless voice and data services, and to maintain and improve our network and the quality of your wireless experience. We may also use location information to create aggregate data from which your personally identifiable information has been removed or obscured. Such aggregate data may be used for a variety of purposes such as scientific and marketing research and services such as vehicle traffic volume monitoring. It is your responsibility to notify users on your account that we may collect and use location information from Devices.
I've discussed the differences between a contract and a policy in a Slideshare presentation before if you are curious. In this case, some of the policies are firmly settled into and a part of the agreement; this is always a decision to ponder when drafting of whether or not to incorporate policies into an agreement, thereby making them a part of the contract.
So here is one fun part (well, at least to me), throughout this agreement AT&T strives to make it clear through all capitalization or bolding of letters that you are agreeing to binding arbitration. "What's 'arbitration,' Precious?!?" (Pardon, the dorky humor.)
Well, actually AT&T tells you what it is exactly in Section 2.1 of the agreement. Arbitration is NOT court, it is a form of "alternative dispute resolution". It is less formal than a court proceeding and tends to be faster in reaching a resolution in a dispute than going to court. With that being said, generally speaking, many feel that arbitration tends to be favorable to the business and anti-consumer. I'm not here to judge whether or not that is true, but what is clear is that AT&T has its consumer's waive the ability to go to court (other than small claims) and has also barred class arbitration and class actions. "Class" actions or arbitrations are where a large number of people who have suffered that same injury from the same person (a business entity is a legal person) band together to pursue a claim. This type of provision is also seen as anti-consumer by consumer adovcates. For my part and this post, I'm just going to address the question: can they do that?
Yes, the Supreme Court of the United States (SCOTUS) has made clear in recent rulings the applicability of the Federal Arbitration Act to these types of agreements. So if you have a dispute with AT&T beyond small claims court limitations, you are going to have to arbitrate: there is not another option.
It is worth noting here AT&T had a case before SCOTUS on this matter in AT&T Mobility v. Concepcion, 563 U.S. 321 (2011). Basically, SCOTUS ruled that the FAA preempted state laws (in this case California's law) that prohibit contracts from disallowing class-wide arbitration, thus allowing businesses to include arbitration agreements eliminating a consumer's ability to bring a class action suit. So it should come as no surprise with a SCOTUS victory, they are going to include this in their agreements.
II. Section 6.0: Data - Why all the CAPITALIZATION and Bolding?!
So another area that caught my eye, and probably purposefully so by the drafter of this document is Section 6.0. Why did it catch my eye? When scrolling down the text one cannot, but help notice the large amounts of bolding and capitalization in Section 6.0. And of course they are going to do that, it has to deal with one of the biggest contentious areas that people generally have with their wireless carriers, the data usage plan.
A. 6.1: Overage Charges; No Rollover; and Terminate with or without Cause
So this isn't exactly news, as many of you already understand this, but I thought I would pull out the line in the agreement that states it for you:
On Data Services with a monthly megabyte (MB) or gigabyte (GB) data allowance, once you exceed your monthly data allowance you will be automatically charged for overage as specified in the applicable rate plan. All data allowances, including overages, must be used in the billing period in which the allowance is provided. Unused data allowances will not roll over to subsequent billing periods.
You will be charged for overages if you are on a rate plan where that is possible, so those of you grandfathered in will probably cling to your rate plans that have no overage charges till you become a grandfather. In addition, no rolling over unused data into another billing period.
Then we have this sentence at the end of Section 6.1:
AT&T RESERVES THE RIGHT TO TERMINATE YOUR DATA SERVICES WITH OR WITHOUT CAUSE, INCLUDING WITHOUT LIMITATION, UPON EXPIRATION OR TERMINATION OF YOUR WIRELESS CUSTOMER AGREEMENT.
Basically, AT&T may terminate your data services and they do not need a reason to once your wireless customer agreement ends whether it expires or terminates.
B. Section 6.2: Don't Do this Stuff as It's Not the Point of the Wireless Data Service (i.e. Prohibited Uses)
Ok, I am not quoting Section 6.2 (as the relevant part I want to discuss is long), and you are probably getting tired reading this post as it is really long, but for those of you have stuck it through all this, much appreciated.
Anyway, for this wall of bolded text, basically it is AT&T's intent to prohibit certain behaviors as those uses are probably illegal, harms AT&T's infrastructure, damages AT&T's ability to profit, or exposes them to some sort of other liability. It's actually pretty detailed and lists a lot examples. Also they save themselves on making sure you understand that the list of examples are not the only ones of Prohibited Use by stating that their listing is "without limitation". Of course, if AT&T "believes" you are using their Service in one of these prohibited manners, it may terminate the agreement.
III. Section 10.0: Doing Business in Multiple Jurisdictions.
So I am going to round out this post at the end of AT&T's Wireless Customer Agreement (seems to be a good place as any to stop), as I tend to do this blog for business owners (small and large), and Section 10 to me highlights what businesses face when they operate in multiple jurisdictions.
Most businesses start off in one state, and then as they become more successful they grow and that growth is sometimes beyond the state they started in. Depending on the situation, sometimes you can avail yourself of your home state's laws and other times when you do business in another state you are bound to follow their laws. For large businesses, like AT&T they have a myriad of laws that they must follow at the federal level, but individually as to all the states that they have customers in. Sometimes those state laws force a company to stipulate to things in their agreements, in particular when it is with consumers, due to some states passing consumer protection laws. Here, in AT&T's Section 10.0 we see that California, Connecticut, and Puerto Rico (which is not a state, but I've been using "state" here for my own convenience) have special provisions.
Therefore, this brings me to a point for all you businesses that have operations in multiple states. While for the sake of ease, and that variations in your operations and systems cost time and money, it is sometimes inescapable due to a state's laws that your agreements will be regulated. So you should consider, especially when it comes to your consumer agreements, knowing what the consumer protection laws are if you intend to a comprehensive catchall agreement like AT&T has done here.
Anyway, I think this makes up for my lack of posts for several months. I will strive to be less wall-of-text on you readers next time and spruce up the next post with pictures, possibly my own doodles for a Draw that Law when I get back to it. As always, mahalo for reading.