Because When MetroPCS Says 'No Contract,' It Actually Means 'Well, Of Course There's A Contract'

from the truth-in-advertising dept

The mobile phone business seems to have a serious problem with taking words that have a pretty clear meaning in English, using them in advertising and marketing promotions -- but meaning something entirely different. For example, various mobile operators claimed "unlimited" broadband, but to them "unlimited" meant "really, quite limited." Well, it seems we've got another situation like that, such as MetroPCS's widespread marketing campaign that loudly proclaimed "No Contract." Well, guess what, it actually meant that there absolutely is a contract, and any customer who signed up for MetroPCS after seeing the "No Contract." advertisement would obviously know that, because in the welcome kit it sent, it pointed users to a URL, and at the bottom of that URL there was another link to a terms of service, and in the terms of service there was another link to "start a service request" which included some boilerplate about how you were agreeing to a contract. And, apparently, this is all very legal.


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    identicon
    Anonymous Coward, Feb 5th, 2010 @ 6:40pm

    Everything is legal if you bribe enough politicians.

     

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    Anonymous Coward, Feb 5th, 2010 @ 6:47pm

    Sounds like TAM...

    ...works in their marketing department.

     

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    Davis Freeberg, Feb 5th, 2010 @ 7:14pm

    I think that this might be nitpicking a bit. Clearly, they mean that customers can walk away at any point without a termination fee. I equate this to saying no lease required because rent is month to month. Of course you're entering into some kind of agreement, it's just a lot more flexible than the competition. I was a subscriber to MetroPCS a few years ago and had zero problems when I wanted to cancel.

     

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      Marvin T. Martian, Feb 5th, 2010 @ 7:24pm

      Re:

      Ahhhh, what was the point again?

      Let's see ... oh yeah.
      Their ad said no contract - but there was a contract.

      In any world other than bizarro world, that would be a lie.

       

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      Brendan (profile), Feb 5th, 2010 @ 7:25pm

      Re: No trouble cancelling

      That's good, but is your experience the dominant one?

       

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        Derek Kerton (profile), Feb 6th, 2010 @ 1:07pm

        Re: Re: No trouble cancelling

        As an industry analyst, I can tell you that his experience IS dominant. It is very easy to exit as a customer of MetroPCS. In fact, it's as simple as: do nothing. If you don't mail/walk/charge in your monthly payment, your service will stop promptly!

        Metro is definitely "No Lock-in." But it is not "No Contract."

        The contract is a.k.a "Terms of Service" in the cellular industry, and is an agreement about how you will use your phone, and not abuse the network.

        So, it IS a contract. What they are saying IS a lie. But it is an unusual case where the company isn't actually trying to obfuscate the truth. The words "No contract" actually represent what most people expect it to represent - no long-term obligation.

        You know how sometimes companies tell words that are the truth, but are actually hiding the whole truth? This is the opposite. Metro is telling a lie because it is the easiest way to communicate the truth. Weird but true.

        They should just sack up and find some words that are both useful AND true. "No lock in" works for me.

         

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          Luci, Feb 6th, 2010 @ 9:00pm

          Re: Re: Re: No trouble cancelling

          Except... that's not what this case is about. If you were to read the case (there's a download link in the TechLaw article Mike links to) you will see that there are several other claims being made. Such as:

          'while MetroPCS markets itself
          as a provider of unlimited nationwide coverage, its coverage reaches less than half of the U.S.
          population and excludes 11 of the top 25 major U.S. metropolitan areas, such as Washington, D.C.
          and New Orleans. '

          And then there's this little nugget:

          '“Unlimited Nationwide
          Coverage” is anything but unlimited as it includes numerous unadvertised charges for “talk and text”
          features'

          Also, she is arguing the forced arbitration rules within a contract she never received and was never made aware of.

           

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            Derek Kerton (profile), Feb 8th, 2010 @ 1:38pm

            Re: Re: Re: Re: No trouble cancelling

            "Except... that's not what this case is about"

            Read the masthead carefully, Luci. True, my comment is "not what the lawsuit is about", but it IS what the Techdirt article is about. Read the article title at the top of the page!

            If I wanted to comment on the linked story...I would have posted my comment there, wouldn't I?

             

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      Anonymous Coward, Feb 5th, 2010 @ 7:40pm

      Re:

      I had MetroPCS a few months ago, and all I had to do to cancel my service was not pay my dues. No letters or hassle. Just like every other prepaid service.

       

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      Anonymous Coward, Feb 5th, 2010 @ 8:28pm

      Re:

      I equate this to saying no lease required because rent is month to month.

      A month-to-month contract is still a contract.

       

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      WeDontNeedNoStinkinContracts, Feb 6th, 2010 @ 2:25pm

      Re:

      "Clearly, they mean that customers can walk away at any point without a termination fee."

      - If that is the case, then that is what should be in their ad. But they didn't do that.

      "I equate this to saying no lease required because rent is month to month."

      - That is you. I would not make such an assumption.

      "Of course you're entering into some kind of agreement,"

      - Even when their ad said otherwise.

      "it's just a lot more flexible than the competition."

      - Oh, well that makes it ok then /s

      "I was a subscriber to MetroPCS a few years ago and had zero problems when I wanted to cancel."

      - Maybe that should be in their ad. Maybe you should be their spokesperson

      Truth in advertising is a joke. Everyone knows it. This does not justify the outright lies spewed every day. I do not understand why anyone would attempt to rationalize such behavior.

       

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    Anonymous Coward, Feb 5th, 2010 @ 7:38pm

    If there was really no contract at all, wouldn't there therefore be nothing binding anyone to be obligated to anything at all?

     

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    taoareyou (profile), Feb 5th, 2010 @ 9:21pm

    Consider this

    Perhaps on a very literal term, there is a contract, meaning you as the customer agree to certain terms of use for the service (probably things considered abuse of the service, etc), these things are in place to ultimately protect the provider by defining their rights and your rights.

    From a standard "marketing" viewpoint, a "contract" as it is used may imply there is nothing binding you to use and pay for the service for a stated amount of time.

    Words have more than one meaning. When people think of "contract" with cell phones, they are thinking the latter. And as long as there is no termination fee, then I don't think it's really misleading.

    I am pretty sure every cellular provider has terms of use for their services, and by using their service, you are agreeing to them. It doesn't sound like anything out of the ordinary nor unreasonable.

     

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      Another coward, Feb 6th, 2010 @ 9:58am

      The work you used it 'literal'

      literal: 1. Being in accordance with, conforming to, or upholding the exact or primary meaning of a word or words.

      If one wishes to communicate one must comply with the literal definition of words. Colloquial or private means of words must not be recognized by the courts in contract enforcment because advertisements, contracts, brochures, books, etc become unprocessable by the general public.

      If one examines the computer use of the work literal it becomes even clearer.

      A literal in a computer program is prewritten unchanging text embedded in the code of the program which has a fixed and constant meaning/use. Computer programs use 'variables' for items who's meaning/use must me modified during the execution of the activity.

      If courts allow private or non-literal meanings of words to be recognized at the will of one party then all words are changed from meaningful on thier own to variables which can never be evaluated unless one can check their state not NOW but when they were used in the context being debated. Since that is impossible in most situations all communications would become meaningless. And since this is probably falling on deaf eyes (nicely blended metafore yes?) this one is meaningless too.

      Thank you

       

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      Metro User, Feb 12th, 2010 @ 11:12am

      Re: Consider this

      Very well stated. For marketing purpose it draws people in at a day and age where no one wants to sign a contract binding them to a specific lenght of service. So it depends on how you view the statement. There is no contract for the length of service (which is what most people care about) but there is a usage contract.

       

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    Anonymous Coward, Feb 5th, 2010 @ 10:07pm

    Still the point is....

    According to the linked article...
    "The Terms of Service contained a hyperlink to a "Start of Service Request" form, which read: "BY USING METROPCS'S WIRELESS SYSTEM OR ANY OTHER SERVICE, YOU ARE INDICATING YOUR INTENT TO BE BOUND BY THE TERMS AND CONDITIONS OF SERVICE OF THIS AGREEMENT. IF YOU ARE A NEW CUSTOMER AND YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT INITIATE SERVICE."

    You would think that clears it up. However, at what point do they notify the customer of this? Oh yea, this is part of your Welcome Guide AFTER you initiate service...get it?
    AFTER you initiate service, they send you notification that there is a contract involved and that by initiating service you agree to the terms of the contract.

    Regardless of what Metro claims the "standard" industry meaning is for the use of the phrase "no contract",it is not unrealistic for someone to expect "no contract" to really mean just that. And the judge agreed.

     

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    Hephaestus (profile), Feb 5th, 2010 @ 10:10pm

    Everything is legal if you target the poor..

     

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    Anonymous Coward, Feb 5th, 2010 @ 11:59pm

    It never ceases to amaze me how screwed up american contract law is...

     

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    taoareyou (profile), Feb 6th, 2010 @ 12:26am

    Another question

    The judge denied a request to compel arbitration and stay litigation, which Metro states was agreed to as outlined in the terms of service. Her argument is that she was never provided with a Welcome Guide directing her to the terms of service or was made aware of any terms, and had not visited the website which detailed them.

    There are several cases where the existence of valid Terms of Service are upheld on non-contract (pre-paid) service. These are noted in the article.

    The difference in this case is the plaintiff convinced the judge she was not made aware of these terms.

    The judged did not rule against the legality of the Terms of Service, but merely stated that it would not compel arbitration because there was not sufficient evidence in this specific case to prove she agreed to the terms.

    Interestingly enough, the actual litigation concerns the plaintiff seeking damages and injunctive relief because Metro claims to provide unlimited nationwide coverage, but does not actually cover 11 of the top 25 U.S. major metropolitan areas. She also claims the unlimited coverage is false advertising because there are additional charges for texting features.

    There is nothing precedent setting about the judge's decision in this case. The plaintiff simply proved to the judge she was not made aware of the terms of service (or more accurately, Metro had no evidence to dispute her claims that she was not given any information concerning the TOS).

    Had Metro included at least a note referring to these terms on a signed receipt at the point of sale, this case would have most likely referred to already existing judgments and compelled arbitration of her original complaint.

    I would be curious to see the outcome of the trial on that matter however.

     

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      someone who actually knows what he's talking about, Feb 6th, 2010 @ 7:06am

      Re: Another question

      i was about to say this but you beat me to it. once again, mike has no idea what he's talking about, and the judge did NOT hold what mike says he held.

      of course, reporting "judge rules that it's a question of fact whether plaintiff was aware of contract containing arbitration clause" is a lot less interesting than mike's title.

       

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        Anonymous Coward, Feb 6th, 2010 @ 8:24am

        Re: Re: Another question

        once again McTroll makes a claim upon the credibility of others.

         

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          someone who actually knows what he's talking about, Feb 6th, 2010 @ 8:43am

          Re: Re: Re: Another question

          attacking the credibility of someone based on the inaccuracy of their conclusions never has, and never will be ad hominem, so i don't see what your problem is.

           

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            the same AC as before, Feb 6th, 2010 @ 2:36pm

            Re: Re: Re: Re: Another question

            Just a suggestion ... in the future you might attempt to address the issue not the person. This might led to better discourse. ymmv

             

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              someone who actually knows what he's talking about, Feb 6th, 2010 @ 9:09pm

              Re: Re: Re: Re: Re: Another question

              again, attacking the credibility of someone based on the inaccuracy of their conclusions never has and never will be ad hominem. in fact, every formal system of debate (including federal and state courts) specifically allow attacks on credibility based a number of things, including the inaccuracy of their conclusions. under your logic, what's good enough for a courtroom is apparently not good enough for a silly forum?

              if you're not intelligent enough to comprehend the post of "taoareyou", that's your fault.

               

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                the same AC as before, Feb 6th, 2010 @ 10:28pm

                Re: Re: Re: Re: Re: Re: Another question

                I'm sure you are correct, and therefore the following quote would not be a problem in a court of law.

                "once again, mike has no idea what he's talking about,"

                But we are not in a court of law are we? No, we are in a silly forum.

                And now, apparently because I disagree with you, I am lacking intelligence. Not only that, it's my fault.

                I do not know why you bother with silly unintelligent people who have no idea what they are talking about.

                 

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        Anonymous Coward, Feb 6th, 2010 @ 4:41pm

        Re: Re: Another question

        ...the judge did NOT hold what mike says he held.

        Which you're claiming was what?

         

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        Mike Masnick (profile), Feb 6th, 2010 @ 6:08pm

        Re: Re: Another question

        once again, mike has no idea what he's talking about, and the judge did NOT hold what mike says he held.

        Er. I didn't say the judge said anything. Please point out where I did.

         

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          someone who actually knows what he's talking about, Feb 6th, 2010 @ 9:04pm

          Re: Re: Re: Another question

          you said this is "this is all very legal." the judge never ruled whether it was legal or not. the judge ruled that there was a question of fact whether she was ever presented with a contract or not.

           

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            Mike Masnick (profile), Feb 6th, 2010 @ 10:42pm

            Re: Re: Re: Re: Another question

            you said this is "this is all very legal." the judge never ruled whether it was legal or not. the judge ruled that there was a question of fact whether she was ever presented with a contract or not.

            Ah, I see how if you read it really really quickly and only with the aim of insulting me you might think I said what you claim. But I did not. What I said (and I'll quote to make this clear):

            "any customer who signed up for MetroPCS after seeing the "No Contract." advertisement would obviously know that, because in the welcome kit it sent, it pointed users to a URL, and at the bottom of that URL there was another link to a terms of service, and in the terms of service there was another link to "start a service request" which included some boilerplate about how you were agreeing to a contract. And, apparently, this is all very legal."

            The article and the comment you replied to all pointed out that everything I said above is true. There is plenty of case law on record already saying this is legal.

            The issue in this particular lawsuit is whether or not she saw the welcome kit. But that wasn't what I was discussing because I don't find that particular point very interesting. What I found more interesting is the idea that you can advertise something that isn't accurate, and it's legal. Which is what I said.

            But since your entire job here is to attack me, you appear to have misread it entirely, and then when I pointed that out to you, you misread it again. That doesn't speak very highly of you, unless your entire purpose here is to misrepresent me.

             

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              someone who actually knows what he's talking about, Feb 7th, 2010 @ 10:28am

              Re: Re: Re: Re: Re: Another question

              your lack of rationality in this last comment is a perfect example of how you're just flat out ignoring opposing arguments, and instead responding with strawman hackery. the only thing i did more than tao was take one step further, and point out that what you said is not what happened here. the judge did not rule that the process of advertising "no contract" and then claiming there is a contract is "very legal" in any way, shape, or form. and the case law referred to by the judge is that standard standard shrink-wrap/in-box contracts are legal... there was no ruling regarding false advertising. this was merely an order on defendant's motion to compel arbitration... which was denied. this was not a motion for summary judgment.

              pay attention because i'm about to get all legal on you. this is from the case:
              Contrary to MetroPCS's assertion stated for the first time in its Reply that the term "no contract" is the standard industry term for prepaid service plans with no long-term commitment and not termination fee (Reply [D.E. 38] at 4), Williams had no such understanding of the existence of such an industry term, if one indeed exists.

              the judge is even stating that he's not engaging in any interpretation of whether it's industry practice that "no contract" means merely "no long-term commitment" -- that too is still an undetermined question of fact which the judge cannot rule on except by consent of both parties, or by some special operation of law (like de novo review). he's not ruling on any false advertisement claim (which she'll probably win, regardless of whether the case is arbitrated or litigated) -- he's not allowed to jump ahead.

              you are like a child screaming with his fingers in his ears "i can't hear you! i can't hear you!" this is exactly why the people "who are doing" rarely come to discuss with the people "who are talking about the people who are doing". you're not keeping up with what happened, you're admitting that you're unqualified to keep up, and then you're saying the guys who are keeping up are somehow committing some crime against common sense.

               

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                Pixelation, Feb 7th, 2010 @ 11:54am

                Re: Re: Re: Re: Re: Re: Another question

                You are right, the judge didn't rule on the legality of "no contract"
                It seems you are stuck on interpreting what Mike said as meaning the the judge ruled regarding the legality of "no contract"
                From the article Mike linked...
                "Setting aside the issue of MetroPCS's "no contract" marketing, there are quite a few court decisions upholding contracts in similar situations. But all of them turned on the fact that the plaintiff received, at some point, notification of the existence of a contract."

                Apparently, this is all very legal.

                 

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                  someone who actually knows what he's talking about, Feb 7th, 2010 @ 3:02pm

                  Re: Re: Re: Re: Re: Re: Re: Another question

                  listen. mike's statement:
                  MetroPCS's widespread marketing campaign that loudly proclaimed "No Contract." Well, guess what, it actually meant that there absolutely is a contract, and any customer who signed up for MetroPCS after seeing the "No Contract." advertisement would obviously know that, because in the welcome kit it sent, it pointed users to a URL, and at the bottom of that URL there was another link to a terms of service, and in the terms of service there was another link to "start a service request" which included some boilerplate about how you were agreeing to a contract. And, apparently, this is all very legal.

                  are you really arguing that the word "this" and "all" in mike's statement is not referring to the previous sentence? seriously?

                  if mikes use of "this" and "all" does not refer to mike's previous sentence, what the hell does it refer to? enlighten me.

                  and if you are admitting that it does refer to the previous sentence, then consider that NO COURT has ever allowed burying the contract so many steps away, which, particularly in the prepaid phone business, has a reasonable probability of not even being accessible to the consumer. even the cases cited specifically say the opposite...
                  Cases like Fonte v. AT&T Wireless Services Inc., 903 So.2d 1019 (Fla. Dist. Ct. App. 2005)(terms contained in the welcome guide), Briceno v. Spring Spectrum L.P., 911 S.2d 176 (Fla. Dist. Ct. App. 2005)(terms contained in cell phone packaging), the "venerable" Hill v. Gateway 2000, 105 F.3d 1147 (7th Cir. 1997)(terms contained in the shipping box).


                  even in the case the court cited (and o'toole referenced) which is most similar, the court still didn't find the online clause to be enforceable -- it found it was UNENFORCEABLE, or in colloquial terminology "not legal".

                  most importantly, and as o'toole points out, the judge never ruled on the legality of "advertising 'no contract' while burying a contract 8403809578329542432 step away." he merely made a procedural order denying a motion to compel arbitration. there is a huge difference. nothing in the case said that "this" and "all" (meaning mike's previous sentence) was legal. nothing.

                   

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                    identicon
                    Anonymous Coward, Feb 7th, 2010 @ 4:25pm

                    Re: Re: Re: Re: Re: Re: Re: Re: Another question

                    are you really arguing that the word "this" and "all" in mike's statement is not referring to the previous sentence? seriously?

                    As to whether Mike is correct in his opinion that that "this is all very legal", I can't say. But he didn't say that the judge said so. Do you see Mike saying that the judge said so anywhere in that sentence? Seriously?

                    enlighten me.

                    I'm not sure that's possible, but here's a link to get you started.

                     

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                    identicon
                    Anonymous Coward, Feb 7th, 2010 @ 5:21pm

                    Re: Re: Re: Re: Re: Re: Re: Re: Another question

                    Dig that hole deeper dude

                     

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                identicon
                Marvin T. Martian, Feb 7th, 2010 @ 12:21pm

                Re: Re: Re: Re: Re: Re: Another question

                This made me laugh:

                "pay attention because i'm about to get all legal on you. this is from the case: "

                SWAKWHTA,
                Out of curiousity ... are you a lawyer or something?

                 

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                Anonymous Coward, Feb 7th, 2010 @ 1:13pm

                Re: Re: Re: Re: Re: Re: Another question

                the judge did not rule that the process of advertising "no contract" and then claiming there is a contract is "very legal" in any way, shape, or form.

                Nor did Mike say so.

                 

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                Mike Masnick (profile), Feb 7th, 2010 @ 5:29pm

                Re: Re: Re: Re: Re: Re: Another question

                Lots of others have responded and pointed out that you are wrong in your interpretation. I won't reiterate it, but since pretty much everyone but you can read in plain English what I said, I see no reason to further this discussion, other than to point out that just because you think I said something, if I did not say it, no amount of handwaving will get you to pretend I said it.

                 

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                  someone who actually knows what he's talking about, Feb 7th, 2010 @ 9:04pm

                  Re: Re: Re: Re: Re: Re: Re: Another question

                  i'm saying you don't know what you're talking about because you're making a legal conclusion without any legal training. facts are not won by consensus (especially when these other guys never went to law school and never argued a single case in their lives).

                  let me explain the whole process of citations to you because you still don't get it (lots of writers don't understand this, and even uber-sensationalist techcrunch rips idiot writers who still haven't realized this yet). your argument is that "this is all very legal". if "this" and "all" mean your previous sentence, you're arguing that it's legal to advertise "no contract", but then bury a contract multiple steps away. when you cite an article for your argument, unless you refute the claims in the article, you're both agreeing with the propositions in the article, and asserting that it stands for what you said it stands for. now, otoole's BNA article is summarizing a procedural motion in a court case. his summary is fine. he points out perfectly well that this is an order on a procedural motion, and not a ruling on the merits. however, you have skipped forward and presented this as a ruling on the merits because you're saying "this is all very legal." you're not "agreeing" with otoole because what you're saying happened (that "this is all very legal") was never ruled upon by anyone. no court said that was "very legal," especially not the court case you cited.

                  besides, if the court case doesn't say what your title says, why are you even citing it anyways?

                   

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                    Mike Masnick (profile), Feb 7th, 2010 @ 9:51pm

                    Re: Re: Re: Re: Re: Re: Re: Re: Another question

                    i'm saying you don't know what you're talking about because you're making a legal conclusion without any legal training.

                    Ah, what elitist claptrap.

                    let me explain the whole process of citations to you because you still don't get it (lots of writers don't understand this, and even uber-sensationalist techcrunch rips idiot writers who still haven't realized this yet). your argument is that "this is all very legal". if "this" and "all" mean your previous sentence, you're arguing that it's legal to advertise "no contract", but then bury a contract multiple steps away. when you cite an article for your argument, unless you refute the claims in the article, you're both agreeing with the propositions in the article, and asserting that it stands for what you said it stands for. now, otoole's BNA article is summarizing a procedural motion in a court case. his summary is fine. he points out perfectly well that this is an order on a procedural motion, and not a ruling on the merits. however, you have skipped forward and presented this as a ruling on the merits because you're saying "this is all very legal." you're not "agreeing" with otoole because what you're saying happened (that "this is all very legal") was never ruled upon by anyone. no court said that was "very legal," especially not the court case you cited.

                    *Sigh* From the article:

                    "there are quite a few court decisions upholding contracts in similar situations. But all of them turned on the fact that the plaintiff received, at some point, notification of the existence of a contract. Cases like Fonte v. AT&T Wireless Services Inc., 903 So.2d 1019 (Fla. Dist. Ct. App. 2005)(terms contained in the welcome guide), Briceno v. Spring Spectrum L.P., 911 S.2d 176 (Fla. Dist. Ct. App. 2005)(terms contained in cell phone packaging), the "venerable" Hill v. Gateway 2000, 105 F.3d 1147 (7th Cir. 1997)(terms contained in the shipping box). Unlike this case, the defendants in Fonte, Briceno, and Hill all presented evidence that the plaintiff was given a copy of the contract or was directed to its online location, the court noted."

                    That is the basis for me saying it was legal. I was not commenting on what the judge ruled, because that was not interesting.

                    I'm sorry if you feel that I must have been commenting directly on the case. I was not, and no matter how many times you misread what I wrote, it doesn't change what I said. I recognize that this upsets you, because you wish to make me look bad. But, at some point, honestly, you need to get over it.

                     

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                      someone who actually knows what he's talking about, Feb 8th, 2010 @ 12:24am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Another question

                      elitist craptrap? you don't tell people how to perform open heart surgery, right? and you don't tell people how to solve pressure integrals so they can build a hydro-electric dam? so why are you attempting to explain something as complicated as contract law, with just as little training and experience?

                      i understand the list of cases. i quoted that section here before you did. none of them say you can bury the contract multiple steps away and still enforce it. amusingly, you left off the next case where the judge said it was actually the closest. in that case, the court held... (drumroll) that particular instance of burying the actual contract multiple steps away was UNENFORCEABLE... (or more colloquially NOT LEGAL). that's the exact opposite of your conclusion, and here we are 43204 comments down and you're still saying i'm misreading you.

                      so lets figure this out.
                      you said "this is all very legal"? (yes)
                      by "this" and "all", do you mean burying the contract multiple steps away, and trying to enforce it? (you tell me)
                      or by "this" and "all, do you mean advertising "no contract", but then arguing there is actually a contract? (again, you tell me)
                      or do you mean both combined? (...)

                      if the first interpretation of "this" and "all" is what you meant, that interpretation being "very legal" is not in the case you cited. in fact, the closest case the judge could find was where the person never received any info on the contract, so the judge found the contract unenforceable. because there are many factors that go into such a determination (especially with these *wrap contracts), to say it is "all very legal" is just false. there's no precedent, and the case you cited even says it doesn't stand for that.

                      if the second interpretation of "this" and "all" is what you meant, then you're flat out wrong. the judge never ruled that advertising "no contract" while having a contract is legal. this is a procedural order on a motion to compel arbitration, not a motion for summary judgment, or motion to dismiss, or motion for directed verdict, etc. there is no ruling on the merits (whether false advertising, and all that other stuff occurred) in this order.

                      and if you mean "all" in the sense of both interpretations, you're doubly wrong.

                      if there are any other intepretations, oh god, please enlighten me.

                       

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                        The Groove Tiger (profile), Feb 8th, 2010 @ 7:55am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Another question

                        "elitist craptrap? you don't tell people how to perform open heart surgery, right? and you don't tell people how to solve pressure integrals so they can build a hydro-electric dam?"

                        Yeah, but surgeons and engineers have real jobs that require actual useful skills, unlike lawyers whose only job is to try to confuse people as much as possible so that their services are required to untangle the mess they've made themselves. And then spew things like "you lack the training".

                         

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                        Anonymous Coward, Feb 8th, 2010 @ 9:44am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Another question

                        ...oh god, please enlighten me.

                        Because nobody else has been able to.

                         

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                          someone who actually knows what he's talking about, Feb 8th, 2010 @ 1:37pm

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Another question

                          congratulations for still not answering the perfectly legitimate question. i'm asking which interpretation it is, and if it's neither, then what legal concept is he talking about? apparently none of you guys get it either because all you guys can come up with is claiming what mike has NOT said.

                           

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                        Mike Masnick (profile), Feb 8th, 2010 @ 3:54pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Another question

                        elitist craptrap? you don't tell people how to perform open heart surgery, right? and you don't tell people how to solve pressure integrals so they can build a hydro-electric dam? so why are you attempting to explain something as complicated as contract law, with just as little training and experience?

                        If you are comparing the law under which we all must live to open heart surgery, you've already showed why no one likes lawyers. The law is not open heart surgery.

                        i understand the list of cases. i quoted that section here before you did. none of them say you can bury the contract multiple steps away and still enforce it.

                        Er... actually, they do... As long as the person is informed/pointed to the terms.

                        amusingly, you left off the next case where the judge said it was actually the closest. in that case, the court held... (drumroll) that particular instance of burying the actual contract multiple steps away was UNENFORCEABLE... (or more colloquially NOT LEGAL).

                        *Sigh* I'm not so sure why you're having so much trouble understanding such a basic concept. In that latter case, the reason it was not legal was because the individual was NOT told about the existence of the contract. In my description above, I very clearly described a case where the person was told about it in the welcome kit.

                        That's what I was discussing. I don't see why you keep claiming I said stuff I did not.

                        if the first interpretation of "this" and "all" is what you meant, that interpretation being "very legal" is not in the case you cited. in fact, the closest case the judge could find was where the person never received any info on the contract, so the judge found the contract unenforceable. because there are many factors that go into such a determination (especially with these *wrap contracts), to say it is "all very legal" is just false. there's no precedent, and the case you cited even says it doesn't stand for that.

                        Again, that case you are discussing "the closest case" is a situation where the user was NOT informed of the contract. But that's NOT the scenario I described. The one I described was where they WERE informed of it, via a welcome kit, and on that, the case law seems pretty clear that it is legal.

                        So, let's go through this again. I described the regular scenario for MetroPCS, where the user is informed of the contract via a welcome kit, and said that this is legal. In this particular case, there's a separate issue over whether or not this woman actually received the welcome kit, but THAT'S NOT WHAT WE'RE TALKING ABOUT. I've already said this to you, but you keep going back to insisting that we're talking about something we are not in a really quixotic effort to prove I said something incorrect that I never said.

                         

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                          someone who actually knows what he's talking about, Feb 8th, 2010 @ 5:31pm

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Another question

                          "I described the regular scenario for MetroPCS, where the user is informed of the contract via a welcome kit, and said that this is legal."
                          there's a difference between that and the cases cited. and here you carefully chose the word "via" because "via" is what wins/loses this argument. in the cases cited, the contract was actually in the packaging. to get to the contract, none of the buyers had to open the packaging, find a sheet which had an url, go through 3 different webpages, some of which (by your own words) merely included a link at the bottom), and then finally be bound by some contract. no case on *wrap licenses has said that it's okay to bury a contract that many steps away... especially not the case you cited. this is exactly why you should leave the law up to the lawyers.

                           

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                            Pixelation, Feb 8th, 2010 @ 7:35pm

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Another question

                            At least you are saying Mike wins the argument, FINALLY!

                            "this is exactly why you should leave the law up to the lawyers"

                            This is exactly why we need to get rid of the lawyers.

                             

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                              Anonymous Coward, Feb 9th, 2010 @ 10:12am

                              Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Another question

                              what are you talking about? mike used the word "via" here to cover for his mistake. the first time, he explained the whole massive chain of steps you must take to find the actual contract. the length of this "via" is dispositive in *wrap licenses because it goes to the issue of notice of additional terms in the formation of the contract.

                               

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                                Mike Masnick (profile), Feb 11th, 2010 @ 12:57am

                                Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Another question

                                what are you talking about? mike used the word "via" here to cover for his mistake.

                                I made no mistake. I'm not "covering" for anything. What mistake am I covering for in explaining exactly what the original said and what I said originally?

                                 

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                            Mike Masnick (profile), Feb 11th, 2010 @ 12:56am

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Another question

                            there's a difference between that and the cases cited. and here you carefully chose the word "via" because "via" is what wins/loses this argument.

                            Wow. No, I did not "carefully choose" the word "via." I used the word via because that's an accurate description. And, honestly, if you're so upset with my interpretation of this, why are you not reaming Thomas O'Toole as well. He was the one who noted that contracts in "similar situations" have been upheld.

                            Based on what you are saying here, you believe this is NOT, in fact, a similar situation. O'Toole and I agree. You do not. Yet you are attacking me and not O'Toole. Why?

                             

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    Gary Gale, Feb 6th, 2010 @ 12:59am

    An International Problem

    There's a prime example of this sort of language mangling going on here in the UK at the moment will billboards from T-Mobile screaming about FREE TEXTS FOR LIFE ... where "for life" means if you continue to top up your pay as you go phone with a minimum amount and "free" means it's included in the price of the top up.

    So, neither "free", nor "for life" ... two manglings for the price of one.

     

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      Brad, Mar 19th, 2013 @ 10:39am

      Re: An International Problem

      Is everyone forgetting the unlimited month to month. staight talk really define that one which it's very disappointing when you spend audio so much on they're niches phones. well I do only the best and they act like you just paid something you don'twon't want to use every day yes i stay online all-lot but really use the phone part barely at all and i wanted wifi i would stick with laptop.unlimi . becauseserviceted 24/7 without help form another service.i was hoping metro was different ifnt ill throw another nice ass phone away again and no one benefit forum it

       

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    bob, Feb 6th, 2010 @ 6:09am

    Legal Yes, Shady That Too.

    Well, guess what, it actually meant that there absolutely is a contract, and any customer who signed up for MetroPCS after seeing the "No Contract." advertisement would obviously know that, because in the welcome kit it sent, it pointed users to a URL, and at the bottom of that URL there was another link to a terms of service, and in the terms of service there was another link to "start a service request" which included some boilerplate about how you were agreeing to a contract. And, apparently, this is all very legal.

    First my collage communications professor would have a field day using blood red ink with the above paragraph.

    Anyway the actions of MetroPCS my be legal, but then many legal things are shady.

     

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      Ummmm - yeah, Feb 6th, 2010 @ 2:44pm

      Re: Legal Yes, Shady That Too.

      "First my collage communications professor would have a field day using blood red ink with the above paragraph.
      "

      Funny that.

      You criticize the communication skills of another with a reference to your "collage communications professor".

      I'm curious, what kind of course work was required for that class in collage communications? Did it involve piecing together several bits of communication?

       

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      Evan, Feb 8th, 2010 @ 4:16am

      Re: Legal Yes, Shady That Too.

      Did you graduate from collage, too?

       

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    Anonymous Coward, Feb 6th, 2010 @ 6:53am

    I think you've missed the point. Yes, there is a contract, but not one that binds you to continue service for any length of time. You can cancel whenever with no termination fees.

    When most people think of "contract" in regards to a service provider, they generally understand a set length of time they must continue to use the service or be faced with early termination fees should they want to discontinue.

    So in a casual, more laymen style, this "contract" is exactly what people expect it to be. Nothing shady/illegal about it as it passes the 'moron in a hurry' test. Which is to say, even a moron in a hurry knows there's terms an conditions to using the service but he is not tied down to stay with the service provide for any length of time and can leave whenever without penalty.

    Arguing semantics doesn't do much here as the idea is readily understood by the general populace.

     

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      Anonymous Coward, Feb 6th, 2010 @ 8:27am

      Re:

      Oh, well since you put it that way ... I guess that we can excuse their lies this time. /s

       

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      Anonymous Coward, Feb 6th, 2010 @ 4:52pm

      Re:

      I think you've missed the point. Yes, there is a contract,...

      It seem to me that was precisely the point.

      When most people think of "contract" in regards to a service provider, they generally understand a set length of time they must continue to use the service or be faced with early termination fees should they want to discontinue.

      No, I think of "no contract" as being just that, no contract. And in the case of "no contract" I expect the situation to be covered by the default laws of commerce with my legal rights fully preserved, not taken away.

      Arguing semantics doesn't do much here as the idea is readily understood by the general populace.

      The general populace understands that companies often lie and then send apologists around trying to spin it as something else.

       

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    Anonymous Coward, Feb 6th, 2010 @ 8:07am

    How/why have things changed?

    Used to be... that language was taken at face value, and "no contract" would mean just that.

    I recall an example from the 70's, when Prudential Insurance first began using a new slogan, "Own A Piece Of The Rock". A person of reasonable experience would understand that it was the insurance policy that you'd own; but a moron-in-a-hurry stepped up and tried to claim partial ownership in the then non-publicly-held corporation -- "But they said own". They were forced to switch to "Get A Piece Of The Rock", which was harder to misinterpret.

     

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    Geaux Saints, Feb 6th, 2010 @ 9:00am

    If there were really no contract

    If there were really no contract you would be very disappointed. They would have no obligation to provide cellular service on which to use your phone and minutes. No obligation to not drop your calls, or even complete them, and no obligation to refund your money when they failed to in fact be a cellular service company. On the bright side, you would have no obligation to pay for their service or pay for canceling your agreement with them.

    There are no good or bad contracts. Only good and bad terms. It is certainly true though that American law makes it exceedingly easy for anyone armed with a legal department to take the average individual into servitude by ignorance.

     

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      The Baker, Feb 6th, 2010 @ 9:52am

      Re: If there were really no contract

      If it is a prepay service, you pay for what they offer at the time they accept your money. If I order a Big Mac meal, pay for it and then get just fries, isn't that illegal. Is there a unwritten contract between Micky D's and I that When I give them $4.99 they will give me a Big mac, Medium Fries and a drink. Do they have the right to change the contract between the time I order and pay and when they hand me the bag? If they advertise "KANGAROO MEAT FREE BURGERS" are they not obligated to provide burgers without kangaroo meat? (woodchuck would still be ok)

      No contract should mean that a contract isn't done ... period. When they say that it works everywhere .. it should. When you prepay for a item or service, what you paid for shouldn't be changed.

       

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        Anonymous Coward, Feb 6th, 2010 @ 5:06pm

        Re: Re: If there were really no contract

        Is there a unwritten contract between Micky D's and I...

        It's not unwritten, it's called "the law" and all states have such laws to protect the public. In this case MetroPCS is trying to claim that those laws don't apply to it because of a supposed "contract" to the contrary.

         

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      Anonymous Coward, Feb 6th, 2010 @ 2:48pm

      Re: If there were really no contract

      "They would have no obligation to provide cellular service on which to use your phone and minutes. No obligation to not drop your calls, or even complete them, and no obligation to refund your money when they failed to"

      And how is that is different from any other cell phone contract?

       

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      Anonymous Coward, Feb 6th, 2010 @ 5:01pm

      Re: If there were really no contract

      If there were really no contract you would be very disappointed. They would have no obligation to provide cellular service on which to use your phone and minutes.

      No, if you prepaid for service and they didn't deliver then that would be covered by the laws against what is know as fraud. They construct their contracts to protect themselves. The notion that they're just somehow trying to protect you from themselves is laughable.

       

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    Silverwolf, Feb 6th, 2010 @ 9:30am

    Contract vs. Terms of Service

    I've used MetroPCS on and off again for the past several years (since they first started service in Texas). And I have to point out a couple of points (as I recall)
    1. You do in fact have to sign paperwork when you first start service, You fill out your information on a form, the form displays how much your monthly bill will be and what options you are choosing and you absolutely have to sign it.

    I'm reasonably certain that the paperwork that you have to sign does in fact mention the terms of service, or at least that it is mentioned in the small stack of paperwork you are given when you first start an account.

    However, the Terms of Service is not equal to a contract. A Contract must be signed to be valid, Terms of Service can be agreed to through a check-box (on software), or by your continued use of the service or web sight in question.

    Every service has Terms that you must abide by if you wish to use it, that's just the way the world works.

    That being said, I'm not certain that you can force arbitration in a "Terms of Service", normally that type of thing would be in a signed contract I think. The terms is merely expected to be a list of do's & dont's. For example, the TOS for a web sight might say you aren't allowed to use curse words or defamatory language.

    I would like to know what her actual problem is that she is trying to resolve through litigation, it isn't detailed in this article or the linked one. I for one was extremely happy with MetroPCS's service, and if I could have gotten an iPhone with them I would never have left.

     

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      taoareyou (profile), Feb 6th, 2010 @ 10:20am

      Re: Contract vs. Terms of Service

      Check out my comment above. Her actual complaint was about "nationwide" being false advertising since several major metro areas are not covered. Also she claims "unlimited" is also false advertising because they require her to pay extra for texting.

       

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    Tom Black, Feb 6th, 2010 @ 12:39pm

    None of this is surprising...

    or even remotely important but I find it amusing how much linguistic nitpicking is done at TechDirt while at the same time there are posts stating that spelling errors are no big deal as long as people can figure out what was meant by someone's post. Well, hypocrites, which way do you want to have it???

    What IS amazing is that idiot consumers never look for any fine print and actually will themselves into believing that the unbelievable must be true.

     

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      Marvin T. Martian, Feb 6th, 2010 @ 2:53pm

      Re: None of this is surprising...

      "I find it amusing how much linguistic nitpicking is done at TechDirt while at the same time there are posts stating that spelling errors are no big deal as long as people can figure out what was meant by someone's post."

      - Yes, I'm sure you are correct ... and the many people to which you refer are in fact the same exact person.

      "What IS amazing is that idiot consumers never look for any fine print and actually will themselves into believing that the unbelievable must be true."

      - That is hardly the point now is it? Everyone knows advertising is complete BS, but does that make it ok then?

       

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      Anonymous Coward, Feb 6th, 2010 @ 9:31pm

      Re: None of this is surprising...

      It amuses me that you can't even read what you just typed.

      "...spelling errors are no big deal as long as people can figure out what was meant by someone's post."

      "...no big deal as long as people can figure out what was meant by someone's post."

      "...as long as people can figure out what was meant by someone's post."

      "...people can figure out what was meant by someone's post."

      Hint: In a case where the claim is "no contract" when there is a contract, that would fall under people *not* being able to figure out what was meant.

       

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    AnonCow, Feb 6th, 2010 @ 1:16pm

    It is amazing that there are so many laws to protect consumers but you can put an asterisk next to any statement you want and get away with it.

    I have the world's biggest penis.*


    *World means is this particular room at this particular moment. It does warrant that it is actually the biggest penis or that it won't actually come in your mouth even after stating the opposite.

     

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      Anonymous Coward, Feb 6th, 2010 @ 2:54pm

      Re:

      "It is amazing that there are so many laws to protect consumers "

      That is just an illusion.

      You have been fooled

       

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    Pixelation, Feb 6th, 2010 @ 2:45pm

    It seems to me that any time you pay someone for a service, there is a contract in place. Perhaps not written but it's implied.
    I suppose Metro would need to say "No signed contracts" to be technically correct.
    This is one of those situations where the "but technically" people drive me up a wall. Unfortunately "common sense" isn't common.

     

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    MrBeck (profile), Feb 6th, 2010 @ 4:21pm

    1984?

    What did Orwell call it, "new speak"?

    No Contract = contract
    unlimited = limited
    full coverage = partial coverage

    I think this is great by which I mean I think its crap.

     

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    h4xor66, Feb 6th, 2010 @ 9:38pm

    prepaid contracts

    i dont know if metro works like this but this is how crickets no contract service works ... if you skip a month or two of payments , when you decide that you want to use the phone again you still owe them for that time that you didnt use the phone even though they did not provide any service to you at all , so you must pay them for the time unused plus the month in advance for service , because they clain it costs them that much to hold your phone number for you .... if you say well then just give me a new number , then you try to force you to buy a new phone .... its all a scam and it all should be illegal , unlimited should mean unlimited and no contract should mean just that ... its a crying shame what a piece of crap this country has become because of the greedy shady lawyers running it

     

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      Pixelation, Feb 6th, 2010 @ 10:35pm

      Re: prepaid contracts

      While that sounds questionable, will they let anyone start service with them without buying a phone? In other words, is it the same for everyone or only people who have used their service?

       

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    Anonymous Coward, Feb 7th, 2010 @ 8:47am

    The Mc snack wrap is more interesting then this story.

     

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    Donnie, Feb 7th, 2010 @ 3:28pm

    No contracts=contracts

    Yes, you bet. Often advertised "with no contract", then you sign up for it (is it your falt for TRUSTING what they advertised?) on line (and the same thing goes for software)
    and the "contract" there reads totaly different-if the print is large enough to even read at all-there it is in very small print that this is a contract for a for-pay service, even if it is 1500.00 US a month.

     

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    Anonymous Coward, Feb 8th, 2010 @ 3:16am

    so MetroPCS is running illegal commercials?

     

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    Poddys (profile), Feb 8th, 2010 @ 3:34am

    There are always terms and conditions...

    I was a MetroPCS customer for several years, and the only problem I had with them was getting through to customer service, well at least to a live person.

    The service was pretty reliable, the unlimited minutes was great, since I used the phone just for local calls to a calling card number, so I could family and friends in the UK for 1cent/minute. This worked out really good and very cheap.

    The other nice thing with MetroPCS is that you can upgrade or downgrade the service at any time, so I could have the lowest level of service most of the year, and then upgrade to voicemail and long distance for a week when I needed to, and then drop it again. I only paid the extra for the time I activated it.

    You are always going to have terms and conditions though, and although service is unlimited, I don't think they would appreciate someone using their phone 24/7. Same is true with broadband, there are limits to the amount of data you can download, everything has to be within reasonable limits.

     

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    Jimr (profile), Feb 8th, 2010 @ 5:37am

    Life time warranty

    Look up Life time warranty... I had some old BASF products that had Life time warranty stamped all over them... after about 10 years they started to fail. After I talked to BASF their term for life time was the life time of the product - typically 7 years. I tried in vain to explain that when the product dies then it has effectively come to an end and could be 2 minutes after purchase.

    I have come to the conclusion not to trust or believe any advertising or product claims.

     

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    •  
      identicon
      Anonymous Coward, Feb 8th, 2010 @ 9:43am

      Re: Life time warranty

      I had a similar experience with a Sylvania headlamp I purchased at Auto Zone. It had a "lifetime warranty" with instructions to return it to the store if it failed. It failed and I did (with the original receipt), only to be told by Auto Zone that the "lifetime warranty" was for the lifetime of the headlamp and that, since it had burned out, it was at the end of its "lifetime" and thus out of warranty.

       

      reply to this | link to this | view in chronology ]

  •  
    identicon
    Negrodamus, Feb 8th, 2010 @ 6:28am

    Put them out of Business

    Hopefully some level headed judge will shut this POS company down.

    In Obama America no private corporations can behave like this, thye must all be destroyed by our goverment

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    matt, Feb 8th, 2010 @ 10:09am

    contracts

    Couldn't one accurately state that a person cannot (in a legitimate fashion) obtain service from a provider, for a fee, without a legal contract being established?

    If I pay you $20 bucks to mow my lawn, you say OK, then you mow my lawn and I pay you, did we not just enter into a contract? We didn't sign anything, and you're not obligated to mow my lawn anymore, but didn't we enter into a contract?

     

    reply to this | link to this | view in chronology ]

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    identicon
    eze, Feb 8th, 2010 @ 3:48pm

    you are an idiot

    the best company metrocps, the only that NEVER asked for your SSN,nothing, you just pay upfront, and when you want to cancel, just stop paying .
    did you try the "no contract" of T-mobil?

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    It's the Re:pocalypse!, Feb 11th, 2010 @ 10:43pm

    Run for your lives, the internet's attacking!

    I never got beyond:

    "[S]he remembers an advertisement featuring a Unicorn and a mermaid stating no contract was required..."

    Brilliant.

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    some1, Feb 19th, 2010 @ 8:27pm

    I was thinking of getting a metro pcs phone called Samsung Finesse.It's a really nice touch screen phone. Ppl have been telling me that the service is terrible so i wanted to try it out bcuz, not always when ppl say it's awful its actually ok. I thought it was going to be a good idea bcuz there is no contract and if it's a terrible i would change it. Turns out there is a contract and im rethinking about this phone. If you guys have any ideas on which phone I should get please leave me a comment.

    P.S: I love to text n I want an unlimited texting phone. I want it to have a keyboard and if possible a touch screen. Thx!

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    helen cohen lafsar, Feb 27th, 2010 @ 2:15pm

    lafsar

    lafsar is your gateway to the best sites on the internet, see the daily world news

     

    reply to this | link to this | view in chronology ]


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