[comp.dcom.telecom] Don't Pay For Slamming

ehopper@ehpcb.wlk.com (Ed Hopper) (12/14/90)

Paul.Schleck@iugate.unomaha.edu (Paul Schleck) writes:

> A friend of mine called the 1-800 number to inquire about personal 1-800
> service.  At the end of the call, she clearly stated that she did NOT
> want to sign up for the service.  A few days later, she tried to place an
> operator-assisted call and got an MCI operator.  Further inquiries and
> calling of the 1-700 number indicated that she had INDEED been switched
> from AT&T to MCI!  The charges were about the same per call, so she
> didn't raise a stink about it after they graciously switched it back.

No, no, no!  The fact that charges may be the same are irrelevant.
These are ill-gotten gains.  I cannot speak to the legalities,
however, when I was slammed some years ago from AT&T to Sprint, I
refused to pay for the Sprint portion of the bill AT ALL.

I suspect that if one bellows long enough one can get the calls
written off.  In my case, I refused to even begin dealing with a
service rep.  Slamming me was a grevious wrong committed against me by
Sprint.  As such, I insisted in dealing with a management person.
Keep going up the ladder until you are satisfied.

Perhaps if everyone insisted on free service after slamming, the
practice would stop.


Ed Hopper

 BBS: 713-997-7575  ehopper@attmail.com  ehopper@ehpcb.wlk.com
 coming soon:ehopper@ncr.att.com ????!!!!!  :-)


[Moderator's Note: They may be 'ill-gotten gains' to the slamming
carrier as you point out, but your failure to pay *at least the amount
you anticipated paying for the call you placed* is an unjust
enrichment to yourself. Strictly speaking, you must pay for calls you
place. This is required by tariff. But you also have the right to sue
the carrier for tampering / interfering with your existing service.
After all, they caused you to get disconnected from your long distance
carrier of choice, did they not?   PAT]

jgd@convex.csd.uwm.edu (John G Dobnick) (12/15/90)

ehopper@ehpcb.wlk.com (Ed Hopper):

> No, no, no!  The fact that charges may be the same are irrelevant.
> These are ill-gotten gains.  [...]
> I refused to pay for the Sprint portion of the bill AT ALL.

> [Moderator's Note: They may be 'ill-gotten gains' to the slamming
> carrier as you point out, but your failure to pay *at least the amount
> you anticipated paying for the call you placed* is an unjust
> enrichment to yourself. Strictly speaking, you must pay for calls you
> place. This is required by tariff. ...  PAT]

Why is "slamming" not considered, and treated, as theft?  Theft of
long distance business from one carrier by another?  (In this case,
theft of AT&T business by Sprint?)  It seems to me that if anyone has
a complaint here, it is AT&T -- they are the ones who lost business
through what I would consider misrepresentation, if not outright
fraud.  (Anyway, why should I sue Sprint?  AT&T has more lawyers that
I do. :-) )

While I tend to agree that the caller owes *someone* for long distance
service, it isn't Sprint.  If this were my problem, I would be willing
to pay AT&T (at AT&T rates) for the long distance service consumed,
since that is what I originally expected to pay, but I would certainly
resist paying Sprint one red cent.


John G Dobnick  (JGD2)
Computing Services Division @ University of Wisconsin - Milwaukee
INTERNET: jgd@csd4.csd.uwm.edu             ATTnet: (414) 229-5727
UUCP: uunet!uwm!csd4.csd.uwm.edu!jgd

mpd@anomaly.sbs.com (Michael P. Deignan) (12/17/90)

(Moderator says unjust enrichment if you fail to pay what you
anticipated paying for the calls.)

I'm not sure I'd agree entirely with this.  I'd much rather agree with
Ed's statement of not paying for calls at all, but...

For example, if I have AT&Ts ROA program, and am paying $8.50/hr.,
then MCI slams me, and I place two hours of calls at their rates (say
it comes out to $9.00/hr,) I believe that the individual should only
have to pay the cost that s/he would have incurred under their
existing carrier.

The difference, if any, should be eaten by the slamming company. In my
example, MCI would only get $8.50/hr from me, and they would have to
eat the difference (one dollar).


Michael P. Deignan, President     -- Small Business Systems, Inc.
Domain: mpd@anomaly.sbs.com       -- Box 17220, Esmond, RI 02917 
UUCP: ...uunet!rayssd!anomaly!mpd -- Telebit:  +1 401 455 0347   
XENIX Archives: login: xxcp, password: xenix  Index: ~/SOFTLIST  


[Moderator's Note: This has been the point I've been trying to make
all along. You cannot profit from the mistakes and/or crimes of
someone else. As in your hospital example, if the switch was in error
and accidental, then you still owe for services rendered if you
benefitted from them. If the switch was done fraudulently, then you
need to deal with the fraud as a separate issue. Of course every
carrier and every telco is going to claim it was a clerical error, and
I have no reason to doubt the telcos, since what does it profit them
either way?  What ahout those folks who call 700-555-4141 and know for
a fact that their service was changed, so they run up a big bill on
purpose and then later claim the switch was unauthorized? When you find
out about a fraud or some other crime committed or in progress, you
have some obligation to stop it or notify others who can stop it, but
you cannot go along for a free ride. Isn't the real solution and the
ethical way to pay *what you expected to pay* and at the same time
continually confront the regulators to obtain relief from this problem
in the future?   PAT]

ehopper@ehpcb.wlk.com (Ed Hopper) (12/17/90)

Understand that I do not advocate blithely failing to pay the bill.
Rather, to contact a management person at the offending carrier and
demand that the calls be written off as compensation for the wrong of
improperly assigning the line to the carrier.  Hence the reason that I
advocate *IMMEDIATELY* dealing with a management person who has the
authority to negotiate compensation.

Should such negotiations fail, I would explore the disputed charges
options available under local PUC rules and finally court action.

Admittedly, in my own case, I had the additional lever of being an
AT&T employee.  I could accurately claim that I anticipated paying
nothing due to AT&T management benefits.  This arguement, plus
possibly some sense of "professional courtesy" undoubtedly motivated
Sprint to write off the calls.  However, I believe that any slammee is
entitled to this form of compensation.  One should, at least, attempt
to receive it.


Ed Hopper

BBS: 713-997-7575  ehopper@attmail.com  ehopper@ehpcb.wlk.com
coming soon: ehopper@ncr.att.com ????!!!!!  :-)


[Moderator's Note: I left Ed's cute pseudo address attached again this
time for one reason: As a plug for the final message in this issue
dealing with 'The Wrong Choice'.  PAT]

mingo@uunet.uu.net (Charles Hawkins Mingo) (12/18/90)

In article <@accuvax.nwu.edu> jgd@convex.csd.uwm.edu (John G. Dobnick)
writes:

>ehopper@ehpcb.wlk.com (Ed Hopper):

>> These are ill-gotten gains.  [...]

>> [Moderator's Note: They may be 'ill-gotten gains' to the slamming
>> carrier as you point out, but your failure to pay *at least the amount
>> you anticipated paying for the call you placed* is an unjust
>> enrichment to yourself.  PAT]

>Why is "slamming" not considered, and treated, as theft?  

	Because AT&T doesn't "own" the right to do business with you.
(No property right --> no theft.)

>While I tend to agree that the caller owes *someone* for long distance
>service, it isn't Sprint.  

	At least you agree you shouldn't get service for free!  There
is a well-established contracts doctrine, known as quantum meruit,
covering exchanges of services in the absence of a contract.  For
example, if a doctor renders aid to an unconscious person, the
beneficiary of the aid must pay for the reasonable value of the
services received.  Somewhat closer to our case, if you had arranged
to have your gall-bladder removed by Surgeon X, and (owing to hospital
oversight) it was removed by Surgeon Y, you would still have to pay Y
for her services.  Paying Surgeon X for an operation performed by Y
would only shift the unjust enrichment, without paying the person who
did the work. 


Charlie Mingo			Internet:  mingo@well.sf.ca.us 
2209 Washington Circle #2	mingo@cup.portal.com Washington, DC
20037	 CI$: 71340,2152	AT&T: 202/785-2089

peter@ficc.ferranti.com (peter da silva) (12/18/90)

In article <15458@accuvax.nwu.edu> well.sf.ca.us!well!mingo (Charles 
Hawkins Mingo) writes:

> >Why is "slamming" not considered, and treated, as theft?  

> 	Because AT&T doesn't "own" the right to do business with you.

Like hell they don't! They have a contract with you, via your local phone
company.


Peter da Silva    +1 713 274 5180    peter@ferranti.com

ehopper@ehpcb.wlk.com (Ed Hopper) (12/19/90)

I promise, this is my last post on this!

well.sf.ca.us!well!mingo (Charles Hawkins Mingo) writes:

> services received.  Somewhat closer to our case, if you had arranged
> to have your gall-bladder removed by Surgeon X, and (owing to hospital
> oversight) it was removed by Surgeon Y, you would still have to pay Y
> for her services.  Paying Surgeon X for an operation performed by Y
> would only shift the unjust enrichment, without paying the person who
> did the work. 

I would only point out one thing, if there had been a continuing
pattern of "Doctor slamming" at that hospital, and the same doctor
continued to receive the benefits of these little accidents, you might
view the situation differently.  There has been a pattern of fraud in
relation to slamming and *THAT* is a highly relevant factor in my
position.

Also, remember that I pointed out that one should demand an adjustment
from the slamming carrier as compensation for being slammed.  I think
they DO owe you something for your trouble.  In my case, it was poorer
quality (even with those MAGIC fibers!) and the inability to reach
Disneyland East (Basking Ridge) on the phone.

True, there is a potential for abuse, but that's the risk that
carriers run when they don't get written documentation.

Ed Hopper

 BBS: 713-997-7575  ehopper@attmail.com  ehopper@ehpcb.wlk.com

res@cblpe.att.com (Robert E Stampfli) (12/19/90)

> Somewhat closer to our case, if you had arranged
> to have your gall-bladder removed by Surgeon X, and (owing to hospital
> oversight) it was removed by Surgeon Y, you would still have to pay Y
> for her services.  

If Surgeon Y charged twice the fee that you had previously arranged
with X, I would not think you liable for the difference (though
perhaps the hospital might be).  Furthermore, if there was substantial
evidence that Surgeon Y had instigated the "oversight" for her own
pecuniary interests, I would think this would not only represent an
ample reason to refuse said payment, but would constitute an excellent
reason to pursue other legal remedies against her. 


Rob Stampfli	att.com!stampfli (uucp@work)
kd8wk@w8cqk (packet radio) 614-864-9377	
osu-cis.cis.ohio-state.edu!kd8wk!res  (uucp@home)


[Moderator's Note: If this last group of messages on slamming did not
leave you as thoroughly confused on the subject of slamming as I am,
then nothing printed here will do so.  PAT]

rick@ucbvax.berkeley.edu (Rick Ace) (12/21/90)

> [Moderator's Note: They may be 'ill-gotten gains' to the slamming
> carrier as you point out, but your failure to pay *at least the amount
> you anticipated paying for the call you placed* is an unjust
> enrichment to yourself.

Does this mean one would have to haul out the tariffs and calculate by
hand what the bill would have been with the correct long distance
company?  That's quite a bit of work for Joe Customer.  Someone else
screwed up and that someone else should do the work.  I wouldn't pay
the part that is in dispute until the problem was resolved to my
satisfaction.

> Strictly speaking, you must pay for calls you
> place. This is required by tariff. But you also have the right to sue
> the carrier for tampering / interfering with your existing service.
> After all, they caused you to get disconnected from your long distance
> carrier of choice, did they not?   PAT]

You forgot the :-).  Didn't you?  No?  You can't be serious about
suggesting that we clog the already overburdened courts with a lawsuit
of such little importance.


Rick Ace      ucbvax!pixar!rick

mingo@uunet.uu.net (12/21/90)

peter@ficc.ferranti.com (peter da silva) writes:

>well.sf.ca.us!well!mingo (Charles Hawkins Mingo) writes:

>> >Why is "slamming" not considered, and treated, as theft?

>>       Because AT&T doesn't "own" the right to do business with you.

>Like hell they don't! They have a contract with you, via your local phone
>company.

	The contract you have with AT&T governs *how* you will pay for
service *if* you place LD calls using AT&T.  You never agree to place
*all* your calls with AT&T.  In fact, you don't even have an operative
contract *until* you place a call.  (Why?  In order to have a
contract, each side must, at the very least, promise to do something
specific.  Since you haven't promised to make any specific level of
calls (or indeed any calls at all) you have no performance obligation
WRT AT&T.  And if you don't have any obligation WRT them, they don't
WRT you -- this is known as mutuality of obligation.)

	I don't think you want to claim that consumers shouldn't have
the *right* to switch carriers (which they wouldn't, if AT&T "owned"
the right to their business).  You're upset because some incompetent
or evil third- party has usurped the consumer's right to choose.  But
from AT&T point of view, it matters little whether the decision to
switch originated with the consumer or someone else.


Charlie Mingo		mingo@cup.portal.com	mingo@well.sf.ca.us

JAJZ801@calstate.bitnet (12/23/90)

 
>> Strictly speaking, you must pay for calls you
>> place. This is required by tariff. But you also have the right to sue
>> the carrier for tampering / interfering with your existing service.
>> After all, they caused you to get disconnected from your long distance
>> carrier of choice, did they not?   PAT]

>You forgot the :-).  Didn't you?  No?  You can't be serious about
>suggesting that we clog the already overburdened courts with a lawsuit
>of such little importance.
 
  The other problems with a suit is the amounts are rather trivial,
suitable mostly for small claims court (are regulated operations
immune from suits in that venue ?) where you generally can get
compensation only for actual losses plus costs (usually minimal - your
lost time in resolving and correcting the matter, mostly). In this
case, the financially most agrieved 'person' is the carrier who was
removed from your 1+ service. They would be the most likely one to sue
but of course that's unlikely since they all participate in the
borderline marketing activities to one degree or another.  They would
*all* get tarred by the discovery process and publicity if it were
taken to court.
 
  Therefore, the most likely legal solution is a class-action suit by the
people who have been slammed, where some of the other issues of fraudulent
marketing can be raised and the court can be used in an efficient manner
collectively, rather than individually.
 
Jeff Sicherman