c186aj@cory.berkeley.edu (Steve Forrette) (02/05/90)
It seems like several telecom readers have had bad experiences with MCI telling the BOC to switch their equal access default carrier. It would seem to me that unless the customer requested the change, that the customer is using MCI (or whatever it got changed to) without his or her knowledge. This being the case, can MCI enforce payment. 1) The customer did not know that they were using MCI. 2) By billing the customer for the calls, MCI is in effect generating business through an illegal act (I assume that telling the BOC that the customer has requested a change when this is not the case is illegal). Isn't it a general principle of law that you can't enforce payment on a debt resulting from an illegal act? [Moderator's Note: But the point is, you did make the call, so you have to pay *someone*. To not pay at all based on your line of reasoning would be an unjust enrichment for yourself. There are also laws again you you profiting from an 'illegal act', which is what you would be doing if you did not pay. I'd say however it would be fair to pay MCI only the amount you anticipated you would be paying had the call been routed per your original instructions. PT
c186aj@ucbcad.uucp (Steve Forrette) (02/07/90)
>[Moderator's Note: But the point is, you did make the call, so you >have to pay *someone*. To not pay at all based on your line of >reasoning would be an unjust enrichment for yourself. There are also >laws again you you profiting from an 'illegal act', which is what you >would be doing if you did not pay. I'd say however it would be fair to >pay MCI only the amount you anticipated you would be paying had the >call been routed per your original instructions. PT I agree that the caller should not get away with a free ride, but at the same time I don't think it "fair" (whatever that means) for MCI to profit from their misdeeds. There has to be more punishment to the misbehaving carriers than increased revenue. BTW, I called Pacific Bell to have them flag my account to ignore requests from the long distance carriers, but no such capability exists in their system (of course, the rep said their "hands were tied" by the PUC to accept instructions from the long distance carriers, which seems to be Pacific Bell's response to any customer complaint over pricing or policies). He also said that he's had to deal with *many* problems in which customers' default carrier was changed without their permission (of course, he couldn't identify them by name, but they know who they are!). [Moderator's Note: What you do is, you pay for the calls you made, and you sue the carrier for misrepresenting themselves and taking unauthorized action on your account. PT]
faunt@cisco.com (Doug Faunt N6TQS 415-688-8269) (02/07/90)
How about the money for the calls that you make on a carrier that deceitfully switches you to them being paid by you to the carrier of YOUR CHOICE?
wmartin@stl-06sima.army.mil (Will Martin) (02/08/90)
>Moderator's Note: But the point is, you did make the call, so you >have to pay *someone*. To not pay at all based on your line of >reasoning would be an unjust enrichment for yourself. What about equating an unauthorized carrier-initiated switching of your default LD carrier with the long-established legal rules regarding unordered merchandise? If someone sends you unordered goods and then tries to bill you for them, you not only have no obligation to pay for them, but you have a perfect legal right to keep them. If they want the goods back, the sender has to bear all the costs and effort of getting them back. If MCI causes the telco to switch your default carrier to their firm WITHOUT YOUR AUTHORIZING IT, they are giving you a *gift* of their LD service! You don't owe them a cent, and have no obligation to pay for this *unordered service*. You can make all the LD calls you want for free, until they have the sense to terminate your LD service and stop throwing their resources away. As soon as a legal ruling in a couple jurisdictions established this principle, we'd see those LD companies being *very* careful about getting written authorization that will hold up in court as legal documents before doing any carrier-switching! Regards, Will
John Higdon <john@bovine.ati.com> (02/08/90)
Will Martin <wmartin@stl-06sima.army.mil> writes: > As soon as a legal ruling in a couple jurisdictions established this > principle, we'd see those LD companies being *very* careful about > getting written authorization that will hold up in court as legal > documents before doing any carrier-switching! This matter of written authorization is an interesting problem in the Long Distance field. Several years ago I was a principal in a sizeable interconnect business (7th largest in San Jose). Unfortunately, for reasons I won't go into, we were forced to close our doors. The corporation left a number of unpaid bills including a $1,000 WATS bill from AT&T. Some months after the bankruptcy was filed I started getting calls at home from a collection agency in Houston who claimed to be representing AT&T for the purpose of collecting that WATS balance. As I had done with many of the creditors, I referred the gentleman to the bankruptcy attorney. A couple of weeks later, this guy called back and asked when I was going to "clear up" the outstanding balance. Once again, I referred him to the attorney. He then told me that my name was on the account in addition to the business name and that they could come after me, personally, for the money. When I asked him to send me a copy of the contract or personal guarantee that I would have had to sign for that to be the case, he laughed and said, "You know perfectly well that AT&T doesn't have to have any signatures or contracts to collect its money. You can either send a check today, or when we sue you it will cost you much more." I told him to put it where the "sun don't shine" and then called my personal attorney. She said that this was a blatantly transparent scam to try to circumvent the corporate veil by intimidating me, and that she would give the character a call. That was the last I heard about that. But his comment raised an interesting point. We do an awful lot of "telephone" business (contracting for service, etc.) over the phone without benefit of written confirmation. In the case of the WATS, I never even personally had anything to do with the transaction; the general manager or some such would have ordered the lines. There would have been no reason to even mention my name (I was president) since the corporation at that time had sterling credit. How did my name get on the bill? It was probably added after the fact by either AT&T or the collection agency. Principals of corporations are a matter of public record. In view of the potential for abuse in the ordering of service, we may eventually have to have everything confirmed in writing. John Higdon | P. O. Box 7648 | +1 408 723 1395 john@bovine.ati.com | San Jose, CA 95150 | M o o !
wmartin@stl-06sima.army.mil (Will Martin) (02/09/90)
In response to Doug Faunt's comment on the user paying their choice of carrier instead of the deceitful unauthorized-switching one: No, the only way the idea would work is if all the following are in place: 1) The carrier has an active disincentive to illicitly switch, in that they will get no revenue and still expend resources. 2) The individual has an incentive (free LD service) to actively punish the deceitful carrier. 3) The industry as a whole loses; there is NO income to any LD carrier when one defrauds -- this gives the carrier community an incentive to police its own ranks. 4) The local telco gets out of the LD billing business entirely. Otherwise you are playing games with your own local phone bill and involving what really should be independent and disinterested third parties. Unfortunately, this will be the hardest part to implement. There still is too much of a "we" mentality among the BOC's and LD companies (especially the spun-off BOCs and AT&T). The BOCs should adopt a more distant and hostile "them" attitude toward the LD companies, and be a "we" with the local consumer against the LD carriers. Regards, Will
hrs1@cbnewsi.ATT.COM (herman.r.silbiger) (02/11/90)
In article <3583@accuvax.nwu.edu>, wmartin@stl-06sima.army.mil (Will Martin) writes: > your default LD carrier with the long-established legal rules > regarding unordered merchandise? If someone sends you unordered goods > and then tries to bill you for them, you not only have no obligation > to pay for them, but you have a perfect legal right to keep them. If > they want the goods back, the sender has to bear all the costs and > effort of getting them back. > If MCI causes the telco to switch your default carrier to their firm > WITHOUT YOUR AUTHORIZING IT, they are giving you a *gift* of their LD > service! You don't owe them a cent, and have no obligation to pay for > this *unordered service*. You can make all the LD calls you want for > free, until they have the sense to terminate your LD service and stop > throwing their resources away. As you point out, if you are sent unordered merchandise, you don't have to pay for it. You are under an obligation to keep it for a reasonable amount of time, and if the sender agrees to pay for returning it, to return it. You are only allowed to use it after a reasonable amount of time has passed, and the owner has not claimed it. In analogy, if MCI gives you an account, you may keep it, take good care of it, and if they want it back, as long as they reimburse you for your costs, you give it back. Therfore, you will have to pay for any use of MCI. Now if you make a call from someplace, charge it to your own card, but get billed by some other carrier, you could claim that you did not order the service from that other xcarrier, and pay only what it would have cost you on your own carrier. You still got a service, and should pay for it. Herman Silbiger
Leichter-Jerry@cs.yale.edu (02/18/90)
Having spent a lot of time among lawyers, I'll comment on this: In article <3962@accuvax.nwu.edu>, Mike.Riddle@p6.f666.n285.z1.fidonet.org (Mike Riddle) writes: > In a recent article, John Higdon wrote that in the future we might > have to have everything in writing. > I'm not a lawyer, but as I understand it, someone alleging a verbal > contract must be able to prove it. That might be difficult. Absolutely. As a general principle in the law, verbal contracts are valid. (There are exceptions, but they are in very specific circumstances and usually by statute.) Non-lawyers often make the mistake of assuming that there is some inherent connection between VALIDITY and USEFULNESS. Yes, a verbal contract is valid - once you can prove what was agreed to. And "prove" means "convince a court". The burden of finding a way to convince the court is entirely up to you. In many cases, both sides agree that something was agreed to, but disagree on the details. I suppose cases arise in which one side or another just plain denies that an agreement was ever reached. On the surface, such cases come down to one side's word against the other. However, there is often evidence available. If I claim we reached an agree- ment for me to paint your house, and I show up with paint, that's at least some evidence that I believed it. If you covered all your furniture with tarps, that's some evidence that you also believed it. We present all of our bits of evidence, and the court decides which of us it believes. > The concept of "unjust enrichment," however, might still be a problem. > I understand that most states have a "Statute of Frauds" that requires > some evidence of certain contracts be in writing to avoid these kinds > of problems. Covered contracts might include real estate, duration > one year, or value specified amount. The Statute of Frauds is a very old part of the Common Law which says that verbal contracts for future performance in the amount of more than $1000 are not enforceable. Essentially, the Statute says that when you are dealing with something that may remain intangible for a while (future performance) and the amount is large enough to be worth worrying about (the Statute goes back hundreds of years; the original amount must have been in pounds. $1000 200 years ago was a LOT of money) then put the damn thing on paper. BTW, the Statute of Frauds is not a statute - it was created, like most of the Common Law, by judicial precedent - and, as you can see, has nothing much to do with frauds! As a result of the bizarre history of the Common Law, real estate is not transfered by contract but by registration of a deed. Hence, it is inherently impossible to have a verbal transfer of real estate. You CAN have a contract in which you agree to transfer a deed later, and in fact that is the way most real estate deals work. Such a contract would almost certainly fall under the Statute of Frauds, even if not otherwise regulated. BTW, the law of 49 of the United States is based on Common Law. Louisiana law, on the other hand, is based on the Napoleanic Codes. There are a LOT of differences - one very obvious difference is that under the Napoleanic Codes a criminal defendant is GUILTY until proven INNOCENT. I doubt this particular difference has survived in Louisiana, but a lot of others have. > While not a complete answer, the Statute of Frauds might at least help > protect for excessive losses. -- Jerry
goudreau@dg-rtp.dg.com (Bob Goudreau) (02/27/90)
In article <4229@accuvax.nwu.edu>, Leichter-Jerry@cs.yale.edu writes: > Absolutely. As a general principle in the law, verbal contracts are > valid. (There are exceptions, but they are in very specific > circumstances and usually by statute.) Non-lawyers often make the > mistake of assuming that there is some inherent connection between > VALIDITY and USEFULNESS. Yes, a verbal contract is valid - once you > can prove what was agreed to. And "prove" means "convince a court". > The burden of finding a way to convince the court is entirely up to > you. Umm -- presumably you're talking about *oral* contracts and their differences from *written* ones. Pretty much all contracts, both written and oral, are verbal (composed of words). Bob Goudreau +1 919 248 6231 Data General Corporation ...!mcnc!rti!xyzzy!goudreau 62 Alexander Drive goudreau@dg-rtp.dg.com Research Triangle Park, NC 27709, USA