Legal opinion: Understanding cellphone contracts

05.09.2008 18:04 Shopping - Source: cbc.ca

We asked lawyer Matthew Baer, with the London, Ont.-based law firm Siskind, Cromarty, Ivey & Dowler LLP, to tell us in plain English what the cellphone contracts say on the issue of early termination fees. What follows is his response:

Rogers

Unless otherwise specified in the Service Agreement, we may change, at any time, any charges, features, content, programming, structure or any other aspects of the Services, as well as any term or provision of the Service Agreement, upon notice to you. If you do not accept a change to the Services, your sole remedy is to terminate the Service Agreement and the Services provided under the Service Agreement, within 30 days of your receipt of our notice of change to the Services (unless we specify a different notice period), by providing us with advance notice of termination pursuant to Section 31. If you do not accept a change to these Terms, your sole remedy is to retain the existing Terms unchanged for the duration of the Commitment Period (as defined below), upon notice to us within 30 days of your receipt of our notice of change in the Terms.

Baer responds:

This blurb basically says that at any time, Rogers can change the charges in your contract for your services as long as they give you notice. They then note if you do not accept the change being imposed on you, the only thing you can do about it is accept it or terminate the agreement by giving Rogers notice that you are cancelling your service within 30 days of receiving notice of the change.

The second part of this blurb has to do with the Terms as a whole. It looks as though this was a new Term Sheet which came out at some point and when it was sent out, this part meant that if you do not accept the new Term Sheet, you could write back within 30 days to keep your old terms for the remainder of your existing contract period.

Bell

You agree that this Agreement and any fees, charges or other obligations and any features, options, or other aspects of the Services, may be modified, discontinued or terminated by Bell except as otherwise specified in this Agreement. We will notify you by providing at least 30 days advance notice of any change that affects you. Nothing in this Agreement shall be construed as obligating you to accept receipt of the Services after any change is made to this Agreement, the Services or otherwise; however, your sole remedy in the event of such a change shall be termination of the Services including the payment of any SAPA or DSAPA that may apply, upon providing 30 days advance written notice. Should you continue to receive the Services after such change is effective, you expressly agree that no additional written agreement or express acknowledgement shall be required to accept such change and, unless otherwise prohibited by law, you specifically waive any and all statutory requirements for notice and express acceptance of such changes except for those provided in this paragraph. You agree that you cannot change this Agreement and that no oral or written statement or representation of any sales agent, representative or employee of Bell made to you can change this Agreement.

Baer responds:

The Bell blurb, like the Rogers blurb, says that they can change any fee, charge etc. by providing at least 30 days notice. Again the only choice the consumer has is to accept the change or terminate service within 30 days. They then note that if you choose the option of terminating service, you will have to pay a fee. They also make it clear that the customer or any sales agent cannot change the contract, just Bell.

Telus

These service terms (including any rates and charges) may be changed unilaterally by TELUS from time to time on at least thirty (30) days' notice to you, and such changes shall become effective once you use the service after such thirty (30) day period (which use shall be deemed conclusively to indicate acceptance of such changes.)

Baer responds:

The Telus blurb, like the others says that they can change the rates etc. on 30 days notice and after having notice for 30 days without the customer doing anything, that is considered acceptance of the changes and they become effective.

The bottom line, according to Baer:

There is not any real practical wiggle room in the language of the contract terms for consumers who are unhappy with the service changes. Once you have received notice of the change, you do have 30 days in which you can terminate the contract (which is kind of redundant since you can always terminate the contract) but the fee for doing so is $20/month remaining in your service contract up to a maximum of $400. This would not be a practical solution for anyone in a long-term contract. However, if you were not in a contract or your contract had expired, you would have the option of leaving and using another provider who does not have this fee.

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