Vitale and Kean’s bill provides that fines will only be levied in two instances: if the text message causes the recipient to incur a fee or decreases the number of text message the recipient is allocated by his cell phone provider. The fines, only imposed if the advertiser sends more than one per year, are very steep; $10,000 for the first offense, $20,000 for subsequent offenses, and $30,000 if the advertiser knew or should have known the recipient was disabled or elderly. The bill also contains a provision requiring all phone companies to offer New Jersey consumers the option of blocking all incoming and outgoing text messages. Senator Vitale explains the motivation of the legislation, “We have to do a much better job in New Jersey to protect consumers from unsolicited text advertisements which can drive their cell phone bills through the roof.”

Certainly the New Jersey bill correctly recognizes the need to close the loopholes in the FCC’s regulation; however, it is still deficient. Firstly, in many cases it would be impossible to determine whether an advertiser knew or should have known if the recipient was disabled or elderly. The bill contains no guidance on what type of inquiry, if any, the advertiser should undertake to determine if the recipient falls into one of those categories. In many cases, it seems unlikely the advertiser would have enough information to know the recipient’s status. If the bill’s intent is to protect these groups, the additional fee should be levied regardless of the advertiser’s knowledge; otherwise, it is unlikely they will ever be subject to this additional fine.

More importantly, under the terms of the bill, unsolicited text messages to a recipient who had an unlimited text messaging plan would be permitted; a consumer with an unlimited plan would not incur a fee or a decreased number of available messages. Thus, the bill does not properly deal with the nuisance of unsolicited texts, rather it only recognizes the monetary cost. Such a stance is unreasonable; a consumer would have to receive a massive amount of unsolicited ads for any real cost to be incurred. Sprint, AT&T and T-mobile charge only twenty cents per text message. Most consumers would not be aggravated by this minimal charge, but rather at the annoyance of unsolicited contact. The bill should be amended to prohibit all unsolicited text ads, even if the consumer suffers no monetary loss. With this alteration, the bill would operate as an effective deterrent.

Image Lincoln by Katy/teapics. Used under a Creative Commons BY-NC-SA 2.0 license.

As new technologies become part of our lives, teenagers figure out a way to use these technologies to do what it is they do best: get themselves into trouble. Cell phones and picture messaging are no exception. This fall, a fifteen-year-old girl in Ohio was arrested for taking nude photographs of herself and sending them to other minors. The teenager was charged with illegal use of a minor in nudity oriented materials and possession of criminal tools under Ohio law 2907.323(A)(3). The charges could also qualify the girl to be classified as a sex offender, requiring her to register annually. An Ohio prosecutor, Ken Oswalt, said that the other minors who received the photographs might also be charged for possession of child pornography.

The Ohio case was recently settled out of court, and the young woman in that case will not have to register as a sex offender. But the law at issue was Ohio’s version of Megan’s law, which has been enacted, with slight variations, in all fifty states and the District of Columbia. This means that a similar case could potentially come up anywhere in the United States. In fact, the case in Ohio is by no means the first instance of a minor being faced with criminal charges for taking and sending, or posting online, nude photographs of themselves. According to Fox News, “Similar cases have been reported in New Jersey, New York, Alabama, Utah, Pennsylvania, Texas and Connecticut.” Michigan and Florida have also seen similar cases. Because this is a growing trend, it is important to ask ourselves if criminal charges are the appropriate way to deal with these teenagers’ misconduct.

The aim of laws of this type (preventing sexual offenses against minors) is to prevent harm to the child. Proponents of the law in issue argue that this means protecting children from harm they could cause to themselves in addition to protecting them against harm caused by others. While the current law does this to a certain extent, it is also overly broad in that it imposes a different, and arguably worse, harm on the minor. It is true that once the photographs become public, they will likely haunt the teenager forever or could possibly end up in the hands of adults who are looking for child pornography, both of which are harms that we should be concerned about. However, imposing criminal charges will not undo the fact that the photograph(s) are now out in public. Additionally, imposing criminal charges, especially requiring the minor to register as a sex offender, is also likely to haunt them forever. It is hard to see how preventing harm to minors justifies imposing other harms on them: the stigma of a criminal record and being labeled as a sex offender.

Two former Qwest customers have filed a putative class action lawsuit against Qwest seeking to end termination fees for broadband Internet subscribers. This is one of the first challenges to broadband service termination fees. Both former customers were charged 200 dollars when they canceled their broadband service. One customer, Rory Durkin, intended to cancel service but decided to continue paying for monthly broadband service when he learned of the termination fee – even though he did not have a working computer.

The other customer, Robin Vernon, allegedly called to cancel service, was told on the phone by a Qwest customer service representative that there was no fee to cancel, but later received a bill for a 200 dollar early termination fee (ETF). When Vernon demanded to see a contract, Qwest informed her that the contract was made orally on the telephone by Mrs. Vernon’s husband and that neither a written copy of a contract nor a recording of the telephone conversation was available. Shortly thereafter, she started receiving calls from a collection agency.

Qwest markets its broadband services as requiring a two-year commitment, but customers do not agree to this in a contract. Customers typically order the broadband service over the telephone. After becoming a subscriber, Qwest mails a "Subscriber Agreement" to the new customer that is not signed by Qwest or the customer. The Subscriber Agreement states "IF YOU ORDER SERVICE WITH A TERM COMMITMENT, YOU AGREE TO MAINTAIN THAT SERVICE FOR THE ENTIRE TERM COMMITMENT PERIOD." The Subscriber Agreement, however, does not mention an ETF and the only term of service mentioned is a month-to-month commitment.

The complaint alleges that the ETF is an unlawful penalty under common law contract principles because "(a) it is wholly disproportionate to the harm, if any, that early cancellation may cause Qwest; (b) it is not based on a bona fide reasonable estimate of the damages, if any, that Qwest incurs from an early cancellation; and (c) the actual damage, if any, Qwest may suffer as a result of early termination is not difficult to ascertain." The complaint also asserts an unjust enrichment claim and other state law claims.

So, what is the likelihood of success in this action and what could this mean for you as a broadband subscriber? Other recent challenges to termination fees in a cellular phone context suggest that if this action against Qwest is successful, customers will likely be able to choose monthly plans without ETFs.

Verizon Wireless agreed to a 21 million dollar settlement in a California class action suit regarding ETFs and now offers plans with month-to-month commitments. Customers can still choose to pay a lower price for the phone and enter into a long-term contract, or the customer can choose to pay full price for the phone without a long-term contract and its accompanying ETF. A California judge also ordered Sprint Communications to pay back 18 million to customers who had paid ETFs. Many phone companies (Sprint, AT&T) are now adjusting their plans by either offering prorated termination fees, so that customers pay less if they cancel later in their agreement, or offering monthly plans like Verizon.

The plaintiffs’ successes in the cell phone cases suggests that the broadband case will be successful as well. Cell phone carriers, because they offer cheaper handsets when customers enter into a long-term contract, can argue that the ETF is appropriate since customers keep their phones after cancelling service. The argument for overturning broadband termination fees is arguably stronger because former broadband customers do not keep anything from the company. The end of broadband termination fees, therefore, may be near.

Allowing customers to cancel their service at any time without an ETF and to switch providers may allow for smaller companies with competitively priced plans to more easily build a customer base and compete with the larger companies. This could result in lower prices for everyone.