You are on page 1of 8

SUBMISSION OF CUSTOMERS POSITION IN THE MATTER OF ARBITRATION BETWEEN CUSTOMER NAME CUSTOMER ADDRESS ADDRESS LINE 2 ADDRESS LINE

3 Phone: CUSTOMER PHONE E-Mail: CUSTOMER EMAIL AND AT&T WIRELESS 208 South Akard Street Dallas, TX 75202 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Before Arbitrator INSERT NAME Case Number: INSERT NUMBER

I. STATEMENT OF ISSUE The contract (hereafter, the agreement or the contract) between AT&T Wireless (hereafter, AT&T or the company) and CUSTOMER NAME (hereafter, the customer) was changed in a materially adverse manner on May 1, 2013 when AT&T instituted an administrative charge in the amount of $0.61 per line. The agreement specifically allows for the customer to be released from all contractual obligations in the event that AT&T raises the price of service in any amount beyond the limits set forth in the customer service summary. AT&T breached the contract when it denied the release of the customer from the contract after being duly notified of its adverse material changes on DATE CUSTOMER NOTIFIED AT&T OF DISAGREEMENT WITH FEE (MUST BE ON OR BEFORE MAY 30, 2013).

Page 1 of 8

II. STATEMENT OF FACTS The contract between the parties began on DATE YOUR 2 YEAR CONTRACT STARTED and ends DATE YOUR 2 YEAR CONTRACT ENDS. The terms of the contract between the customer and AT&T were changed on May 1, 2013 when the company decided to raise the administrative charge. This change represents an increase in the cost of service outside the bounds of what is allowed by the contract. The April 2013 billing statement for the customer contained the following verbatim statement from AT&T (Customer Exhibit A, page 7, emphasis added NOTE: INCLUDE COPY OF BILLING STATEMENT WITH THE ARBITRATION PAPERWORK, LABEL IT CUSTOMER EXHIBIT A): MOBILITY ADMINISTRATIVE FEE Effective May 1, 2013, the Administrative Fee will be $0.61 per line per month for Consumer and Individual Responsibility User (IRU) lines. For more information about the Administrative Fee, please visit att.com/additionalcharges. Upon reviewing this fee increase, the customer found the increase to be a materially adverse change in the agreement. The customer is a graduate student on a limited budget, and the fee increase as implemented is a change in the contract that has a real negative impact on the customer by increasing the monthly bill. This unilateral change of contract terms to increase fees was not part of the original contract (Customer Exhibit B NOTE: INCLUDE YOUR ORGINAL 2 YEAR CONTRACT AND LABEL IT CUSTOMER EXHIBIT B) entered into by the parties. The agreement between AT&T and the customer provides the following remedy in the event of an increase in service price (Customer Exhibit B, INSERT PAGE NUMBER, emphasis added): 1.3 Can AT&T Change My Terms and Rates We may change any terms, conditions, rates, fees, expenses, or charges regarding your Services at any time. We will provide you with notice of material changes (other than changes to governmental fees, proportional charges for governmental mandates, roaming rates or administrative charges) either in your monthly bill or separately. You understand and agree that State and Federal Universal Service Fees and Page 2 of 8

other governmentally imposed fees, whether or not assessed directly upon you, may be increased based upon the government's or our calculations. IF WE INCREASE THE PRICE OF ANY OF THE SERVICES TO WHICH YOU SUBSCRIBE, BEYOND THE LIMITS SET FORTH IN YOUR CUSTOMER SERVICE SUMMARY, OR IF WE MATERIALLY DECREASE THE GEOGRAPHICAL AREA IN WHICH YOUR AIRTIME RATE APPLIES (OTHER THAN A TEMPORARY DECREASE FOR REPAIRS OR MAINTENANCE), WELL DISCLOSE THE CHANGE AT LEAST ONE BILLING CYCLE IN ADVANCE (EITHER THROUGH A NOTICE WITH YOUR BILL, A TEXT MESSAGE TO YOUR DEVICE, OR OTHERWISE), AND YOU MAY TERMINATE THIS AGREEMENT WITHOUT PAYING AN EARLY TERMINATION As provided by the agreement, AT&T in a timely manner notified the customer of the intent to change the terms via written notice in the April 2013 billing statement. The customer in response notified representatives of AT&T in a timely manner (CUSTOMER SERVICE REP NAME, AT&T Customer Service, Operator ID REP ID NUMBER OR USPS CERTIFIED MAIL RECEIPT I STRONGLY RECOMMEND YOU SEND LETTER VIA CERTIFIED MAIL INSTEAD OF CALLING) that the change was materially adverse on DATE OF CONTACT OR DATE OF MAILING. Upon contact with Customer Service, AT&T offered to issue an account credit proportional to the fee. At no time did the customer accept this alternative remedy of an account credit, but it was applied to the customers account without consent (NOTE: ONLY INCLUDE THIS IF IT HAPPENED IN YOUR CASE). AT&T is in breach of contract by failing to adhere to the contractually supplied remedy for causing an adverse material impact on the customer. There is no language in the agreement indicating AT&T has the option to refuse to adhere to these terms. III. CUSTOMERS POSITION A. There is no legitimate question of arbitrability, the case is properly before the arbitrator. (NOTE: ONLY INCLUDE IF THEY CONTEST WHETHER THIS IS SUBJECT TO ARBITRATION) Page 3 of 8

B. The terms of the contract between the customer and AT&T were changed in a materially adverse manner when the company decided to raise the administrative charge. C. The agreement does not allow AT&T to choose alternative remedies. The only contractual remedy in this case is that the customer should be released from the contract. (NOTE: ONLY INCLUDE IF THEY OFFERED TO CREDIT ACCOUNT FOR AMOUNT OF FEE) A. There is no legitimate question of arbitrability, the case is properly before the arbitrator. In the course of requesting that this case be sent for arbitration, AT&T has attempted to argue that the case is not subject to arbitration. This claim does not make any sense the case record before the arbitrator clearly demonstrates that AT&T instituted an administrative fee in the amount of $0.61 per line per month, and it notified the customer via the April 2013 billing statement. The contract terms state: We will provide you with notice of material changes either in your monthly bill or separately. In providing advance notice of this fee, AT&T is explicitly demonstrating that this is a material change to the contract. There can be no legitimate claim that the administration fee does not constitute a change in the terms of the agreement. The fact that AT&T offered a service credit to cover some of this fee indicates the company knew it needed to compensate customer because the contract terms resulted in a materially adverse change. However, this ex post facto "adjustment offer" on the part of the company is not the remedy required by the contract (see Customer Exhibit B). The proposed adjustment does not change the fact that the fee still occurred, resulting in a materially adverse change in terms. As it currently stands, AT&T is in breach of its contract because it has

Page 4 of 8

failed to follow the remedy supplied in the contract. (NOTE ONLY INCLUDE THIS IF THEY OFFERED TO CREDIT YOUR ACCOUNT). B. The terms of the contract between the customer and AT&T were changed in a materially adverse manner when the company instituted the administrative charge. The agreement between the customer and AT&T states in clear, every-day language that AT&T may change any terms of the agreement, but that the customer must be released from the agreement in the event that the terms are materially adverse and AT&T is notified in a timely manner. There is no dispute in this case on the facts that (1) AT&T changed the terms of the contract and (2) the customer notified AT&T that the changes were found to be materially adverse in a timely manner. The contract states that in the event of a material change AT&T will provide notice, and the customer may be released from the contract when it increases the price of service. The fact that AT&T provided notice about the administrative fee is explicit acknowledgement that it considers the change to have a material impact. Even if the arbitrators believes AT&T does not view the change as a material increase in service price, arbitral standards of contact interpretation according to Elkouri & Elkouri (How Arbitration Works, BNA 6th Edition, page 432) state: Where the parties have attached different meanings to an agreementit is interpreted in accordance with the meaning attached by one party if at the time the agreement was made that party did not know or had no reason to know of any different meaning attached by the other, and the other knew, or had reason to know of the meaning attached by the first party. At the time of the contract between the parties, the customer clearly interpreted the contract terms to mean that any material change in service cost would enable the customer to be released from the contract. As the contract does not define material changes AT&T knew that this was meaning the customer would attach to the language of the agreement. To suggest otherwise

Page 5 of 8

would mean that AT&T has defined a term of the contract (material) but failed to disclose it to the customer, which means that AT&T could be acting in bad faith and the agreement as such would be void ab initio. As previously stated the fee increase represents a meaningful negative change because it resulted in a monthly increase in the customers bill - which the customer finds to have material impact due to being on a limited income. C. The agreement does not allow AT&T to choose alternative remedies. The only contractual remedy in this case is that the customer should be released from the contract. (NOTE DELETE THIS SECTION IF IT DOESNT APPLY TO YOUR CASE) AT&T offered to compensate for this issue by offering an account adjustment that the customer does not accept. This account adjustment is a remedy that is not permissible according to the terms of the contract. Although AT&T may choose at its discretion to offer alternative remedies that are outside the contract to minimize the impacts of a materially adverse change, the agreement does not require that the customer accept these alternative remedies. The contract language is clear and unambiguous about the responsibilities of AT&T in the case that a customer notifies them of a material change in service cost within 30 days of it going into effect AT&T must allow the customer to leave without paying the early termination fee. In making this point the customer is relying on the arbitral standard of plain language, which has been well established in the case law (see Oak Grove School District, 85 LA 653, 655; Independent School District No. 47, 86 LA 103, 103; Empire Tractor and Equipment Company, 85 LA 345, 349; Boogaart Supply Company, 84 LA 27, 29; Town of Davie, 83 LA 1153, 1157; Nekoosa Corporation, 83 LA 676, 680; Klopfestein 75 LA 1227, 1226; also see Elkouri & Elkouri, How Arbitration Works, BNA 6th Edition, page 432). The customer urges the arbitrator to use the clear language standard in this case.

Page 6 of 8

If the arbitrator accepts that AT&T can force the customer to accept a remedy which is outside the contract in response to an adverse material change, then AT&T is altering contract terms in a unilateral manner. Although the arbitrator is not bound by legal precedent, it is important to note that there is case law to support the idea that such a unilateral change in terms is legally unconscionable. In Iberia Credit Bureau, Inc. v. Cingular Wireless LLC, 379 F.3d 159 (5th Cir. 2004), the court held if a customer was compelled to accept a burdensome change in the terms on the pain ofpaying a termination fee, that might show that the attempt to change the terms was unconscionable or otherwise unenforceable. AT&T cannot enter into a contract with the customer and then decide that it the materially change provision does not apply because they offered credit to the customers bill an amount proportional to the fee increase. The customer may choose to accept such an offer, but there is nothing in the standing agreement that forces the customer to do so. The only contractual remedy provided is that AT&T must release the customer from the contract after being notified of a materially adverse change in terms. IV. CONCLUSION AT&T entered into a contract with a customer that enabled the customer to be released from the agreement in the event of a materially adverse change. AT&T, in raising a fee, caused a materially adverse change. The customer notified AT&T in a timely manner, but AT&T refused to uphold the contract by releasing the customer. AT&T has no contractual authority to compel the customer to accept alternative remedies, the only remedy is the one written in the contract. AT&T is in breach of the contract given current circumstances.

Page 7 of 8

V. REQUESTED REMEDY The customer requests that the arbitrator enforce the contract language: AT&T shall be bound by the terms of the contract and release the customer from the agreement. The customer shall be able to terminate service with AT&T without paying the early termination fee (ETF) on account #YOUR ACCOUNT NUMBER HERE. The customer shall be reimbursed from AT&T in the amount of $XXX.XX, an amount representing (1) unpaid leave from work taken to attend the hearing and (2) the costs the customer paid to travel to the hearing.

Respectfully submitted,

CUSTOMER NAME

Page 8 of 8