Legal Question in Consumer Law in California

Broadband provider not performing as undertaken over phone.

On the basis of their adverts & clarification over the phone with their salesperson, I signed up (over phone) for their service. They sent DSL modem, I removed it from box(& nothing else) and found Download speed to be some 67% of the minimum I was assured was their minimum acceptable speed.

They now say I was bound by Ts&Cs included with modem & that they guarantee no lower speed. & that to cancel now I will owe a $150 early termination fee.

I hold that I signed up purely on the basis of their advertised claims & the clarification of the lowest speed I should generally expect. I never saw any Ts&Cs before I made the telephone transaction.

So, where do I stand? Many thanks for your time. Peter


Asked on 4/23/03, 10:26 pm

1 Answer from Attorneys
JEB Pickett Wynne Law Firm

Re: Broadband provider not performing as undertaken over phone.

DSL suppliers have very tight contracts to prevent people from simply acquiring a free modem and then switching to another service offering lower pricing. Also, the small print usually will state EXPECTED downline speeds, but that no guarantees are made as to actual speeds as your distance from switching stations and other factors will impact your actual speeds. Simply put, almost any advertisement, somewhere, in some footnote, will likely include some "no guarantees" statement.

To prove your claim, you will need 1) copies of advertisements specifically stating a guarantee of a specific minimum download speed; 2) a copy of your actual contract with the DSL carrier. If you are alleging that the minimum speed claims were made only over the phone you are likely out of luck as you would have no evidence of those claims and any recordings, if any, of your conversations would be inadmissable unless they reflect that all parties were aware that the conversation was being recorded.

If these documents actually do state a guarantee of a minimum download speed, you may indeed have a case which would permit you to claim that the carrier breached their agreement with you and that you therefore do not owe the $150 early termination fee. (You will have to still return their modem.)

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Answered on 4/24/03, 1:54 am


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