Legal Question in Consumer Law in Virginia

Cell Phone Service Without a Contract

A cell phone company sent flyers to my place of employment advertising FREE cell phones if we used their service. (I kept the flyer) A subsequent meeting took place in which the company representative asked for name, phone number, address, and SSN for any interested parties. We were delivered a cell phone of our choice. No contract was mentioned in this meeting, nor was a contract provided anyone who accepted. We were told to try the service, but not one word about the length of time we could try it.

When I attempted to drop the service after a few months, I was told that I could not. When I refused to pay for further service, they began adding reinstatement fees, and threatening to turn me over to a collection agency, thereby ruining my credit. They are now demanding the return of the phone in exchange for dropping a $225.00 penalty that they say I should have known was in their contracts. According to their own statement, they have already given my 'account' to their in-house collections department. They demand now the return of the phone to my place of employment, in an attempt to embarrass me. With no contract, is this considered malicious action on their part? To what extent can I file charges against them?


Asked on 6/26/00, 2:43 am

1 Answer from Attorneys
Daniel Hawes Hawes & Associates

Re: Cell Phone Service Without a Contract

The only potential problem you've got is that the tariff they've filed with the FCC governs as sort of a "super-contract". We don't know what it says. It may be that you've accepted the terms of some whacky deal simply by using the 'phone.

Btw, they've got to sue you in federal court, too, if they're going to, because of that same tariff which pre-empts state law.

You did use the phone as your personal (i.e., nonbusiness) phone, right? If you did, consumer protection rules apply; if not, you may have problems. Did they distribute the phones to individuals who happened to have been solicited at the place of employment, or did they make a deal with the employer with respect to business use of the phones?

However, I'd say you've probably got grounds for counterclaims for violation of the Virginia Home Solicitation Sales Act, the Virginia Prizes and Gifts Act, and the Virginia Consumer Protection Act. If it were me, I'd check with a lawyer ASAP to make sure of all that, then wait for them to file suit, and hit 'em back hard when they do. Chances are they'll send it to an outside debt collector sooner or later, who'll probably violate the Fair Debt Collection Practices Act, too. You need to have your ducks in a row. Call a lawyer. Look in the Yellow Pages in the lawyers-by-practice-type section under "consumer protection".

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Answered on 9/02/00, 8:50 am


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