A very consuming consumer contract
I have elsewhere on this web site addressed Rogers' Wireless Service Agreement - the standard form consumer contract that purports to govern the relationship between Rogers consumers and the corporation.
As I mentioned, the current contract has a clause that enables Rogers to unilaterally change the contract. The consumer is presumed to consent to that change if he or she pays their next invoice.
In light of this ability of Rogers to change the contract AFTER consumers have entered into it at its own discretion, I flagged that it might be worth keeping your eye on what Rogers might foist upon you without you being aware.
On December 28, 2006, I received Rogers new Terms of Service inserted in my wireless invoice. Rogers has small banner at the top of the new Contract that says "Here are some highlights of actual changes introduced by the Terms in addition to the new format:" and Rogers, SELECTIVELY, brings to your attention a few innocuous modifications.
There are, in fact, some fairly significant modifications that are not (how suprising) "highlighted".
First the good news:
1. Rogers won't charge consumers for the charges owing on lost and stolen cell phones any more.
Rogers' current contract says that, if your cell phone is lost or stolen, you're responsible for paying the total charges - just as Rogers kept insisting that I owed over $14,000 on my stolen cell phone. The current contract reads: "19. Please immediately notify us if your device or SIM card is lost, stolen or destroyed. You will need to replace your device or SIM card and you will be responsible to pay us for all charges up to the time you notify us."
It appears that Rogers has changed it tack on charges on lost and stolen cell phones so that you no longer have to be a law professor with a story about Ted Roger's cell phone being cloned by Hezbollah to get those charges zero'd. The new Term simply reads: "23. You must immediately notify us if your Equipment is lost, stolen or destroyed."
Wahoo. I think I can see why that's a wee change in policy that Rogers' didn't want to highlight for our attention.
So that's the good news. Now for the bad news:
2. Rogers is apparently claiming the right to monitor cell phone conversations
The most alarming thing, in my opinion, is that Rogers now has a Term on the contract that says the following: "19. We have the right, but not the obligation, to monitor or investigate any content that is transmitted using the services or the Equipment." Come again?
If consumers sign the new contract, Rogers appears to be claiming that consumers are giving Rogers the RIGHT to monitor cell phone calls - without qualification, without cause, without limitation. That's my understanding of the plain English of that phrase.
This is fairly troubling to me. If I want to decline to give Rogers my consent to this clause, the contract informs me that I have 30 days from my receipt of the new Terms to refuse them, in which case, our relationship will continue to be governed by the current Terms.
Maybe I was reading things wrong. I decided to inquire at Rogers about how to understand this (and other) terms.
I went to a Rogers Wireless outlet at Fairview Mall in Toronto, contract in hand. I spoke to four different customer service reps who all conceded that they had no idea how to understand the contract. In fact they didn't even have a copy of it on hand. When I pointed out the term that apparently gives Rogers the right to monitor my cell phone conversations, three of them were surprised and slightly disturbed. One of them, an Iranian, was very perturbed. The fourth told me I had nothing to worry about if I wasn't doing anything suspect. "Anyhow," he asked with a smile, "what kind of criminal things are you up to that you're worried about Rogers eavesdropping on you?" "Um, I'm a law professor. No kinds of criminal things," I replied. The Iranian, who was still absorbing his astonishment over the Term, chastised his co-worker: "You know, this is not the United States. We don't monitor cell phone calls here. The police need a warrant to do that kind of thing."
As consent is supposed to be informed, even on a consumer contract, decided to give Rogers another chance to make the terms meaningful to me. I gave Rogers a call at the number provided on the insert for questions: 1-888-ROGERS1. This is also the number listed on Rogers' invoice for consumers "To sign up for new Rogers services." And this is where I got:
I spoke to four separate Customer Service Representatives (CSR’s): an otherwise nameless CSR with the employee number “X050” who hung up on me after keeping me on hold for 45 minutes; “Helen F310”, “Kerry-Ann 122951”, and “Sajid 41710”. Not a single one of them had a copy of the contract in front of them, nor could they locate one. They all conceded that they were unqualified to answer the questions I was asking about the new Terms of Service. “Sajid 41710” told me he would have someone call me back that day with answers to my questions about the new contract. I never received that phone call.
Admittedly unqualified to answer my questions about Rogers’ new Terms of Service, Rogers Customer Service department transferred me to two separate Management Support Team workers (“Dawn” and “Natasha”). Neither “Dawn” nor “Natasha” had a copy of the new contract. “Dawn” told me that she could not answer any questions about the contract as she didn’t have a copy of it and, after 50 minutes on the phone, told me she would seek it out and return my phone call, which she never did.
“Natasha” conceded that she did not have access to the new Terms of Service either. She attempted to explain the meaning of Rogers new Term that purports to give Rogers the right to monitor all content transmitted on my cell phone by claiming that Rogers was only interested in monitoring cell phone content if the consumer was transmitting child pornography. She further said that, though she is not qualified to give an authoritative opinion about the legal content of the contract, she could tell me that in her experience of 7 years, she’d never known Rogers to monitor cell phones and that furthermore, she was pretty sure that Rogers didn’t have the technology to monitor cell phone calls.
"Natasha's" faith in Rogers is sweet. However it does not coincide with the September 27, 2005 public statement by Cindy Hopper, manager of Rogers’ Law Enforcement Support/Fraud and Security Department, who was recorded speaking about the cloning of Ted Rogers’ cell phone by a group linked with Hezbollah in 1997, a story that the Globe and Mail carried on its front page on December 17, 2005. Hopper indicated that conversation that, immediately after Rogers shut down outgoing calls to Saudi Arabia, Libya, Kuwait, Lebanon, and Iran for all Rogers consumers in an effort to thwart the parties cloning Ted Rogers cell phone, the cloning parties set up a switching station in Sweden. From Cindy Hopper’s account, and apparently before search warrants were sought by the police as part of a criminal investigation, Rogers’ Fraud department was monitoring cell phone conversations in Sweden between the parties who had cloned Ted Rogers’ cell phone. At a minimum, clearly the remarks made to me by Management Support worker Natasha are unfounded: Rogers has the technology to monitor wireless conversations.
I didn't seem to be getting anywhere getting clarification about the new Terms by calling the phone number that Rogers provided for that purpose. So I sent a letter to Rogers' legal department on December 31, 2006, in which I asked for the legal department to get back to me about that spooky term. I am waiting for an answer to the following question with respect to Term 19:
Term 19 of the new contract stipulates that Rogers has the right to monitor or investigate any content that is transmitted using the Services or the Equipment. The way that the new contract is structured, Term 19 now applies to wireless services. On a plain language reading of Term 19, Rogers is asserting for itself the right, without qualification, to monitor my cell phone conversations
What is the meaning of this new contractual right allowing Rogers to monitor or investigate any content that is transmitted on my cell phone? Properly executed warrants will allow the police to monitor and investigate cell phone conversations, and I am not uncomfortable with Rogers being compelled by law to comply with a police investigation by allowing the police to monitor Rogers’ services for this very specific and narrowly circumscribed purpose. But this monitoring is not a RIGHT that accrues to Rogers. Indeed, my understanding is that Rogers does not have the RIGHT to monitor cell phone and internet content for child pornography or other criminal activity unless this is done with the police under the auspices of a properly executed warrant. My understanding is that it is not Rogers’ place to randomly monitor the activity of Rogers’ subscribers to cull for criminal activity, despite Natasha’s assertions to the contrary. Further, judicially ordered warrants to monitor and investigate cell phone content in furtherance of a criminal investigation are intrusions to which citizens and consumers submit by virtue of the law (criminal law in this case), not by virtue of a contractual agreement between consumers and their service providers.
What does Rogers understand itself to be acquiring when it asserts an unqualified contractual RIGHT to monitor and investigate cell phone content transmitted on cell phones? For example, does this term give Rogers’ Fraud department the right to monitor cell phone conversations if it is concerned about, for example, atypical call patterns?
3. Rogers offers to pay the arbitrator (off)
The writing was clearly on the wall that Rogers was going to have to do something about its mandatory arbitration clause. The current contract says that no consumer who signs the contract can ever litigate in court against Rogers, not small claims court, not superior court, and certainly not in a class action law suit.
Thousands of Rogers consumers have been signing those contracts when Rogers knows full well that that Term can't be enforced. Ontario passed legislation on July 30, 2005 that rendered those clauses unenforceable. British Columbia got rid of them by way of a court of appeal decision.
And on December 14, 2006, the very day that I was in the Supreme Court of Canada watching Rogers defend those clauses against a consumer coming out of Quebec, Justice LeBel informed the court that Quebec's National Assembly had just made all the requisite changes to an amendment to Quebec's Consumer Protection Act that prohibits arbitration clauses on consumer contracts, with penal proceedings attached to violation. Just as in Ontario, after a Superior Court upheld Rogers' clauses, the legislation was passed with incredible hast in the provincial legislature. On the weekend that the plaintiff in Quebec was filing his factum to the Supreme Court, Quebec tabled legislation (November 11, 2006) and with atypical haste, the legislation was ready for enactment on December 14, 2006. Not only was the timing auspicious, the clear repulsion of the Quebec government towards Rogers' arbitration clauses could not have been more manifest.
In my opinion, a corporation that was dealing in good faith with its consumers would just take that clause right off the contract, at least in the provinces where it is no longer enforceable. To leave it on would just mislead consumers about their litigation rights when they turned to the contract to see what their remedies were.
Rogers opted, instead, to insert a clause into the term that now reads "34. To the extent permitted by applicable law, unless we agree otherwise, any claim, dispute or controversy, whether in contract or tort, pursuant to statute or regulation, or otherwise, will be determined by final and binding arbitration to the exclusion of the courts." That little phrase "to the extent permitted by applicable law" is supposed to let consumers in Quebec, Ontario, and BC know that they might still have litigation rights, if they would only just inform themselves about what provincial law tells them are their rights.
Rogers has also made arbitration final and binding for those consumers who are stuck in provinces that don't have up consumer-friendly consumer protection legislation. The current contract, at Term 34 only squeezes consumers by stating that disputes "will be determined by arbitration to the exclusion of the courts." This allowed a right of appeal, at least, to a court. I suppose what Rogers has just lost in Quebec, Ontario and BC, it now wants to make up for in the other provinces.
The other thing that Rogers has added to their arbitration clause is the following: "Rogers will pay all reasonable costs associated with any such arbitration." Nice guys, huh?
This change flows directly from complaints that arbitration is costly for consumers who would otherwise use small claims court (where the fees are minimal indeed - $40 for filing or motion, $100 to set a claim down for trial, etc.). Class action law suits also cost the consumer nothing: the lawyer bears all the costs and risks and only takes a percentage of the eventual award. Why should consumers have to pay potentially costly arbitration fees when these other recourses are far more consumer-friendly?
Rogers has been muttering in legal circles for months now that it would agree to pay the total costs of arbitration and that should shut the worriers up.
But anyone who knows about how arbitration works, particularly in the consumer context, knows that Rogers' offer to pay the costs of arbitration is a very troubling development. When I wrote my letter of concern about Term 19 of the contract, I also explained my concern about this modification to the arbitration clause to Rogers' legal department in the following manner:
My first question about the arbitration clause in the new Terms concerns Rogers’ new claim that it will pay all reasonable costs associated with arbitration. As we are both aware, if consumers dispute charges with Rogers in court, all court fees are paid to the court upfront by both parties to the dispute. It is only when the dispute has been fully settled or a final order given that the question of costs arises. As neither party is paying a judge personally and directly for adjudication, there is no occasion for the appearance to arise that the judge is biased in favour of a party who has paid the costs of litigation.
As you know, arbitration is private justice: the arbitrator, unlike a judge, is paid for their time and services. Rogers, unlike the consumer, will be a repeat player within the pool from which arbitrators are selected. Arbitrators have a personal interest in maximizing the amount of arbitrations they do as their personal income is tied to this source of revenue. If Rogers pays the fees for all of its consumer arbitrations, I am left with the strong impression that arbitrators will be structurally biased by this new clause in the contract towards the repeat player that pays the arbitration fee. The appearance is striking that an arbitrator will be tempted to side with the party who is both paying the fee and who is poised to provide future arbitration work. The arbitrator clearly has an interest in so doing.
In other words, while the judicial system has entrenched means to preserve the appearance of neutrality and to avoid all taint that a judge has been financially induced to side in the favour of one party, the scenario proposed in Rogers’ new Terms of Service, by which Rogers’ pays the arbitrator for both parties’ costs, has no such immunity from taint of bias.
Please address my anxiety about the striking appearance of bias in the proposed amendment to the mandatory arbitration clause in Rogers’ new Terms of Service.
I had a few follow up questions about arbitration as well:
As I have the above concern about the change to Rogers’ mandatory arbitration clause, I would also like to know what the costs of arbitration are. What is the average cost of an arbitration in a consumer dispute with Rogers? I would like this question answered not by projections in the abstract. I would like the answer to be informed by past practice: Since Rogers inserted a mandatory arbitration clause on its consumer contracts, how many arbitrations has Rogers been a party to in a dispute with a consumer? From this prior history of arbitrations, what was the average cost associated with the arbitration?
Also, by the conjunction of an amendment to the current arbitration clause and Term 38 of the new Terms of Service, the arbitration clause appears to be of questionable enforceability. I would like to know, as of your date of response, in which provinces the arbitration clause is no longer enforceable: i.e., in which provinces is it at MY discretion that a dispute will be resolved by way of arbitration or by way of the court system.
And that's not all.
4. Do Rogers' consumers now have to pay "disputed" charges to Rogers?
I've elsewhere explained that I managed to keep my account in good standing (while avoiding paying Rogers an advance of $14,000 until we could dispute the charges in court) by following the contract and paying Rogers the "undisputed" charges on my wireless invoice.
I know from all of Rogers' court filings against me that Rogers reads this web site religiously. In the first week of January, 2007, Rogers served me with another set of motion materials in which they reproduced a page off of this web site and complained at length to the court about the somehow deeply troubling (though never, apparently, illegal) rogersandme.ca web site.
So it's not hubris on my part that leads me to speculate that Rogers might not have been too pleased with a recommendation for consumers to follow the contract to a "T" and dispute charges and pay off the undisputed amounts and let Rogers settle, in a law suit, that the "disputed" charges are in fact owing.
Rogers has gotten rid of that helpful little word "undisputed" on their new Terms of Service. So, of course, as my consent to the new contract is supposed to be informed, I have sought further explanation about the meaning of that little modification as well. In my December 31, 2006 letter to Rogers' legal department, I asked for the following clarification:
I have also noticed that Rogers intends to change the wording of what is now the very first term of the contract which now reads “You agree to pay us for undisputed charges appearing on your account by the specified due date and using a method of payment approved by us.” I see that Rogers is contemplating getting rid of that word “undisputed” and the wording at the second Term of the contract now reads: “You are liable for all charges to your account.” I know that Term 7 allows consumers to address discrepancies regarding charges. But is it Rogers’ intention, by removing the word “undisputed”, to insist that consumers have to pay charges that are in dispute and then recover them only once they have satisfied Rogers (or a court, or an arbitrator) that the charges are in fact discrepant with their obligation to pay? What is the significance that Rogers assigns to the removal of that word “undisputed” from the Rates and Charges section of the contract?
5. Can consumers still inspect all records relating to their account?
I've mentioned already that I found it helpful to invoke the current 25th Term of Rogers contract in order to access the data that Rogers has been collecting on me. The current Term says:"25. Upon request, you may inspect any of our records related to your Service." That clause has just disappeared from the new contract. I inquired with the legal department about this too:
So far as I can see, Rogers appears to no longer have an analogue or counterpart to Term 25 on the current contract, which reads: “Upon request, you may inspect any of our records related to your Service.” Perhaps the Term is buried somewhere on the new contract that I haven’t yet located. Can you tell me the significance of the removal of this Term? Does this mean that consumers will now no longer have a right to inspect Rogers records related to their Service? Will consumers now no longer have a right to ask for the “literal” and “decoded” remarks written into their file by Rogers’ employees? Is there anything they have a right to inspect under the Terms of the new contract? Can they ask to inspect, for example, a copy of the original contract that they signed?
6. Isn't the contract supposed to be minimally intelligible?
I spend my working days correcting law students writing, both legal and standard English. So when I came across the following clause, my little red mental pen was poised. Rogers has a clause on the new contract that reads as follows:
37. “We may assign or transfer the Service Agreement or any of our rights or obligations hereunder without your consent. The provisions of Sections 8, 25, 26, 27, 28, 29, 31, 32, 33, 34, 35, 36, 37, 38 and any other provisions of these terms which by their meaning are intended to survive termination.” [sic]
Ironically, this second “sentence” is followed by a sentence which reads “These Terms have been drawn up in the English Language at the express request of the parties.”
Even within the dense legalistic context of the section in which this phrase appears, the second “sentence” does not meet the threshold of a proper English sentence.
Boy, you'd think Rogers had enough grammatical worries regarding their obliviousness to simple grammar.
Ever the stickler for transparent and proper writing, I sent off another query about this baffling "sentence":
There is a Term of Rogers new Terms of Service that is completely unintelligible to me. I was hoping that you could give me some clarification. Term 37 has the following two sentences, the second of which does not appear, to me, to be a sentence:
“We may assign or transfer the Service Agreement or any of our rights or obligations hereunder without your consent. The provisions of Sections 8, 25, 26, 27, 28, 29, 31, 32, 33, 34, 35, 36, 37, 38 and any other provisions of these terms which by their meaning are intended to survive termination.”
What does the second “sentence” mean? It does not appear to me to be a properly formed sentence in the English language. Am I correct that somebody forgot to copy edit the contract? Please don’t just provide an alternative sentence, but let me know also whether the apparent grammatical error was an oversight – i.e., whether the current clause is unintelligible.
Divorce till death do us part
I teach family law, so I know how couples who are separating can get locked for years in the toxic embrace of a divorce process more gripping than the marriage ever was itself. Only the spouse from whom you are desperately trying to extricate yourself knows, in an excruciating intimacy of ghastly detail, exactly how to hammer and hammer and hammer away at the VERY things that drive you right around the bend.
I still, of course, have a Rogers contract. So I still have a right to be given some assistance in understanding what these new Terms of Service mean - do I not? Otherwise my consent is uninformed - is it not? Or was informed consent a concept that fell off the edge of the legal planet when Rogers started generating its consumer contracts?
I'm prepared to wager that I am the only Rogers consumer who knows the contract about as intimately than the very party(ies) that drafted it. I suspect I am also the only Rogers consumer who reads the Wireless Service Agreement on-line on a regular basis (knowing, as I do, that the Kanitz decision allowed Rogers to change the contract on-line and the consumer is presumed to read the contract - which is many clicks away from Rogers' home page - and to keep abreast of any developments.) I take it that the fact that customer service reps and outlet workers and management support workers don't even have a copy of the new contract on hand is some indication of how likely Rogers feels that anyone will ever ask a question about the new Terms.
I have thirty days from December 28, 2006 (the day upon which I received the contract) to agree to the new terms, or continue to be bound by the old.
Rogers has less than 30 days to get back to me.
Those halcyon days when Rogers simply provided me with wireless services and I paid the undisputed charges appearing on my account by the specified due date and using a method of payment approved by Rogers appear to have vanished into the haze.
Luckily we signed a pre-nup.