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| He did get all he could download... For a few months. Heres how I see it, through an analogy:
You go to an all-you can eat place. There is a big sign up "All You Can Eat!". You happily shovel down 40 plates of food.
As you leave, the manager pulls you aside and says, "I know it's all you can eat, but we are losing fist fulls of money on your food. If you eat that much again, we'll kick you out."
The next day, you go back in and shovel down the food. On your 30th plate, the manager says enough and sends you packing, refunding your $4.99.
Did you get all you could eat? Yes, on the nights you paid, you got all you could. It was unlimited. The manager simply used his reserved right to deny service to anyone (so long as he did not break Federal civil rights laws). | |
 tomspratDraw Me A "Cold One"Premium,ExMod 2002-04
join:2000-11-03
Fort Lauderdale, FL | said by joebear29:
For a few months. Heres how I see it, through an analogy:
You go to an all-you can eat place. There is a big sign up "All You Can Eat!". You happily shovel down 40 plates of food.
As you leave, the manager pulls you aside and says, "I know it's all you can eat, but we are losing fist fulls of money on your food. If you eat that much again, we'll kick you out."
The next day, you go back in and shovel down the food. On your 30th plate, the manager says enough and sends you packing, refunding your $4.99.
Did you get all you could eat? Yes, on the nights you paid, you got all you could. It was unlimited. The manager simply used his reserved right to deny service to anyone (so long as he did not break Federal civil rights laws).
Sorry, but I disagree. To be binding, a contract must be adhered to, and the terms must be specific. "Unlimited", or "all you can eat", means just that. Some people eat more than others, some eat less. It is the responsibility of the company to set a price that earns them a profit by averaging consumption.
No, I'm not a "bandwidth hog", nor do I condone them. They cause prices to rise and are responsible, in part, for inadequate service to other customers. I do believe that companies and individuals must adhere to their agreements, and that the verbiage be specific. For example, you could say, "all you can eat, up to a limit of 25 plates".
IMHO, the existing limitations are arbitrary, and must be specific. I believe a judge would be of the same opinion.
--
Anything that ever was, was once a dream... | |
| said by tomsprat:
Sorry, but I disagree. To be binding, a contract must be adhered to, and the terms must be specific. "Unlimited", or "all you can eat", means just that. Some people eat more than others, some eat less. It is the responsibility of the company to set a price that earns them a profit by averaging consumption.
No, I'm not a "bandwidth hog", nor do I condone them. They cause prices to rise and are responsible, in part, for inadequate service to other customers. I do believe that companies and individuals must adhere to their agreements, and that the verbiage be specific. For example, you could say, "all you can eat, up to a limit of 25 plates".
IMHO, the existing limitations are arbitrary, and must be specific. I believe a judge would be of the same opinion.
I understand your disagreement, but I still feel that for the months he paid for service, he had unlimited access. The company just chose not to service him anymore, as is their right, but at no time did the company limit his access for the time he was charged for the service.
I am assuming he got a pro-rated refund for the last truncated month. | |
tomspratDraw Me A "Cold One"Premium,ExMod 2002-04
join:2000-11-03
Fort Lauderdale, FL | I would have to do some research to make certain of this, but I believe the days of "we reserve the right to refuse service to anyone", are long gone. Again, IMHO, if a company offers a service to the public, and someone accepts the offer, their is a legally binding contract. To simply refuse service to someone would require a legitimate reason and, in this instance, the reason is based on a breach of the vendor's responsibilities under the terms of the contract. By "responsibilities", I am referring to their offer of "unlimited use".
--
Anything that ever was, was once a dream... | |
| said by tomsprat:
I would have to do some research to make certain of this, but I believe the days of "we reserve the right to refuse service to anyone", are long gone. Again, IMHO, if a company offers a service to the public, and someone accepts the offer, their is a legally binding contract. To simply refuse service to someone would require a legitimate reason and, in this instance, the reason is based on a breach of the vendor's responsibilities under the terms of the contract. By "responsibilities", I am referring to their offer of "unlimited use".
An advertisement is not an offer. The consumer cannot accept the Comcast's ad as the offer, instead they must accepting the specific contract terms they agree to with Comcast. You can argue it's false advertising, but Comcast cannot be contractually bound to its advertisement if the customer's contract says otherwise.
And where did you get business's have lost the right to refuse service? As long as they are not violating civil rights laws, companies don't have to give a reason for refusing to renew a contract or exercising their right to opt out of an existing one, anymore than a consumer does. | |
 trisomyPremium
join:2002-05-23
Katy, TX | reply to tomsprat
said by tomsprat:
I would have to do some research to make certain of this, but I believe the days of "we reserve the right to refuse service to anyone", are long gone.
Tom, an offer to provide is not an obligation to provide.
said by tomsprat:
Again, IMHO, if a company offers a service to the public, and someone accepts the offer, their is a legally binding contract.
Tom, you cannot remove "unlimited" from the "contract" and ignore the TOS as no portion of the "contract". The contract conditions are all elements of the "contract"
said by tomsprat:
To simply refuse service to someone would require a legitimate reason
...if it states such in the contract.
| |
tomspratDraw Me A "Cold One"Premium,ExMod 2002-04
join:2000-11-03
Fort Lauderdale, FL | reply to joebear29
quote:
An advertisement is not an offer.
Of course it is. If a car dealership offers to sell an automobile for a specific price, they are obligated to do so. Failure to honor their offer would not only be false advertising, but a potential buyer could sue for "specific performance", meaning the judge could/would order them to complete the transaction. quote:
The consumer cannot accept the Comcast's ad as the offer, instead they must accepting the specific contract terms they agree to with Comcast.
Exactly. The problem here is that Comcast's contract terms are not specific. quote:
And where did you get business's have lost the right to refuse service?
Simple. A consumer sues a company for failing to provide a product or service that is offered to the public. Do you think a judge would be satisfied with the defendant's response, "We reserve the right to refuse service to anyone?" I don't think so. I believe it would go further than that, and that a reasonable explanation would be required. If the consumer meets all of the qualifying terms, e.g., ability to pay, etc., I believe the ruling would be in favor of the plaintiff. Nothing is absolute in the law. That's why we have a court system, and why this particular instance is causing so much controversy. This is my opinion, nothing else.
--
Anything that ever was, was once a dream... | |
| said by tomsprat:
quote:
An advertisement is not an offer.
Of course it is. If a car dealership offers to sell an automobile for a specific price, they are obligated to do so. Failure to honor their offer would not only be false advertising, but a potential buyer could sue for "specific performance", meaning the judge could/would order them to complete the transaction.
That is simply wrong. That was one point hammered into me when I studied the legal section for the CPA. False advertising is illegal, but you could not sue for breach of contract because there is no contract. But why take my word for it?
»www.west.net/~smith/offer.htm#Carbolic
"Q. Can an advertisement constitute an offer?
A. In the absence of special circumstances an advertisement is not an offer but rather only an invitation to deal. (Craft v. Elder & Johnston Co. (1941 Ct. Appeal, OH) 38 N.E.2d 416).
However, where the offer is clear, definite and explicit and leaves nothing open for negotiation, it constitutes an offer acceptance of which will complete the contract. (Lefkowitz v. Great Minneapolis Surplus Store, 86 N.W.2d 689 (Minn.1957).)"
No court would ever find an ad for Internet service "clear, definite and explicit" since their are too many variables to cover in the ad. That is why there is a contract/TOS/AUP.
quote:
quote:
The consumer cannot accept the Comcast's ad as the offer, instead they must accepting the specific contract terms they agree to with Comcast.
Exactly. The problem here is that Comcast's contract terms are not specific.
There is no requirement contract terms be specific. If they are not specific the court would seek a reasonable interpetation.
quote:
quote:
And where did you get business's have lost the right to refuse service?
Simple. A consumer sues a company for failing to provide a product or service that is offered to the public. Do you think a judge would be satisfied with the defendant's response, "We reserve the right to refuse service to anyone?" I don't think so. I believe it would go further than that, and that a reasonable explanation would be required. If the consumer meets all of the qualifying terms, e.g., ability to pay, etc., I believe the ruling would be in favor of the plaintiff. Nothing is absolute in the law. That's why we have a court system, and why this particular instance is causing so much controversy. This is my opinion, nothing else.
So you are basing that on your belief it would not be fair? I was hoping for something more concrete. | |
| reply to joebear29
joebeear we are lucky that our isp isn't a pain like comcast, i sometime leech 200gb a month,othertimes it like 45-60gb. with all this bi*ching and whining moaning it driving me crazy man.
comprende?
oh yea, its greed...nothing else. | |
tomspratDraw Me A "Cold One"Premium,ExMod 2002-04
join:2000-11-03
Fort Lauderdale, FL
| reply to joebear29
said by joebear29:
said by tomsprat:
quote:
An advertisement is not an offer.
Of course it is. If a car dealership offers to sell an automobile for a specific price, they are obligated to do so. Failure to honor their offer would not only be false advertising, but a potential buyer could sue for "specific performance", meaning the judge could/would order them to complete the transaction.
That is simply wrong. That was one point hammered into me when I studied the legal section for the CPA. False advertising is illegal, but you could not sue for breach of contract because there is no contract. But why take my word for it?
»www.west.net/~smith/offer.htm#Carbolic
"Q. Can an advertisement constitute an offer?
A. In the absence of special circumstances an advertisement is not an offer but rather only an invitation to deal. (Craft v. Elder & Johnston Co. (1941 Ct. Appeal, OH) 38 N.E.2d 416).
However, where the offer is clear, definite and explicit and leaves nothing open for negotiation, it constitutes an offer acceptance of which will complete the contract. (Lefkowitz v. Great Minneapolis Surplus Store, 86 N.W.2d 689 (Minn.1957).)"
No court would ever find an ad for Internet service "clear, definite and explicit" since their are too many variables to cover in the ad. That is why there is a contract/TOS/AUP.
quote:
quote:
The consumer cannot accept the Comcast's ad as the offer, instead they must accepting the specific contract terms they agree to with Comcast.
Exactly. The problem here is that Comcast's contract terms are not specific.
There is no requirement contract terms be specific. If they are not specific the court would seek a reasonable interpetation.
quote:
quote:
And where did you get business's have lost the right to refuse service?
Simple. A consumer sues a company for failing to provide a product or service that is offered to the public. Do you think a judge would be satisfied with the defendant's response, "We reserve the right to refuse service to anyone?" I don't think so. I believe it would go further than that, and that a reasonable explanation would be required. If the consumer meets all of the qualifying terms, e.g., ability to pay, etc., I believe the ruling would be in favor of the plaintiff. Nothing is absolute in the law. That's why we have a court system, and why this particular instance is causing so much controversy. This is my opinion, nothing else.
So you are basing that on your belief it would not be fair? I was hoping for something more concrete.
Sorry, but I think you're wrong on all counts. Your legal reference makes my point quite clear re: offer and acceptance. "Unlimited" is specific, as is the price and service. Limiting what is advertised as "unlimited", without a specified amount, is arbitrary and directly contradicts the advertised offer which, by the way, was accepted by the customer, therefore, constituting a contract.
If you want concrete rules, I'd suggest sticking with accounting. The law has, and always will be, open to interpretation.
--
Anything that ever was, was once a dream...
[text was edited by author 2003-09-15 21:58:51] | |
DesdinovaPremium
join:2003-01-26
Gaithersburg, MD | reply to trisomy
There are a number of places where "we retain the right to refuse service" still holds up, but the main one I can think of are movie theatres. I've worked in theatres for over twenty years and if you read the back of your movie ticket, there is usually fine print (I've never seen one that DIDN'T have it but they may be out there) that states the theatre has the right to refuse admittance to any one we don't want to let in. We do have to sell them a ticket, but we don't have to let them in with it. I've had to utilize this on numerous occasions where individuals who were roaringly drunk tried to go see a movie and were causing problems before they even got into the lobby. This loophole is also used to avoid admittance to an R or NC-17 rated film to someone underage (or who cannot prove their age). Though film rating restrictions are not enforcible by law, theatres HAVE been successfully sued for letting underage kids into R rated films and we have to cover our butts from overzealous parents. Granted, none of this has anything to do with Comcast, but does touch on what you two folks were discussing. | |
trisomyPremium
join:2002-05-23
Katy, TX | I absolutely agree with you which is why I said what I did to Tom, "an offer to provide is not an obligation". Further, as is this case with Comcast, "an offer to lease monthly does not obligate Comcast beyond the period for which the offer was extended and after having warned the lessee of such in advance".
Why the expression of 'righteous indignation' and the predictable discussion of litigation given the circumstances as they appear in this situation elude me. However, I suspect that eventually someone will successfully compel some company somewhere in America to more rigidly define something that appears so abundantly evident and elementary.
Likely these statements will result in the label of 'shill' or 'troll' however I would prefer that my horizons are less than more obstructed with rhetorical signage.
Thank you for your example and taking the time to express a rational experience. However beware, there are likely some who will read your posting and rush to Maryland to 'test the limits' of sensible conduct! | |
 ravitalJust Another Pesky Independent Nh VoterPremium
join:2001-07-19
Merrimack, NH | reply to tomsprat
said by tomsprat:
I would have to do some research to make certain of this, but I believe the days of "we reserve the right to refuse service to anyone", are long gone.
Sorry, if my restaurant is my private restaurant, and I don't want redheads in it (just a hypothetical, you understand), it's my right to refuse to serve them, and the only redheads that I'm forced to admit into my private restaurants would be the ones carrying a badge and a warrant. | |
ravitalJust Another Pesky Independent Nh VoterPremium
join:2001-07-19
Merrimack, NH | reply to tomsprat
said by tomsprat:
quote:
And where did you get business's have lost the right to refuse service?
Simple. A consumer sues a company for failing to provide a product or service that is offered to the public. Do you think a judge would be satisfied with the defendant's response, "We reserve the right to refuse service to anyone?" I don't think so. I believe it would go further than that, and that a reasonable explanation would be required. If the consumer meets all of the qualifying terms, e.g., ability to pay, etc., I believe the ruling would be in favor of the plaintiff. Nothing is absolute in the law. That's why we have a court system, and why this particular instance is causing so much controversy. This is my opinion, nothing else.
A bank offering loans is not allowed to discriminate on the basis of race, but it is perfectly allowed to discriminate on the basis of income, ability to repay, collateral, etc. A landlord can't refuse to rent you an apartment because he doesn't like your face or because you and your significant other "live in sin," but is perfectly allowed (some would say obligated) to refuse you if you have a criminal record or if your behavior is a nuisance to other tenants. An ISP should be, and evidently is, allowed to do the same with a subscriber that impacts the performance of the network and the experience of other subscribers who pay as much as he does. | | |
|
| said by ravital:
A landlord can't refuse to rent you an apartment because he doesn't like your face or because you and your significant other "live in sin," but is perfectly allowed (some would say obligated) to refuse you if you have a criminal record or if your behavior is a nuisance to other tenants.
Ah, but what if your landlord warns you, saying you're a nuisance to the other tenants but refuses to tell you specifically what you did so you can correct it? (Analogy being the cable company not revealing their download ceiling so the user can stay under it.) You try to be a better neighbor and turn your stereo down a bit, but get kicked out anyway for "being a bad neighbor" (no other explanation). Well, you'd have a right to sue and, at the very least, the landlord would have to reveal his criteria in court. The judge wouldn't simply accept "in my opinion he was being a bad neighbor."
--
-Jason Levine
http://www.jasons-toolbox.com/
http://www.PCQandA.com/
http://www.urateit.com/ | |
ravitalJust Another Pesky Independent Nh VoterPremium
join:2001-07-19
Merrimack, NH | said by Jason Levine:
Ah, but what if your landlord warns you, saying you're a nuisance to the other tenants but refuses to tell you specifically what you did so you can correct it? (Analogy being the cable company not revealing their download ceiling so the user can stay under it.) You try to be a better neighbor and turn your stereo down a bit, but get kicked out anyway for "being a bad neighbor" (no other explanation). Well, you'd have a right to sue and, at the very least, the landlord would have to reveal his criteria in court. The judge wouldn't simply accept "in my opinion he was being a bad neighbor."
The question was whether any business can refuse service at its discretion, and the fact is, it can. I doubt very much that once a subscriber to an ISP reduces his activity from the gargantuan levels that prompted the letter initially, the ISP would persist in pig-headed efforts to lose a paying subscriber. As to publishing the limit, yes, it would be nice, for those who can't exercise mature judgment, if they had a "posted limit" to refer to, but to anyone who believes a business exists for no purpose other than to serve them - REGARDLESS of how they impact the business's ability to serve others equally - I'll wager that a published limit won't improve their attitude any. | |
| said by ravital:
The question was whether any business can refuse service at its discretion, and the fact is, it can.
A business can refuse service, but they can also be brought to court where a judge might demand to know the criteria. They can't just tell you you've exceeded a limit that they refuse to specify and that doesn't appear in their TOS and then expect the user to just walk away.
--
-Jason Levine
http://www.jasons-toolbox.com/
http://www.PCQandA.com/
http://www.urateit.com/ | |
| said by Jason Levine:
said by ravital:
The question was whether any business can refuse service at its discretion, and the fact is, it can.
A business can refuse service, but they can also be brought to court where a judge might demand to know the criteria. They can't just tell you you've exceeded a limit that they refuse to specify and that doesn't appear in their TOS and then expect the user to just walk away.
I'm missing something. Under what basis would the consumer bring a ISP to court? There are only three I can think of:
1) Breach of contract - the contract says the ISP can terminate service at its discretion, and specifies the consumers use cannot place an undue burden on the network, an undue burden being decided at threir discretion. Breach of contract would get you nowhere.
2) Violating civil rights laws. As long as it's not because you are a member of a protected group (or disparite impact blah blah blah...) that your service got terminated (and its not) their is no basis there
In some areas (like renting apartments) there are local regulations that prevent business' from denying service without a reason or notice, but there are none that I know of for ISPs.
3) The business committed a tort by refusing to provide you further service. The problem is in order to commit a tort, the business would have had to owed you a duty. It had no duty to provide you service if it chose not to.
Am I missing something? What basis would you sue under? You say "a judge might demand to know the criteria". Before a judge would care, you would have to provide a reason the service could not be terminated. Judges don't make business' provide a service just because they feel the business is being mean or unreasonable in refusing to provide it. | |
| reply to tomsprat
said by tomsprat:
Sorry, but I think you're wrong on all counts. Your legal reference makes my point quite clear re: offer and acceptance. "Unlimited" is specific, as is the price and service. Limiting what is advertised as "unlimited", without a specified amount, is arbitrary and directly contradicts the advertised offer which, by the way, was accepted by the customer, therefore, constituting a contract.
If you want concrete rules, I'd suggest sticking with accounting. The law has, and always will be, open to interpretation.
--
Anything that ever was, was once a dream...
[text was edited by author 2003-09-15 21:58:51]
You can disagree with my interpretation. I don't think the term unlimited, in the context of Internet access, is specific at all. Does unlimited mean you can run servers, for example? I haven't seen the ad, so I can't comment on how specific the price or actual service provided was. Did it mention exact speeds? Did it mention specifics about the price, such as "access fees" for non-cable subscribers, or the specific price per month per service level? Did it mention at the end there were other terms and conditions?
I highly doubt the ad was anywhere close to specific enough to be a contract offer. I haven't seen the ad in question, but if it is anything like my local Charter's ad, it is pretty vague. Advertisement as an offer is the exception to the general rule, and it must be extremely specific.
[text was edited by author 2003-09-19 11:55:22] | |
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