TIA Telecommunities

A New Battle Front? August 22, 2007

Posted by ianmartinez in : General , trackback

Reading this BusinessWeek article today on dispute clauses in wireless contracts, it occurred to me that this kind of fight is increasingly the kind of fight we’re seeing in the legal world surrounding communications technology.

BusinessWeek’s Olga Kharif points out that:

While seemingly important matters like billing get only one paragraph, Verizon Wireless devotes six paragraphs to dispute resolution. At AT&T (T), the dispute section takes up 10 fat paragraphs and states: “You agree that, by entering into this Agreement, you and AT&T are each waiving the right to a trial by jury or to participate in a class action.”

Clearly, wireless carriers are concerned, if not worried, that the standing pre-contractual assumption is that consumers have the right to take their business elsewhere as they see fit, and that beyond that, can challenge any particular “loyalty” obligation within the contract in court — I don’t want to go so far as to say they’re acknowledging the outcome of such a challenge by trying to avoid them, but there’s at least a concern. Can wireless carriers claim to “own” their subscribers’ right to sue? One the one hand that sounds preposterous, and according to BusinessWeek the courts have agreed — but on the other hand, didn’t those subscribers sign away that right with their own hands?

We’re seeing similar questions — What is ownership? — in the digital rights space. Can iTunes tell you not to burn that 8th copy of your Medeski Martin and Wood CD, even if you’re a professor burning it to give to students in a jazz appreciation class? Ownership is also the fundamental question behind the net neutrality debate: Does AT&T “own” the content that passes over its wires while it’s actually doing the passing? Are there other ways to think about content-to-carrier-to-customer legal relationships?

As content diversifies and if the 700 MHz option lives up to the hype and delivers a third major provider, you’re going to see a cornucopia of variations of this theme. This puts vendors in an enviable position, because they don’t necessarily have a dog in the fight — they can sit back and watch the fireworks, and then build out to specifics of whoever wins.

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