A judge in California has ruled that Sprint Nextel's early termination fees are illegal and said the wireless operator should pay back $18.2 million in collected fees to consumers, a decision that could help sway decisions on similar cases throughout the country.
The preliminary decision released earlier this week is a major blow to Sprint and to other phone companies in their battle to defend themselves against angry consumers who say the fees imposed on them when they leave the companies' services are unlawful.
Verizon Wireless, which was also being sued in California, has already settled its case, agreeing to pay $21 million to settle all claims against the company. And after the decision against Sprint, there's a chance that cases against T-Mobile and AT&T could also be settled.
Early termination fees have been around almost as long as cell phone service. Wireless operators impose the fees, which can be as high as $200 per line, on customers who cancel service before their contracts have expired.
Phone companies say they must impose these fees to recover the cost of subsidizing handsets and for guaranteeing low monthly service charges. But consumer advocates don't buy that argument, and they say the fees are excessive and restrict customers' ability to switch services.
Cell phone users fed up with these fees took their complaints to a California court and formed a class in a lawsuit against the four major carriers in 2006. The court separated the cases and has been dealing with them individually.
Sprint initially won the first battle in its courtroom war. Alameda County Superior Court Judge Bonnie Sabraw had further split the case leaving a jury to answer the question of whether customers had in fact broken their contracts with Sprint. In June, the jury found that indeed customers had broken their contract with Sprint. The jury found that Sprint customers had paid $73.8 million in early termination fees, while the company had lost $225.7 million.
But it was the judge, herself, who decided whether or not the contracts were even legal. And earlier this week, Sabraw issued a preliminary finding that stated these contracts were not legal. She ordered Sprint to pay $18.2 million to customers who had already paid these fees. And she ordered the company to stop trying to collect the $54.7 million from other customers who haven't yet paid the charges they were assessed.
But it's still unclear if Sabraw's preliminary ruling will stand. Both parties in the suit have an opportunity to file additional arguments to sway the judge before she issues her final opinion.
"We are disappointed by the judge's tentative decision," Matt Sullivan, a spokesman for Sprint said. "But we are now focusing on our response to the court."
Legal experts say that even if she stands by her initial opinion, it's likely that Sprint will appeal the decision.
Sprint may also get relief from the federal government. The Federal Communications Commission is currently considering a proposal by chairman Kevin Martin, which would give the FCC authority to regulate these fees. It's also unclear how a move by the FCC might affect the current litigation.
In June, the FCC held a hearing in which unhappy customers and consumer advocates railed against the companies for their business practices. Chairman Martin said he believed the fees were excessive.
But Martin's proposal could retroactively exempt carriers from legal challenges at the state level. And in this case, it could potentially even void any decisions handed down in California.
Consumer advocates agree that something needs to be done to protect consumers from these fees. But Jay Edelson, a managing partner at the law firm KamberEdelson headquartered in Chicago, says that even if the federal government regulates the fees, wireless operators should be held accountable. Edelson, whose firm has represented clients trying to reclaim fees paid for erroneous charges on cell phone bills, was not involved in the early termination fee cases, but he has been watching the outcomes closely.
"Early termination fees are hurting consumers and they're illegal," Edelson said. "If the federal government takes jurisdiction and preempts states' authority, then there should be a federal law that replaces it and protects consumers."
Wireless operators say they are adapting their practices to customers' concerns, and they've begun adjusting their fees to prorate them so that customers who terminate later in their contract pay less. Verizon Wireless was the first to offer pro-rated early termination fees. And now AT&T and T-Mobile offer prorated rates. Sprint Nextel said it will offer prorated fees later this year.