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Bell claims your pay-per use arrangement is really a monthly package
January 28, 2015
By Celia Sankar
So you're a prepaid pay-per-use customer who uses the funds (known as “top-ups”) that you add to your account to purchase talk time, text messages, data usage, games, apps, ringtones, etc, whenever you want and in whatever quantity you choose.
Here's news for you: When you add a top-up to your account, you are NOT placing those funds into your account to use on pay-per-use basis for your pay-per-use services.
What you are actually doing when you add a top-up to your pay-per-use account is that you are immediately paying a flat fee for, say, 30 days of access to the wireless network for a predetermined range and quantity of services (referred to as “usage limits”).
Sounds crazy huh?
Well as ludicrous as that statement is, it is exactly the argument that Bell Mobility made before an Ontario Superior Court judge in Toronto, today.
The class action lawsuit on behalf of over a million Bell Mobility, Virgin Mobile Canada and Solo Mobile prepaid wireless, pay-per-use consumers (in which I am the lead plaintiff), finally came up for hearing, today, before Justice Edward Belobaba.
Our lawyers are arguing that Bell acted illegally when it placed expiry dates on funds in the pay-per-use accounts of its prepaid wireless customers.
This is because Ontario's consumer protection laws state that no supplier can put expiry dates on “gift card” agreements, and our lawyers argue that Bell's prepaid wireless, pay-per-use services fall under the definition of gift card agreements in the legislation.
(There's another argument about breach of contract, which we'll look at in another post.)
Let's say a supplier makes the following offer to consumers: “Hey, hand me your cash, and I'll keep a record of that cash in the form of a voucher or electronic credits. You can then use the voucher or electronic credits to select goods and services from among the variety of goods and services that you'd like to buy from me -- when in the future you're ready to make your purchase.”
In such a scenario, Ontario's consumer protection laws say no supplier can place an expiry date on the voucher or electronic credits. This is because the voucher or electronic credits now serve as cash. Cash does not expire, and neither should a cash equivalent.
So, how does Bell's prepaid wireless services arrangement compare with this scenario that the laws contemplate?
Let's deal first with what in my and imagine in your opinion, as well, is the reality, then we'll take a closer look at Bell's twist on that reality in Court today.
Well, as prepaid wireless pay-per-use customers, we know that we hand over our cash to Bell because Bell tells us it will keep a record of our cash in the form of electronic credits (those “top-ups”). Bell also tells us that we can use those top-ups to purchase talk time, text messaging, data usage, games, apps, etc. Furthermore, Bell doesn't place any restriction on how much talk time, or how many messages, or games or apps we can buy. It is all left up to us to choose what services and goods to buy, and when to buy them, with the cost of each service or good being deducted from our accounts at the actual moment of purchase.
If you think this sounds exactly like the kind of arrangement on which the law says expiry dates are prohibited, you might be on to something.
But, today, Bell told the Court that this is NOT how their prepaid wireless, pay-per-use service functions at all.
Bell's lawyer stood up and told the judge that even though you are a pay-per-use customer, when you add a top-up to your account, you are paying outright, there and then, for “access to the wireless network” for specified usage limits.
Here's what's really galling about this. Bell and Bell's lawyers know or ought to know that there are two distinct types of prepaid wireless business models. Just like you do, as well, I'm sure.
Bell's marketing materials, which were shown to the Court, clearly show that one of their offers is the prepaid, pay-per-use arrangement -- the one which you chose because you wanted the flexibility to have credits to use to buy the services and goods you wanted, in what quantity you wanted, and when you wanted.
Bell's other promotional materials clearly show, too, that there is another type of prepaid wireless services arrangement which is a monthly package. You're probably like me in that you read or heard about that inflexible offer and rejected it completely, and chose the pay-per-use arrangement instead.
With the prepaid monthly package, Bell says, “Hey, give us your cash, and we'll give you, say, 30 days of access to the wireless network in which to make, say, 30-minutes of voice calls, send 20 texts, and use 10 MB of data.”
Bell is fully entitled to make such a prepaid contract with consumers for a fixed period of access to the network for a predetermined range and quantity of services.
But that has nothing to do with our lawsuit concerning pay-per-use services.
The prepaid wireless pay-per-use arrangement is offered as an alternative to the prepaid wireless monthly package: the two are not one and the same.
But Bell's lawyer got up in Court today and tried to convince the judge that your pay-per-use arrangement is actually a monthly package.
Strange stuff, huh?
Anyway, the Court has before it all the evidence of the offer that Bell actually made to us, as well as written and oral arguments from our lawyers that show that Bell contracted to provide us with wireless services on a pay-per-use basis. We now have to await the judge's decision on whether he agrees that our prepaid wireless, pay-per-use services do indeed fall under the definition of a “gift card” agreement and that we're entitled to a refund of money Bell unlawfully took from us on the purported expiry date.
We shall not have long to wait.
Justice Belobaba said we can expect to hear his decision before the end of February.
Look out for an update at this site.