SNA1K

If you get a surprise, challenge it. I've been using the $15 option with my Moto Q for about a year now--they know it's used as a modem, they helped load the software for it, they helped configure things, they've taken a support call when it stopped working... It works great in the US and Canada (although I do get hit with data roaming in Canada).

Landing Gear

I would trust your knowledge of the law as well--provided you could assure me that you read your VZW agreement and it contains a) no "merger" clause; and b) no clause barring any modification except in writing.

I can tell you that I have asked about five different reps either in VZW company stores here or on telephone customer service and each has said that if you connect your cell phone to the computer for the purpose of downloading data, you are liable for the same cost as if you used the EV-DO card.

As a previous poster mentioned, there are extensive discussions of this subject at http://www.howardforums.com.

Here's an interesting question: how did you get the software to enable EV-DO on your laptop?

PTravel

As I said, as a matter of law, I can reasonably rely on what I'm told by the reps. I have no written agreement with Verizon with respect to the added V-cast service. They told me the terms, I agreed, they added the service. I have an enforceable agreement.

Landing Gear

You do have an agreement with VZW with respect to the use of a telephone handset. Perhaps you might wish to review it.

PTravel

Merger clauses apply to prior agreements, not mutual modifications post-execution.

And I can only tell you the law. Whether or not Verizon will comply with the law is a different question. I'm in a better position than most to ensure that, at least with respect to me, they do.

I'm aware of them.

EVDO is the packet data system (actually one of the packet data system) that Verizon uses. It's not on the laptop, but a hardware capability built into the phone. I installed the phone as a Bluetooth device using Window's Bluetooth management software. Once it was installed, Windows detected the available services, which included modem service and installed the phone as a modem device. Once it was installed, I configured a dial-up connection using the phone. When I want to access the internet, I just treat it as any dial-up connection. The "dial-up number" and username and password format are well documented at, among other places, Howard Forums.

The rep did tell me that I should use Verizon's software which I could download from Verizon's website. There's no reason in the world why I would want to do this.

Landing Gear

Is there a clause in the original VZW agreement that says that it may not be modified except by a signed writing? Yes or no.

PTravel

I really don't understand why people like to argue the law with me. Okay, Contracts 101:

An agreement can be mutually modified after it's been executed.

Modifications to contract are enforceable when supported by consideration.

Modifications to contract are enforceable when unsupported by consideration if there has been detrimental reliance by a party under the doctrine of promissory estoppel.

Verbal contracts are enforceable under California law as long as they don't involve an interest in real property or have a value over $500 (Statute of Frauds).

Agents have the power to bind the principle.

Even when agents exceed the scope of their agency, if they hold themselves out as having the power to bind the principal, and the principle has constructive or actual knowledge that they have, they are ostensible agents and can bind the principal.

Even in the absence of an enforceable agreement, reasonable reliance on a representation by a party that results in a change of position by the person doing the relying can result in an enforceable agreement under the doctrine of equitable estoppel.

Okay?

PTravel

It doesn't matter because a mutual agreement to modify the contract is enforceable EVEN if has a modification in writing provision.

Landing Gear

Do you think you're Chief Justice Roberts? News flash: you're not the only lawyer here.

Not in my law school.

Only if done according to the terms of the agreement or by operation of law.

Again, that depends how the purported modification was made.

Fascinating. And does the law governing the contract allow for the doctrine? It was abolished here in New York many years ago, for example.

I presume you mean ORAL contracts. Surely you know the difference between "oral" and "verbal."

By the way, who said California law was the law governing the contract?

Absolutely. Is a telephone customer service representative an "agent" of the corporation for this purpose?

Nice argument. And when asked for a showing of facts in response to a motion to dismiss, you know this how?

Maybe in California, but, again, who says California law governs?

No.

Landing Gear

You seem to be saying that if a written contract has a provision that it can only be modifidied in writing that it can be modified orally.

If this is what you are saying, then again, California must have a different version of contracts laws than the generally accepted view across the United States.

PTravel

Maybe not. However, I'm more than comfortable with my understanding of contract law, thank you.

I won't speak to New York law because I'm not licensed in that jurisdiction. Promissory estoppel is a common law doctrine followed in most jurisdictions, and most definitely in California.

I do and was only paying half-attention to what I'm writing. I'm gratified though that you're around to proof-read my writing.

The last time I had a question regarding Verizon, I had looked at the subscriber agreement.

Of course.

"Motion to dismiss"? On what grounds would you make a motion to dismiss? Ostensible authority is a question of fact for the trier-of-fact, and would never be raised in the context of a motion to dismiss.

I do.

How long have you been practicing? What kind of law do you do?

PTravel

Yep. That's what I'm saying. If a party wants to dispute the oral modification, they can do so based on the written modification provision, but parties most certainly can modify agreements containing such terms orally. As I said, Contracts 101.

This is common law, is the law of most jurisdictions and, absent a statutory exception to the contrary, would almost certainly be the law in New York as well.

Landing Gear

For 12 years longer that you. And I practice RE, contracts and related litigation. Maybe you'd like to take a CLE I chair. Oh, but wait, you practice IP. . .which this is not.

But let's cut to the chase for the benefit of the FT members here.

If VZW catches a subscriber using a phone as a modem, they will either bill you at their data rate or cut off your account or both. Certainly if they bill you at their data rate and you refuse to pay it, they will disconnect your account.

What are you going to do then?

How many otherwise billable hours will you spend on this?

Let me save you an effort. Call a New York lawyer tomorrow and ask what Verizon's reputation is locally (after all, Verizon Corp. is headquartered in New York and VZW in New Jersey) for settling matters.

Save your arguments for when you get in front of a judge. It's a much better use of your time.

Doppy

That's all fine, but I don't see it as a reason to get so upset with the OP. It's his problem and he's the one dealing with the consequences, so who cares?

PTravel

Why in the world would I want to consult a New York lawyer if choice of law is CA and VZW is headquartered in NJ?

I'm not going to argue with you at all. You're the one who picked this fight and, sorry, (and I'll be kind here), my analysis . . . differs . . . from yours.