July 25, 2008 at 8:00 AM ET
When Marco Zaldivar purchased four T-Mobile cell phones for his family a few years ago, he had no interest in text messages. They came anyway, and by 2007 unwanted texts were adding $20 to $30 to his bill every month, he claims. When he asked T-Mobile to shut off text service, the firm said that was impossible. Instead, he was given a Hobson's choice -- either sign up for a bundled text message plan with a monthly fee, pay $800 in early termination fees to cancel the service or turn the phones off for the remainder of his two-year contract.
Zaldivar decided on a fourth option -- he's suing T-Mobile for violating consumer protection laws. The lawsuit, which seeks class-action status, got a small green light last week from a U.S. District Court in Seattle, which rejected T-Mobile's motion to dismiss the case.
"When T-Mobile customer service told me I could always take the battery out of my phone to avoid the charges, I couldn't believe this was happening to me," Zaldivar, a corrections officer in California, said in an e-mail statement to msnbc.com. "It left me no choice but to try to stand up for myself, and others in the same situation.”
A number of the texts received by Zaldivar were unsolicited advertisements, said Zaldivar’s lawyer, Jeff Friedman. Even when unopened, his client was still charged for the messages, he said.
T-Mobile said it would not comment on the lawsuit, but a spokeswoman said the company has recently added a feature that allows consumers to essentially turn off texting.
"T-Mobile is committed to providing the best customer experience in wireless and does offer customers the ability to block chargeable text messages," the spokeswoman said. "T-Mobile also has extensive filters built into the network to help detect and block spam text messages being sent to customer’s handsets that originate from internet IP addresses.”
Last year, when the Red Tape Chronicles explored the topic of text message spam, a T-Mobile spokesman said text message service could not be shut off because it was used for internal billing purposes.
"The text messaging feature on your account is actually a mandatory feature and cannot be removed,” the spokesman said. “This feature is needed because it’s where voice mail and billing notifications are delivered."
If Zaldivar’s lawsuit is given class-action status, T-Mobile could have a large case on its hands.
Friedman said about 17 million of the 27 million T-Mobile customers are not signed up for a text message bundle currently, and about 4 million of them have never sent a text message, indicating their lack of interest in text service. The lawsuit will attempt to include all those consumers in the class.
T-Mobile would not discuss how many subscribers pay for text message bundles.
The lawsuit maintains that T-Mobile, which is based in Bellevue, Wash., made text service "mandatory," while never making that pre-condition "clear and conspicuous" in its contracts. That violates Washington state's consumer protection laws, the lawsuit alleges.
"This is a matter of a long line of abuses, where people with the carrier have very little choice," Friedman said. "(Zaldivar) was damned if he did and damned if he didn't. He felt trapped, and that he was put in an unfair position."
Verizon, AT&T and Sprint allow consumers to shut down delivery of unwanted text messages.
The T-Mobile lawsuit comes at a time when all carriers are turning up the heat on consumers to sign up for monthly text bundles. In August, T-Mobile will increase its basic text message cost by 33 percent, from 15 cents to 20 cents per message. Other carriers made that jump earlier this year.
Consumers can avoid those high prices by signing up for a bundle -- 400 messages for $5 a month, for example.
Critics say the basic price of text messages is excessive compared to other cell phone data-related charges. Because they carry only 160 text characters, text messages consume a tiny amount of bandwidth -- about 1/4000th as much as a typical song, according to the blog GThing.net. But downloading a 4-megabyte song costs only about $1 on a standard cell phone data download service -- or roughly five times the price of a single text message. At test message prices, music downloads would cost almost $6,000 each, the site argues. You can double-check the Gthing.net math here.
And remember, cell phone companies make 20 cents twice on each message -- when it's sent, and when it's received.
Friedman says he expects a federal judge to rule on certification of the proposed lawsuit class by the end of the year.
RED TAPE WRESTLING TIPS• Many people are signed up for a per-message text plan and don’t realize it. If that’s you, shut it off now, before you get a bunch of text spam. Check with your provider. Now with T-Mobile on board, all the major providers essentially let you shut off texting.
• For most people, even light users, it’s worth signing up for at least a small text bundle. They are reasonably priced -- as little as $3 per month – and act like insurance for that one month you are stuck in a train tunnel and find yourself sending 15 or 20 text messages. It’s odd for me to be recommending that you sign up for a service with a fee like that, but that’s just the way cell phone math works right now.
• If you have teenagers, seriously consider plans with unlimited text messages. Youngsters are capable of sending incredible numbers of text messages, so you’re best off insuring yourself against that.
• Even with an unlimited plan, you can still end up paying a lot for text messages – so-called “premium text messages” -- which can cost $1-$10 each. These are texts sent to or from special subscription services, like dating services. One consumer who wrote to Red Tape found himself on the long end of a $10,000 bill not long ago. Even if you use text messaging, you should consider calling your carrier and asking that premium texting be disabled.