"If you're not a lawyer, you may not be able to make any sense out of the terms of service that some companies write," notes Jack Lerner, a professor at USC Gould School of Law who specializes in technology and intellectual property issues. "It's not that it's hard to write something more specific, but many companies don't want to do that. They want to have flexibility."
Using vague and confusing language to maintain that flexibility can cause a company to run afoul of the Federal Trade Commission's regulations. Section 5 of the FTC Act prohibits a company from "engaging in unfair or deceptive acts or practices in interstate commerce." And, depending on the situation, burying a disclaimer in the terms of service can be considered deceptive.
"Any qualifications or disclaimers needed to prevent a main claim from being misleading must be clear and prominent," says the FTC's Claudia Bourne Farrell. "We have lots of cases where we've alleged that purported qualifiers were inadequately disclosed when buried in terms of service or end-user license agreements."
Most technology service providers maintain that their terms of service or acceptable-use policies are made easily available to all of their subscribers. Clearwire's Enraght-Moony says the company's tagline--"We're different because we're clear"--reflects its promise to its users.
"We're committed to transparency," he says. " People worry about hidden caps and fees, but we work hard every day to keep our policies clear. If there were examples where consumers say we're not being clear, my number one priority would be to fix it."
Yet most service providers also say that users have to claim some responsibility, too. The first step is reading the terms of service--something that far too many users fail to do. Beyond that, customers need to use at least a small dose of common sense.
"Do I think [consumers are] aware? I think consumers are aware of what normal consumer behavior is. I think if someone is using a residential phone service to run a business, they know they're running a business," says Mike Tempora, senior vice president of product management for Vonage.
Vonage offers a number of Voice-over-IP calling plans that allow unlimited national and international calling for residential users; it also offers plans for business users. The company's terms of service state that you must use the service in a "normal" way for the plan to which you've subscribed.
"We don't define our policies based on the amount of minutes a user uses. We have more sophisticated criteria; there are a range of factors that we use, factors that would indicate that someone is using the service inappropriately," Tempora says.
Many users would beg to differ, however. Vonage's own forums are full of posts from users complaining that their accounts were switched from unlimited home plans to more-expensive business plans after they exceeded a certain number of minutes a month. One poster even writes that Vonage's own customer service told him that his unlimited residential plan was limited to 3000 minutes per month.
Vonage's Tempora defends the company's actions. "We're not trying to be cute with our customers about what 'unlimited' means. If you intend to call your family in the Philippines for hours and hours, you can. But if you intend to run a business, you need a different plan," he says.
Spell It Out
While consumers must shoulder some of the burden by (at the very least) reading the terms of service, the onus ultimately falls on the business that is offering the unlimited service, USC's Lerner says. "Companies really just need to bite the bullet and take a stand. They need to spell out exactly what they're providing," he says.
One company that ended up doing just that was VoIP provider Ooma. The company addressed some of the questions surrounding its unlimited offering on its company blog, in a post that explains why "minutes per month are discussed as part of an unlimited service." The blog post explains that if a user is consistently exceeding 5000 minutes per month on a residential plan, it "sets off a red flag" that the user in question may be using the service for business instead.
"We try to be very forthright about communicating," says Jim Gustke, Ooma's vice president of marketing. "In the end we want people to understand what they're buying, and be satisfied with what they get."
User satisfaction is the biggest reason companies offer unlimited services. Users don't want to count voice minutes when they're making phone calls, or to worry about gigabytes when they're backing up data, or to count megabytes when they're streaming a movie online, providers agree. People want the ease and simplicity that an unlimited service can offer. But for now, at least, they'll also have to put up with the limitations that come along for the ride.
Have you had any experience with a service that limits what it claimed was unlimited? We'd love to hear about it in the comments area below.