[hannah]

Under 47 USCS § 415, it is alleged that cell phone companies only have 2 years to sue you on a cell phone bill. This came up at another forum and I just had to go look it up.

If this is so, then JDB's can't collect after 2 years either UNLESS they can prove a written contract as generally you sign a contract for cell phone service. Right? Or would it statutorily be the 2 years?

What do you all think?

Statute is below.

§ 415. Limitations of actions

(a) Recovery of charges by carrier. All actions at law by carriers for recovery of their lawful charges, or any part thereof, shall be begun, within two years from the time the cause of action accrues, and not after.

(b) Recovery of damages. All complaints against carriers for the recovery of damages not based on overcharges shall be filed with the Commission within two years from the time the cause of action accrues, and not after, subject to subsection (d) of this section.

(c) Recovery of overcharges. For recovery of overcharges action at law shall be begun or complaint filed with the Commission against carriers within two years from the time the cause of action accrues, and not after, subject to subsection (d) of this section, except that if claim for the overcharge has been presented in writing to the carrier within the two-year period of limitation said period shall be extended to include two years from the time notice in writing is given by the carrier to the claimant of disallowance of the claim, or any part or parts thereof, specified in the notice.

(d) Extension. If on or before expiration of the period of limitation in subsection (b) or (c) a carrier begins action under subsection (a) for recovery of lawful charges in respect of the same service, or, without beginning action, collects charges in respect of that service, said period of limitation shall be extended to include ninety days from the time such action is begun or such charges are collected by the carrier.

(e) Accrual of cause of action for transmission of message. The cause of action in respect of the transmission of a message shall, for the purposes of this section, be deemed to accrue upon delivery or tender of delivery thereof by the carrier, and not after.

(f) Enforcement petition. A petition for the enforcement of an order of the Commissioner for the payment of money shall be filed in the district court or the State court within one year from the date of the order, and not after.

(g) "Overcharges" defined. The term "overcharges" as used in this section shall be deemed to mean charges for services in excess of those applicable thereto under the schedules of charges lawfully on file with the Commissioner.

[jlynn]

What is the statute's definition of a carrier?

[hannah]

Originally Posted by jlynn

What is the statute's definition of a carrier?

I know what you are thinking cause I went down that road too. You are thinking that a carrier sells to service providers and the service providers sells to us, right? Definitions under the Telecommunications Act do not specify or at least none I can find.

[JayinGR]

Riverlady posted something like this on CIR...I don't quite get it, but I have not researched it either..

Her atty's from the NACA posted this on their site and they claim its only 2 yrs too....

[VexatiousLitigant]

So what do the annotated statutes have to say?

[drivel]

Don't worry about it, if you want it to be true, then its true.

[jlynn]

Originally Posted by drivel

Don't worry about it, if you want it to be true, then its true.

You are confusing us with another...

[hannah]

Originally Posted by VexatiousLitigant

So what do the annotated statutes have to say?

Annotations don't have any cases that were adjudicated from a end-use consumer since 1965. The Telecommunications Act has been updated several times since then, the last being 1996. The 2 year SOL was in the bill in 1938.

My fear is that even though the SOL may be 2 years, that was before the lengthy well-written CYA cell phone contracts. My own, if I defaulted, would come under the written contract SOL according to my contracts professor.

Annotations include:

Generally --

47 USCS § 415 bars claims not based on overcharges filed in the district court more than one year [now 2 years] after their accrual. Ward v Northern Ohio Tel. Co. (1966, ND Ohio) 251 F Supp 606, affd (1967, CA6 Ohio) 381 F2d 16.

Statute of limitations under 47 USCS § 415 defines time subsequent to "wrong" after which no action can be initiated and its application is not discretionary. Re Thornell Barnes Co., et al. (1965) 1 FCC2d 1247.

Claim, even if otherwise valid, is barred if complainant does not file subject complaint within one year (now 2 years) from time cause of action accrues. Re U. S. Cablevision Corp., et al. (1974) 46 FCC2d 704.

4. Applicability

Two-year statute of limitations provided in 47 USCS § 415(b) applies to civil rights claims against telephone company arising out of company's provision of equipment to police department which conducted illegal wiretapping. Pavlak v Church (1984, CA9 Idaho) 727 F2d 1425, 81 ALR Fed 691.

Limitations period contained in 47 USCS § 415(e) applies to actions brought by carrier's customers that allege breach of common carrier's obligation and not to action against customer. MCI Telecoms. Corp. v Teleconcepts (1995, CA3 NJ) 71 F3d 1086, 33 FR Serv 3d 687, cert den (1996) 519 US 815, 136 L Ed 2d 25, 117 S Ct 64.

Though primary jurisdiction referral of payphone service provider's (PSP) claims against local exchange carrier to FEC for resolution of whether failure to file new tariffs or data supporting existing tariffs gave rise to 47 USCS §§ 201(b), 276(a), 416(c) liability was appropriate, dismissal was not as action should have been stayed; because dismissal could result in 47 USCS § 415(b) statute of limitations bar to PSP's claims under waiver/refund order, and because 47 USCS § 207's election of forum provision might prevent PSP from seeking agency relief, claim should have been stayed due to potential for prejudice. Ton Servs. v Qwest Corp. (2007, CA10 Utah) 493 F3d 1225.

Statute of limitations provided in 47 USCS § 415(b) applies to claims filed in federal courts. US West, Inc. v Business Discount Plan, Inc. (2000, DC Colo) 196 FRD 576, 2000-2 CCH Trade Cases P 73098.

Statute of limitations for actions against common carriers set forth in Communications Act of 1934, specifically 47 USCS § 415(b), is intended to apply only to common carriers and is irrelevant to application of 47 USCS § 605 to non-carriers. Nat'l Satellite Sports, Inc. v Time Warner Entm't Co., L.P. (2003, SD NY) 255 F Supp 2d 307, 31 Media L R 1699, 66 USPQ2d 1777.

Court applied three-year statute of limitations set forth in Copyright Act, specifically 17 USCS § 507(b), to suit alleging violations of anti-piracy provisions of Communications Act of 1934; because defendant was broadcast company, not common carrier, two-year statute of limitations set forth in Communications Act of 1934, particularly 47 USCS § 415, did not apply. Nat'l Satellite Sports, Inc. v Time Warner Entm't Co., L.P. (2003, SD NY) 255 F Supp 2d 307, 31 Media L R 1699, 66 USPQ2d 1777.

Statutory limit of 47 USCS § 415 does not apply to Department of Defense. Re Dept. of Defense v A.T. & T. (1970) 22 FCC2d 66.

47 USCS § 415 applies exclusively as bar to recovery of damages; it does not operate as bar to other forms of relief which Commission may grant. Re Bunker Ramo Corp., et al (1971) 31 FCC2d 449.

47 USCS § 415(e) concerns carrier's liability to its customers for failure to transmit message in accordance with its common carrier obligation, and is irrelevant to complaints going to lawfulness of rates. Re MCI Telecommunications Corp. v Pacific Bell Tel. Co., et al, FCC 90-205 (Adopted May 25, 1990).

I found shorter periods are acceptable but nothing to establish longer ones.

Agreement to shorter limitations period

By contract to provide telecommunications services, parties may agree to limitations period shorter than 2-year period prescribed in 47 USCS § 415(b). MFS Int'l, Inc. v International Telecom, Ltd. (1999, ED Va) 50 F Supp 2d 517.

Carrier is defined under 47 USCS § 153 as:

(10) Common carrier. The term "common carrier" or "carrier" means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or in interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this Act; but a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier.

I have both annotated statutes if you'd like to see them. If so, email me at sosueme2006@yahoo.com and I'll send them to you.

[hannah]

Originally Posted by drivel

Don't worry about it, if you want it to be true, then its true.

Now now, driv! You know I don't work that way. Sometimes the law is ambiguous but never without remedy as to absolutes.

[VexatiousLitigant]

Originally Posted by hannah

My fear is that even though the SOL may be 2 years, that was before the lengthy well-written CYA cell phone contracts. My own, if I defaulted, would come under the written contract SOL according to my contracts professor.

What was his reasoning for that?

Also, this is another good tool for the toolbox vs a JDB. We all know what kind of difficulties they have in court introducing a contract.

This would be good vs JDBs being sued on accounts that were inside the written contract SOLC of your state, but past 2 years when all they have is account statements and such.

[hannah]

Originally Posted by VexatiousLitigant

What was his reasoning for that?

Duh, all the elements of a written contract?

• An Offer;
• An Acceptance in strict compliance with the terms of the offer in writing;
• Legal Purpose/Objective Mutuality of Obligation – aka a meeting of the minds;
• Consideration or promised consideration; and
• Competent Parties.

Originally Posted by VexatiousLitigant

Also, this is another good tool for the toolbox vs a JDB. We all know what kind of difficulties they have in court introducing a contract.

This would be good vs JDBs being sued on accounts that were inside the written contract SOLC of your state, but past 2 years when all they have is account statements and such.

Yes, I agree.

[VexatiousLitigant]

Originally Posted by hannah

Duh, all the elements of a written contract?

That's not what I'm asking.

What is his reasoning for saying contract SOLC applies and not whatever this other thing is, if both can potentially apply?

[hannah]

Originally Posted by VexatiousLitigant

That's not what I'm asking.

What is his reasoning for saying contract SOLC applies and not whatever this other thing is, if both can potentially apply?

A contract can include more than just the amount due for the actual phone calls made and received which he concluded may be under a 2 year SOL. BUT he said other parts of a written contract such as late fees, taxes, surcharges, insurance, and early termination fees are just some of the items included in cell phone contracts and for which you may still be liable for which would fall under written contract SOL if the creditor can prove the existance and extent of the contract in court. He also said that those "free" phones are also included in the cost of many cell phones contracts and you are only entitled to keep the "free" phone if you are still in good standing with the cell phone company. If you default before your contract is up, you may be liable for the cost of that "free" phone as well.

I'm just telling you what I was told by a bona fied contracts law professor so take it for what it's worth.

[VexatiousLitigant]

Gotcha.