The Ever-Shrinking Communications Services Contract

If you sign any kind of communications services contract, then you best be aware of how to cope with hidden agreements and their increasingly hostile terms.

A good client recently told me about a letter he'd received from a local communications vendor informing him that it would no longer be providing a particular service and that as a result he would need to find a replacement provider ASAP. But the communications vendor wasn't shutting its doors, only changing the branding on some of its offerings, and so my client had hoped to remain as a customer of that provider since the service had worked well for it.

Complicated? It shouldn't have been. But this particular case has been a nightmare... as well as a wake-up call with a grand takeaway for anyone who signs agreements for any kind of communications services.

First, trying to get someone from the vendor to respond to my inquiry took three calls to the New York Public Service Commission as I sought somebody to discuss the current account. Eventually I found an account executive who could talk (and it wasn't a complicated ask). She informed me that the service in question would still be available, but under slightly different terms requiring a new agreement in order to secure most favorable pricing. I asked for the agreement, and she assured me it would be forthcoming. Three weeks later, after requesting that the vendor send me the agreement by carrier pigeon if nothing else worked, I received a one-page document. It contained no pricing, only discounts (% off of what?!), and it referenced terms and conditions located at www.xxxbusiness.com/about-us/legal/terms.

Being at least somewhat conversant with the Internet, I headed to the URL to find out the real terms of the agreement. It's not unusual for a carrier to post the more arcane terms of an agreement on a hard-to-locate website. What was unusual in this case is that virtually everything dealing with the agreement is on the website, and virtually nothing is in the agreement that my client was asked to sign.

Ever since the '80s when Service Guides replaced tariffs, "communications providers have been forcing customers to play 'Where's Waldo' to locate the actual terms they are signing up for," Hank Levine, an eminently quotable Yoda to all telecom attorneys, told me. "The important stuff is buried several levels down in obscure websites. You can negotiate most of these terms, but you have to find them first. What's new is that in some cases virtually every term is being treated this way," added Hank, who has been negotiating enterprise telecom deals for 30 years.

The hidden but posted information, once found, tends to be chock-full of nasty provisions that generally go overlooked until an enterprise consumer has a problem -- at which point, of course, it's too late. But I digress. Here's the point -- having essentially no relevant information on the document to be signed and everything relevant buried elsewhere takes this practice, which is deceptive on a good day, to a new low.

If and when you, as an enterprise consumer, notice that proposed agreements are getting very thin, a quick rundown of these four best practices might prove extremely helpful.

1. Ask, "Where are the terms?" Do not accept "at www.carriername.com" as your answer.
2. Once you've found the terms, make sure to read them thoroughly or, better yet, run them by an attorney who understands where to find the buried bodies.
3. In reading the terms, identify those that are simply not acceptable (by way of example, consider provisions that involve notice in the event of terms change, "click wrap" licenses, force majeure and toll fraud, dispute, suspension/termination, and payment terms, among others). Only once someone who understands the issues has vetted the proposed agreement can an enterprise consumer have any hope of negotiating an agreement that is even remotely fair.
4. Don't blame the account exec. He or she is likely more in the dark about what's contained in these provisions than you are. It's not his or her fault that the terms are lopsided in favor of the provider. But leveraging the account exec's interest in getting the deal signed to locate and negotiate those terms isn't unfair.

It's not likely that you'll get everything that seems fair as you negotiate terms. But neither is it unreasonable to expect that you'll find at least some relief from harsh terms... terms that many enterprise consumers never discover until they're in need of relief and find they missed the opportunity to get it before having signed on the dotted line. A shorter agreement is not necessarily a better one.

Apparel retailer Sy Syms was famous for saying, "an educated consumer is our best customer." In telecom, as in clothing, the phrase rings true.