MBS initially lost its argument that the voluntary paymentdoctrine precluded its phone cramming claims against defendants. The statesupreme court reversed and remanded because application of the voluntarypayment doctrine would undermine the core purposes of the anti-cramming statuteand remanded. On remand, the court ofappeals reinstated MBS’s various claims, including its general consumer protection law claim.
MBS alleged that defendants violated Wisconsin law bybilling MBS in a false, misleading, or deceptive manner; by omittinginformation necessary to ensure that statements in the phone bills were notfalse, deceptive or misleading; and by billing MBS for services that it did notaffirmatively order, and that were not required by law. One of the relevant sections of the law,titled “Advertising and sales representations” bars any false, misleading ordeceptive statement with regard to telecommunications services. MBS stated a claim under this section becausestating on a phone bill that a customer owes money for services the customerdid not authorize is false. The law wasn’t limited to telecom providers whodeal directly with customers, so if one defendant’s statements to WisconsinBell were false and that ended up harming MBS, there was a cause ofaction. Defendants argued that bills weren’t“advertisements” or “sales representations,” but the title of a statutorysection only matters if there’s ambiguity and the language actually usedcovered everything. Similarly, the claimfor violation of Wisconsin’s law against negative option billing or negativeenrollment in telecom services survived.
The trial court also dismissed the general state-law falseadvertising claim on the grounds that misleading bills weren’t advertisementsor sales promotions. However, the court of appeals pointed out that thelanguage of the statute is “extremely broad”:
No person . . . shall make,publish, disseminate, circulate, or place before the public, or cause, directlyor indirectly, to be made, published, disseminated, circulated, or placedbefore the public, in this state, in a newspaper, magazine or otherpublication, or in the form of a book, notice, handbill, poster, bill,circular, pamphlet, letter, sign, placard, card, label, or over any radio ortelevision station, or in any other way similar or dissimilar to the foregoing,an advertisement, announcement, statement or representation of any kind to thepublic . . . , which advertisement, announcement, statement or representationcontains any assertion, representation or statement of fact which is untrue,deceptive or misleading.
The plain language of the law showed that statements couldbe actionable even in bills or other documents not traditionally consideredads. Indeed, the statute lists “bill” asan example. (NB: I suspect this was another traditional/obsolete meaning of"bill." From the OED, “A written or printed advertisement to be passed from handto hand (hence also called hand-bill), or posted up or displayed in someprominent place; a poster, a placard.” This doesn’t mean I disagree with theoutcome.) The law included documents“similar or dissimilar ” to the enumerated items, so long as they containmisrepresentations. Thus, phone bills that induced MBS to pay for services itdid not authorize were among the prohibited misleading representations.
Defendants argued that MBS wasn’t the “public” because ofits contractual relationship with Wisconsin Bell, but the crux of the lawsuitwas that there was no contract in place with the defendants for the billedservices at issue. “[C]harges werebilled to a party who had never agreed to pay for them in the hope of trickingthat party into assuming a payment obligation.” That was within the intended ambit of the law. Nor did the voluntary payment doctrine barthe claims, since the doctrine was “at odds with the manifest purpose of thestatute,” which was to bar a broad range of false statements andmisrepresentations without requiring proof of common-law fraud.
The state-law little RICO claim also survived.
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