Missing Dog on Shelburne Road in South Burlington

By Pike | Published: April 19, 2010

Missing Dog -

The dog, Gus, is small (20-30 lbs) with tan short hair, black muzzle and dark Lab-like ears.

Gus jumped out of a car window on Tuesday afternoon in South Burlington on Shelburne Road.  He is a beloved family pet who is missed terribly by his family.

He is a friendly dog but very skittish.  He most likely is hungry by now and will seek out people for food.  He will try to run if you approach him too fast but if you are patient, and if you can tempt him with some food, he will come to you.

Unfortunately he did not have his collar on at the time he jumped so we are posting flyers around town and we have contacted all the local animal shelters as well as the police.  Any help would be greatly appreciated as he is part of the family!  If you live around this area or if you frequent this area and you spot Gus, please call Sarah Kaplan at 802-399-2726.
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AT&T’s Motion to Amend Findings and Order

By Pike | Published: March 31, 2010

AT&T Mobility has 30 days after the Court rules on its “Motion to Amend Findings and Order, and for Reconsideration” to respond to my “Motion for Summary Judgment”. I just filed my “Response to…Reconsideration” today so the clock has not yet begun to tick. I learned yesterday at my painting class that judges rotate every year in September. I’m not sure where they rotate to, but I assume that all action on the case between now and September will be in front of Judge Toor.

I don’t think their motion for reconsideration holds much weight—they cite two press releases and the Assurance of Discontinuance. They must not have much left to stand on if they introduce a document that suggests they tried to defraud Vermont customers.

I just noticed a typo in my response. I guess I’ll need to file an errata sheet—or whatever it might be called in the court system.

AT&T Motion to Amend Findings and for Reconsideration

Motion to DENY Reconsideration

Posted in AT$T Mobility Text Message Suit | 2 Comments

Court v. Arbitration

By Pike | Published: March 26, 2010

I see my case against AT&T for egregious violations of the TCPA and associated rules and regulations as something of a road map for the other 160,067 legacy Unicel customers.

And I’m a curious sort.

earlier this year, because I am still getting text messages from AT&T (the last one was confirming they received my request to arbitrate!), I filed a second suit against it for violating VT do-not-call legislation. AT&T, a bit wiser from our dealings in the first case, immediately requested to compel arbitration. I did not respond to their motion. I wanted to see what happened. At court yesterday, their lawyer, Bob Hemley, revealed he was going to request the two cases be combined. I explained that the second case was for different text messages, but that I was not opposed to arbitrating this second case. Mr. Hemley was not sure he liked the idea, despite the motion he filed earlier. However, he came around. I’m not sure his client will go for it. Without going into too much detail—I know that Mr. Hemley has visited my website—based on my understanding of the AAA rules, it may not be a smart move for them to arbitrate one case but not the other. But if its game, I’m game.

It will be interesting to compare the expedience and outcome of the law suit v. arbitration so that I can place the appropriate “turn here” road sign for the Unicel customers following me.

Defendant’s Request to Arbitrate S110-10

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AT&T Class Action Suit and My Motion for Summary Judgment

By Pike | Published: March 26, 2010

I have filed a request of summary judgment. Having found that AT&T provided copies of the sms text messages to VT Asst Atty General Burg, I’m comfortable I have enough corroborating evidence support my main assertion that AT&T did indeed send these messages. I filed on the 25th, just after our status conference with the judge. I’ll let you know how AT&T responds in a month, the maximum time allowed for them to make a response.

Request for Summary Judgment

VT Atty General Exhibit A Communications to Date – Exhibit 1

Assurance of Discontinance – Exhibit 2

I’ll create and upload a copy of Exhibit 3 soon. It’s good stuff: letters from the VT Consumer Assistance Program to AT&T on my behalf, AT&T’s responses stating that I am not an AT&T customer and will be added to their do-not-call list, and other assorted documents.

Exhibits A-AA

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AT&T Motion to Compel Arbitratioin is Denied

By Pike | Published: March 26, 2010

AT&T Mobility’s Motion to Compel Arbitration and Dismiss the Case was denied by the Court on March 18th. Defendant filed the motion on 2/12/2010 and I spent the next week reading about arbitration law and drafting a response. I filed my response 2/13/2010.

Judge Helen Toor wrote “Based on the undisputed fact that Porter did not become a customer of AT&T until 11/16/09, the court denies the motion. While the arbitration clause could bind Porter and Unicel as the prior events between them as of the date it was agreed to, it cannot bind Porter with regard to event between him and AT&T that took place at a time when his only contract was with Unicel, not AT&T.”

I smiled all weekend.

AT&T plans to file a motion for reconsideration and present additional documents in support of their assertion I was a customer of AT&T. I think it is a bad move on their part. I already have plans to use whatever supporting documents they provide, together with the documents they have already provided, to expand my complaint to possibly include consumer fraud. I also expect to present the documents to the VT Atty General to demonstrate non-compliance with the Assurance of Discontinuance, and send them down to the FCC and FTC investigations departments.

My research of consumer arbitration was  disheartening. The arbitration process and its systematic destruction of consumer rights is written into almost all consumer adhesion contracts.

There is a bill pending that would drastically change for the better the FAA regulations as they pertain to consumers. Senator Leahy is a co-sponsor and it is now before his Judiciary Committee. The arbitraiton with Unicel limits damages, limits pre-arbitration discovery, prohibits class-actions, and on and on and on. The Minnesota Attorney General took the NAL, the second largest arbitration association in the country, to task for truly outrageous behavior such as advertising their ability to frustrate consumers so that they don’t take action against the companies who hire the association. Hopefully the we will see more consumer friendly arbitration clauses in the future.

Defendant’s Motion to Compel Arbitration

Response to Motion to Arbitrate

Affidavit of Michael Sargent S1500-09

AT&T Mobility Reply in Support of Motion to Compel Arbitration and to Dismiss the Complaint

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Federal Lead Paint Law 42 U.S.C 4582(d)

By Pike | Published: March 20, 2010

If the seller’s property is currently in violation of state or federal lead laws, the seller will need to complete the Vermont lead disclosure.

The federal statute reads:

(a) Lead disclosure in purchase and sale or lease of target housing
(1) Lead-based paint hazards
Not later than 2 years after October 28, 1992, the Secretary and the Administrator of the Environmental Protection Agency shall promulgate regulations under this section for the disclosure of lead-based paint hazards in target housing which is offered for sale or lease. The regulations shall require that, before the purchaser or lessee is obligated under any contract to purchase or lease the housing, the seller or lessor shall—
(A) provide the purchaser or lessee with a lead hazard information pamphlet, as prescribed by the Administrator of the Environmental Protection Agency under section 406 of the Toxic Substances Control Act [15 U.S.C. 2686];
(B) disclose to the purchaser or lessee the presence of any known lead-based paint, or any known lead-based paint hazards, in such housing and provide to the purchaser or lessee any lead hazard evaluation report available to the seller or lessor; and
(C) permit the purchaser a 10-day period (unless the parties mutually agree upon a different period of time) to conduct a risk assessment or inspection for the presence of lead-based paint hazards.
(2) Contract for purchase and sale
Regulations promulgated under this section shall provide that every contract for the purchase and sale of any interest in target housing shall contain a Lead Warning Statement and a statement signed by the purchaser that the purchaser has—
(A) read the Lead Warning Statement and understands its contents;
(B) received a lead hazard information pamphlet; and
(C) had a 10-day opportunity (unless the parties mutually agreed upon a different period of time) before becoming obligated under the contract to purchase the housing to conduct a risk assessment or inspection for the presence of lead-based paint hazards.
(3) Contents of lead warning statement
The Lead Warning Statement shall contain the following text printed in large type on a separate sheet of paper attached to the contract:
“Every purchaser of any interest in residential real property on which a residential dwelling was built prior to 1978 is notified that such property may present exposure to lead from lead-based paint that may place young children at risk of developing lead poisoning. Lead poisoning in young children may produce permanent neurological damage, including learning disabilities, reduced intelligence quotient, behavioral problems, and impaired memory. Lead poisoning also poses a particular risk to pregnant women. The seller of any interest in residential real property is required to provide the buyer with any information on lead-based paint hazards from risk assessments or inspections in the seller’s possession and notify the buyer of any known lead-based paint hazards. A risk assessment or inspection for possible lead-based paint hazards is recommended prior to purchase.”.
(4) Compliance assurance
Whenever a seller or lessor has entered into a contract with an agent for the purpose of selling or leasing a unit of target housing, the regulations promulgated under this section shall require the agent, on behalf of the seller or lessor, to ensure compliance with the requirements of this section.
(5) Promulgation
A suit may be brought against the Secretary of Housing and Urban Development and the Administrator of the Environmental Protection Agency under section 20 of the Toxic Substances Control Act [15 U.S.C. 2619] to compel promulgation of the regulations required under this section and the Federal district court shall have jurisdiction to order such promulgation.
(b) Penalties for violations
(1) Monetary penalty
Any person who knowingly violates any provision of this section shall be subject to civil money penalties in accordance with the provisions of section 3545 of this title.
(2) Action by Secretary
The Secretary is authorized to take such lawful action as may be necessary to enjoin any violation of this section.
(3) Civil liability
Any person who knowingly violates the provisions of this section shall be jointly and severally liable to the purchaser or lessee in an amount equal to 3 times the amount of damages incurred by such individual.
(4) Costs
In any civil action brought for damages pursuant to paragraph (3), the appropriate court may award court costs to the party commencing such action, together with reasonable attorney fees and any expert witness fees, if that party prevails.
(5) Prohibited act
It shall be a prohibited act under section 409 of the Toxic Substances Control Act [15 U.S.C. 2689] for any person to fail or refuse to comply with a provision of this section or with any rule or order issued under this section. For purposes of enforcing this section under the Toxic Substances Control Act [15 U.S.C. 2601 et seq.], the penalty for each violation applicable under section 16 of that Act [15 U.S.C. 2615] shall not be more than $10,000.
(c) Validity of contracts and liens
Nothing in this section shall affect the validity or enforceability of any sale or contract for the purchase and sale or lease of any interest in residential real property or any loan, loan agreement, mortgage, or lien made or arising in connection with a mortgage loan, nor shall anything in this section create a defect in title.
(d) Effective date
The regulations under this section shall take effect 3 years after October 28, 1992.

Posted in Federal and Vermont Lead Laws | Leave a comment

Simon and Schuster settles text message spam dispute

By Pike | Published: March 16, 2010

The 9th Circuit decision in Satterfield v. Simon and Schuster will have huge implications for the impending class-action suit against AT&T Mobility for sending former Unicel customers 30 odd sms text messages in violation of the TCPA.

Simon and Schuster sent, I believe, 1 text message. AT&T sent over 30. According to the settlement, each recipient of the Simon and Schuster message will receive $175. I expect AT&T will be compensating former Unicel customers quite a bit more for the hassle they put them through over the course of 2009.

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More on Burlington Telecom and Comcast

By Pike | Published: March 16, 2010

Comcast service was lousy yesterday evening: slow, timeout errors, unable to connect with certain sites. Friends made the same complaints to me this morning. I’ve been on hold with Comcast for over 1/2 now. I could have driven to their office in South Burlington by this point.

So while on hold, I decided to contact Burlington Telecom to establish service with them. My phone currently on hold with Comcast, I emailed BTV Telelcom. Their “Contact Us” links don’t work properly. I either land on a 404 page or, after filling in a form get the message “You must enable referrer logging to use the form.”
 What the hell does that mean?

I’d really like to see Burlington Telecom survive, certainly don’t want to see it bought by Comcast. I hope the state, or another local provider like Sovernet call step in if Burlingotn Telecom cannot themselves get out of the mess they are now in. They have lost many subscribers to Comcast recently. However, what with their phone and now email systems, they do not make it easy to become a subscriber.

Come on Burlington Telecom, get your act together.

Posted in Product Reviews | 3 Comments

Junk Mail

By Pike | Published: February 9, 2010

The Vermont legislature considered enacting  junk mail legislation so that VT residents could choose not to be a part of the waste stream. Sadly, the legislature buckled under pressure of the junk mail lobbyists who claimed that jobs would be lost as a result of the legislation. While Vermont could be creating jobs greening up our state, instead the legislature has decided to create jobs by polluting Vermont.

Recently I received some pretty disgusting junk mail from some so called Saint Mathew’s Church in Oklahoma, and I discovered a way to opt out of junk mail on  case by case basis: USPS Form 1500. This form tells the USPS not to send any mail from the offending company. Form 1500 must not be used much because the neither the clerk nor the manager had seen it before. While the form is designed to stop the receipt of unwanted pornography, the supreme court in Rowan v. USPS stated that only the addressee can determine what they believe is pornographic. If a person feels a dry-goods catalog is pornographic, then they can request it not be sent. The junk mail from Saint Mathew’s Church in Oklahoma is certainly worse than any dry-goods catalog.

While looking for ways to curb my junk mail I ran across Ecofuture.com which has an interesting page discussing reasons to use a temporary change of address form rather than a permanent form.

Some ugly facts about junk mail: The average American receives 41 pounds of junk mail each year.  Almost half –44%– of the junk mail ends up in a landfill. Almost $320 million in  tax money is used to dispose of junk mail, and more than 100 million trees a year are used to create pulpwood for paper products–that’s like deforesting the Rocky Mountain National Park every 4 months.

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Unicel Customer Sues AT&T for TCPA Violations

By Pike | Published: February 9, 2010

I was a Unicel customer until Verizon Wireless, who purchased Unicel, had to sell the Unicel subscriber contracts to AT&T Mobility to comply with a Federal and Vermont settlement agreement.

AT&T quickly made a mess of things.

In addition to poor business practices that lead to the Assurance of Discontinuance with the Attorney General, AT&T sent out 30 some-odd sms text messages to legacy Unicel customers in violtion of the  Federal “do not call” act, and Vermont anti-fraud legislation.

They are now being sued by a Rutland customer who claims that AT&T was collecting taxes illegally.

I’m currently suing them for the text messages. Given that they sent these messages to about 150,000 thousand legacy Unicel customers, AT&T Mobility may have made a very expensive mistake.

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