Bucy v. AT & T Wireless 5/18/05 CA1/5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A105910

Case Date: 08/24/2005

Preview:Filed 5/18/05 Bucy v. AT&T Wireless Services CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

WILLIAM BUCY, et al., Plaintiffs and Respondents, v. AT&T WIRELESS SERVICES, INC., Defendant and Appellant. (San Mateo County Super. Ct. No. 432021) A105910

Plaintiff William Bucy and two coplaintiffs, Michael Mitchell and Jaime Wing, filed suit against AT&T Wireless and other wireless service providers to challenge the practice of charging customers a fee for local number portability. Of the three named plaintiffs, only Bucy is a customer of AT&T Wireless. AT&T Wireless petitioned to compel arbitration of plaintiff Bucy's claims based upon an arbitration clause included among the terms and conditions of the wireless service agreement.1 AT&T Wireless appeals from the order denying arbitration. We will reverse the order. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff first became a subscriber of AT&T Wireless in October 2001 when

The plaintiffs' lawsuit named two other wireless service providers as well, but this appeal concerns only AT&T Wireless. Appeals by the other service providers arising from the same lawsuit are pending before us in Mitchell v. Sprint, A105911 and Wing v. Cingular, A105906. AT&T sought to compel arbitration only by plaintiff Bucy because Bucy is the only named plaintiff who is an AT&T Wireless customer. 1

1

AT&T acquired his account from Bay Area Cellular Telephone Corporation (dba Cellular 1). At that time, plaintiff was sent a welcome guide that contained that the terms and conditions of AT&T's wireless service. After 2001, Bucy changed his rate plan several times, most recently in March 2003, when he entered into a one-year service agreement subject to a new set of written terms and conditions. The terms and conditions of AT&T's wireless service agreement include an arbitration clause calling for the arbitration of all disputes arising out of "our relationship." Notwithstanding the agreement to arbitrate all disputes, the customer retains the right to bring an action in small claims court, and both parties may litigate debt collection matters. The arbitration clause allows only individual claims to be heard in arbitration. The provision states: "An arbitrator . . . may not order relief on a consolidated, class wide or representative basis." Further, the arbitration clause provides: "[A]ny arbitration will be conducted on an individual basis and not on a consolidated, class wide, or representative basis." The arbitration agreement sets up a three-tiered system for allocation of costs. If the customer's claim is for less than $1,000, the customer must pay a fee of $25, and AT&T will pay the balance of administrative fees and costs. If the customer's claim is between $1,000 and $75,000, then the customer must share in the costs of arbitration, but need pay no more than the equivalent court filing fee. And, if the claim is in excess of $75,000, then all administrative costs and expenses will be divided equally. In April 2003, AT&T Wireless began charging its customers a "Regulatory Programs Fee" that included a fee for local number portability, even though a portability program had never been implemented. In June 2003, plaintiff Bucy and his two coplaintiffs brought a class action alleging unfair business practices under the Unfair Competition Law (UCL) (Bus. & Prof. Code,

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