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View Count: 89 |  Publish Date: April 06, 2014
Clearing up the fine print: What governments can do
Jeff Gelles, Inquirer Business Columnist Posted: Sunday, April 6, 2014, 1:10 AM
Last week, thousands of Pennsylvanians who complained that their power prices had jumped unexpectedly this winter - sometimes doubling or tripling their bills - got something all too unusual in todays marketplace: help, if a bit belated, from a government agency.
The Public Utility Commission essentially warned the states competitive electricity suppliers that they wont be able to pull the same stunt next winter, even if their own costs rise more than expected - at least not by burying crucial warnings about potential price spikes in the fine print of customer agreements.
Utilities are among the countrys most closely regulated businesses - albeit less so in an era when power, gas, and phone service can be sold by a utilitys competitors. So what happened this winter to Pennsylvania power customers is a cautionary tale in more ways than one.
Right now, Americans have perilously few protections from whatever lurks in the fine print of consumer contracts - a word that deserves the scare quotes here because the terms typically imposed on consumers are far removed from the legal ideal of a freely negotiated agreement between two parties.
Dozens of lawyers, advocates, and consumer-law scholars gathered Friday at Georgetown University Law Center to discuss the challenges posed by the recent evolution of consumer law - particularly after some key decisions by a Supreme Court majority that seems as solicitous to big business as it does to billionaire political contributors.
The symposium, Making the Fine Print Fair, focused on how to improve the situation. Ideas included pushing for European Union-style rules against plainly unfair terms, inviting consumer groups to negotiate on behalf of customers who otherwise face take-it-or-leave-it deals, and requiring businesses to show that customers truly understand and accept key terms.
Businesses are expert at swaying customers, and that could extend to getting them to understand simpler terms, said Lauren Willis, a visiting professor at Harvard Law School who studies the juncture of law, consumer psychology, and markets.
Willis suggested that more could be done to ensure that terms are effectively disclosed, as required for financial products under 2010s Dodd-Frank reforms, and said regulators approach to over-the-counter drugs could serve as a model.
To move a drug from prescription to over-the-counter, you have to do a small release of the drug, and then follow people and see whether they understood the label and were using the drug properly, Willis said.
Of course, the underlying problem facing any push for fairer consumer contracts is a political one: a Congress overly deferential to big businesses, and five GOP appointees on the Supreme Court who turn that deference into a high art form.
That led one panelist to speak of the elephant in the room.
Its all about corporate power, said Ira Rheingold, executive director of the National Association of Consumer Advocates. Its about making money, its about deregulating, its about being able to do whatever they want without worrying about consumers seeking redress.
In a key 2011 case, AT&T Mobility v. Concepcion, the high court made it much easier for businesses to get their way without challenge, by ruling that a 1925 law allows them to force disputes to arbitration and bar class actions against themselves, no matter what state laws say.
How far will companies push the envelope? Some have insisted they have the right to bar consumers from complaining publicly about them via nondisparagement clauses. In one celebrated case, a small firm tried to do so retroactively, and to collect $3,500 from a consumer who had complained online.
Deepak Gupta, who argued the Concepcion case, said fine print in mass contracts amounts to private legislation that poses a basic threat to our democracy.
By clicking I agree, or by using a service without studying what may be oft-shifting contact terms, apparently you can lose key rights - even the right to speak or take a dispute to court.
When the fine print stops us from exercising our rights, Gupta asks, what good are those rules in the first place?
jgelles@phillynews.com
215-854-2776
@jeffgelles
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