When I read David Pogue‘s recent article about Virgin Mobile‘s new MiFi device and BroadBand2Go service, it struck me that this could be the beginning of a sea change in mobile data and internet pricing. To sum up, the MiFi costs $150, and for $40 per month you receive unlimited internet service on Sprint’s 3G network, with no contract or minimum usage period (or you can purchase 100 MB of service usable over the course of 10 days for $10 at a shot). The fact that there is no contract is a serious change from other cell-based data plans, and the cost is less-than or equal to what most home broadband service costs. The difference with the MiFi is that it’s about the size of a credit card, can be taken with you wherever you go, and can be used for up to five devices at once.
Considering this new development, I thought that going through the fine print on Virgin Mobile’s terms of service with regard to their services generally and BroadBand2Go specifically would be important, to make sure that this too-good-to-be-true product isn’t just that. BroadBand2Go has far more limited terms of service.
1. No Guarantee of Service. Much like Comcast, Virgin Mobile specifically disclaims any guarantee that its service will be available at any specific time or in any specific location. At least in this case, however, they are not directly providing the service; they are piggybacking off Sprint’s network, so technically Sprint would be responsible for the availability of the service, and would likely be able to claim force majeure for any claims of insufficient service.
2. Switching Service Plans. You may switch service plans at any time, and since there is no contract for the BroadBand2Go service, you could easily stop paying for the $40 monthly plan for a bit (if you were going to be out of the country for instance), and then buy a $10 chunk to tie you over until you want to restart the monthly plan. There seems to be no consequence for that action.
3. Monthly Charges Are Not Refundable. ‘Nuff said.
4. Data Restrictions. Among other things, you can’t use the MiFi for P2P file transfers or “other systems that drive continuous heavy traffic or data sessions,” or to tether your computer to the data network. Although the P2P restriction is frustrating (and likely a part of most other ISP terms of service), the real problem here is the restriction on tethering. Presumably these terms of service (which are effective as of May 12, 2010) simply haven’t been updated to include the purpose of the MiFi. That said, they are still the current terms of service posted on Virgin Mobile’s website, and therefore are the terms of service to which you are held until they are changed. So if you are considering getting a MiFi for the purpose of using the broadband with your computer, check to see if the terms of service have been updated.
5. No Content Replacement. In the event that you purchase digital content from Virgin Mobile or one of its business affiliates and you lose that content for whatever reason (device failure, device loss, etc.), Virgin Mobile may not replace it. So back it up.
6. Restrictions on Content. You are not allowed to transmit (via upload, download, post, publish, etc.) any content that is, among other things, libelous, defamatory, slanderous, obscene, pornographic, or otherwise objectionable. Now, while some of the prohibited content is actually understandably forbidden (such as potentially harmful or illegal speech, or speech not protected by the First Amendment, such as hate speech), it has been deemed acceptable by the courts to consume pornographic material that does not violate any other laws. Virgin Mobile prohibiting something that is otherwise lawful for a person to consume strikes me as very Apple-like in deciding what you can and cannot use your device for.
7. Restrictions on Content II. If Virgin Mobile does not like content you have downloaded through their service, they have the right to delete it. I don’t know what that implies in terms of their access to your various internet-accessing devices, but that is fairly troubling, and reminds me of the debacle surrounding Amazon’s removal of versions of 1984 from it’s Kindles in 2009.
8. Termination of BroadBand2Go Account. Although there is no contract for BoradBand2Go, if your account is inactive for a year it will expire, the service will be deactivated, and you will be assessed a termination fee of whatever balance you currently have in your account. This is non-refundable. If you want to use the service again after deactivation, you will need to reactivate the service. There is no indication as to whether there is a fee to reactivate an account.
The Virgin Mobile general terms of service also include standard contractual language involving limitations of liability, dispute resolution procedures, procedures for addressing disputed charges, and more. But those are not very surprising given how often they appear in major contracts of this sort. If you are concerned about those items or the privacy policy, you should read over them or talk to an attorney before signing up for the service.
If you need to contact Virgin Mobile, you can do so at:
Virgin Mobile USA, L.P., 10 Independence Blvd., Warren, NJ 07059
1-888-322-1122
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About Graham Martin
Graham Martin is a solo practitioner focusing on Contract law (including drafting, review, and litigation). He operates Martin Legal Services, LLC in the Minneapolis-St. Paul area.
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In most cases hate speech is protected by the first amendment of our constitution.