I think have mentioned here before the frustration of not having high-speed internet available where I live, in Alexandria, Virginia, ZIP 22305. unless I surrender to the horrors of Comcast, which I will not do. According to a source at Verizon, my carrier, the problem is that the City of Alexandria insists on what sound to me like kickbacks from the company in order to get approval to install the necessary hardware. There may be other reasons: I don’t care. I keep seeing Fios ads directed at my locality, and keep getting told that it is unavailable. This has significant business consequences for ProEthics and me. I would like to do have video commentary, and we don’t have the speed to upload one, to give just one example.
Yesterday, I received this email from Verizon:
Important service message for PRO ETHICS LTD: Fios is now available at your location.
There are service updates available for your business. Call us to find out about new service and product options. We want to make sure you’re getting the right service and value for your business. So, we reviewed your account and discovered that our latest product and service upgrades could help PRO ETHICS LTD increase
efficiency and productivity. Call us today-we’ll take you through the available service options and give you a Firm Price Quote.
Call your Rep at 888.704.7905 or schedule an appointment.
Stephen E. Marinetto, Marketing Director, Verizon Business Markets
So informed, I called my “representative.” The results of my call?
“Fios is now available at your location.”
False.When Verizon sends me a threatening letter and claims that I have unjustly impugned them—but this is just an opinion blog, after all—this, above all is where they have no metaphorical leg to stand on. This is res ipsa loquitur: an undeniable lie that broadcasts that it is a lie. Verizon told me that Fios was available at my location. It is not, and Verizon’s own records confirm it is not. The company is presumed to know what is in their own records. It deliberately told me something it knew was not true.
“There are service updates available for your business. Call us to find out about new
service and product options.”
The “updates” have nothing to do with Fios or high-speed internet. This is a bait and switch, as well as deceit.
“We reviewed your account and discovered that our latest product and service upgrades could help PRO ETHICS LTD increase
efficiency and productivity.”
Another outright lie. It was clear that they did not review anything, and had no “product and service upgrades” to offer.
“Call us today-we’ll take you through the available service options and give you
a Firm Price Quote.”
They had no services or price quotes to offer. This statement too was false.
The extremely nice and apologetic “representative” on the other end of the line brilliantly, under cross-examination from me, walked the tightrope between not contradicting my assertion the the message her employer sent me was teeming with misrepresentations and lies while not expressly admitting anything. She was, after all, being recorded. Bill Clinton couldn’t have done it better, and I salute her.
I did find myself wondering whether this constituted wire fraud. I don’t think so, but there is an argument to be made, and I would love to see a pitbull litigator make it. Here is the statute:
941. 18 U.S.C. 1343—Elements of Wire Fraud
The elements of wire fraud under Section 1343 directly parallel those of the mail fraud statute, but require the use of an interstate telephone call or electronic communication made in furtherance of the scheme. United States v. Briscoe, 65 F.3d 576, 583 (7th Cir. 1995) (citing United States v. Ames Sintering Co., 927 F.2d 232, 234 (6th Cir. 1990) (per curiam)); United States v. Frey, 42 F.3d 795, 797 (3d Cir. 1994) (wire fraud is identical to mail fraud statute except that it speaks of communications transmitted by wire); see also, e.g., United States v. Profit, 49 F.3d 404, 406 n. 1 (8th Cir.) (the four essential elements of the crime of wire fraud are: (1) that the defendant voluntarily and intentionally devised or participated in a scheme to defraud another out of money; (2) that the defendant did so with the intent to defraud; (3) that it was reasonably foreseeable that interstate wire communications would be used; and (4) that interstate wire communications were in fact used) (citing Manual of Model Criminal Jury Instructions for the District Courts of the Eighth Circuit 6.18.1341 (West 1994)), cert. denied, 115 S.Ct. 2289 (1995); United States v. Hanson, 41 F.3d 580, 583 (10th Cir. 1994) (two elements comprise the crime of wire fraud: (1) a scheme or artifice to defraud; and (2) use of interstate wire communication to facilitate that scheme); United States v. Faulkner, 17 F.3d 745, 771 (5th Cir. 1994) (essential elements of wire fraud are: (1) a scheme to defraud and (2) the use of, or causing the use of, interstate wire communications to execute the scheme), cert. denied, 115 S.Ct. 193 (1995); United States v. Cassiere, 4 F.3d 1006 (1st Cir. 1993) (to prove wire fraud government must show (1) scheme to defraud by means of false pretenses, (2) defendant’s knowing and willful participation in scheme with intent to defraud, and (3) use of interstate wire communications in furtherance of scheme); United States v. Maxwell, 920 F.2d 1028, 1035 (D.C. Cir. 1990) (“Wire fraud requires proof of (1) a scheme to defraud; and (2) the use of an interstate wire communication to further the scheme.”).