AT&T Mobility LLC v. Cellco Partnership

Filing 20

RESPONSE in Opposition re 18 Amended MOTION for Temporary Restraining Order, 3 MOTION for Temporary Restraining Order, filed by Cellco Partnership. (Attachments: # 1 Transmittal Declaration of Kenneth A. Plevan, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Declaration of Joseph Saracino, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Exhibit 17, # 20 Exhibit 18, # 21 Exhibit 19, # 22 Declaration of Jerome Karnick, # 23 Exhibit 20, # 24 Exhibit 21, # 25 Exhibit 22, # 26 Exhibit 23, # 27 Exhibit 24, # 28 Exhibit 25, # 29 Exhibit 26, # 30 Exhibit 27, # 31 Declaration of Susan Sherwood)(Loveland, L.) Modified on 11/17/2009 to remove duplicative text (alc).

EXHIBIT 22

From: Sent: T o: Subject: Jerry,

GRAY, KERW IN L (Legal) [[e-mail]] W ednesday, October 07, 2009 6:11 PM Karnick, Jerome 3G Coverage Ad

With a number a football fans on the staff, we couldn't help noticing the commercial that Verizon ran claiming to have greater coverage than AT&T. We have checked our coverage in Bronxville, NY, and more particularly at Concordia College. AT&T covers 100% of Bronxville, including all of Concordia College with 3G service. The character in the ad using an iPhone and representing an AT&T customer shakes his head and expresses obvious disappointment because of a lack of coverage. Since, in fact, that character would have 3G coverage at that location, the ad is literally false.

Moreover, Verizon parsed AT&T's coverage map in such a way as to make it misleading. All of AT&T's 3G devices operate both on the 2.5G EDGE network and the HSPA 3G network. While I generally try to avoid citing the law to knowledgeable colleagues such as yourself, an advertiser is responsible for all reasonable interpretations of an ad. By parsing out the 2.5G coverage that is depicted on AT&T's coverage maps, you have created the false impression that customers get no coverage (data or voice) when outside the 3G footprint. The false impression Verizon has created is so obvious, I doubt that survey evidence will even be necessary to convince a court.

If the television ad were not deceptive enough, the radio ad is more so. The ad describes how Verizon keeps customers in the loop on social networking sites, helps them make "plans on the go" and concludes with the punch line that if you have a friend who is "with the number two wireless carrier and want to know why she is out of touch....". This ad is deceptive on all counts for the following reasons:

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2.5G is quite adequate for most social networking activities.

2. Voice, texting and email for making plans on the go is every bit as good on 2.5G as it is on 3G. 3. And obviously the 2.5G network is more than adequate for staying in touch verbally, by text, and by email with one's friends, so one's friends are not out of touch when outside the 3G coverage area.

Verizon's ads falsely suggest to consumers that if an AT&T customer is out of a 3G coverage area, no coverage and thus no communications ability is available. Simply put, it is literally false to state that an AT&T customer is "out of touch" if not in a 3G area.

AT&T obviously cannot sit idle while Verizon is disparaging its reputation with these false ads. Please provide your assurance by the close of business Friday, that these deceptive ads will be withdrawn or modified to be accurate.

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Kerwin L. Gray 404.986.1641

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