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 23

From: Sent: T o: Subject: Follow Up Flag: Flag Status: Attachments:

Karnick, Jerome [[e-mail]] Friday, October 09, 2009 5:50 PM GRAY, KERW IN L (Legal) RE: 3G Coverage Ad Follow up Flagged Plenty of Room ATTTL-39464.pdf; ATTTL-40208.pdf

Plenty of Room ATTTL-40208.pdf ATTTL-39464.pdf... (157 KB)

Kerwin,

I am writing to respond to the complaints in your October 7 email.

First, the location at which we filmed the TV commercial is not well known (i.e., is not iconic), was not identified by Verizon Wireless, and is not identifiable in the ad by signage or other markers. The setting is and was intended to be representative of the many non-urban locations where AT&T does not offer 3G coverage. We reject your assertion that our ad is literally false because AT&T provides 3G coverage at the filming location.

Moreover, even within areas in which AT&T claims to provide 3G coverage, a myriad of press and blogosphere reports have made clear that AT&T customers have experienced significant frustration in being able to access 3G services. There is substantial empirical support for the "character in the ad using an iPhone and representing an AT&T customer shak[ing] his head and express[ing] obvious disappointment because of a lack of [3G] coverage."

Second, we also reject your assertion that the ad creates the false impression that AT&T is unable to provide any services outside of its limited 3G footprint. The ad explicitly and clearly compares only our companies' respective 3G coverage areas, as the voiceover and artcard make abundantly clear. Given the prominent presence of AT&T across the country, consumers viewing the AT&T 3G map will not be misled into believing that AT&T doesn't offer any services outside of the 3G coverage area depicted. Our radio ad is similarly clear that the comparison is between AT&T's and Verizon Wireless' 3G coverage areas. Our radio ad refers only to data services that run faster on a 3G network. There is no mention of voice service.

Nevertheless, despite the fact that Verizon Wireless is confident that its current ads are neither false nor misleading, we will modify them to address your concern that they might imply that AT&T does not provide any service outside of its 3G coverage area. Revised ads should be on TV and radio by the middle of next week.

While we're on the topic of AT&T's 3G coverage area, however, we object to the literally false and misleading nature of the attached AT&T TV ad. In the ad, Bill Curtis explicitly states that he's "racing cross country" with the AT&T 3G
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network. He goes on to state "wherever I go I've got .... the nation's fastest 3G network." Further, the setting is at a service station in the middle of nowhere, which is hardly representative of the locations where AT&T has built out its 3G network. Accordingly, please provide your assurance by the close of business next Tuesday, October 13, that this deceptive ad will be withdrawn.

Finally, I noticed as I read this morning's New York Times that you have not been sitting idle waiting for my response, but instead have taken out the attached full page ad containing some bold claims about AT&T and Verizon Wireless with respect to smartphones, without providing any substantiation for several of the claims. Accordingly, please also provide by the close of business on Tuesday, October 13, your substantiation for the "best selection of smartphones" and "ranked #1 in customer satisfaction among smartphone users" claims in your new print campaign.

Regards, Jerry

Jerry Karnick Associate General Counsel Marketing & Consumer Law [phone] Phone [phone] Fax <mailto:[e-mail]> [e-mail] To send a text message to my wireless phone - <mailto:[e-mail]> [e-mail] Verizon Wireless Legal & External Affairs Department 777 Big Timber Road Elgin, IL 60123

_____ From: GRAY, KERWIN L (Legal) [mailto:[e-mail]] Sent: Wednesday, October 07, 2009 5:11 PM To: Karnick, Jerome Subject: 3G Coverage Ad

Jerry,

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
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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.

Kerwin L. Gray 404.986.1641

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Advertiser: AT&T Product: High Speed Internet Title: Plenty Of Room Ad Code: ATTTL-39464

First Date: 08/10/09 Source: CNN Length: 30 New/Recut: New

(Fade in) BILL CURTIS: I'm racing cross country in this small sidecar...

but I've still got room for the Internet with my new netbook from AT&T.

With its built-in 3G network...

it's fast and small...

so it goes places other laptops can't.

I'm Bill Curtis and wherever I go...

Text: Screen images simulated

I've got plenty of room for the Internet...

and the nation's fastest 3G network.

Gun it, Mick. (Music)

VOICE OVER: Sign up today and get a netbook for $199.99 after mail-in rebate.
Text: Pay $299.99 and after mail-in rebate receive $100 AT&T promotion card. 1-year service agreement on qualifying DataConnect Plan required. DataConnect Plan (illegible) charges may be required (illegible)

With built-in access to the nation's fastest 3G network...
Text: 3G not available in all areas. All (illegible) days for debit card (illegible) Promotion card may be used to pay bill. Card valid in U.S. only for (illegible) days after issuance. (illegible) isnot...

only from AT&T. (Fade out)
Text cont.: redeemable for cash. (illegible) may vary by product & plan. (illegible) charges & conditions apply. See store for details.

- Tapes and MPEGs can be ordered by contacting us at 718.482.4211 This material may be used for internal review, analysis or research only. No part of this document may be reproduced, published, or publicly displayed in any form.

AD CODE: ATTTL-40208

SOURCE: USA Today-OCT 9 09