Reading a Yellow Pages contract is enough to make you see red. For instance, if you’re currently advertising in California with Pac Bell, your contract doesn’t even guarantee a price (Par. 12). According to the paragraph’s last sentence, if a pricing error in your contract is discovered later on to be different from what you thought you agreed to pay, you may have to pay the higher dollar amount or drop out of the directory!
Read on. You’re also not guaranteed position (Par. 5), circulation (Par. 3), that your ad will appear (Par. 13) or look the way you wanted it to (Par. 4). Furthermore, when you sign your contract, you agree that it may be used as a credit application (Par. 8), and that you will be liable for advertising charges even if your business is sold, abandoned or phone service disconnected (Par. 10) and may be forced to pay charges all at once should billing become 15 days past due (Par. 11). You also give up your right to California Civil Code 1526, which — guess what? — was invented to protect you in just such a dispute (Par. 11).
Most publishers have some sort of limitation of liability. However, the most flagrant item in Par. 13 is that if you do wish to keep your right to sue in case of serious errors or omissions, you must call an 800 number and pay an extra 10 percent of your total Yellow Pages charges for the next year — up front, in advance! This “extra money” isn’t insurance or paid back to you should problems with your advertising occur. This means that if you sue, that money may be used against you in your own lawsuit!
Southwestern Bell: Southwestern Bell’s contract now states it is an integrated contract that includes your ad copy sheet. This could be an improvement except the contract also states Southwestern Bell is not obligated to give you a proof copy, and that even if you do get a proof, you still have to pay for the advertising (Par. 9[d]) — no matter if the ad is correct or not. So even though the contract is now integrated to the ad copy sheet, your proof doesn’t help you; it only protects the publisher.
In addition, Southwestern Bell firmly emphasizes that no “particular directory position for advertising is guaranteed” (Par. 9[c]). Well, so much for that precious in-date and the space precedence you’ve paid so dearly to maintain.
And watch out, because the contract also says “the publisher may, without notice to advertiser, change or remove any classified headings.” It goes on to point out that the publisher shall not be liable for errors or omissions of any free items. So if your only advertising is the free listing you receive for paying for business telephone service, Southwestern Bell has no obligation to you if it leaves you out of the directory. This is an advantage for you in one way since such listings arrive in the directory via the business office and not a sales person. Consequently, you have not signed a contract depriving you of the right to fight in this case. Just because you aren’t a large advertiser, doesn’t mean you can’t lose a lot of money by being left out of your primary phone directory.
DonTech: The DonTech (partnership of Ameritech and Reuben H. Donnelley) contract covering Illinois, Indiana and parts of Iowa is to be complimented for being written in plain language we can understand (Could this really have been written by attorneys?). However, we don’t necessarily have to like what we read.
DonTech has added a new twist to the typical limitation of a liability clause. Early in the contract, DonTech takes itself utterly off the hook for any reparation for errors or omissions. It’s hiding in Par. 2 whereupon signing the contract you admit, “I understand that this Application is not an agreement by DonTech to publish my advertising ... if DonTech does not publish any units(s) of my advertising, it will repay any money I previously paid for the unit(s) of advertising and have no further obligation to me.”
I always love automatic renewal clauses. This one (Par. 4) is clearly in your own words and says, “I request DonTech to continue to insert advertising in subsequent issues of the directory, at the then prevailing monthly rate, until the Application is revoked or is superseded by a later Application.”
This kind of clause used to be for your protection; if you were gone, on vacation, sick, whatever, and there was no one to sign in your place, the publishing company could renew the existing program rather than take the risk of leaving advertising out of the directory and facing a possible lawsuit for an implied contract. But sales reps have used this as an excuse to simply reconfirm the order, regardless of the advertiser’s intentions.
GTE: GTE and some other publishers have a seven-day clause or a 36- to 48-hour rescind notice in their contracts. This means if you approve your contract, you may not be able to alter, that is, buy less space than what you had previously bought, once the seven days (or 36 or 48 hours) is past. (Oddly enough, there usually isn’t a problem with changing the contract to purchase more space.) The big problem is that some publishers “cross-sell” for each other. For instance, GTE may do some of the selling for DonTech in an area that is more easily accessible to GTE reps. You need to check the variables on contracts whenever there is a different appearance or company name on them. If you’re unsure of your plans, don’t take a rep’s word that he’ll come back and change the contract for you later. Take the contract at face value. Otherwise, you may find yourself locked out of making needed changes.
Take Precautions: There are several precautions to take before signing on the dotted line. Above all, plan early! The earlier your work is completed, the less chance there is of an error.
- Add up the dollars and cents on your own contract before the sales rep leaves your office. Always get a copy of your contract. Accept no excuses. You don’t care if it’s messy, you want it anyway. If you want to go the extra mile, send a note to the customer service department along with a copy of the contract. Tell them these are the dollars you have agreed to pay, and that due to the strong verbiage in your Yellow Pages contract, you want them to know that you want to verify the rates. Explain in your letter that if you do not receive acknowledgment of your letter or verification of the rates, you will assume after 10 working days that all is correct. Send it certified, Fed Ex, UPS or some system that will give you proof the publisher received it. Keep a copy of your letter and the certification that it was sent.
- Never sign a blank ad copy sheet. It should be filled in before your rep leaves your place of business and you should make a photocopy of it for your records (particularly when it is an integrated contract such as Southwestern Bell’s). Also, be sure your sales rep puts a check in the box that requests a proof copy from the printer of the directory.
- If you are contemplating changes in phone services or systems, do it well ahead of your closing date or until the directory is published. Your listings are tied to your phone service, and your ads could fall out of the directory if your listings fall out. If you can’t wait and must make these changes, keep your sales rep’s business card and phone number handy and periodically call to be sure you still appear correctly in the publisher’s computer system.
- If your sales rep promises you something you feel is out of the ordinary, document the date and the conversation with the rep (including the rep’s full name) and ask the rep to show you something in writing. Make note of what the rep claimed and/or promised.
- If you’re in Pac Bell’s territory, call the 800 number mentioned in Par. 13 and ask the rep to explain the “extra payment” to you. Document what is stated, how much the extra cost would be and how it would be used. The only way to demonstrate that this clause is unfair, is for many, many people to note it and sound the alarm about how it is never fully explained. Especially document if the rep calls the extra payment “insurance.” It is not insurance! What do you call money that is taken from you, for no good reason, and never given back?
- If you have a display ad in the directory, be sure your space precedence is maintained by verifying with your sales rep that your “in-date” (the date you first purchased that display ad) is correct. In-dates do not apply to in-column space advertising.
Document Everything: Now what if you have taken precautions, done your homework, placed your advertising in a timely fashion — and yet something still comes out wrong.
Once again, all the documentation we have recommended may help. Our experience is that if you’re persistent and document well, you will be successful in receiving remuneration for errors or free advertising in other or future directories if you’re left out of one. Write letters and make phone calls on a regular basis to publishers, to both the Yellow Pages department and customer service (and the business office, if appropriate). Make your demands clear. Explain what went wrong and the documentation you have to prove it. You may want to keep some documentation between you and your attorney until you see how things come out.
Be explicit about what you feel would be fair in consideration for the nature of the error. Don’t be unreasonable about your demands, however, or they may just quit talking to you about it, close your case and expect you pay your bill. Document, document, document each time you have a conversation with any sales or service rep. Keep referring back to your original letter(s). If you find any rep hasn’t read all of the information you have previously sent, fax or mail copies of the whole stack again. Tell them you expect them to read it before continuing any discussion with you. Let them know they are being watched and documented.
Unfortunately this is not a quick and easy process. It could take months so you need to know how much it’s worth to you. Needless to say, it’s certainly not the way things should be. In my opinion, a lawsuit is absolutely a last resort. But get clear advice about any statute of limitations that may apply to this outcome. If publishers are completely unreasonable, all of your documentation is there to assist your attorney. PM
The contents of this article may not be construed as legal advice to any Yellow Pages advertiser or other persons. Content is for education and discussion purposes only.