A state court in Palm Beach, Fla., sided with Nextel in a case ov...

known as the Buccaneers -- that provided Nextel cellphones to its board members. The Nextel contract called for a one-year term, subject to an ETF. Before the contract expired, the group changed its policy, restricting phone use to its executive board. It kept the unused phones without paying the ETFs. The Buccaneers claimed it’s “unfair” under Fla. law that the ETF isn’t prorated. It sought no damages but did ask for a judgment requiring Nextel to prorate the contractual ETF, arguing that an ETF is “an unlawful penalty.” But the court said the group’s president was “well aware of the terms of the contract when he signed it” and “understood the early termination fee. There were no misrepresentations or misleading statements made.” The court also said the plaintiff “never inquired about any other kinds of contracts” that don’t require ETFs. “There is no view of the evidence that indicates or infers that the practice of charging a non-prorated termination fee is… an unfair trade practice,” the court said. “There is no evidence… that damages in the event of an early termination are certain or can be calculated with reasonable certainty,” it said: “The lack of reasonable certainty supports a liquidated damages provision.” The court decision comes as the debate is heating up at the FCC over a CTIA petition asking the Commission to confirm that ETFs in wireless carriers’ service contracts represent “rates charged” for CMRS, meaning Sec. 332 of the Communications Act exempts them from state regulation (CD March 24 p7). The court’s decision was “a very clear and powerful statement that could very well influence the debate going forward,” a CTIA spokesman said.