United States District Court, D. Kansas
MEMORANDUM AND ORDER
J. THOMAS MARTEN, Judge.
The court has before it Sprint Nextel Corporation's Motion for Reconsideration (Dkt. 107). After reviewing the parties' briefs, the court is prepared to rule.
At issue before the court is whether Sprint's Terms and Conditions prohibit the resale of new wireless phones originally programmed to operate on the Sprint network. The Terms and Conditions contract agreed to by Sprint customers states:
Restrictions on Using Services.
You can't use our Services: (a) in a way that could cause damage or adversely affect any of our other customers or our reputation, networks, property or Services; or (b) in any way prohibited by the terms of our Services, the Agreement, or our Policies. You cannot in any manner resell the Services to another party.
Dkt. 1, Exh. 1 at 6. On the last page of the Terms and Conditions, under the heading "Other Important Terms, " the same language is found: "You cannot in any manner resell the Services to another party." Id. at 12.
The contract includes a "Basic Definitions" section, which provides the following definitions:
"Service" means Sprint branded or Nextel branded offers, rate plans, options, wireless services, billing services, applications, programs, products, or Devices on your account with us.
Id. at 5.
"Device" means any phone, aircard, mobile broadband device, any other device, accessory, or other product that we provide you, we sell to you, or is active on your account with us;...
In Count I of its counterclaim, Middle Man seeks a judgment "[d]eclaring that consumers purchasing new wireless phones originally programmed to operate on the Sprint network are not precluded by the terms and conditions that accompany those phones from reselling the phones to members of the Class." Dkt. 37, at p. 26.
The parties each filed a motion for judgment on the pleadings on Count I of Middle Man's counterclaim. The court granted Sprint's motion for judgment to the extent that the resale prohibition covers phones that are activated on the Sprint wireless network. The court also granted Middle Man's motion for judgment on Count I to the extent that it found the contract does not prohibit the resale of phones that are not ...