[Tilt, TyTN II, MDA Vario III General] Draiko:
California’s Computer Lemon Law specifically protects against computers not “functioning as promised at the time of purchase”.

The legal definition of "False Advertising" is "Any advertising or promotion that misrepresents the nature, characteristics, qualities or geographic origin of goods, services or commercial activities" (Lanham Act, 15 U.S.C.A. § 1125(a)).

These HTC devices in question feature the Qualcomm MSM7500 chipset.

HTC lists the MSM7500 400 Mhz CPU on the product specifications of the devices in question.

These company-provided product specifications are a form of advertising and consumer information.

Dr. Sanjay K. Jha, President of CDMA Technologies at Qualcomm stated the following in a press release dated July 13, 2005:

“The MSM7500 chipset brings the industry's best personal media experience to wireless, enabling faster, widespread adoption of the high data-rate services that operators and consumers want. By addressing historical performance issues -- power, display, speed, form-factor, network support and multimedia functionality -- the integrated architecture of the MSM7500 chipset provides OEMs with a solution that does not require separate chips or processors to deliver the next evolution in high-end multimedia

The MSM7500 chipset boasts a power-efficient design with a dual-CPU architecture that integrates an ARM11 applications processor and an ARM9 modem processor to deliver the processing power required to run on-demand multimedia content over high-speed Rev. A networks. The MSM7500 chipset will:

* Deliver high-end multimedia with the integrated Launchpad suite and BREW support

* Support high-resolution VGA displays and TV-out to turn wireless handsets into personal media players and leverage the viewing experience of television monitors

* Provide a high-end gaming experience with an embedded ATI 3D graphics engine that further improves the user experience with 3D user interfaces

* Expand the Smartphone market with support for Linux and other third-party operating systems

* Provide support for wireless peripherals such as WiFi, Bluetooth, QUALCOMM's FLO solution, as well as popular broadcast standards

The MSM7500 chipset supports QUALCOMM's Launchpad suite of advanced multimedia, connectivity, position location, user interface and removable storage functionality, and QUALCOMM's BREW solution, which enables the download and monetization of advanced applications and content, allowing operators and OEMs to differentiate their products and services and increase revenues. QUALCOMM's chipsets are also compatible with the Java runtime environment (J2ME) which can be built entirely on the chipset as an extension to the BREW client.”

The above statement advertised that the integrated architechture of the MSM7500 would provide “out of the box” hardware video acceleration that would not require separate chips or processors while only providing “support for” High-resolution VGA displays, TV-out, third-party operating systems (such as Lunux), WiFi, Bluetooth, Qualcomm’s FLO, popular broadcast standards, Qualcomm’s Launchpad suite, position location, user interface, removable storage, and BREW.

Stating that a chipset will “support” features is not a promise that devices using the chipset will HAVE those features. The high-end multimedia and high-end gaming experiences were not listed as “supported” features, but as an integrated main function of the MSM7500 product.

HTC’s cube interface cannot be considered a 3D user interface, it is a 2D animated sequence providing the illusion of a 3D rotating cube. It does not use 3D hardware acceleration.

After the affected devices were called into question, HTC officially stated that the affected devices do not use the integrated 3D hardware acceleration technology of the MSM7500 chipset.

"HTC is committed to delivering a portfolio of devices that offer a wide variety of communication, connectivity and entertainment functionality. HTC does not offer dedicated or optimized multimedia devices and can confirm that its Qualcomm MSM7xxx-based devices do not use ATI’s Imageon video acceleration hardware."

HTC stated that they are committed to delivering a portfolio of devices that offer a "wide variety of [..] entertainment functionality". In order for a device to offer a wide variety of entertainment functionality, it inadvertently qualifies as a multimedia device. Enabling a main feature of the integrated visual hardware component in a mobile device does not qualify it as a

dedicated or optimized

multimedia device. The 3d acceleration hardware is a necessary main feature of the MSM7500 that enables the performance required by a device in order to provide a "wide variety of communication, connectivity, and entertainment functionality".

While the performance with hardware acceleration enabled has yet to be tested, without the added hardware acceleration, the "wide variety of communication, connectivity, and entertainment functionality" is reduced to an unacceptable level best described as "barely usable". (show videos of TomTom , video playback, game performance, camera use, etc...)

In it’s current form, the MSM7500 does not out-perform older mobile technologies in media tasks. (cite examples)

Due to better performance in media tasks, older technologies provide a better personal media experience than the MSM7500 devices in their current form. (cite examples)

Therefore, the MSM7500 does not perform as stated by Dr. Sanjay K. Jha, President of CDMA Technologies at Qualcomm on July 13, 2005.

HTC, Wireless carriers, and Qualcomm said nothing to indicate that the MSM7500 would not perform as Qualcomm advertised prior to the sale of the affected devices.

The devices in question did not function as promised at the time of purchase.

The devices in question cannot function as promised unless the integrated 3D hardware acceleration functionality is fully enabled.

HTC officially refused to enable the MSM7500’s full graphics acceleration functionality stated by the President of CDMA Technologies at Qualcomm on July 13, 2005.

“HTC DOES plan to offer software upgrades that will increase feature functionality, over the air wireless speeds and other enhancements for some of the phones being criticized, but we do not anticipate including any additional support for the video acceleration issues cited in customer complaints. It is important for customers to understand that bringing this functionality to market is not a trivial driver update and requires extensive software development and time.”

These affected devices are legally considered Computers. (cite the legal definition of a computer)

By avoiding to spend time on “extensive software development”, HTC is preventing these Computers from performing as advertised, therefore constituting false advertising while also qualifying these Computers as legal “lemons” under the California Computer Lemon Law.

Case closed.

Repeat in all other states that have a Computer Lemon Law in place.