¶ 54. (concurring in part, dissenting in part). The majority refuses to allow a claim based on an unlawful liquidated damages provision to serve as an exception to the voluntary payment doctrine. In other words, the majority holds that absent fraud, duress, or mistake of fact, the voluntary payment doctrine prohibits recovery notwithstanding the existence of an unlawful liquidated damages provision. I disagree and accordingly respectfully dissent to parts I and IIA of the majority opinion. I join part II B of the majority opinion.
¶ 55. Time Warner is a monopolist for cable television programming in the Milwaukee area. If customers do not buy its product, the customers are free to go elsewhere. Unfortunately for the customers, there is no "elsewhere" to go for cable services. As a general proposition, customers in a government created monopoly deserve special protection.
¶ 56. For purposes of this action, we must assume that Time Warner charges a late fee of $5.00, which in fact costs them $0.38 to $0.48. The $5.00 fee is written into the contract as liquidated damages. "Late fees" are not subject to the rigid controls imposed upon Time Warner by the cable commission — controls which are the price Time Warner pays for its monopoly. If customers do not pay the late fee, eventually they are presumably cut off.
¶ 57. As stated above, but it is worth repeating, for purposes of this case at this time in the proceedings, we must assume the truthfulness of all the petitioner's allegations.
¶ 58. Thus, we must assume that the cost to Time Warner was $0.38 to $0.48, not the $5.00 it charged. We must assume this $5.00 fee does not bear a reasonable *481relationship to the actual cost. We must assume that the late fee is already incorporated into the basic cable rates.
¶ 59. In sum, we must assume the charging of a $5.00 late fee is unreasonable and unconscionable, and accordingly an unlawful liquidated damages provision.
¶ 60. Yet the majority says there is nothing the customer can do because the fee was paid by the customer without protest.
¶ 61. Why should a customer protest the payment of a fee if it has no reason at the time of payment to believe that it is unreasonable and/or unconscionable? If that is the law, and the majority says it is, then all payees of all late fees pursuant to prior agreements regarding late fee payments, whether to banks, credit cards, bills for services, and the like, must automatically protest at the time of payment or lose the right to contest it. That is, of course, absurd. Yet it is the requirement set out by the majority.
¶ 62. G. Heileman Brewing Co. v. City of La Crosse, 105 Wis. 2d 152, 312 N.W.2d 875 (Ct. App. 1981), relied upon by the majority, is simply inapplicable. In Heileman, the government was the defendant. Here, the entity sued is in the private sector. In Heileman, the government was not accused of any wrongful conduct. Here, Time Warner is accused of wrongful conduct. In Heileman, the claim was unduly delayed. Here, the claim is within the statutes of limitation.
¶ 63. Wassenaar v. Panos, 111 Wis. 2d 518, 525, 331 N.W.2d 357 (1983), teaches that even though the circuit court's determination of the validity of a stipulated liquidated damages clause is a question of law, that question is derived from a resolution of disputed facts or references. Most significantly, Wassenaar teaches: "In deciding whether a stipulated damages *482clause is valid, then, the trial judge should inquire into all relevant circumstances, including such matters as the existence and extent of the anticipated and actual injury to the nonbreaching party." Id. The majority, in sharp contrast to the mandate in Wassenaar, allows no inquiry.
¶ 64. Furthermore, the majority ignores the analysis put forth in Wassenaar which articulates three questions a circuit court should consider in determining the validity of a liquidated damage provision: "(1) Did the parties intend to provide for damages or for a penalty? (2) Is the injury caused by the breach one that is difficult or incapable of accurate estimation at the time of contract? and (3) Are the stipulated damages a reasonable forecast of the harm caused by the breach?" Id. at 529-30. (Footnotes omitted).
¶ 65. These three questions, in my view, are quite distinct from the inquiries made in a voluntary payment doctrine case not involving liquidated damages.
¶ 66. Here, again assuming the truthfulness of the assertions, Time Warner flunks at least two of the three. First, there was no way for the customer to accurately estimate the injury to Time Warner when paying late. Second, the stipulated damage of $5.00 is not a reasonable forecast of the harm caused, $0.38 to $0.48.
¶ 67. The implications of this case are very significant to the consumer and the private sector. The majority holds that a late fee paid by a consumer pursuant to a private agreement regarding late fee payment without protest cannot in the absence of fraud, duress, or mistake of fact be challenged at a later date. I would hold that unlawful liquidated damages are an exception to the voluntary payment doctrine. I respectfully dissent in part.
*483¶ 68. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins in this opinion.