United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
A. Guzmán United States District Judge
reasons stated below, defendant's motion to compel
arbitration and stay litigation is denied.
Rolando Chacon, alleges in this putative class action that
defendant Comcast Cable Communications Management, LLC
(“Comcast”) violated the Telephone Consumer
Protection Act, 47 U.S.C. § 227 et seq.
(“TCPA”), when it repeatedly called him in
February and March 2017, asking for someone named Luke Johns
or Luke Johnson. (ECF No. 34, First Am. Compl.) Comcast moves
to compel arbitration and stay this action on the basis that
Chacon entered into a Subscriber Agreement with Comcast that
requires arbitration of the parties' disputes.
Federal Arbitration Act, 9 U.S.C. § 1 et seq.
(“FAA”), governs the enforcement of arbitration
agreements. Int'l Ins. Co. v. Caja Nacional de Ahorro
y Seguro, 293 F.3d 392, 395 (7th Cir. 2002). The FAA
“evinces a national policy favoring arbitration”
and “requires federal courts to place arbitration
agreements on an equal footing with other contracts and
enforce them according to their terms.” A.D. v.
Credit One Bank, N.A., 885 F.3d 1054, 1059-60 (7th Cir.
2018) (internal quotation marks and citations omitted). The
Court will compel arbitration under the FAA “if three
elements are present: (1) an enforceable written agreement to
arbitrate, (2) a dispute within the scope of the arbitration
agreement, and (3) a refusal to arbitrate.”
Id. at 1060. The third element is satisfied because
Chacon refuses to arbitrate.
support of its motion, Comcast submits the declaration of
Nicole Patel, a Comcast Director of Regulatory Compliance,
who states that Comcast's business records reflect that
Chacon subscribed to Comcast's Xfinity cable service for
an apartment on South Harding Avenue in Chicago in late
January 2015, and Chacon then received and paid for service
in connection with his Comcast account until his service was
disconnected in November 2016. (ECF No. 19-1, Decl. of Nicole
Patel ¶¶ 1, 5.) Patel states that Comcast's
regular business practice since prior to 2015 is for its
installation technicians to provide Comcast's Subscriber
Agreement to customers in connection with the installation
and for the technicians to direct customers to read and
accept the Subscriber Agreement when activating service.
(Id. ¶ 6.) Attached to Patel's declaration
is a copy of the “Comcast Customer Privacy
Notice” and the “Comcast Agreement for
Residential Services” (“Subscriber
Agreement”) as they existed at the time Chacon
subscribed to Comcast's service. (Id. ¶ 7
& Ex. 1.) The Subscriber Agreement contains a binding
arbitration provision as well as a provision that allows
subscribers to opt out of arbitration by notifying Comcast
within thirty days of receiving the Subscriber Agreement.
(Id. ¶ 9.) Patel states that Comcast's
regular business practice is to maintain records of such
opt-out requests, and it has no record of Chacon's having
notified Comcast that he wished to opt out of the arbitration
provision. (Id. ¶¶ 10-11.)
response to Comcast's motion, Chacon submits a
declaration in which he states that he previously had
Comcast's Xfinity service, but no longer has an active
Comcast account; he has no recollection that the Comcast
installation technician who installed his service provided
him with a Subscriber Agreement; he never signed or agreed to
anything similar to the Subscriber Agreement attached to
Patel's declaration; the telephone calls he received from
Comcast did not relate to his previous Comcast Xfinity
service, but to someone named Luke Johns or Luke Johnson; and
he does not know anyone by those names. (ECF No. 35-1, Decl.
of Rolando Chacon ¶¶ 5, 11-14.)
reply, Comcast argues that Chacon's statement that he
does not recall being provided with the Subscriber Agreement
is insufficient to raise a genuine issue of fact as to
whether it was provided to him, but “[t]o avoid any
doubt, ” Comcast submits a supplemental declaration
from Patel. (ECF No. 37, Def.'s Reply at 1.) Patel states
that Comcast's records reflect that after Chacon ordered
Xfinity service, a Comcast technician installed that service
on March 1, 2015. (ECF No. 37-1, Suppl. Decl. of Nicole Patel
¶ 5.) In connection with that installation, Chacon
signed a work order that day that stated: “If this work
order relates to the initial installation of services, I
acknowledge receipt of the Comcast Welcome Kit which contains
the Comcast Residential Customer Agreement, the Comcast Cable
Subscriber Policy Notice and other important information
about the services. I agree to be bound by the Comcast
Customer Agreement which constitutes the agreement between
Comcast and me for the services as well as any applicable
Comcast acceptable use policies.” (Id.
¶¶ 6-7, Ex. 1, at 2.)
purposes of the instant motion, the Court assumes, without
deciding, that Chacon entered into the Subscriber Agreement
with Comcast and that it is enforceable. The Subscriber
Agreement provides in pertinent part:
• This Agreement contains a binding arbitration
provision in Section 13 that affects your rights under this
Agreement with respect to all Service(s).
• You will have accepted this Agreement and be bound by
its terms if you use the Service(s) or otherwise indicate
your affirmative acceptance of such terms.
• If you have a Dispute (as defined below) with Comcast
that cannot be resolved through an informal dispute
resolution with Comcast, you or Comcast may elect to
arbitrate that Dispute in accordance with the terms of this
Arbitration Provision rather than litigate the Dispute in
court. Arbitration means you will have a fair hearing before
a neutral arbitrator instead of in a court by a judge or
jury. Proceeding in arbitration may result in limited
discovery and may be subject to limited review by courts.
• The term “Dispute” means any dispute,
claim, or controversy between you and Comcast regarding any
aspect of your relationship with Comcast, whether based in
contract, statute, regulation, ordinance, tort (including,
but not limited to, fraud, misrepresentation, fraudulent
inducement, negligence, or any other intentional tort), or
any other legal or equitable theory, and includes the
validity, enforceability or scope of this ...