Case No.: 19-46148 Adversary Proceeding Case No.: 19-04300
Chapter 7 ORDER DENYING WITHOUT PREJUDICE COMCAST'S MOTION TO COMPEL ARBITRATION
Comcast is a provider of cable television, internet, and telephone service in 39 states, including Michigan. For two months in 2014, Richard Miller received Comcast services at his home. His service was disconnected for non-payment.
During his subsequent Chapter 7 bankruptcy and after entry of his discharge, Miller alleges Comcast-a scheduled creditor-made numerous robocalls to his cell phone in an attempt to collect the outstanding $300.00 bill. Miller filed an adversary proceeding alleging Comcast's conduct violated the automatic stay, the discharge injunction, the Telephone Consumer Protection Act ("TCPA"), and the Michigan Collection Practices Act ("MCPA).
Comcast's motion to compel arbitration is pending. It argues that Miller is required to arbitrate his dispute based on his acceptance of its Subscriber Agreement, which contains a broad and binding arbitration provision. Miller says Comcast never provided him with any documents in connection with his service installation, much less a copy of the Subscriber Agreement.
Because there is a genuine issue of fact regarding the threshold issue of whether an agreement to arbitrate exists between the parties, the Court DENIES WITHOUT PREJUDICE Comcast's motion and sets the matter for an evidentiary hearing.
On February 4, 2014, a technician installed Comcast services at Miller's home. According to the affidavit of Comcast's Director of Regulatory Compliance, it is "Comcast's routine and regular business practice for technicians to provide the Subscriber Agreement with terms and conditions of service to customers when a technician performs a professional installation. Comcast specifically instructed its technicians to direct customers to read and accept the Subscriber Agreement when they are activating their services." Miller says his technician did not provide him a copy of the Subscriber Agreement, or any documents whatsoever.
The Subscriber Agreement contains the following provisions:
ABOUT THIS AGREEMENT, OUR SERVICES AND YOUR RIGHTS
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Note: This Agreement contains a binding arbitration provision in Section 13 that affects your rights under this Agreement with respect to all Service(s).
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GENERAL TERMS AND CONDITIONS
1. ACCEPTANCE OF THIS AGREEMENT
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.
* * *
13. BINDING ARBITRATION
Miller did not submit a request to opt out of the Arbitration Provision. His services were terminated in April 2014 for non-payment.a. Purpose. 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.
b. Definitions. 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 Arbitration Provision. "Dispute" is to be given the broadest possible meaning that will be enforced.
c. Right to Opt Out. IF YOU DO NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY COMCAST IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU FIRST RECEIVE THIS AGREEMENT[.]
Miller filed Chapter 7 bankruptcy on April 23, 2019; he received a discharge on July 16, 2019. Two days before receiving his discharge, Miller filed an adversary proceeding against Comcast alleging that it violated the automatic stay, the TCPA, and the MCPA by using an automatic telephone dialing system to collect a $300.00 debt. Miller amended his complaint on September 16, 2019, to add a violation of the discharge injunction.
The Court has four tasks when considering whether the Federal Arbitration Act, 9 U.S.C. § 2 et. seq., applies to Miller's adversary proceeding:
first, it must determine whether the parties agreed to arbitrate; second, it must determine the scope of that agreement; third, if federal statutory claims are asserted, it must consider whether Congress intended those claims to be nonarbitrable; and fourth, if the court concludes that some, but not all, of the claims in the action are subject to arbitration, it must determine whether to stay the remainder of the proceedings pending arbitration.Stout v. J.D. Byrider, 228 F.3d 709, 714 (6th Cir. 2004).
Comcast relies on four cases to support its argument that its affidavit outlining Comcast's policy to provide customers with the Subscriber Agreement is sufficient to establish an agreement to arbitrate as a matter of law, notwithstanding: (1) Miller's competing affidavit denying receipt of the Subscriber Agreement; (2) the lack of any evidence that Comcast mailed the Subscriber Agreement to Miller; (3) the absence of any post-installation acknowledgment from Miller that he was bound by the agreement; and (4) the brevity of the service relationship. Comcast's cases are distinguishable.
In Schwartz v. Comcast Corp., 256 F. App'x 515 (3d Cir. 2007), Comcast had a policy of providing a "welcome packet," including its Subscriber Agreement, to new customers. Plaintiff, who was receiving cable and internet services, indicated he did not receive a copy of the Subscriber Agreement. However, when plaintiff cancelled his cable service, he signed a Comcast Work Order that contained the following language above the signature line: "If other non-installation work was provided, I agree to continue to be bound by the current Comcast Subscriber Agreement." Schwartz, 256 F. App'x at 516-17. The Third Circuit held that plaintiff's denial that he received a copy of the Subscriber Agreement was insufficient to create a material dispute of fact in light of Comcast's evidence that its practice was to provide the Subscriber Agreement, and because the language in the work order put him on notice that he was bound by the Subscriber Agreement. Id. at 518-19; see also O'Quinn v. Comcast Corp., No. 10 C 2491, 2010 WL 4932665, *4 (N.D. Ill. Nov. 29, 2010) (finding that "[i]t [was] enough that [plaintiff] was provided with the Customer Agreement and acknowledged, on various occasions, that he agreed to be bound by it."). Here, Comcast has not presented any evidence that Miller signed any documentation that referenced the Subscriber Agreement.
In Zacher v. Comcast Cable Communications LLC, No. 17 CV 7256, 2018 WL 3046955 (N.D. Ill. June 20, 2018), plaintiff self-installed his Comcast service. It was Comcast's regular business practice to include in every self-install kit a "Welcome Kit" that contained a hard copy of the Subscriber Agreement, along with other service-related information. Zacher, 2018 WL 3046955, at *3. The district court found that Comcast mailed plaintiff a self-install kit, and "[a] custom or policy of mailing creates a presumption that such mailing occurred and was delivered. [Plaintiff's] general denial that he 'was provided' with the Subscriber Agreement 'as part of the set-up' of service [was] not enough to overcome this presumption." Id. (internal citation omitted). A technician came to Miller's home to install Comcast services. As such, unlike the plaintiff in Zacher, there is no evidence that Comcast mailed Miller any documents that contained or referred to its Subscriber Agreement.
Finally, in Smith v. Comcast Cable Communications Mgmt., LLC, No. 15-62672-CIV-MORENO, 2016 WL 4480975 (S.D. Fla. Aug. 22, 2016), defendant: (1) mailed plaintiff a brochure that contained the arbitration provision and an opt-out deadline to his home address; and (2) provided defendant an electronic notification form, which was acknowledged using plaintiff's unique employment identification number. Smith, 2016 WL 4480975, at *1. In response, plaintiff argued only that he never saw the brochure and had "no recollection" of acknowledging the electronic notification from. Under these circumstances, the district court held that plaintiff did not provide any evidence to make his denial of the arbitration agreement colorable. Id. at *2. Here, there is no evidence that Miller received any documentation from Comcast in the mail, or that he acknowledged receipt of any forms, electronically or otherwise.
Because there is a genuine issue of material fact regarding whether the parties agreed to arbitrate, an evidentiary hearing is necessary on this issue. See Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S.Ct. 524, 530 (2019) ("To be sure, before referring a dispute to an arbitrator, the court determines whether a valid arbitration agreement exists."); see also Hicks v. Comcast Cable Communications, LLC, No. 18-cv-61384, 2019 WL 5208849, at *3 (S.D. Fla. Mar. 27, 2019) ("In light of the conflicting affidavits proffering contradictory testimony by the parties, . . . a bench trial [was scheduled] . . . to determine the issue of whether an agreement to arbitrate exists between the parties.").
The Court also rejects Miller's argument that, assuming an agreement to arbitrate exists, his discharge invalidates the arbitration provision. See Johnson v. Home State Bank, 501 U.S. 78, 83 (1991) ("a discharge extinguishes only 'the personal liability of the debtor'") (emphasis in original); see also MBNA Am. Bank, N.A. v. Hill, 436 F.3d 104, 110-11 (2d Cir. 2006) (enforcing an arbitration clause even though the plaintiff was already granted a Chapter 7 discharge).
The Court will conduct an evidentiary hearing on January 23 , 2020 , at 2:00 p.m. to determine whether an agreement to arbitrate exists between the parties. Discovery is allowable through January 16 , 2020.
IT IS ORDERED. Signed on November 14, 2019
/s/ Mark A. Randon
Mark A. Randon
United States Bankruptcy Judge