RONALD A. GUZMÁN, District Judge.
For the reasons stated below, defendant's motion to compel arbitration is granted.
Plaintiff, Chason Zacher, alleges in this putative class action that defendant Comcast Cable Communications, LLC ("Comcast") violated the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. ("TCPA"), when it called his cellular telephone in August 2017, "looking for the account holder for a specific address."
The 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 Zacher refuses to arbitrate.
Whether a binding arbitration agreement exists is determined under principles of state contract law. Gore v. Alltel Commc'ns, LLC, 666 F.3d 1027, 1032 (7th Cir. 2012). Because all relevant events occurred in Illinois, Illinois law determines the validity of the agreement. See Tinder v. Pinkerton Sec., 305 F.3d 728, 733 (7th Cir. 2002). Under Illinois law, where the language of a contract is plain, the agreement is enforced as written. Gore, 666 F.3d at 1033 (citing Carey v. Richards Bldg. Supply Co., 856 N.E.2d 24, 27 (Ill. App. Ct. 2006)).
In 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 Zacher is listed as a contact for a Comcast account that was opened in August 2011 and registered to Alpha Epsilon Pi.
(Patel Decl., Ex. 1, Subscriber Agreement, at 1, 16-18.) The Subscriber Agreement also contains a provision that allows subscribers to opt out of arbitration by notifying Comcast within thirty days of receiving the Subscriber Agreement. (Id. at 16.) Patel states that Comcast's regular business practice is to maintain records of such opt-out requests, and it has no record of Zacher's having notified Comcast that he wished to opt out of the arbitration provision. (Patel Decl. ¶ 11.)
In response to Comcast's motion, Zacher submits a declaration in which he states that he set up his Comcast service himself, so a Comcast service technician never provided him with a professional installation. (Zacher Decl. ¶¶ 8-9.) He denies that he was "provided a copy" of the Subscriber Agreement and says that he never agreed to its terms and first became aware of the existence of the arbitration clause when Comcast filed its motion to compel arbitration. (Id. ¶¶ 9-10.)
In reply, Comcast argues that because it routinely provides a copy of the Subscriber Agreement to all subscribers, regardless of whether they install their own service or have a Comcast technician install the service, Zacher's averments are insufficient to raise a genuine issue of fact as to whether the parties entered into a contract. (ECF No. 26, Def.'s Reply at 4-6.) Comcast submits a supplemental declaration from Patel, who states that Comcast's records reflect that for the Normal Road account, Zacher was sent a "self-install kit." (ECF No. 26-1, Suppl. Decl. of Nicole Patel ¶ 5.) Comcast's regular business practice since prior to 2014 is to include in every self-install kit a "Welcome Kit" that contains a hard copy of the Subscriber Agreement, along with other service-related information. (Id. ¶ 6.) The version of the Subscriber Agreeement that was in effect at the time Zacher was sent a self-install kit is the same as was attached to Patel's initial declaration. (Id. ¶ 7.)
Comcast has presented evidence through Patel's declarations that Comcast mailed Zacher a self-install kit for the Normal Road account and that Comcast's routine business practice at the relevant time was to provide customers with a hard copy of the Subscriber Agreement in the self-install kit. A custom or policy of mailing creates a presumption that such mailing occurred and was delivered. See, e.g., Pohlman v. NCR Corp., No. 12 CV 6731, 2013 WL 3776965, at *3 (N.D. Ill. July 17, 2013). Zacher's general denial that he "was provided" with the Subscriber Agreement "as part of the set-up" of service is not enough to overcome this presumption. See O'Quinn v. Comcast Corp., No. 10 CV 2491, 2010 WL 4932665, at *3 (N.D. Ill. Nov. 29, 2010). The FAA does not require agreements to be signed, only written. 9 U.S.C. § 3. Zacher installed his own Comcast service and proceeded to use the service, which the Subscriber Agreement states constitutes acceptance of its terms, and Zacher provides no evidence to rebut Comcast's evidence that he did not opt out of the arbitration provision. Zacher does argue, citing Wexler v. AT&T Corp., 211 F.Supp.3d 500 (E.D.N.Y. 2016) (denying defendant's motion to compel arbitration on the ground that there was a lack of mutual intent to arbitrate "literally every possible dispute" between the parties), that arbitration clauses "with unlimited scope . . . raise questions of contract formation." (Pl.'s Mem. Opp'n Def.'s Mot. at 7.) Zacher urges this Court to "adopt the reasoning in Wexler and refuse to compel arbitration" because "the arbitration clause at issue is so broad as to raise serious doubts as to mutual intent." (Id. at 7-9.) The Comcast arbitration clause, however, does not have "unlimited" scope. It is confined to disputes regarding the parties' relationship. Wexler is distinguishable because the arbitration provision at issue there was much broader. It stated that the parties agreed "to arbitrate all disputes and claims between" them. 211 F. Supp. 3d at 501.
Accordingly, Comcast has shown that the parties entered into an enforceable written agreement to arbitrate.
Comcast argues that Zacher's TCPA claim is related to an aspect of his relationship with Comcast because the claim arises from calls that were allegedly placed to a telephone number that Zacher provided to Comcast in connection with his Comcast accounts. Comcast also argues that even if there is an issue about whether the claim is within the scope of the arbitration agreement, that issue is for the arbitrator to decide, in light of the parties' agreement that arbitrable "disputes" include the "scope of this Arbitration Provision." (Patel Decl., Ex. 1, Subscriber Agreement, at 16.) In response, Zacher asserts that the telephone calls underlying this case relate not to the relationship between Zacher and Comcast but rather to the contract between Alpha Epsilon Pi and Comcast. Zacher also contends that the issue of scope is for this Court and not the arbitrator to decide, citing Granite Rock Co. v. International Brotherhood of Teamsters, 561 U.S. 287, 297 (2010) for the proposition that "the court must resolve any issue that calls into question the formation or applicability of the specific arbitration clause" sought to be enforced. (Pl.'s Mem. Opp'n Def.'s Mot. at 6 & n.1.)
Courts usually decide "gateway matters," including whether a binding arbitration clause applies to a certain type of dispute. Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 452 (2003). But this general rule does not apply when there is "clear and unmistakable" evidence that the parties agreed to arbitrate arbitrability. First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995). An agreement to arbitrate a gateway issue, which is sometimes called a "delegation provision," is "simply an additional, antecedent agreement the party seeking arbitration asks the federal court to enforce, and the FAA operates on this additional arbitration agreement just as it does on any other." Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 70 (2010). This Court agrees with courts in this district that have found that language defining an arbitrable "dispute" as including the "validity, enforceability or scope" of the arbitration agreement clearly demonstrates the parties' intent to delegate these gateway issues to the arbitrator.
Thus, there is clear evidence here that the parties agreed to arbitrate the issue of whether this dispute is within the scope of their arbitration agreement. Zacher's citation to Granite Rock is unavailing because it is taken out of context and fails to acknowledge the qualifier that immediately follows the quoted statement—"[w]here there is no provision validly committing [formation or applicability issues] to an arbitrator." 561 U.S. at 297. It is clear from the Court's discussion in Granite Rock that a court must resolve issues of an arbitration clause's scope unless the parties have clearly and unmistakably delegated those issues to an arbitrator. Zacher and Comcast clearly and unmistakably did so. Therefore, the Court will compel arbitration, and the scope issue can be raised before the arbitrator.
Defendant's motion to compel arbitration [20] is granted. Arbitration shall proceed. Therefore, this lawsuit is administratively dismissed without prejudice subject to full reinstatement, if requested by either party, upon completion of the required arbitration. See Davis v. Fenton, 857 F.3d 961, 962 (7th Cir. 2017). Civil case terminated.