Honig v. Comcast of Georgia I, LLC

• Decision Date: 31 January 2008
• Docket Number: Civil Action File No. 1:07-cv-1839-TCB.
• Citation: 537 F.Supp.2d 1277
• Parties: Ellenor HONIG, on behalf of herself and all other similarly situated unnamed plaintiffs and on behalf of the general public, Plaintiff, v. COMCAST OF GEORGIA I, LLC, Comcast Commercial Services, LLC, Comcast Mo Cable Advertising of Metropolitan Atlanta, LLC, and Cornetist of Georgia/Virginia, Inc., Defendants.
• Court: U.S. District Court — Northern District of Georgia

537 F.Supp.2d 1277

Ellenor HONIG, on behalf of herself and all other similarly situated unnamed plaintiffs and on behalf of the general public, Plaintiff, v. COMCAST OF GEORGIA I, LLC, Comcast Commercial Services, LLC, Comcast Mo Cable Advertising of Metropolitan Atlanta, LLC, and Cornetist of Georgia/Virginia, Inc., Defendants.

Civil Action File No. 1:07-cv-1839-TCB.

United States District Court, N.D. Georgia, Atlanta Division.

January 31, 2008.

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Edward Adam Webb, Webb & Porter, G. Franklin Lemond, Jr., The Webb Law Group, LLC, Atlanta, GA, for Plaintiff.

David P. Draigh, Jaime A. Bianchi, White & Case, Miami, FL, Jennifer Derelle Fease, Nolan C. Leake, Ryan Scott Ferber, King & Spalding, LLP, Atlanta, GA, for Defendants.

ORDER

TIMOTHY C. BATTEN, SR., District Judge.

I. Background

Defendants (collectively referred to as "Comcast") provide cable television and other services to subscribers throughout the United States, including in the state of Georgia. On November 20, 2006, Comcast installed cable television service at Plaintiff Ellenor Honig's home. She alleges that upon commencement of her service and without her authorization, Comcast charged her $3.25 per month for four consecutive months and $3.40 for an additional month, all for a subscription to a channel guide magazine.¹ Thus, Honig alleges that Comcast charged her $16.40 without her authorization.

Each month the charge was reflected on Honig's bill under the heading "channel guide," but Honig alleges that she assumed that these charges related, to the interactive feature that displayed current and future programming on her television when Honig pressed the "guide" button on her Comcast remote control. When she discovered that the charge was" instead for the channel guide magazine, she contacted Comcast to cancel the service and seek a refund. Comcast refunded Honig $6.80 of the channel guide charges, leaving her with an actual loss of $9.60.

Presumably unsatisfied, on June 27, 2007, Honig filed this lawsuit against Comcast. She asserts the following claims:² (1) deceptive and unlawful business practices under the Georgia Fair Business Practices Act ("GFBPA"), O.C.G.A. § 10-1-390, et seq.; (2) trespass to personalty and dispossession of property under O.C.G.A. §§ 51-2-2, 51-10-1, and 51-10-6; (3) breach of contract; (4) unjust enrichment; (5) negligent misrepresentation; and (6) fraudulent misrepresentation, concealment, and failure to disclose.

The main issue in this case is whether Comcast may enforce the arbitration provision set forth in its 2005 subscriber agreement.

In this regard, Comcast states that at the time of the installation, in accordance with its standard operating procedures, it provided Honig with a "welcome kit" that contained its 2005 subscriber agreement, which was the contract that governed the relationship between Comcast and its subscribers at the time Comcast performed Honig's installation. Also at the time of the installation, Comcast provided Honig with a work order describing the work performed and the services that were installed.

Honig and the Comcast representative who installed her service both signed the work order. Immediately to the left of the signature box is the following text:

By signing this Work Order, I represent that ... the installation, repair or other work provided has been satisfactorily completed. If this Work Order relates to the initial installation of services, I acknowledge receipt of Comcast's Welcome Kit(s) which contain the Comcast subscriber agreement(s), the Comcast subscriber privacy notice(s), and other important information about the service(s). I agree to be bound by the Comcast subscriber agreement(s), which constitute the agreement(s) between Comcast and me for the service(s).

Thus, by signing the work order, Honig acknowledged receipt of Comcast's subscriber agreement.

Section 1 of the subscriber agreement states in bold typeface that: "You will have accepted this Agreement and be bound by is terms if you use Services or otherwise indicate your affirmative acceptance of such Services."

Additionally, on the first page of the subscriber agreement, in bold typeface, the following language appears: "Note: This Agreement contains a binding arbitration provision in Section 13 that affects your rights under this Agreement with respect to all Services." In turn, section 13 of the subscriber agreement contains an arbitration provision with various sub-provisions, three of which are central to this case.

First, Section 13b allows either the customer or Comcast to require binding arbitration of:

any dispute, claim or controversy between [the customer] and Comcast regarding any aspect of your relationship with Comcast that has accrued or may hereafter accrue, 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

. . . .

Second, typed in all capital letters in section 13f under the heading "Restrictions," the arbitration provision contains the following class action waiver, prohibiting claims from being arbitrated on a classwide basis:

ALL PARTIES TO THE ARBITRATION MUST BE INDIVIDUALLY NAMED. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER SUBSCRIBERS, OR OTHER PERSONS SIMILARLY SITUATED UNLESS THE STATUTE UNDER WHICH YOU ARE SUING PROVIDES OTHERWISE.

Third, typed in all capital letters in section 13c next to the heading "Right to Opt Out," the arbitration provision contains the following opt-out provision:

IF YOU DO NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY COMCAST IN WRITING WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST RECEIVE THIS AGREEMENT BY VISITING WWW. COMCAST. COM/ARBITRATION OPTOUT, OR BY MAIL TO COMCAST 1500 MARKET ST., PHILADELPHIA, PA 19102 ATTN: LEGAL DEPARTMENT/ARBITRATION.

YOUR WRITTEN NOTIFICATION TO COMCAST MUST INCLUDE YOUR NAME, ADDRESS AND COMCAST ACCOUNT NUMBER AS WELL AS A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH COMCAST THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH COMCAST OR THE DELIVERY OF SERVICES TO YOU BY COMCAST. IF

YOU HAVE PREVIOUSLY NOTIFIED COMCAST OF YOUR DECISION TO OPT OUT OF ARBITRATION, YOU DO NOT NEED TO DO SO AGAIN.

Honig did not notify Comcast that she wished to opt out of the arbitration provision within thirty days of acknowledging receipt of the subscriber agreement on November 20, 2006, or at any time thereafter.

Also notable, the arbitration provision gives the subscriber several rights that make the arbitration process more flexible and less costly for subscribers than most arbitration proceedings. For example, a subscriber may choose between two different arbitration services: the American Arbitration Association or the National Arbitration Forum. Upon written request, the subscriber may also require Comcast to advance the filing fees and costs of the arbitration (other than the subscriber's own attorney and expert witness fees). A subscriber who prevails at arbitration has no obligation to reimburse Comcast for these advanced fees and costs. Even if the subscriber does not prevail, he or she is obligated only to reimburse Comcast for the amount the subscriber would have paid to file the claim in a state court of the state where the subscriber receives cable television service.

Comcast now moves to compel arbitration of this dispute based upon the arbitration provision in the subscriber agreement. Honig opposes Comcast's motion, raising several arguments that the Court will now address in turn.

II. Discussion

A. Whether the Parties Agreed to Arbitrate This Dispute

Honig first argues that she did not agree to arbitrate her claims against Comcast.

The Federal Arbitration Act ("FAA") provides that a written arbitration "provision in any ... contract evidencing a transaction involving commerce ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. The effect of Section 2 of the FAA is to "create a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act." Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). Thus, a district court must compel arbitration and stay the underlying action if the parties had an earlier agreement to arbitrate their dispute. 9 U.S.C. § 3; see also Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985) ("By its terms, the [FAA] leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed.").

Indeed, the FAA establishes a "federal policy favoring arbitration" and requires that courts "rigorously enforce agreements to arbitrate." Shearson/Am. Express, Inc. v. McMahon, 482 U.S. 220, 226, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987) (citations omitted). Accordingly, arbitration clauses are to be generously construed in favor of arbitration. Moses, 460 U.S. at 24, 103 S.Ct. 927; see also Blinco v. Green Tree Servicing LLC, 400 F.3d 1308, 1311 (11th Cir.2005) (noting "unquestionably strong federal policy favoring arbitration").

Notwithstanding the strong federal policy favoring arbitration, no one can be forced to submit a dispute to arbitration that she did not agree to arbitrate. Kemiron Atl., Inc. v. Aguakem Int'l, Inc., ...