Anyone with a telephone or cell phone likely has received a robocall. A robocall consists of a call that is initiated by a party using a recorded message instead of a live person. These calls can be quite a nuisance, not only due to the excessive number of calls made to the same number, but because the receiving party has to spend time engaging and navigating through the recorded message and prompts to get a live person on the phone to request that the calls stop.
Not surprisingly, Robocalls have been the subject of quite a bit of litigation because of telemarketing violations of the Telephone Consumer Protection Act of 1991 (“TCPA”) and the Do-Not-Call registry. Violations can result in damages and penalties ranging from $500 to multi-million dollar figures. In recent years, there has also been a sharp increase in illegal robocalls because internet-based phone systems have made it easier for telemarketing scammers to initiate calls worldwide with fake caller ID information.
It should be noted that legitimate businesses use telemarking as a marketing and sales tool, and as such, the FCC has set the following requirements for telemarketers to abide by: 1) obtain prior express written consent from consumers before initiating robocalls; 2) require telemarketers to provide an automated, interactive “opt-out” mechanism allowing consumers the ability to inform telemarketers to stop calling; and 3) telemarkers can no longer bypass consent for home telephone marketing calls from consumers due to an “established business relationship.”
Comcast Cable Communications Management, LLC (“Comcast”) has had its share of robocall litigation, and recently tried to force a plaintiff named Rolando Chacon, who has alleged Comcast violated the TCPA, out of court and into arbitration. Comcast argued before the U.S. District Court in Illinois that Chacon’s contractual service agreement with Comcast contained an arbitration provision and that the Chacon should be forced to arbitrate. Chacon argued that the arbitration provision did not apply to his litigation with Comcast because the subject of the litigation with Comcast is not related to his actual contractual relationship with Comcast. The court sided with Chacon and that is where the twist comes in.
Comcast allegedly started calling Chacon several times a day in 2017, trying to reach someone named Luke Johnson or Luke Johns for the return of Comcast’s company equipment and an unpaid invoice in Johnson's or John’s name. Comcast was not trying to contact Chacon, nor did it have a dispute with Chavon over unreturned equipment and an unpaid invoice. Chacon alleges he informed Comcast that it had the wrong number and requested the calls stop, but the company continued the calls. The court found that this case between Chacon and Comcast is not related to Chacon and Comcast’s actual residential services relationship, rather it relates to Comcast’s dispute with and attempts to reach Luke Johnson or Luke Johns, and as such, Chacon did not agree to arbitrate under those circumstances.
Arbitration clauses can provide businesses with the opportunity to bypass litigation, but it appears that in the Chacon V. Comcast Cable Communications Management, LLC et al case, Comcast tried to expand the actual scope of its arbitration clause with a customer so that it would apply to any and all litigation with the customer, and in this robocall case, the court did not allow it.
This case is a reminder of two things, 1) telemarketers and companies who utilize telemarketing practices need to be diligent and follow the FCC’s guidelines, and 2) as a business, make sure you carefully draft and implement arbitration provisions in your contractual agreements.