Telephone Consumer Protection Act

Whaley v. T-Mobile, USA, Inc., No. 13-31-DLB-JGW, 2013 WL 5155342 (E.D. Ky. Sept. 12, 2013) Plaintiff opened a cell phone account with Defendant. Terms and conditions of the account included an arbitration provision in bold letters. While Plaintiff was allowed an opportunity to opt out of the arbitration procedures by calling a 1-800 number within 30 days of activating service, he did not exercise this option. According to the Complaint, Defendant later began calling Plaintiff to collect debt from a third party. He filed suit alleging violations of the TCPA and Defendant moved to compel arbitration of his claims. In opposition to the motion, Plaintiff argued that no valid agreement to arbitrate existed because Plaintiff did not agree to arbitrate any debt owed by the third party. The court rejected this argument, noting that the issue was not whether any dispute between the third party and Defendant was arbitrable but rather whether the dispute between Plaintiff and Defendant was arbitrable. The court next sought to determine whether Plaintiff's TCPA claim fell within the scope of the arbitration provision. Answering this question, the court stated that a proper method of analysis is to ask if an action could be maintained without reference to the contract or relationship at issue. If it could, it is likely outside the scope of the arbitration agreement. Here, the action could not be properly maintained without reference to the contract at issue because a clause of the agreement provides that "[y]ou [plaintiff] expressly consent to be contacted, for any and all purposes, at any telephone number . . . you provide to us or that we provide to you. You agree that we may contact you in any way, including, pre-recorded or artificial voice or text messages delivered by an automatic telephone dialing system . . . ." While Plaintiff argued that this clause only meant Plaintiff agreed to receive automated calls from Defendant related to his account, not calls related to a third party, the Court deemed the argument as one going to the merits of the defense and it was too early to determine whether the defense was meritorious.