Comcast Arbitration Agreement by Customer Inaction
March 11, 2008 7:58 AM   Subscribe

Hidden among various other breathtakingly evil clauses, part 13 of the Comcast Agreement for Residential Services says that if the customer doesn't opt out within 30 days of receiving the dense legalese, he gives up the right to sue Comcast in a public court. But (in clause 15g), Comcast maintains the right to sue the user any time they like. Is this stuff enforceable? YMOMNBAL
posted by East Manitoba Regional Junior Kabaddi Champion '94 to Law & Government (14 answers total) 4 users marked this as a favorite
 
Sucks? Yes. Enforceable: Yes.

Arbitration companies are highly tilted against the consumer. There's a 95% loss rate for some.
posted by unixrat at 8:01 AM on March 11, 2008 [1 favorite]


I don't doubt that when someone signs an arbitration agreement it's binding. But in this case, the customer is giving up his rights by merely not responding to the notice. If I were a judge I would gnaw my own leg off rather than let them get away with that shit (but I am not a judge).
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 8:04 AM on March 11, 2008


By the way, Comcast bought out my local cable company and is transferring customer accounts to them, so the customers in my area won't be signing anything (and 99% won't be reading anything) for this clause to affect them.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 8:07 AM on March 11, 2008


Arlen Specter (R) PA is pretty much owned by Comcast.
posted by any major dude at 8:13 AM on March 11, 2008 [2 favorites]


It is a complex question, but the general category of stuff you want to Google is "contracts of adhesion." Broadly speaking, contracts that are very one-sided and show evidence of not being freely bargained for are subject to special scrutiny by the courts and are much more likely to be rejected than an ordinary contract. I haven't read this specific contract and am not inclined to spend of lot of time scrutinizing it, but the outcome of a suit against Comcast would likely turn on the balance of whether the judge is more offended by being told he can't scrutinize the document or more annoyed at dealing with the case. My guess would be that if you have a legitimate case on the merits a judge would have no problem throwing out the "no right to sue" clause.
posted by Lame_username at 8:14 AM on March 11, 2008 [1 favorite]


IAAL, IANYL.

While failing to respond to such a notice may be considered to be constructive consent to the terms in this context, Comcast might have more trouble if they are trying to maintain certain remedies for themselves while denying them to the other party. (I'm not going to read the Agreement to determine whether or not that is the case, but it sounds like that's what you're talking about.) Such a structure might be determined to be "contrary to public policy" or "unconscionable," although it might also be determined to be appropriate. My take would be that most courts would at least examine whether it would be permissible to allow one party in an unbargained agreement (as in, "take it or leave it") to impose restrictions on the other party that limit the other party's rights to remedy without limiting the first party's right to remedy. When you through in the fact that this is a contract for services that you might not be able to get from too many other entities and which have significant legal and financial barriers to entry, you might get a court to throw it out.

I agree with some of what Lame_username says, but I don't necessarily think that a judge is going to have "no problem throwing out the 'no right to sue' clause" just because there is a legitimate case on the merits. As others have said, arbitration agreements are generally enforceable. It's only if there is something unconscionable or otherwise inappropriate or impermissible that you will get around such a provision to get to litigate on the merits.
posted by iknowizbirfmark at 8:23 AM on March 11, 2008 [1 favorite]


Thank you for asking this, EMRJKC9. I just got the same notice yesterday and while I skimmed it for anything sleazy, I did not skim it very well. Upon seeing your question, I dug the notice out of the recycle bin (I knew I shoulda filed it) to figure out how to opt out. While they did bury the clause deep in the notice, at least they made opting out very easy. I'm sure you probably know this, but for anyone else who is in the same situation as me but is in a more procrastinatory mood than I happened to be this morning, you can opt out in about 30 seconds right here.
posted by ErWenn at 8:25 AM on March 11, 2008 [3 favorites]


btw: It is not unheard of for companies who slip these iffy clauses into contracts to quietly settle minor disputes, rather than going to court, having said clause challenged and slapped down for everyone involved. That can potentially open a nasty can o' worms.
posted by RavinDave at 9:52 AM on March 11, 2008 [1 favorite]


Not-a-lawyer here, seeking illumination around this contract and considerations.

My understanding is that a valid contract must have a "consideration" - some benefit to the signing party in return for signing the contract.

What is it that Comcast offers the customer in return for signing away significant rights? Is it the cable or internet service itself? And would this be a sufficient consideration if other companies offer the same service at roughly the same price without the clauses in this contract?
posted by zippy at 10:19 AM on March 11, 2008


I would say that it would be enforceable, given the strong presumption in favor of arbitration clauses, though, as iknowizbirfmark said, the fact that they are retaining the remedies they are denying you makes it a little more of a grey area. Depending on the jurisdiction, the adhesion contract argument would most likely require you to show not just that it was a standard form presented by powerful commercial entity on "take it or leave it" basis with no bargaining opportunity, but also that you would otherwise be unable to obtain the product or a fair alternative from them, other substitutes, or other providers. High bar to meet in most cases.
posted by Pontius Pilate at 10:24 AM on March 11, 2008


For some who haven't read it the clause in question assumes the user signs the agreement and is only stipulating that if you do not wish to be bound by arbitration you must within 30 days submit that request in writing. It's actually an opt-out clause from their arbitration agreement.

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/ARBITRATIONOPTOUT, 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.


And apparently the whole thing is moot in CA.

SPECIAL NOTE REGARDING ARBITRATION FOR CALIFORNIA CUSTOMERS:
IF YOU ARE A COMCAST CUSTOMER IN CALIFORNIA, COMCAST WILL NOT SEEK TO ENFORCE THE ARBITRATION PROVISION ABOVE UNLESS WE HAVE NOTIFIED YOU OTHERWISE.
posted by bitdamaged at 11:04 AM on March 11, 2008


What is it that Comcast offers the customer in return for signing away significant rights? Is it the cable or internet service itself?

The old saw is that even a peppercorn can be sufficient consideration. But you're looking at it sort of funny, truth be told. I'd parse the contract as being an agreement in which the service is being provided in consideration for a fixed monthly fee. Agreeing to arbitration isn't really part of the consideration offered by the customer.

And would this be a sufficient consideration if other companies offer the same service at roughly the same price without the clauses in this contract?

Yep. Even independent of the whole peppercorn theory of consideration, think of it this way: If one fast food chain offers a kid's meal with a toy for the same price as a competitor's toyless kid's meal, would the absence of the toy make you think there was insufficient consideration?
posted by averyoldworld at 12:37 PM on March 11, 2008


Consumerist had a warning on the new residential ToS (http://consumerist.com/350488/opt-out-of-comcasts-arbitration-agreement). Comcast are issuing a new residential agreement starting in January 2008 onwards. So it is time to opt out. As bitdamaged pointed out, you can opt out by filling in your account details at
http://www.comcast.com/arbitrationoptout/
I just did so. Easy-peasy ...
posted by sgmax at 8:02 PM on March 11, 2008


And once you've opted out, if you want to do more, check out the Arbitration Fairness Act (Google search, to give you your choice of info sources). I wrote to my Congresscritters asking them to support it.
posted by kristi at 10:47 PM on March 11, 2008


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