Finding no evidence that cable television subscribers did not receive notice of the addition of an arbitration agreement to their cable contract, and finding no unconscionability in a class action waiver therein, a federal district court in Florida ordered the subscribers to individually arbitrate their claims against Comcast.

In Sanders v. Comcast Cable Holdings, LLC, No. 3:07-cv-918-J-33HTS, 2008 WL 150479 (M.D. Fla. Jan. 14, 2008), Sanders and other cable television subscribers filed a class action lawsuit against Comcast, alleging that certain cable television features did not work as advertised. The subscribers brought the suit for breach of contract and for violation of Florida's Deceptive and Unfair Trade Practices Act (FDUTPA).

Comcast moved to compel arbitration. Although no arbitration agreement existed between the parties at the beginning of their contractual relationship, Comcast alleged that it had sent an "arbitration notice" to its customers which contained an arbitration agreement. The alleged notice allowed subscribers to opt-out of arbitration by providing notification within 30 days after receiving the arbitration notice. None of these particular subscribers opted out of the arbitration agreement.

The subscribers first argued that no agreement to arbitrate existed between the parties because the notice was not received. The Court found that, other than the affidavits indicating that they did not receive the notice, the subscribers had failed to present any evidence that would rebut the presumption that the notice was received. Comcast presented evidence that all subscribers were systematically sent such a notice.

According to the Court, the affidavits alone did not constitute "some evidence to substantiate the denial" that notice was never received that would make the claim "colorable," or require the Court to empanel a jury to decide the issue of the agreement's existence. See, e.g., Wheat, First Sec., Inc. v. Green, 993 F.2d 814, 818 (11th Cir. 1993) (requiring some evidence beyond sworn statements denying receipt of notice); Chastain v. The Robinson-Humphrey Co., Inc., 957 F.2d 851, 855 (11th Cir. 1992) (additional evidence must create a genuine issue of fact before requiring a jury trial on the agreement's existence).

Relying on the common law doctrine that "an item properly mailed was received by the addressee," the Court held that Comcast had borne the burden of showing an agreement to arbitrate, and no jury would be needed to decide the issue.

The Court then examined the terms of the agreement for unconscionability. The Court found no procedural unconscionability in the agreement because Comcast had given the subscribers a clear opportunity to opt out of arbitration with no adverse consequences before the term was actually imposed. To the Court, the ample time given to opt out precluded a finding that the agreement was procedurally unconscionable.

As to substantive unconscionability, the Court acknowledged case law in other jurisdictions suggesting that the class action waiver within the agreement might be unconscionable. See. e.g., Kristian v. Comcast Corp., 446 F.3d 25, 61 (1st Cir. 2006) (holding the class action waiver impermissibly "shielded" Comcast from liability). It also noted that the Eleventh Circuit had struck down a similar class action waiver in Dale v. Comcast Corp., 498 F.3d 1216, 1224 (11th Cir. 2007).

However, the Court noted that the Dale decision did not involve a situation where the subscriber was given an ample period of time to opt out without adverse consequences. It also noted that the other cases relied upon by the subscribers involved agreements that precluded an award of attorney's fees to the prevailing party. This, to the Court, made the instant case distinguishable, and militated against a finding of substantive unconscionability.

Because the agreement preserved the subscribers' ability to seek relief by allowing an award of attorney's fees under the FDUTPA, and because the subscribers had the opportunity to opt out of the arbitration agreement but failed to do so, the Court held that the class action waiver was not unconscionable.

Finally, the Court decided that the agreement's one year limitation on claims for relief was not substantively unconscionable, despite the fact that the FDUTPA provided for a longer limitation. The Court found the shortened period did not offend public policy and "more effectively secure[d] the end sought to be attained by the statute of limitations."