In Ewing v. Charter Communications Holding Company, LLC., 2017 WL 6049379, at *3–4 (S.D.Cal., 2017), Judge Benitez ordered a TCPA case to arbitration over the consumer’s objection that he opted-out.
In his opposition, Ewing does not object to or otherwise dispute Ms. Flores’s declaration or the attached evidence of his account history. His sole argument is that he “followed the opt out instructions outlined in Defendant’s arbitration agreement.” (Opp’n at 3.) He argues he “is no longer bound by the agreement” because he “followed Defendant’s explicit ‘opt out’ instructions to opt out of Defendant’s agreement – in its entirety [.]” (Id.) Ewing provided his own declaration, which states he “sent a letter to Time Warner Cable electing to opt out of the arbitration agreement and opting out of the one year limitation to bring claims” on October 20, 2014, and attached a “true and correct copy of the letter” to his declaration. (Docket No. 8-2, Declaration of Anton Ewing (“Ewing Decl.”) ¶ 4.) Ewing’s letter, dated October 20, 2014, indicates it was correctly addressed to the address listed in Section 16 of the Subscriber Agreement, and states Ewing’s intent to opt out of the provisions. (Docket No. 8-2 at p. 2.)  In response, Charter disputes the existence of the letter and asserts it never received an opt out letter. (Docket No. 9, Reply at 1.) It further argues that, even assuming the letter was sent on October 20, 2014, it was untimely. The Court agrees. According to the “explicit” opt out provisions, Ewing was required to provide notice of his intent to opt out of the arbitration clause within 30 days of becoming subject to the agreement, i.e. the date he “first became subject to” the Subscriber Agreement by “by signing a work order or using our Services.” (Def.’s Ex. B at p. 9) (emphasis added). Ewing did not dispute Charter’s evidence that his services commenced on September 17, 2014. Therefore, Ewing’s notice was due on October 17, 2014. As a result, Ewing’s October 20, 2014 letter was untimely.  Thus, it appears to the Court that the Subscriber Agreement contains an arbitration clause that is “valid, irrevocable, and enforceable,” 9 U.S.C. § 2, and the Court is required to refer Ewing’s claims to arbitration. 9 U.S.C. §§ 3-4. Accordingly, Charter’s motion to compel arbitration is GRANTED.