In Chacon v. Comcast Cable Communications Mgmt., LLC, 2018 WL 3046868, at *3 (N.D.Ill., 2018), Judge Guzman found that a TCPA claim fell outside the scope of an arbitration clause.
The critical issue here is whether the second element identified in A.D. for compelled arbitration is satisfied: is the current dispute within the scope of the Subscriber Agreement’s arbitration provision? Comcast contends that Chacon’s claims “fall squarely” within its scope because Chacon’s allegations that Comcast called his phone “are indisputably related to an ‘aspect’ of his ‘relationship’ with Comcast.” (ECF No. 20, Def.’s Mem. Supp. Mot. at 6.) Comcast does not further explain how this is so. In response, Chacon asserts that they are not because the calls had nothing to do with the service Comcast had provided to him; the calls were not even intended for Chacon, but for a different individual who is a stranger to Chacon, and thus pertained to that individual’s relationship with Comcast, not Chacon’s. The Court agrees with Chacon. He alleges in this case that Comcast violated the TCPA by repeatedly making phone calls to him that were intended for another person. That is not a dispute regarding an aspect of Chacon’s relationship with Comcast (which was a contractual relationship), so it does not fall within the plain language of the arbitration provision in the Subscriber Agreement. Because arbitration agreements are contracts, “a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” A.D., 885 F.3d at 1060 (internal quotation marks and citation omitted); see also Dr. Robert L. Meinders, D.C., Ltd. v. UnitedHealthcare, Inc., 800 F.3d 853, 857 (7th Cir. 2015) (“A party can be forced to arbitrate only those matters that he or she has agreed to submit to arbitration….”). The circumstances here stand in contrast to situations in which the plaintiff subscribed to defendant’s service, terminated that service, and subsequently received calls from the defendant that pertained to the parties’ relationship, such as calls attempting to collect an outstanding debt for the previous service. See, e.g., Mayfield v. Comcast Cable Commc’ns Mgmt., LLC, No. 1:15-CV-483-CAP, 2015 WL 10173611, at *3 (N.D. Ga. June 19, 2015). Chacon did not agree to arbitrate disputes that do not concern an aspect of his relationship with Comcast, so the Court will not compel arbitration. In its reply brief, Comcast asserts that the issue of whether this dispute lies within the scope of the arbitration provision “raises an issue for the arbitrator, not the Court, to decide,” because the parties agreed to arbitrate even “gateway” questions of arbitrability. (Def.’s Reply at 6.) But Comcast raises this issue for the first time in its reply brief, so the Court will not consider the argument. See Dexia Crédit Local v. Rogan, 629 F.3d 612, 625 (7th Cir. 2010) (“[A]rguments raised for the first time in a reply brief are waived.”).