In Whaley v. T-Mobile, USA, Inc., 2013 WL 5155342 (E.D.Ky. 2013), Judge Bunning ordered a TCPA/Unintended Recipient case to arbitration based on an arbitration clause that the defendant actually had with the recipient on an unrelated account. Beginning in July 2012 T–Mobile used an automatic dialing system to call plaintiff regarding a debt purportedly owed by a third person, Thomas Latrell. Plaintiff also had an account with T-Mobile, but Plaintiff called to inform T–Mobile that he was not Thomas Latrell and asked to not receive any further calls regarding Latrell’s alleged debt. However, the automated calls continued for weeks. Plaintiff’s complaint alleges that he received over thirty automated calls. Plaintiff sued T–Mobile, alleging that the automated phone calls regarding a debt owed by a Thomas Latrell violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. 227(b)(1)(A)(iii). T–Mobile moved to compel arbitration based on the arbitration agreement that the Plaintiff had with T–Mobile. The Court granted the Petition.
Once an arbitration clause is deemed to have been broadly written, “only an express provision excluding a specific dispute, or the most forceful evidence of a purpose to exclude the claim from arbitration will remove the dispute from consideration by the arbitrators.” Watson Wyatt & Co., 513 F.3d at 650 (internal quotation marks and citations omitted). There is no clause in the present agreement specifically excluding TCPA claims from being arbitrable. ¶ When trying to determine if a dispute falls within an arbitration clause “[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.” Fazio v. Lehman Bros, Inc., 340 F.3d 386, 396 (6th Cir.2003). This action cannot be properly maintained without reference to the contract at issue because, among other reasons, T–Mobile relies upon a clause of the agreement as its defense to plaintiff’s claim. Specifically, T–Mobile relies upon section fifteen of the agreement, which provides in relevant part 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….” Doc. 8–2, p. 14. According to T–Mobile, that clause satisfies 47 U.S.C. § 227(b)(1)(A)’s requirement that it is not unlawful to make automated phone calls to persons who have given prior express consent to receive such calls. ¶ Plaintiff contends that defendant’s reliance upon section fifteen of the agreement is improper because that section only meant that plaintiff agreed to receive automated calls from T–Mobile related to plaintiff’s account, not automated calls relating to Latrell or any other person. Plaintiff’s argument, however, is really an argument going to the merits of T–Mobile’s defense. At this stage, the Court’s duty is not to determine whether T–Mobile’s defense is meritorious. . . .Rather, the Court should only determine if plaintiff’s claim may be resolved without referring to the agreement between plaintiff and T–Mobile. ¶ Clearly, the claim cannot be resolved without referring to the agreement because it will be necessary to examine section fifteen of the agreement to resolve both plaintiff’s TCPA claim FN4 and T–Mobile’s de-fense. In short, plaintiff’s claim cannot be adequately resolved without examining the agreement between the parties. Accordingly, the dispute falls within the scope of the arbitration clause meaning that T–Mobile’s motion to compel arbitration and stay this action should be granted. [FN4. To recover under the TCPA plaintiff must show that T–Mobile “knew that [p]laintiff did not consent to the phone calls.” Harris v. World Financial Network Nat. Bank, 867 F.Supp.2d 888, 895 (E.D.Mich.2012). To resolve plaintiff’s claim it will therefore be necessary to examine section fifteen to determine whether T–Mobile knew that plaintiff had not con-sented to receive the calls at issue.]