Dale v. Comcast Corp.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPTEMBER 4, 2007
No. 06-15516
THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 05-03315-CV-WCO-1

GENE DALE,
MARRELL WARING, et al.,

Plaintiffs-Appellants,

versus

COMCAST CORPORATION,

Defendant-Appellee.
________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(September 4, 2007)

Before DUBINA and BLACK, Circuit Judges, and RESTANI,* Judge.

BLACK, Circuit Judge:

*
Honorable Jane A. Restani, Chief Judge, United States Court of International Trade,
sitting by designation.
 Plaintiffs-Appellants are Georgia residents and subscribers of defendant

Comcast Corporation (Comcast), a cable television provider. The subscribers filed

a class action lawsuit against Comcast alleging violations of state law based on the

Cable Communications Policy Act of 1984, 47 U.S.C. § 521 et seq. (Cable Act).

The district court dismissed the action and compelled arbitration, finding the

subscribers had entered into binding arbitration agreements with Comcast. After

oral argument and a careful review of the record, we find the arbitration

agreements unenforceable and reverse and remand to the district court for further

proceedings.

I. BACKGROUND

The Cable Act authorizes local governments to charge cable operators a

franchise fee for the use of public rights-of-way, provided the fee does not exceed

five percent of the cable operator’s gross revenue. 47 U.S.C. § 542(a), (b). The

Act permits cable operators, in turn, to pass the franchise fees through to their

subscribers. See id. § 542(c). The Act also requires cable operators to “pass

through . . . the amount of any decrease in a franchise fee.” Id. § 542(e).

The subscribers allege Comcast calculates its “pass-through” franchise fees

by using estimates of future revenue from advertising sales and home-shopping

channel commissions. The subscribers contend that by using these estimates,

2
Comcast charges its customers more than it actually pays in franchise fees based

on actual revenues, in violation of 47 U.S.C. § 542. They claim Comcast retains

the excess franchise fees even though they never consented to Comcast’s

estimated calculation of the “pass through” fees or to its retention of the excess

fees.

On December 12, 2005, Dale, as class action representative, filed a

complaint in state court asserting claims of “unjust enrichment” and “money had

and received.” The class seeks an accounting of funds wrongfully withheld,

repayment of excess franchise fees, and declaratory and injunctive relief. Comcast

removed the action to federal court and filed a motion to compel arbitration and

dismiss, arguing the subscribers’ individual claims were governed by written

arbitration agreements.

In its motion, Comcast argued that each subscriber received its 2004

“Policies and Procedures,” an annual notice containing a mandatory arbitration

provision, with his or her December invoice or in a welcome kit given to each new

subscriber at the time of service installation. The arbitration section in the notice,

titled “Mandatory & Binding Arbitration” (the Arbitration Provision), provides

that either the subscriber or Comcast may elect to arbitrate a dispute rather than

litigate the dispute in court. The Arbitration Provision also contains a class action

3
waiver clause prohibiting subscribers from bringing claims on a class action or

consolidated basis. The waiver states:

All parties to the arbitration must be individually named. There shall
be no right or authority for any claims to be arbitrated or litigated on a
class-action or consolidated basis or on basis [sic] involving claims
brought in a purported representative capacity on behalf of the
general public (such as a private attorney general), other subscribers,
or other persons similarly situated.

Comcast argued the subscribers accepted the Arbitration Provision, including the

class action waiver, by their continued subscription to Comcast’s services after

receiving the notices.

In response to Comcast’s motion to compel arbitration and dismiss, the

subscribers disputed having received the 2004 “Policies and Procedures” or

having agreed to the Arbitration Provision, and they requested a jury trial on the

issue of whether they each had entered into an arbitration agreement with

Comcast. They also argued that, even if the Arbitration Provision constituted an

agreement to arbitrate, the class action waiver was unconscionable and therefore

unenforceable as a matter of law.

On September 19, 2006, the district court granted Comcast’s motion to

compel arbitration and dismiss and denied the subscribers’ request for a jury trial.

The court found the Arbitration Provision was binding and the class action waiver

4
was not unconscionable. The subscribers timely appealed arguing, inter alia, the

district court erred in failing to find the class action waiver unconscionable and in

granting Comcast’s motion to compel arbitration and dismiss.1 We find merit in

the subscribers’ arguments and reverse and remand to the district court for further

proceedings.

II. DISCUSSION

We review the district court’s grant of Comcast’s motion to compel

arbitration and dismiss de novo. Caley v. Gulfstream Aerospace Corp., 428 F.3d

1359, 1368 n.6 (11th Cir. 2005). The issue presented is whether the Arbitration

Provision’s class action waiver is unconscionable under Georgia law and thus

unenforceable as a matter of law.2 If it is, then pursuant to the Arbitration

1
The subscribers also argue on appeal the district court erred in denying their request for
a jury trial on the issue of whether each subscriber entered into an arbitration agreement with
Comcast. Because we conclude the class action waiver clause is unenforceable, and thus the
Arbitration Provision in its entirety is unenforceable, see infra, we need not address whether the
district court erred in denying the subscribers’ request for a jury trial. For purposes of this
discussion, however, we assume without deciding that the Arbitration Provision constitutes an
agreement between each subscriber and Comcast.
2
We note that because the subscribers’ unconscionability argument places in issue the
enforceability of the Arbitration Provision itself, we may decide the issue. See Bess v. Check
Express, 294 F.3d 1298, 1306 (11th Cir. 2002) (citing Prima Corp. v. Flood & Conklin Mfg. Co.,
388 U.S. 395, 87 S. Ct. 1801 (1967)). We look to state law to determine whether a provision in a
contract is unenforceable. Id. at 1306-07.

5
Provision’s severability clause, the entire Arbitration Provision is unenforceable,

and the subscribers can maintain their action in federal court.3

Under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (FAA), written

agreements to arbitrate a dispute arising out of a transaction involving commerce

are “valid, irrevocable, and enforceable, save upon such grounds as exist at law or

in equity for the revocation of any contract.” Id. § 2. “The FAA allows state law

to invalidate an arbitration agreement, provided the law at issue governs contracts

generally and not arbitration agreements specifically.” Bess v. Check Express, 294

F.3d 1298, 1306 (11th Cir. 2002). Thus, “generally applicable contract defenses,

such as fraud, duress, or unconscionability, may be applied to invalidate

arbitration agreements.” Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 686-

87, 116 S. Ct. 1652, 1656 (1996).

Here, the subscribers argue Comcast’s class action waiver is unenforceable

as a matter of law because it is unconscionable under applicable Georgia law.

“[T]he basic test for determining unconscionability is ‘whether, in the light of the

general commercial background and the commercial needs of the particular trade

or case, the clauses involved are so one-sided as to be unconscionable under the

3
The severability clause in the Arbitration Provision states: “In the class action waiver
clause is found to be illegal or unenforceable, the entire Arbitration Provision will be
unenforceable.”

6
circumstances existing at the time of the making of the contract.’” NEC Techs.,

Inc. v. Nelson, 478 S.E.2d 769, 771 (Ga. 1996) (quoting U.C.C. §2-302 cmt. 1).4

Georgia law recognizes both procedural and substantive unconscionability. Id.

“Procedural unconscionability addresses the process of making [a] contract, while

substantive unconscionability looks to the contractual terms themselves.” Id. To

determine substantive unconscionability, courts focus on “matters such as the

commercial reasonableness of the contract terms, the purpose and effect of the

terms, the allocation of the risks between the parties, and similar public policy

concerns.” Id. at 772.

The subscribers argue Comcast’s class action waiver is substantively

unconscionable.5 They claim both the United States Supreme Court and this Court

have recognized that public policy supports the need for class actions for certain

types of claims. See, e.g., Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617,

117 S. Ct. 2231, 2246 (1997) (“The policy at the very core of the class action

mechanism is to overcome the problem that small recoveries do not provide the

4
Georgia courts also define an unconscionable contract as “such an agreement as no sane
man not acting under a delusion would make and that no honest man would take advantage of.”
Hall v. Fruehauf Corp., 346 S.E.2d 582, 583 (Ga. Ct. App. 1986) (internal quotation omitted).
5
The subscribers also argue on appeal that the class action waiver is procedurally
unconscionable. We do not address this argument since we conclude infra that the clause is
substantively unconscionable and thus unenforceable as a matter of law.

7
incentive for any individual to bring a solo action prosecuting his or her rights.”

(internal quotation omitted)); In re Charter Co., 876 F.2d 866, 871 (11th Cir.

1989) (“[T]he effort and cost of investigating and initiating a claim may be

greater than many claimants’ individual stake in the outcome, discouraging the

prosecution of these claims absent a class action filing procedure.”). The

subscribers argue that if Comcast’s class action waiver is held valid, they will

effectively be denied any remedy. If successful on their claims, the subscribers

individually stand to recover a very small amount. For example, the subscribers

contend that in Fulton County, during January, February, and March 2005,

Comcast charged its subscribers $629,000 in franchise fees, but paid only

$590,000 to the local government. This resulted in a total overcharge of $39,000

or $0.66 per subscriber (that is, $39,000 divided by an estimated 58,900 Fulton

County subscribers). Over the applicable four-year statute of limitations period,

the subscribers estimate Comcast charged them $10.56 each in excess fees (that is,

$0.66 each three-month period for four years).

The subscribers also explain that even though the Arbitration Provision

requires Comcast to advance arbitration filing fees and the arbitrator’s cost and

expenses upon written request, it holds the subscribers responsible for additional

costs, including fees for attorneys and expert witnesses. Comcast will only pay

8
those fees and costs which it is required to pay by law. If Comcast prevails, the

Arbitration Provision further requires the subscribers to reimburse Comcast for

advanced fees up to the amount the subscribers would have paid to file the claim

in state court.6 The subscribers maintain that, given the potential recovery when

compared to the cost of arbitration, a single plaintiff would not proceed to

arbitration. Accordingly, the subscribers argue the class action waiver is

unconscionable as it will allow Comcast to continue unabated its alleged practice

of overcharging customers.

Comcast responds that our decision in Caley v. Gulfstream Aerospace

Corp., 428 F.3d 1359 (11th Cir. 2005), disposes of the subscribers’ substantive

unconscionability argument. In Caley, we considered, inter alia, whether

Gulfstream’s dispute resolution policy (DRP), which required its employees to

submit certain employment-related claims to arbitration, was unconscionable

under Georgia law. Id. at 1377-79. The plaintiffs claimed the DRP was

substantively unconscionable for several reasons, including that it limited

discovery and prohibited class actions. The Court’s discussion of this argument

was rather brief. We stated:

6
In Fulton County, Geogia, a plaintiff must pay $117.50 to file a complaint against a
single defendant and an additional $25.00 marshall service fee. See
http://www.georgiacourts.org/courts/fulton/fees.html.

9
 As the Supreme Court has explained, the fact that certain litigation
devices may not be available in an arbitration is part and parcel of
arbitration’s ability to offer simplicity, informality, and expedition,
characteristics that generally make arbitration an attractive vehicle for
the resolution of low-value claims. The DRP’s prohibition of class
actions and discovery limitations are consistent with the goals of
simplicity, informality and expedition touted by the Supreme
Court . . . .

Id. at 1378 (internal quotations, citations, and footnote omitted).

We do not agree with Comcast that Caley requires us to conclude the class

action waiver is enforceable. In Caley, we determined only that under the specific

facts of that case, the DRP prohibiting class actions was enforceable, not that

every class action waiver is enforceable under Georgia law.7 We did not consider

a factual scenario in which a remedy was effectively foreclosed because of the

7
Caley relied on Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 31, 111 S. Ct.
1647, 1654 (1991), to conclude Gulfstream’s DRP was enforceable. The question presented in
Gilmer was “whether a claim under the Age Discrimination in Employment Act of 1967 (ADEA)
can be subjected to compulsory arbitration pursuant to an arbitration agreement in a securities
registration application.” 500 U.S. at 23, 111 S. Ct. at 1650 (citations omitted). Gilmer involved
a single plaintiff who argued his ADEA claim should not be subject to compulsory arbitration
because it “would be inconsistent with the statutory framework and purposes of the ADEA.” Id.
at 27, 111 S. Ct. at 1652. The Court briefly addressed the plaintiff’s argument that an arbitration
agreement’s failure to provide for class actions would offend the ADEA. Id. at 32, 111 S. Ct.
1655. The Court noted that the agreement did provide for collective proceedings and that “even
if the arbitration could not go forward as a class action or class relief could not be granted by the
arbitrator, the fact that the [ADEA] provides for the possibility of bringing a collective action
does not mean that individual attempts at conciliation were intended to be barred. . . . [I]t should
be remembered that arbitration agreements will not preclude the EEOC from bring actions
seeking class-wide . . . relief.” Id. (alteration and emphasis in original) (internal quotations and
citation omitted). Thus, although the Court determined the denial of class action relief for
ADEA arbitral claims did not offend the statutory framework and purposes of the ADEA, its
discussion did not extend further.

10
negligible amount of recovery when compared to the cost of bringing an

arbitration action. More importantly, a review of the claims in Caley shows that

each provided for the recovery of attorneys’ fees and/or expert costs should the

plaintiff prevail.8

We recognize that in at least two other cases, we have found arbitration

agreements precluding class action relief to be valid and enforceable. Jenkins v.

First Am. Cash Advance of Ga., LLC, 400 F.3d 868, 877-78 (11th Cir. 2005);

Randolph v. Green Tree Fin. Corp.–Ala., 244 F.3d 814, 819 (11th Cir. 2001).

Like Caley, however, both Jenkins and Randolph involved claims for which

attorneys’ fees and other costs were recoverable. For example, in Jenkins, the

plaintiff filed a class action lawsuit, alleging that certain “payday” loan

agreements violated Georgia’s usury statutes and the Georgia Racketeer

Influenced and Corrupt Organizations (RICO) Act.9 400 F.3d at 872-73. Each

time the plaintiff obtained a “payday” loan, she signed an arbitration agreement, in

8
In Caley, the plaintiffs alleged various discrimination and other claims under the Fair
Labor Standards Act (FLSA), the Age Discrimination in Employment Act (ADEA), the
Employee Retirement Security Act (ERISA), and Title VII. 428 F.3d at 1364. Each of these
Acts provides for the recovery of attorneys’ fees and litigation costs. See 29 U.S.C. § 216(b)
(FLSA); 29 U.S.C. § 626(b) (ADEA) (incorporating the award of attorneys’ fees and costs under
20 U.S.C. § 216(b)); 29 U.S.C. § 1132(g)(1) (ERISA); 42 U.S.C. § 2000e-5(k) (Title VII).
9
“Payday loans” are generally small-dollar, short-term, high interest loans secured by a
check given to the payday lender in the amount of the cash advance plus interest. Jenkins, 400
F.3d at 871. If the borrower has not repaid the lender by the due date, the lender can negotiate the
check. Id.

11
which she agreed to either arbitrate claims or assert them in a small claims tribunal

and to waive class action relief. Id. at 870. The district court determined the

arbitration agreements were substantively unconscionable because they precluded

borrowers from either instigating or participating in class action suits. Id. at 877.

The court explained that “[a] class action is the only way that borrowers with

claims as small as the individual loan transactions [at issue in this case] can obtain

relief,” and speculated that a borrower who attempts to pursue a single claim

would “probably” be unable to find affordable representation. Id. (internal

quotation omitted).

On appeal, however, we determined the class action waiver was not

unconscionable. In rejecting the district court’s conclusion, we noted that we had

previously held in Randolph that “a contractual provision to arbitrate [Truth-In-

Lending-Act (TILA)] claims is enforceable even if it precludes a plaintiff from

utilizing class action procedures in vindicating statutory rights under TILA.”10 Id.

10
In Randolph, we addressed “whether an arbitration agreement that bars pursuit of
classwide relief for TILA violations is unenforceable for that reason.” Randolph, 244 F.3d at
816. The opinion did not discuss whether the class action waiver was unconscionable, but
instead whether it was inconsistent with the statutory text and legislative history of TILA. See id.
at 816-19. We specifically noted, however, that “the public policy goals of TILA can be
vindicated through arbitration, and the statute contains other incentives–statutory damages and
attorneys fees–for bringing TILA claims.” Id. at 818; see also 15 U.S.C. § 1640(a)(3) (stating
that “in the case of any successful action,” a plaintiff is entitled to “the costs of the action,
together with a reasonable attorney’s fee as determined by the court”).

12
at 877-78 (internal quotation omitted). We also found the district court’s

contention that consumers would likely be unable to obtain legal representation

without the class action vehicle to be unfounded because under Georgia’s RICO

Act, the plaintiff could recover attorneys’ fees and costs if she prevailed.11 Id. at

878. We stated that “when the opportunity to recover attorneys’ fees is available,

lawyers will be willing to represent . . . debtors in arbitration.” Id. (citing

Snowden v. Checkpoint Check Cashing, 290 F.3d 631, 638 (4th Cir. 2002) and

Johnson v. West Suburban Bank, 225 F.3d 366, 374 (3d Cir. 2000)).

We therefore concluded that “precluding class action relief [would] not have the

practical effect of immunizing [the defendants]” and “the inclusion of a class

action waiver in the [a]rbitration [a]greements did not render those [a]greements

substantively unconscionable.” Id.

Here, unlike the plaintiffs in Caley, Jenkins, and Randolph, the subscribers

cannot recover attorneys’ fees under the Cable Act for the specific violations

alleged. While the Cable Act provides for attorneys’ fees and costs for violations

11
The Georgia Rico Act provides that “[a]ny person who is injured by reason of any
violation of [the Georgia Rico Act] shall have a cause of action for three times the actual
damages sustained and, where appropriate, punitive damages. Such person shall also recover
attorneys’ fees in the trial and appellate courts and costs of investigation and litigation reasonably
incurred. The defendant or any injured person may demand a trial by jury in any civil action
brought pursuant to this Code section.” O.C.G.A. § 16-14-6(c).

13
of 47 U.S.C. § 551 (Protection of Subscriber Policy) and § 553 (Unauthorized

Reception of Cable Service), it does not provide for attorneys’ fees and costs for a

violation of § 542 (Franchise Fees). We recognize that the subscribers assert state

law claims and, under state law, the subscribers may be able to recover fees and

costs. Georgia law provides that “[t]he expenses of litigation generally shall not

be allowed as part of the damages,” but a jury may award such expenses “where

the plaintiff has specially pleaded and has made prayer therefor and where the

defendant has acted in bad faith, has been stubbornly litigious, or has caused the

plaintiff unnecessary trouble and expense.” O.C.G.A. § 13-6-11. Nonetheless, the

potential recovery of attorneys’ fees and litigation costs under O.C.G.A. § 13-6-11

does not provide the same incentive for an attorney to represent an individual

plaintiff as the automatic, or likely, award of fees and costs available to a

prevailing plaintiff for the claims asserted in Caley, Jenkins, and Randolph.12 We

12
The plaintiffs in Caley asserted claims under the FLSA, ADEA, Title VII, and ERISA.
Prevailing plaintiffs are automatically entitled to attorneys’ fees and costs under the FLSA and
ADEA. See 29 U.S.C. § 216(b) (FLSA) (stating that the court “shall, in addition to any
judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the
defendant, and costs of the action”) (emphasis added); 29 U.S.C. § 626(b) (ADEA)
(incorporating the award of attorneys’ fees and costs under 20 U.S.C. § 216(b)). Under Title VII
and ERISA, a court may, in its discretion, award attorneys’ fees and costs to a prevailing
plaintiff. See 42 U.S.C. § 2000e-5(k) (Title VII) (stating that the “court, in its discretion, may
allow the prevailing party . . . a reasonable attorney’s fee (including expert fees)”) (emphasis
added); 29 U.S.C. § 1132(g)(1) (ERISA) (stating that the “court in its discretion may allow a
reasonable attorney’s fee and costs of action to either party”) (emphasis added). The Georgia
RICO statute (Jenkins) and TILA (Randolph) both provide for the automatic award of attorneys’
fees and costs to a prevailing plaintiff. See O.C.G.A. § 16-14-6(c) (stating that a prevailing

14
thus find ourselves in unchartered territory and look to our sister circuits’

decisions addressing the enforceability of class action waivers.

In a recent case, Kristian v. Comcast Corp., 446 F.3d 25 (1st Cir. 2006), the

First Circuit addressed the enforceability of arbitration agreements invoked by

Comcast against a group of Boston subscribers suing Comcast for violations of

state and federal antitrust law. Id. at 29. The Boston subscribers argued the

arbitration agreement prevented them from vindicating their statutory rights by,

among other things, prohibiting the use of the class mechanism. Id. at 37. In

deciding whether the class action waiver was valid, the First Circuit first noted

that “the legitimacy of the arbitral forum rests on the presumption that arbitration

provides a fair and adequate mechanism for enforcing statutory rights.” Id. at 54

(internal quotation omitted). Relying on unopposed expert evidence presented by

the plaintiffs, the court found that the bar on class arbitration threatens this

presumption given the “complexity of an antitrust case generally, and the

complexity and cost required to prosecute a case against Comcast specifically.”

Id. at 58. “[W]ithout some form of class mechanism–be it class action or class

plaintiff “shall also recover attorneys’ fees in the trial and appellate courts and costs of
investigation and litigation reasonably incurred”) (emphasis added); 15 U.S.C. § 1640(a)(3)
(stating that “[e]xcept as otherwise provided in this section, any creditor who fails to comply
with any requirement imposed under [TILA] . . . with respect to any person is liable to such
person . . . [for] the costs of the action, together with a reasonable attorney’s fee as determined by
the court”) (emphasis added).

15
arbitration–a consumer antitrust plaintiff will not sue at all.” Id. at 58.13

Accordingly, the court struck down the class arbitration waiver, concluding that

“Comcast [would] be essentially shielded from private consumer antitrust

enforcement liability, even in cases where it has violated the law.” Id. at 61.14

“Plaintiffs [would] be unable to vindicate their statutory rights [and] the social

goals of federal and state antitrust laws [would] be frustrated because of the

‘enforcement gap’ created by the de facto liability shield.” Id. at 61.15

While the subscribers in the instant case do not argue the class action waiver

prevents them from vindicating their statutory rights, we nonetheless find the First

Circuit’s analysis in Kristian instructive. Without the benefit of a class action

mechanism, the subscribers would effectively be precluded from suing Comcast

13
The court also rejected the contention that the availability of attorneys’ fees provides
the necessary incentive for private enforcement actions. Id. It explained that an attorney’s initial
outlay in time and money would be larger than an individual plaintiff’s potential recovery, and
after factoring the uncertainty of the plaintiff prevailing, the likelihood of an individual claim
“shrinks even further.” Id. at 59.
14
But see Iberia Credit Bureau Inc. v. Cingular Wireless LLC, 379 F.3d 159, 174-75 (5th
Cir. 2004) (finding a class action waiver enforceable despite its potential to immunize defendants
from low-value claims, but emphasizing that the Louisiana Unfair Trade Practices Act’s
(LUTPA) prohibition of class actions was a “highly relevant factor in considering the equities of
the arbitration clauses”).
15
While the court found the class arbitration provision unenforceable, it applied the
savings clause of the arbitration agreements to sever that provision from the agreement. Id. at 62,
64. With the provision severed, the court permitted arbitration of the arbitration claims to
proceed. Id. at 64.

16
for a violation of 47 U.S.C. § 542. The cost of vindicating an individual

subscriber’s claim, when compared to his or her potential recovery, is too great.

Additionally, because the Cable Act does not provide for the recovery of

attorneys’ fees or related costs for the violations alleged by the subscribers, and

because state law allows fees and costs to be awarded only where bad faith is

shown, it will be difficult for a single subscriber to obtain representation. This

will allow Comcast to engage in unchecked market behavior that may be unlawful.

Corporations should not be permitted to use class action waivers as a means to

exculpate themselves from liability for small-value claims.

We thus conclude that the enforceability of a particular class action waiver

in an arbitration agreement must be determined on a case-by-case basis,

considering the totality of the facts and circumstances. Relevant circumstances

may include, but are not limited to, the fairness of the provisions, the cost to an

individual plaintiff of vindicating the claim when compared to the plaintiff’s

potential recovery, the ability to recover attorneys’ fees and other costs and thus

obtain legal representation to prosecute the underlying claim, the practical affect

the waiver will have on a company’s ability to engage in unchecked market

behavior, and related public policy concerns.

17
 III. CONCLUSION

Here, based on the totality of circumstances, we conclude the Comcast

class action waiver is unconscionable to the extent it prohibits the subscribers

from bringing a class action alleging state law claims based on a violation of the

Cable Act’s franchise fee provisions, 47 U.S.C. § 542. Because the class action

waiver cannot be severed from the Agreement, the entire arbitration provision is

rendered unenforceable. We reverse and remand to the district court for further

proceedings.

REVERSED AND REMANDED.

18