Reopening the Courtroom Doors: A Proposal for an FCC Prohibition of Mandatory Arbitration Clauses
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REOPENING THE COURTROOM DOORS: A PROPOSAL FOR
AN FCC PROHIBITION OF MANDATORY ARBITRATION
CLAUSES
JOHN C. FERRELL*
I. INTRODUCTION
In recent years, many businesses have begun including mandatory
arbitration clauses1 in their agreements with customers.2 These agreements
expressly prohibit consumers from bringing their claims in court (with the
exception of small claims court) and instead require the consumer to
submit to binding arbitration by a neutral decision-maker.3 They appear in
contracts for a wide variety of consumer products and services, including
car leases, credit cards, checking accounts, insurance, student loans, and
Copyright © 2018, John C. Ferrell.
* J.D. Candidate, Capital University Law SchooL, 2018; B.A., The Ohio State
University, 2011. 1 would like to thank Professor Margaret M. Cordray for introducing me
to this important issue and providing invaluable guidance throughout the process of writing
this Comment. I would also like to thank Professor Scott A. Anderson for teaching me the
art of legal analysis and writing and for consistently pushing me to improve this skill.
Lastly, I would like to thank my wife Leslie for her constant encouragement since day one
of law school.
1 Although the term arbitration clause has a broad meaning, for purposes of this
Comment, the term mandatory arbitration clause will be used to refer to a particular type
of arbitration agreement. The term will refer to clauses contained in the standard un-
negotiated Terms & Conditions for a consumer product or service that requires the
consumer to resolve all disputes through binding arbitration. The term will not include
agreements to arbitrate that are entered after a dispute arises, nor will it include arbitration
agreements in negotiated contracts between sophisticated individuals or entities.
2Mandy Walker, The Arbitration Clause Hidden in Many Consumer Contracts,
CONSUMER REPS., http://www.consumerreports.org/cro/shopping/the-arbitration-clause-
hidden-in-many-consumer-contracts [https:/perna.cc/HMQ2-2YUQ].
3 E.g., Verizon Wireless Customer Agreement, VERIZON WIRELESS,
https://www.verizonwireless.com/legal/notices/customer-agreement [https://permacc/2327-
SBZR] (YOU AND VERIZON BOTH AGREE TO RESOLVE DISPUTES ONLY BY
ARBITRATION OR IN SMALL CLAIMS COURT. YOU UNDERSTAND THAT BY
THIS AGREEMENT YOU ARE GIVING UP THE RIGHT TO BRING A CLAIM IN
COURT OR IN FRONT OF A JURY.).](ViewImageLocal?handle=hein.journals/capulr46&div=7&collection=&method=preview&ext=.png&size=3)
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Reopening the Courtroom Doors: A Proposal for an FCC Prohibition of Mandatory Arbitration Clauses
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