Full opinion text
MEMORANDUM AND ORDER LUNGSTRUM, District Judge. This multidistrict litigation consists of numerous putative class action lawsuits arising from the practices of defendants AT & T Corporation (“AT & T”) and Sprint Communications Company, L.P. (“Sprint”) and non-party MCI WORLD-COM Network Services, Inc. and MCI WorldCom Communications, Inc. (collectively “MCI”) of charging their customers to recoup these carriers’ contributions to the federal Universal Service Fund (“USF”) program. The Federal Communications Commission (the “FCC”) administers the USF, a federal fund that subsidizes telecommunications service for low-income consumers, consumers in rural and high-cost areas, schools, libraries, and health care providers. 47 U.S.C. § 254. Long distance carriers such as defendants AT & T and Sprint are required to contribute a percentage of their revenues to maintaining the USF. Id. All major long distance carriers attempt to recover the costs of their contributions to the USF fund from their customers by way of line-item surcharges. Plaintiffs are customers or former customers of AT & T, Sprint, and MCI who allege defendants engaged in an illegal scheme of conspiring to overcharge them for these USF fund pass-through charges, thereby creating a secret profit center that allowed defendants to deceptively advertise lower rates for their services. For example, plaintiffs allege that the USF contribution factor during most of 2001 and 2002 ranged from 6.68% to 7.28%, and that during this same time period AT & T and Sprint imposed USF surcharges on their customers ranging from 9.6% to 11.5%. AT & T and Sprint explain that this disparity is attributable to several factors such as their declining long distance revenues, uncollectible accounts, and their attempts to recoup their costs to administer the program. From this general theory, which is explained in much more detail in plaintiffs’ second consolidated and amended class action complaint (“second amended complaint”), plaintiffs assert the following claims: (1) a claim seeking a declaratory judgment that the arbitration and limitation of liability provisions in AT & T and Sprint’s service contracts are unenforceable; (2) an antitrust claim under the Sherman Act, 15 U.S.C. § 1, arid sections 4 and 16 of the Clayton Act, 15 U.S.C. § 15; (3) an unjust and unreasonable charges claim under § 201(b) of the Federal Communications Act, 47 U.S.C. §§ 151 et seq. (“FCA”); (4) an unreasonable discrimination claim under § 202(a) of the FCA; (5) a claim against AT & T under the New York consumer protection statute, N.Y. Gen. Bus. Law § 349; (6) a claim against Sprint under the Kansas Consumer Protection Act, K.S.A. §§ 50-623 et seq. (“KCPA”); (7) a money had and received claim; and (8) a breach of contract claim. This matter is presently before the court on a variety of motions by defendants Sprint and AT & T including: (1) defendants’ motions to compel arbitration and to dismiss or stay proceedings (Docs. 68 & 75); (2) defendants’ motions to dismiss (Docs. 71 & 77); and (3) defendants’ joint motion to dismiss or stay and for referral to the FCC under the doctrine of primary jurisdiction (Doc. 73). For the reasons explained below, the court will grant in part and deny in part all of these motions. Specifically, the court will stay all of the claims of plaintiffs Michael Thome, Tomi White Bryan, and Elizabeth Tiffany against Sprint pending arbitration. Also, the court will stay plaintiff Thomas F. Cummings’ claims against AT & T pending arbitration except insofar as some of those claims are based on USF fund pass-through charges prior to August 1, 2001. In addition, the court will compel arbitration of the residential customer plaintiffs’ antitrust claims against long distance carriers other than their own, except that the court will not compel plaintiff Cummings to arbitrate his antitrust claim against Sprint insofar as that claim is based on USF fund pass-through charges prior to August 1, 2001. The court will dismiss plaintiffs’ declaratory judgment, New York consumer protection statute, and money had and received claims, as well as plaintiffs’ pre-detariffing antitrust and KCPA claims. However, the court will deny defendants’ motions to dismiss with respect to plaintiffs’ FCA claims as well as plaintiffs’ post-detariffing antitrust, KCPA, and breach of contract claims. Lastly, the court will refer plaintiffs’ FCA claims to the FCC for primary jurisdiction. The court will, however, decline to refer plaintiffs’ post-detariffing antitrust, KCPA, and breach of contract claims to the FCC. The court will allow the parties to proceed with discovery on those claims. I. DEFENDANTS’ MOTION TO COMPEL ARBITRATION Formerly, the FCA required interstate long distance carriers such as defendants to establish their rates, terms, and conditions of service in tariffs filed with the FCC. 47 U.S.C. § 203. However, the FCC implemented mandatory detariffing effective August 1, 2001. In lieu of tariffs, the FCC anticipated that carriers would establish “short, standard contracts” with their customers. In re Policy and Rules Concerning the Interstate, Interexchange Marketplace, 11 F.C.C.R. 20,730, ¶57 at 20,736 (1996) [hereinafter “Second Report and Order ”]. By August 1, 2001, AT & T and Sprint had begun the process of forming these service contracts with their customers. As more thoroughly explained below, their residential customer service contracts contained arbitration clauses, and defendants now move to compel arbitration of their residential customers’ claims pursuant to those arbitration clauses. Specifically, Sprint moves the court to compel arbitration of the claims of its residential customers, plaintiffs Thome, Bryan, and Tiffany. AT & T moves to compel arbitration of the claims of one of its customers, plaintiff Cummings. In addition, both defendants ask the court to compel arbitration of the other residential customers’ antitrust claims. In response, these plaintiffs argue that some of their claims are not within the scope of the arbitration clauses, that the arbitration clauses are unconscionable, and that arbitration does not provide them with an effective forum to vindicate their statutory rights. Defendants, however, dispute the scope of the arbitration clauses and further contend that plaintiffs’ state law unconscionability challenges are preempted by the FCA and that plaintiffs’ antitrust claims are arbitra-ble. A. Legal Standard for a Motion to Compel Arbitration The Courts of Appeals have uniformly held that “[i]n the context of motions to compel arbitration brought under the Federal Arbitration Act (‘FAA’), 9 U.S.C. § 4 (2000), courts apply a standard similar to that applicable to a motion for summary judgment.” Bensadoun v. Jobe-Riat, 316 F.3d 171, 175 (2d Cir.2003) (applying a summary-judgment-like standard in ruling on a motion to compel arbitration); see, e.g., Tinder v. Pinkerton Sec., 305 F.3d 728, 735 (7th Cir.2002) (same); Par-Knit Mills, Inc. v. Stockbridge Fabrics Co., 636 F.2d 51, 54 n. 9 (3d Cir.1980) (same); Brown v. Dorsey & Whitney, LLP, 267 F.Supp.2d 61, 66-67 (D.D.C.2003) (collecting case law on this issue and providing a helpful explanation of why the summary judgment standard applies); Doctor’s Assoc., Inc. v. Distajo, 944 F.Supp. 1010, 1014 (D.Conn.1996) (same), aff'd, 107 F.3d 126 (2d Cir.), cert. denied, 522 U.S. 948, 118 S.Ct. 365, 139 L.Ed.2d 284 (1997). Although the Tenth Circuit has not precisely addressed this issue, there is no reason to believe that it would apply a different legal standard. See, e.g., Gibson v. Wal-Mart Stores, Inc., 181 F.3d 1163, 1166 (10th Cir.1999) (reviewing the district court’s grant of a motion to compel arbitration under the summary judgment standard where the parties agreed that standard applied); Avedon Eng’g, Inc. v. Seatex, 126 F.3d 1279, 1283 (10th Cir.1997) (holding the district court must hold a jury trial on the existence of the agreement to arbitrate where the parties raise genuine issues of material fact regarding the making of the agreement to arbitrate (citing Par-Knit Mills, 636 F.2d at 54 & n. 9)); see also, e.g., Phox v. Atriums Mgmt. Co., Inc., 230 F.Supp.2d 1279, 1282 (D.Kan.2002) (applying a summary-judgment-like standard to a motion to compel arbitration); Klocek v. Gateway, Inc., 104 F.Supp.2d 1332, 1336 (D.Kan.2000) (same). Under this well-settled standard, summary judgment is appropriate if the moving party demonstrates that there is “no genuine issue as to any material fact” and that it is “entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir.2002) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The movant need not negate the other party’s claim, but rather must simply point out to the court a lack of evidence for the other party on an essential element of that party’s claim. Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir.2000) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir.1998)). In the context of a motion to compel arbitration, this requires the defendant to present evidence sufficient to demonstrate an enforceable agreement to arbitrate. See Oppenheimer & Co. v. Neidhardt, 56 F.3d 352, 358 (2d Cir.1995); Phox, 230 F.Supp.2d at 1282; Klocek, 104 F.Supp.2d at 1336. Once the defendant has done this, the burden shifts to plaintiff to demonstrate a genuine issue of material fact as to the making of the agreement to arbitrate. See Bensadoun, 316 F.3d at 175; Oppenheimer, 56 F.3d at 358. To accomplish this, the facts “must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein.” Adams, 233 F.3d at 1246. If the plaintiff demonstrates a genuine issue of material fact, then a trial on this issue is required. 9 U.S.C. § 4 (if the making of the arbitration agreement is seriously disputed, then “the court shall proceed summarily to the trial thereof’); Avedon Eng’g, 126 F.3d at 1283 (holding the district court must hold a jury trial on the existence of the agreement to arbitrate where the parties raise genuine issues of material fact regarding the making of the agreement to arbitrate). B. Discussion & Analysis For the reasons explained below, the court concludes that the FCA preempts plaintiffs’ state law substantive unconscion-ability, but not procedural unconscionability, challenges to the arbitration clauses. The court will compel arbitration of plaintiffs Thome, Bryan, and Tiffany’s claims against Sprint because their claims are within the scope of the May 2002 version of the arbitration clause, Sprint did not implement the arbitration clause in a procedurally unconscionable manner, and plaintiffs have failed to demonstrate a genuine issue of material fact regarding whether arbitration is an effective forum for them to vindicate their statutory rights under the antitrust laws and the FCA. In addition, the court will compel arbitration of most of Mr. Cummings’ claims against AT & T because even if the court were to give the relevant factual findings in Ting preclusive effect, Mr. Cummings has failed to demonstrate that AT & T implemented his arbitration clause in a procedurally unconscionable manner. Also, like the Sprint plaintiffs, Mr. Cummings has failed to demonstrate a genuine issue of material fact regarding whether arbitration is an effective forum for him to vindicate his statutory rights under the antitrust laws and the FCA. The court does find, however, that some of Mr. Cummings’ claims do not fall within the scope of the arbitration clause insofar as they are based on USF fund pass-through charges prior to August 1, 2001. Lastly, the court will compel arbitration under equitable estoppel principles of plaintiffs’ antitrust claims against long distance carriers other than their own, except that the court will not compel plaintiff Cummings to arbitrate his antitrust claim against Sprint insofar as that claim is based on USF fund pass-through charges prior to August 1, 2001. 1. Preemption Under the FCA Defendants rely on the Seventh Circuit’s holding in Boomer v. AT & T Corp., 309 F.3d 404 (7th Cir.2002), to argue that the court should not consider plaintiffs’ state law unconscionability arguments because the FCA preempts those state law challenges to the arbitration clauses. On the other hand, plaintiffs rely on the Ninth Circuit’s holding in Ting v. AT&T, 319 F.3d 1126 (9th Cir.), cert. denied, — U.S. -, 124 S.Ct. 53, 157 L.Ed.2d 24 (2003), which rejected the argument that the FCA preempts state law challenges to the enforceability of arbitration clauses. The court has thoroughly analyzed the history of both of these eases as well as the reasoning of both courts, and is not entirely persuaded by either of them. The court concludes, however, that for the reasons set forth below the FCA preempts plaintiffs’ state law substantive unconscionability, but not procedural unconscionability, challenges to the enforceability of the arbitration clauses. a. The FCA’s Uniformity Principle The law of federal preemption is well established. Congress has the power to preempt state law under the Supremacy Clause of the United States Constitution. U.S. Const. Art. VI, cl. 2 (providing that the laws of the United States are “the supreme Law of the Land ... any Thing in the Constitution or Laws of any state to the Contrary notwithstanding”). Congressional intent is the “ultimate touchstone” in any preemption analysis. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). Federal law preempts state law in three circumstances: (1) express preemption, which occurs when Congress explicitly defines the extent to which federal law preempts state law; (2) conflict preemption, which occurs when state law actually conflicts with federal law; and (3) occupation-of-the-field preemption, which occurs when state law attempts to regulate “conduct in a field that Congress intended the Federal Government to occupy exclusively.” Choate v. Champion Home Builders Co., 222 F.3d 788, 792 (10th Cir.2000). Here, express preemption and occupation-of-the-field preemption do not apply, but defendants’ argument that conflict preemption applies requires analysis. “Conflict preemption exists in either of two situations: (1) when ‘it is impossible for a private party to comply with both state and federal requirements,’ or (2) when state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’” Choate, 222 F.3d at 795 (quoting English v. Gen. Elec. Co., 496 U.S. 72, 79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990)). Defendants argue that allowing state law challenges to the validity of the arbitration clauses conflicts with the objectives of §§ 201(b) and 202(a) of the FCA. Those provisions generally require long distance carriers’ rates, terms, and conditions of service to be just, reasonable, and nondiseriminatory. Specifically, they provide as follows: All charges, practices, classifications, and regulations for and in connection with such communication service, shall be just and reasonable, and any such charge, practice, classification or regulation that is unjust or unreasonable is declared to be unlawful. 47 U.S.C. § 201(b). It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges practices, classifications, regulations, facilities, or services for or in connection with like communication service, directly or indirectly, by any means or device, or to make or give an undue or unreasonable preference or advantage to any particular person, class of persons, or locality or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage. Id. § 202(a). In Boomer, the Seventh Circuit held that these two provisions of the FCA, “read together,” preempt state law challenges to the validity of the arbitration clause because allowing state law challenges to the legality of contractual provisions would destroy the congressional objective under the FCA of promoting the uniformity of rates, terms, and conditions of service. 309 F.3d at 418-20, 424. This court certainly agrees with the aspect of the Seventh Circuit’s holding in Boomer that the FCA’s uniformity principle survived detariffing. Congress directed the FCC to forbear from applying any regulation or provision of the FCA if the FCC determined that: (1) enforcement is unnecessary to ensure that rates are just, reasonable, and nondiseriminatory; (2) enforcement is unnecessary to protect consumers; and (3) forbearing from applying any such provision is in the public interest. 47 U.S.C. § 160(a). In light of this statute, the FCC issued a series of orders under which it determined that it would forbear from enforcing § 203 of the FCA — that is, it would detariff the industry. Second Report and Order, supra; In re Policy and Rules Concerning the Interstate, Interexchange Marketplace, 12 F.C.C.R. 15,014, 1997 WL 473330 (1997) [hereinafter “Order on Reconsideration ”]; In re Policy and Rides Concerning the Interstate, Interexchange Marketplace, 14 F.C.R.C. 6004, 1999 WL 176557 (1999); see also MCI WorldCom, Inc. v. FCC, 209 F.3d 760 (D.C.Cir.2000) (upholding the FCC’s detariffing rulings). In these orders, the FCC specifically stated that its decision to forbear from applying § 203’s tariff-filing requirement did “not affect [the FCC’s] enforcement of carriers’ obligations under sections 201 and 202.” Order on Reconsideration, supra, ¶ 77 at 15,057, 1997 WL 473330. The FCA’s uniformity or non-discrimination principle is embodied in § 202(a), Western Union Tel. Co. v. Esteve Bros. & Co., 256 U.S. 566, 571, 41 S.Ct. 584, 65 L.Ed. 1094 (1921) (citing the predecessor to § 202(a) as establishing the uniformity principle); N. Am. Phillips Corp. v. Emery Air Freight Corp., 579 F.2d 229, 232 (2d Cir.1978) (explaining that the purpose of § 202(a) was to establish a uniformity of rates in all interstate transactions), and therefore the Congressional objective of achieving uniformity in rates, terms, and conditions of service remains in full force notwithstanding detariffing. Applying the laws of all fifty states to defendants’ interstate long distance service contracts would impede the Congressional objective of achieving this uniformity. If courts were to apply all of those various laws, the result would be that no uniform body of federal law would emerge to guide long distance carriers such as AT & T and Sprint in attempting to ascertain the lawfulness of the provisions in their service agreements. Instead, they would be left to guess whether each provision passes muster under the laws of all fifty states. Defendants have attempted to avoid this patchwork of legal standards by including choice-of-law provisions in their contracts. The enforceability and scope of those provisions is not challenged in this case, but there are no guarantees that those choice-of-law provisions will be uniformly enforced under various state laws. See, e.g., Ting v. AT & T, 182 F.Supp.2d 902, 921-22 (N.D.Cal.2002) (declining to enforce the New York choice-of-law provision in AT & T’s customer service agreement on public policy grounds), aff'd in part, rev’d in part on other grounds, 319 F.3d 1126 (9th Cir.), cert. denied, - U.S. -, 124 S.Ct. 53, 157 L.Ed.2d 24 (2003). Thus, the lack of uniformity in the laws of all fifty states will in fact ultimately impede the Congressional objective of uniformity. Carriers such as defendants should be entitled to rely on uniform federal standards when determining how to fashion their service agreements. Application of a uniform federal standard, not application of the various fifty states’ laws, will further the Congressional objective of achieving uniformity in long distance carriers’ service contracts. b. Scope of FCA Preemption Nevertheless, this FCA preemption principle is not absolute. It does not extend to state laws regarding all aspects of long distance carriers’ conduct. In the aftermath of the FCC’s detariffing orders, AT & T, Sprint, and MCI petitioned the FCC to clarify that federal law, not state law, continues to govern the determination as to whether a nondominant interex-change carrier’s rates, terms, and conditions are lawful. The FCC responded, stating: We therefore agree with AT & T, Sprint, and WorldCom that the Communications Act continues to govern determinations as to whether rates, terms, and conditions for interstate, domestic, interexchange services are just and reasonable, and are not unjustly or unreasonably discriminatory. While the parties only sought certification that the Communications Act governs the determination as to the lawfulness of rates, terms, and conditions, we note that the Communications Act does not govern other issues, such as contract formation and breach of contract, that arise in a detariffed environment. As stated in the Second Report and Order, consumers may have remedies under state consumer protection and contract laws as to issues regarding the legal relationship between the carrier and customer in a detariffed regime. Order on Reconsideration, supra, ¶ 77 at 15,057, 1997 WL 473330 (emphasis added). This ruling is entitled to deference. See MCI, 209 F.3d at 764 (holding the FCC’s detariffing rulings are entitled to deference under Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). Thus, the FCA continues to govern the propriety of the actual terms and conditions of long distance service contracts. However, all other aspects of the carriers’ conduct is subject to other federal and state laws. In this case, plaintiffs raise both procedural and substantive unconscionability challenges to Sprint and AT & T’s long distance service contracts. The challenges based on substantive unconscionability are in essence arguments that the terms and conditions of defendants’ service contracts are unjust and unreasonable. As such, these arguments are preempted by the FCA. Plaintiffs are only entitled to challenge the propriety of these provisions as arguable violations of the FCA, and plaintiffs assert no such allegations in this case. See also Second Report & Order, supra, ¶ 21, at 20,743 (envisioning the FCC complaint procedure would assure uniformity in earners’ rates, terms, and conditions). On the other hand, plaintiffs’ procedural unconscionability arguments challenge the validity of the contract formation process itself, not the actual propriety of the terms and conditions of the service contract. The FCC’s Order on Reconsideration distinguishes those types of contract formation challenges and places them outside of the preemptive scope of the FCA. Defendants’ service contracts include arbitration clauses that are governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (the “FAA”). Under the FAA, in evaluating whether the parties have entered into a valid arbitration agreement, it is well established that the court must look to state law contract principles. Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 686-87, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996); First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995) (“When deciding whether the parties agreed to arbitrate a certain matter (including arbitrability), courts ... should apply ordinary state-law principles that govern the formation of contracts.”); Perry v. Thomas, 482 U.S. 483, 492-93 n. 9, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987) (state law governing the validity, revocability, and enforceability of contracts generally applies under the FAA). An arbitration provision, just like any other contractual provision, is subject to “generally applicable contract defenses, such as fraud, duress or unconscionability.” Doctor’s Assocs., 517 U.S. at 687, 116 S.Ct. 1652; see, e.g., Circuit City Stores, Inc. v. Mantor, 335 F.3d 1101, 1105-06 (9th Cir.2003) (applying state unconsciona-bility law in determining the enforceability of an arbitration provision under the FAA); Bess v. Check Express, 294 F.3d 1298, 1306-07 (11th Cir.2002) (same); Rickard v. Teynor’s Homes, Inc., 279 F.Supp.2d 910, 914-18 (N.D.Ohio 2003) (same); Faber v. Menard, Inc., 267 F.Supp.2d 961, 974-83 (N.D.Iowa 2003) (same). Thus, the FAA allows plaintiffs to raise procedural unconscionability challenges to the enforceability of the arbitration clauses. Further, those arguments are not preempted by the FCA because they involve a challenge to the contract formation process, not to the propriety of the terms and conditions of the contract itself. 2. Sprint’s Arbitration Clause For the reasons explained below, the May 2002 version of Sprint’s terms and conditions of service applies to the parties’ dispute. Plaintiffs Thome, Bryan, and Tiffany do not dispute the fact that they are each parties to this contract. Instead, they argue: (1) the scope of the arbitration clause does not encompass all of their claims because (a) the May 2002 version does not operate retroactively and (b) their antitrust claim is not arbitrable under Coors Brewing Co. v. Molson Breweries, 51 F.3d 1511 (10th Cir.1995); (2) the arbitration clause is proeedurally unconscionable under Kansas law; and (3) arbitration does not provide them with an effective forum to vindicate their statutory rights. The court disagrees, and will compel arbitration of all of these plaintiffs’ claims against Sprint. a. Implementation of the Arbitration Clause In May of 2001, Sprint sent out a mailing notifying its long distance customers in essentially lay terminology of the then-upcoming detariffing. The notice advised Sprint’s customers that the new terms and conditions of service would be identical to those on file with the FCC on July 31, 2001, and would be posted on Sprint’s website after July 31, 2001. Effective July 1, 2001, Sprint revised its tariff to include a mandatory arbitration provision requiring that all disputes arising from the agreement (ie., the tariff) be resolved in small claims court, through state or federal regulatory agencies, or via final and binding arbitration in accordance with the FAA. In a letter dated August 22, 2001, Sprint sent each of its long distance customers a letter. On the back of the letter was a list of answers to frequently asked questions (an “FAQ sheet”). One of the questions on the FAQ sheet was, “Is there any other information I should take note of?” The answer was “Yes,” the terms and conditions of service included a mandatory arbitration clause. Enclosed with the" letter was a booklet containing the terms and conditions of service, which included a mandatory arbitration provision that was identical to the arbitration provision in the tariff except that it added paragraph numbering. Then, by way of a letter dated May 29, 2002, Sprint sent its customers another revised booklet containing updated rates, terms, and conditions (the “May 2002 version of Sprint’s terms and conditions”). This booklet contained a modified dispute resolution provision, as follows: 8. DISPUTE RESOLUTION 8.1.This Section applies to any dispute between you and Sprint arising out of or relating to this Agreement, including any dispute you may have regarding the Services, charges for Services, advertising, or any other dispute that either you or Sprint has that is related to this Agreement, even if the dispute arises after your Service has terminated. All disputes must be resolved as described in this Section. YOU AGREE THAT ANY DISPUTE WILL NOT BE RESOLVED BY A JUDGE OR JURY IN COURT (EXCEPT FOR SMALL CLAIMS COURT, IF APPLICABLE). 8.2. If you have a dispute with Sprint, you must first call Sprint’s Customer Service department.... 8.3. If either party is unable to resolve its dispute within 60 days of notifying the other party of the dispute, either party has the right to take the dispute to small claims court if it qualifies under the rules of the court. Alternatively, either party may request arbitration as described below. 8.4. MANDATORY ARBITRATION OF DISPUTES. ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND BETWEEN YOU AND SPRINT AND/OR ANY OF ITS EMPLOYEES, AGENTS, AFFILIATES OR OTHER REPRESENTATIVES, WHETHER SOUNDING IN CONTRACT, STATUTE OR TORT, INCLUDING FRAUD, MISREPRESENTATION, FRAUDULENT INDUCEMENT OR ANY OTHER LEGAL OR EQUITABLE THEORY AND REGARDLESS OF THE DATE OF ACCRUAL OF SUCH CLAIM, CONTROVERSY OR DISPUTE WILL BE RESOLVED BY FINAL AND BINDING ARBITRATION AS PRESCRIBED IN THIS SECTION. THE FEDERAL ARBITRATION ACT, NOT STATE LAW, GOVERNS THE QUESTION OF WHETHER A CLAIM IS SUBJECT TO ARBITRATION. 8.5. A single arbitrator engaged in the practice of law will conduct the arbitration. The arbitrator will be selected according to the rules of the American Arbitration Association or JAMS or, alternatively, may be selected by agreement of the parties, who will cooperate in good faith to select the arbitrator. The arbitration will be conducted by and under the then-applicable rules of American Arbitration Association or JAMS, as applicable. All expedited procedures prescribed by the applicable rules will apply. Any required hearing fees and costs will be paid by the parties as required by the applicable rules or as required by applicable law, but the arbitrator will have the power to apportion such costs as the arbitrator deems appropriate. 8.6. The arbitrator’s decision and award will be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court with jurisdiction. 8.7. If any party files a judicial or ad.ministrative action asserting a claim that is subject to arbitration and another party successfully stays such action or compels arbitration, the party filing that action must pay the other party’s costs and expenses incurred in seeking such stay or compelling arbitration, including attorney’s fees. 8.8. In addition to the procedures described in this Section for resolving a dispute, you may also have the right to file a complaint with an appropriate federal or state regulatory agency. 8.9. If any portion of this Dispute Resolution Section is determined to be invalid or unenforceable, the remainder of the Section remains in full force and effect. May 2002 Version of Sprint’s Terms & Conditions § 8 (emphasis in original). The booklet contained the following choice-of-law clause: “This Agreement and all claims relating to the relationship between the parties are governed by federal law and the laws of the State of Kansas, but excluding Kansas’ choice of law principles.” Id. § 13.5. It also contained the following severability provision: “If any provision is held to be illegal, or unenforceable, this Agreement’s unaffected provisions will remain in effect.” Id. § 13.6. In addition, the first paragraph in the booklet stated: YOUR ENROLLMENT IN, USE OF OR PAYMENT FOR THE SERVICES CONSTITUTES YOUR ACCEPTANCE OF AND AGREEMENT TO THIS AGREEMENT. IF YOU DO NOT AGREE WITH SPRINT’S RATE SCHEDULES OR TERMS AND CONDITIONS, DO NOT USE THE SERVICES AND CALL SPRINT CUSTOMER SERVICE IMMEDIATELY FOR INSTRUCTIONS ON HOW TO CANCEL THE SERVICES. Id. § 1.1 (emphasis in original). It is undisputed that Sprint sent all of these mailings to plaintiffs Thome, Bryan, and Tiffany. It is also undisputed that Ms. Bryan and Ms. Tiffany are still Sprint customers, and that Mr. Thome continued to be a Sprint customer until August of 2002, well after the last mailing in May of 2002. b. Scope of the Arbitration Clause The scope of an arbitration clause, as a matter of contractual interpretation, is a question of law for the court as long as it does not depend on extrinsic evidence and is susceptible of only one reasonable interpretation. Zink v. Merrill Lynch Pierce Fenner & Smith, Inc., 13 F.3d 330, 332 (10th Cir.1993). The May 2002 version of the dispute resolution provision provides that all claims, controversies, or disputes between the parties will be resolved by arbitration “regardless of the date of accrual of such claim, controversy or dispute” (emphasis added). This language plainly and unambiguously states that the May 2002 version of the dispute resolution provision applies to all of the parties’ claims, controversies, and disputes, regardless of whether they accrued before or after this revised provision took effect in May of 2002. The FAA specifically gives full force and effect to such retroactive arbitration provisions. 9 U.S.C. § 2 (providing for the enforceability of “an agreement in writing to submit to arbitration an existing controversy” (emphasis added)); see, e.g., Zink, 13 F.3d at 333-34 (enforcing an arbitration agreement even with respect to transactions that pre-dated the agreement where the agreement required arbitration of “[a]ny controversy between [the parties] arising out of [plaintiffs] business of this agreement” (second and third brackets in original; emphasis removed)); In re Currency Conversion Fee Antitrust Litig., 265 F.Supp.2d 385, 406-07 (S.D.N.Y.2003) (rejecting the plaintiffs’ argument that they could not be forced to arbitrate claims that arose prior to the time the parties entered into an arbitration agreement where the language of the arbitration provision was broad enough to encompass pre-existing claims); Lloyd v. MBNA Am. Bank, N.A., No. 00-109-SLR, 2001 WL 194300, at *4 (D.Del. Feb.22, 2001) (same); Beneficial Nat’l Bank, U.S.A. v. Payton, 214 F.Supp.2d 679, 688-89 (S.D.Miss.2001) (holding the court may apply an arbitration clause retroactively if it contains retroactive time-specific language); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. King, 804 F.Supp. 1512, 1514 (M.D.Fla.1992) (enforcing an arbitration provision by its plain terms and recognizing that an arbitration agreement may be applied retroactively). This finding is further reinforced by the “strong federal policy favoring arbitration for dispute resolution.” Coors Brewing Co. v. Molson Breweries, 51 F.3d 1511, 1514 (10th Cir.1995) (quotation omitted). While a party may not be compelled to submit a dispute to arbitration unless it has agreed to do so, federal arbitration policy requires that “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983); see also AT & T Techs., Inc. v. Communications Workers of Am., 475 U.S. 643, 648-50, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (arbitration agreements are favored and are to be broadly construed with doubts being resolved in favor of coverage). Thus, arbitration should be compelled “unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). The May 2002 version of the arbitration provision is certainly susceptible of an interpretation that covers all of the claims of plaintiffs Thome, Bryan, and Tiffany, even claims that already existed at the time it went into effect. The May 2002 version of the arbitration clause is also readily susceptible of an interpretation that includes plaintiffs’ antitrust claim. This arbitration clause broadly encompasses all claims, controversies, and disputes between the parties “whether sounding in contract, statute or tort, including fraud, misrepresentation, fraudulent inducement or any other legal or equitable theory” (emphasis added). Plaintiffs’ antitrust claims are statutory claims, and therefore fall within the scope of this provision and are arbitrable. See, e.g., In re Currency Conversion Fee Antitrust Litig., 265 F.Supp.2d at 406 (finding the plaintiffs’ antitrust claims related to an agreement containing an arbitration clause); B-S Steel of Kan., Inc. v. Tex. Indus., 229 F.Supp.2d 1209, 1226-27 (D.Kan.2002) (finding the plaintiffs’ antitrust claims were within the scope of a provision requiring arbitration of “[a]ny controversy or claim arising out of or related to these Conditions of Sale or any other transactions between Buyer and Seller”). Coors does not, as plaintiffs contend, stand for the broad proposition that horizontal price-fixing antitrust claims are not arbitrable per se, but rather that the arbi-trability of those claims depends, as with any other claim, upon the scope of the agreement to arbitrate. 51 F.3d at 1515-16 (“A dispute within the scope of the contract is still a condition precedent to the involuntary arbitration of antitrust claims.”). In Coors, the arbitration clause provided for arbitration of “any dispute arising in connection with the implementation, interpretation or enforcement of this Agreement.” Id. at 1515 (emphasis added). The Tenth Circuit held that language was only broad enough to cover antitrust disputes that had a connection to the agreement. Id. at 1516; see, e.g., In re Currency Conversion Fee Antitrust Litig., 265 F.Supp.2d at 409-10 (explaining that the result in Coors was a result of the Tenth Circuit’s interpretation of the particular arbitration clause at issue in that case); B-S Steel, 229 F.Supp.2d at 1226-27 (same). By comparison, here, plaintiffs antitrust claims expressly fall within the scope of the arbitration clause. Accordingly, all of the claims, controversies, and disputes between Sprint and plaintiffs Thome, Bryan, and Tiffany, including plaintiffs’ antitrust claim, are arbi-trable under the May 2002 version of Sprint’s arbitration clause. c. Procedural Unconscionability Under Kansas law, “a party who freely enters a contract is bound by it even though it was unwise or disadvantageous to the party, so long as the contract is not unconscionable.” Moler v. Melzer, 24 Kan.App.2d 76, 77, 942 P.2d 643, 645 (1997). Mere inequality of bargaining power is insufficient to render a contract unconscionable. Aves ex rel. Aves v. Shah, 258 Kan. 506, 520, 906 P.2d 642, 652 (1995); Frets v. Capitol Fed. Sav. & Loan Ass’n, 238 Kan. 614, 623, 712 P.2d 1270, 1277 (1986); Wille v. Southwestern Bell Tel. Co., 219 Kan. 755, 759, 549 P.2d 903, 907 (1976). “[T]here must be additional factors such as deceptive bargaining conduct ... to render the contract ... unconscionable.” Wille, 219 Kan. at 759, 549 P.2d at 907. The burden of establishing uncon-scionability is on the party attacking the contract. Adams v. John Deere Co., 13 Kan.App.2d 489, 492, 774 P.2d 355, 357 (1989). It is undisputed that Sprint was of superior bargaining strength and presented its terms and conditions of service, including the arbitration clause, to its customers as a form contract on a take-it-or-leave-it basis. However, there was no element of deception. Sprint’s customers were charged with constructive notice that their claims against Sprint were arbitrable as early as July 1, 2001. See Evanns v. AT&T Corp., 229 F.3d 837, 840 (9th Cir.2000) (under the filed-tariff doctrine customers are charged with notice of the terms of a tariff). Then, the FAQ sheet in Sprint’s August 2001 mailing specifically directed its customers’ attention to the significance of the dispute resolution provision. The arbitration clause is written in relatively plain language, not confusing terms, and emphasizes important aspects in bold all-capital lettering. See, e.g., Frets, 238 Kan. at 622, 712 P.2d at 1277 (finding no unconsciona-bility where, among other things, the relevant provision was “not buried in a mass of fine print”); Wille, 219 Kan. at 763-64, 549 P.2d at 910-11 (same, where terms and conditions were set out in “clearly legible type” and were “not couched in confusing terms”). Sprint’s customers had ample time to review those terms and conditions, whether they chose to do so or not, and cancel their service with Sprint if they did not wish to be bound by them. Accordingly, the court is unpersuaded that Sprint’s arbitration clause should not be enforced based on principles of procedural unconscionability. d. Effective Forum to Vindicate Statutory Rights Plaintiffs Thome, White, and Tiffany also argue that arbitration is not an effective forum for them to vindicate their statutory rights under the antitrust laws and the FCA because the agreement bans: (1) class actions, (2) treble damages, and (3) attorneys’ fee awards. The Supreme Court has recognized that federal statutory claims can be appropriately resolved through arbitration and has enforced agreements involving such claims. See generally, e.g., Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (compelling arbitration of claims under the Age Discrimination in Employment Act); Rodriquez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) (same, Securities Act of 1933); Shearson/Am. Express Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987) (same, Securities Exchange Act of 1934 and Racketeer Influenced and Corrupt Organizations Act); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) (same, Sherman Act). However, such claims may be arbitrated only “ ‘so long as the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum.’” Gilmer, 500 U.S. at 28, 111 S.Ct. 1647 (quoting Mitsubishi, 473 U.S. at 637, 105 S.Ct. 3346); accord Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 90, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000); see also Shankle v. B-G Maint. Mgmt. of Colo., Inc., 163 F.3d 1230, 1234 (10th Cir.1999) (“[A]n arbitration agreement that prohibits the use of the judicial forum as a means of resolving statutory claims must also provide for an effective and accessible alternative forum.”). The May 2002 version of Sprint’s terms and conditions of service, which as discussed previously is the version that applies to the Sprint plaintiffs’ claims, does not by its terms ban class-wide arbitration. Rather, it is silent on this issue. Under these circumstances, the availability of class-wide arbitration is an issue that must be decided by the arbitrator in the first instance. Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 123 S.Ct. 2402, 2407, 156 L.Ed.2d 414 (2003) (holding the arbitrator must decide whether arbitration is available on a class-wide basis where the arbitration clause is silent on that issue); see Pedcor Mgmt. Co., Inc. Welfare Benefit Plan v. Nations Personnel of Texas, Inc., 343 F.3d 355 (5th Cir.2003) (analyzing Green Tree and concluding that the arbitrator must first decide whether class arbitration is available or forbidden where the arbitration agreement does not clearly forbid class arbitration). Further, the May 2002 version does not expressly ban treble damages. Rather, it states that Sprint is not liable for “punitive or exemplary damages.” The Supreme Court has held that similar provisions limiting awards of punitive and exemplary damages do not necessarily prohibit the arbitrator from awarding treble damages on a RICO claim. PacifiCare Health Sys., Inc. v. Book, 538 U.S. 401, 123 S.Ct. 1531, 1535-36, 155 L.Ed.2d 578 (2003). The Court held this dispute was one for the arbitrator to decide in the first instance. Id. at 1536, 123 S.Ct. 1531. Similarly, here, the extent to which the limitation of liability on punitive or exemplary damages actually bans a treble damage award on plaintiffs’ antitrust claim is disputable. Therefore, that issue must first be resolved by the arbitrator. Also, the May 2002 version of Sprint’s terms and conditions of service does not by its terms ban an award of attorneys’ fees. Like the availability of class-wide arbitration, it is silent on this issue. To the extent that this issue is disputable, it is a question for the arbitrator in the first instance under the reasoning of the Supreme Court in both Green Tree and PacifiCare. The court does wish to observe, however, that the dispute resolution provision provides for arbitration of any claim, controversy or dispute, including those “sounding in ... statute.” Thus, the arbitrator is imbued with authority to award any attorneys’ fees available under the antitrust laws and/or the FCA to the extent there is a statutory basis for such an award. The court also wishes to acknowledge that plaintiffs raised one other argument— that is, that arbitration is prohibitively expensive. Plaintiffs initially raised this argument in the context of their argument that the arbitration clause is substantively unconscionable, and the court has rejected this substantive unconscionability argument as preempted by the FCA. Nevertheless, the fact that arbitration may be prohibitively expensive could bear on the issue of whether the arbitral forum is an effective one for plaintiffs to vindicate their statutory rights. Thus, out of an abundance of caution, the court will address that argument here. The only language in the May 2002 version of Sprint’s terms and conditions of service that governs the extent to which each party bears the initial costs of arbitration or what those costs might be provides as follows: “Any required hearing fees and costs will be paid by the parties as required by the applicable rules or as required by applicable law, but the arbitrator will have the power to apportion such costs as the arbitrator deems appropriate.” The court recognizes that this provision could theoretically deter litigants from vindicating their statutory rights under the antitrust laws and the FCA because it threatens to impose unpredictable costs on plaintiffs who seek to arbitrate their claims. However, such a theoretical possibility is insufficient for the court to decline to compel arbitration of those claims. In Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000), the Supreme Court evaluated the propriety of an arbitration provision that was silent with respect to costs. The Court reasoned: It may well be that the existence of large arbitration costs could preclude a litigant such as Randolph from effectively vindicating her federal statutory rights in the arbitral forum. But the record does not show that Randolph will bear such costs if she goes to arbitration. Indeed, it contains hardly any information on the matter.... The record reveals only the arbitration agreement’s silence on the subject, and that fact alone is plainly insufficient to render it unenforceable. The “risk” that Randolph will be saddled with prohibitive costs is too speculative to justify the invalidation of an arbitration agreement. Id. at 90-91, 121 S.Ct. 513. Thus, a party seeking to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive bears the burden of showing the likelihood of incurring such costs. Id. at 92, 121 S.Ct. 513. How detailed that showing must be is unclear. Id. What is clear, however, is that the plaintiff must make some showing on this point. Id.; see also Gilmer, 500 U.S. at 26, 111 S.Ct. 1647 (holding the party resisting arbitration bears the burden of proving that the claims at issue are unsuitable for arbitration); McMahon, 482 U.S. at 227, 107 S.Ct. 2332 (same). Likewise, here, plaintiffs have not presented any evidence from which the court can ascertain whether requiring them to arbitrate their claims might be so expensive that it would deter them from vindicating their statutory rights. The court does recognize one distinction between the arbitration provision at issue in Green Tree and the provision at issue in this case: in Green Tree the provision was silent regarding the costs of arbitration whereas in this case the provision contains a cost-splitting provision. However, like the provision at issue in Green Tree, the provision at issue in this case still fails to provide the court with any meaningful information regarding the costs of arbitration. Further, plaintiffs have submitted no evidence to support their argument regarding the costs of arbitration or their willingness or ability to pay those costs. In fact, they have submitted less meaningful discussion and evidence on this point than the plaintiff in Green Tree. See Green Tree, 531 U.S. at 91 n. 6, 121 S.Ct. 513 (discussing plaintiffs arguments regarding the costs of arbitration); cf. Blair v. Scott Specialty Gases, 283 F.3d 595, 610 (3d Cir.2002) (remanding to the district court to determine the effect of a cost-splitting provision where the claimant submitted an affidavit of her limited financial capacity); Morrison v. Circuit City Stores, Inc., 317 F.3d 646, 668-70, 676 (6th Cir.2003) (declining to enforce cost-splitting provisions where the record revealed the potential costs of arbitration). In sum, plaintiffs have failed to satisfy their burden of proof under Green Tree. Accordingly, the court must reject plaintiffs’ argument as conclusory and unsupported by the record, and compel arbitration of plaintiffs’ statutory claims. The Tenth Circuit’s holding in Shankle v. B-G Maintenance Management of Colorado, Inc., 163 F.3d 1230 (10th Cir.1999), does not compel a different result. In Shankle, the Tenth Circuit held that a mandatory arbitration agreement containing a fee-splitting provision is unenforceable as to claims under Title VII, the Americans with Disabilities Act, and Age Discrimination in Employment Act. Id. at 1233. This opinion could arguably be interpreted as adopting a broad per se rule against the enforceability of such agreements. However, two aspects of this opinion are noteworthy. First, to the extent that Shankle appeared to announce a broad per se rule against the enforceability of such cost-splitting agreements, that holding is suspect in light of the Supreme Court’s subsequent holding in Green Tree, which adopted a case-by-case approach to determining whether the potential costs of arbitration denies potential litigants the opportunity to effectively vindicate their statutory rights. Notably, the cases adopting rules that such cost-splitting provisions are per se unenforceable pre-dated Goleen Tree, whereas the Courts of Appeals have uniformly adopted case-by-case approaches to evaluating the enforceability of such cost-splitting provisions since Green Tree with the plaintiff bearing the burden of proving that arbitration is prohibitively expensive. Compare Morrison, 317 F.3d at 663-65 (adopting a case-by-case approach to evaluating cost-shifting provisions); Blair, 283 F.3d at 610 (rejecting the plaintiffs argument that the mere existence of a cost-splitting provision satisfies the claimant’s burden of proving the likelihood of incurring prohibitive costs in light of Green Tree); Bradford v. Rockwell Semiconductor Sys., Inc., 238 F.3d 549, 556 (4th Cir.2001) (holding Green Tree requires a case-by-case determination of whether a cost-splitting provision renders an arbitration agreement unenforceable), with Shankle, 163 F.3d at 1235 (appearing to have adopted a per se rule prior to the Court’s ruling in Green Tree); Paladino v. Avnet Computer Techs., Inc., 134 F.3d 1054, 1062 (11th Cir.1998) (same); Cole v. Burns Int’l Sec. Servs., 105 F.3d 1465, 1481 (D.C.Cir.1997) (same). More importantly, though, for purposes of this case, the result reached by the Tenth Circuit in Shankle passes muster even under Green Tree because in Shankle the plaintiff established a factual record that the costs of arbitration would prevent him from vindicating his statutory rights. Shankle, 163 F.3d at 1234-35 (discussing the fact that Mr. Shankle could not afford to pay an arbitrator between $1,875 and $5,000 to resolve his claims); see, e.g., Shankle v. B-G Maint. Mgmt. of Colo., No. 96N2932, 1997 WL 416405, at *1-*2 (D.Colo. Mar.24, 1997) (discussing the evidence the plaintiff presented regarding the costs of arbitration); see also, e.g., Morrison, 317 F.3d at 658 n. 4 (remarking that Shankle could be interpreted as employing a case-by-case approach); Bradford, 238 F.3d at 555 (observing that although Shan-kle found the fee-splitting provision unenforceable, “it framed its analysis in terms of the complaining party’s actual inability to afford the arbitration costs and fees”). Unlike the plaintiff in Shankle, plaintiffs here have failed to provide any factual record to support their conclusory allegation that the costs of arbitration would prohibit them from having an effective forum to vindicate their statutory rights. In sum, plaintiffs have failed to satisfy their burden of proving that arbitration will not serve as an effective and accessible forum for them to vindicate their statutory rights under the antitrust laws or the FCA. Accordingly, the arbitration clause is enforceable with respect to plaintiffs Thome, Bryan, and Tiffany’s antitrust and FCA claims against Sprint. 3. AT & T’s Arbitration Clause As discussed below, the only evidence before the court is that Mr. Cummings ceased being an AT & T customer before AT & T modified its dispute resolution provision effective March 1, 2002. Therefore, the arbitrability of his claims is governed by the earliest version of AT & T’s consumer services agreement. Mr. Cummings does not dispute the fact that he is a party to this contract. Instead, he raises four other arguments: (1) the scope of the arbitration clause does not encompass (a) his claims that arose prior to August 1, 2001, or (b) his antitrust claim under Coors; (2) the court should give preclusive effect to the court’s findings of fact in Ting; (3) the arbitration clause is procedurally unconscionable under New York law; and (4) arbitration does not provide him with an effective forum to vindicate his rights under the antitrust laws or the FCA. With the exception of the aspect of some of Mr. Cummings’ claims involving USF fund pass-through charges before August 1, 2001, the court will compel arbitration of Mr. Cummings’ claims against AT&T. a. AT & T’s Consumer Services Agreement In May of 2001, AT & T began mailing copies of its consumer services agreement to its residential customers. The mailing included a cover letter, an FAQ sheet, and a copy of the agreement. The letter explained that the agreement would apply to AT & T’s services effective August 1, 2001. It stated that the agreement “describes our new binding arbitration process, which uses an objective third party rather than a jury for resolving any disputes that may arise.” It further stated: “Please be assured that your AT & T service or billing will not change under the AT & T Consumer Services Agreement; there’s nothing you need to do” (emphasis in original). The FAQ sheet stated: “Q: Is there anything in this Agreement that is different from the terms and conditions filed with the FCC?” The answer to this question was, A: Yes. There are two notable changes in particular: (1) Binding arbitration. Any disputes that may arise between AT & T and customers that cannot be resolved informally must now be resolved through binding arbitration (or through small claims court if you choose). In arbitration, disputes must be decided by an objective third party rather than a jury. Arbitration is a quicker and more convenient way to settle disputes without the hassle and cost of a court case. It’s in addition to the remedies consumers have through federal and state agencies. The agreement (hereinafter “AT & T’s CSA”) included the following provision requiring disputes to be resolved in small claims court, through state or federal regulatory agencies, or via mandatory arbitration: 7. DISPUTE RESOLUTION. IT IS IMPORTANT THAT YOU READ THIS ENTIRE SECTION CAREFULLY. THIS SECTION PROVIDES FOR RESOLUTION OF DISPUTES THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY OR THROUGH A CLASS ACTION. YOU CONTINUE TO HAVE CERTAIN RIGHTS TO OBTAIN RELIEF FROM A FEDERAL OR STATE REGULATORY AGENCY. a. Binding Arbitration. The arbitration process established by this section is governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16. You have the right to take any dispute that qualifies to small claims court rather than arbitration. All other disputes arising out of or related to this Agreement (whether based in contract, tort, statute, fraud, misrepresentation or any other legal or equitable theory) must be resolved by final and binding arbitration. This includes any dispute based on any product, service, or advertising having a connection with this Agreement and any dispute not finally resolved by a small claims court. The arbitration will be conducted by one arbitrator using the procedures described by this Section 7. If any portion of this Dispute Resolution Section is determined to be unenforceable, then the remainder shall be given full force and effect. The arbitration of any dispute involving $10,000 or less shall be conducted in accordance with the Consumer Arbitration Rules of the American Arbitration Association (“AAA”), as modified by this Agreement, which are in effect on the date a dispute is submitted to the AAA. The AAA’s Commercial Arbitration Rules and fee schedules will apply to any disputes in excess of $10,000. You have the right to be represented by counsel in an arbitration. In conducting the arbitration and making any award, the arbitrator will be bound by and strictly enforce the terms of this Agreement and may not limit, expand, or otherwise modify its terms. NO DISPUTE MAY BE JOINED WITH ANOTHER LAWSUIT, OR IN AN ARBITRATION WITH A DISPUTE OF ANY OTHER PERSON, OR RESOLVED ON A CLASS-WIDE BASIS. THE ARBITRATOR MAY NOT AWARD DAMAGES THAT ARE NOT EXPRESSLY AUTHORIZED BY THIS AGREEMENT AND MAY NOT AWARD PUNITIVE DAMAGES OR ATTORNEYS’ FEES UNLESS SUCH DAMAGES ARE EXPRESSLY AUTHORIZED BY A STATUTE. YOU AND AT & T BOTH WAIVE ANY CLAIMS FOR AN AWARD OF DAMAGES THAT ARE EXCLUDED UNDER THIS AGREEMENT. b. Arbitration Information and Filing Procedures. Before you take a dispute to arbitration or to small claims court, you must first contact our customer account representatives.... Information about the arbitration process and the AAA’s Arbitration Rules and its fees are available from the AAA on the Internet at www.adr.org, or by contacting us at www.att.com/serviceguide/home or AT &' T, P.O. Box 944078, Maitland, Florida 32794-4078. The arbitration will be based only on the written submissions of the parties and the documents submitted to the AAA relating to the dispute, unless either party requests that the arbitration be conducted using the AAA’s telephonic, online, or in-person procedures. Additional charges may apply for these procedures. Any in-person arbitration will be conducted at a location that the AAA selects in the state of your primary residence. Any arbitration shall remain confidential. .Neither you nor AT & T may disclose the existence, content, or results of any .arbitration or award, except as may be required by law, or to confirm and enforce an award. ANY CLAIM OR DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN TWO YEARS AFTER THE DATE THE BASIS FOR THE CLAIM OR DISPUTE FIRST ARISES. c. Fees and Expenses of Arbitration. You must pay the applicable AAA filing fee when you submit your written request for arbitration to the AAA. The AAA’s filing fee and administrative expenses for a document arbitration will be allocated according to the AAA’s Rules, except that for claims of less than $1,000, you will only be obligated to pay a filing fee of $20 and we will pay all of the AAA’s other costs and fees. If you elect an arbitration process other than a document (or “desk”) arbitration, you must pay your allocated share of any higher administrative fees and co