II 

112TH CONGRESS 

1ST SESSION S. 1652 

To amend title 9 of the United States Code to prohibit mandatory arbitration 

clauses in contracts for mobile service. 

IN THE SENATE OF THE UNITED STATES 

OCTOBER 4, 2011 

Mr. BLUMENTHAL (for himself, Mr. FRANKEN, and Mr. WHITEHOUSE) introduced the following bill; which was read twice and referred to the Committee on the Judiciary 

A BILL 

To amend title 9 of the United States Code to prohibit 

mandatory arbitration clauses in contracts for mobile service. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Consumer Mobile Fair5 ness Act of 2011’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 

8 (1) Consumer use of mobile services has dra9 matically increased over the last 2 decades, with 


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1 many consumers relying primarily or solely on a mo2 bile device for voice, data, and Internet use. 

3 (2) Consumer disputes of mobile services agree4 ments often involve small amounts in controversy. 

5 (3) Disputes involving small amounts in con6 troversy are well-suited for class litigation, as class 

7 litigation allows a more efficient process than nu8 merous similar individual actions, distributes the 

9 costs of litigation across a large pool of plaintiffs, 

10 and may present a stronger incentive for a defend11 ant to cease or change harmful behavior. 

12 (4) Many contracts for mobile services contain 

13 clauses that require aggrieved consumers to waive 

14 their right to litigate as an individual or class and 

15 instead submit to binding arbitration of any future 

16 dispute. 

17 (5) Several States have found, through legisla18 tion or case law, that the clauses described in para19 graph (4) are unconscionable or unenforceable when 

20 they bar class litigation. 

21 (6) On April 27, 2011, the Supreme Court, in 

22 its decision in AT&T Mobility, LLC v. Concepcion, 

23 563 U.S. l, slip op. (2011), held that States must 

24 enforce mandatory binding arbitration clauses even 

25 if they bar class litigation. 


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1 (7) The Concepcion decision restricts con2 sumers’ ability to resolve disputes against providers 

3 of mobile services. 

4 SEC. 3. ARBITRATION OF MOBILE SERVICE DISPUTES. 

5 (a) IN GENERAL.—Title 9, United States Code, is 

6 amended by adding at the end the following: 

7 ‘‘CHAPTER 4—ARBITRATION OF COMMER8 CIAL MOBILE SERVICE DISPUTES 

‘‘Sec. 

‘‘401. Definitions. 

‘‘402. Validity and enforceability. 

9 ‘‘SEC. 401. DEFINITIONS. 

10 ‘‘In this chapter— 

11 ‘‘(1) the term ‘commercial mobile service’ has 

12 the same meaning as in section 332 of the Commu13 nications Act of 1934 (47 U.S.C. 332); 

14 ‘‘(2) the term ‘covered individual’ means an in15 dividual who acquires, or attempts to acquire, com16 mercial mobile service for personal, family, or house17 hold use; 

18 ‘‘(3) the term ‘mobile broadband Internet ac19 cess service’ means a retail service by wire or radio 

20 that provides the capability to transmit data and re21 ceive data from the Internet, including any capabili22 ties that are incidental to and enable the operation 

23 of a communications service, that services end users 

24 primarily using mobile stations; 


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1 ‘‘(4) the term ‘mobile service’ means commer2 cial mobile service or mobile broadband Internet ac3 cess service; and 

4 ‘‘(5) the term ‘pre-dispute arbitration agree5 ment’ means any agreement to arbitrate a dispute 

6 that had not yet arisen at the time of the making 

7 of the agreement. 

8 ‘‘SEC. 402. VALIDITY AND ENFORCEABILITY. 

9 ‘‘(a) IN GENERAL.—Notwithstanding any other pro10 vision of law, a predispute arbitration agreement between 

11 a covered individual and a provider of mobile service shall 

12 not be valid or enforceable. 

13 ‘‘(b) APPLICABILITY.—An issue as to whether this 

14 chapter applies to an arbitration agreement shall be deter15 mined under Federal law. The applicability of this chapter 

16 to an agreement to arbitrate shall be determined by a 

17 court, rather than an arbitrator, irrespective of whether 

18 the party resisting arbitration challenges the arbitration 

19 agreement specifically or in conjunction with other terms 

20 of the contract containing the agreement.’’. 

21 (b) TECHNICAL AND CONFORMING AMENDMENTS.— 

22 (1) IN GENERAL.—Title 9 of the United States 

23 Code is amended— 


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1 (A) in section 2, by inserting ‘‘or as other2 wise provided in chapter 4’’ before the period at 

3 the end; 

4 (B) in section 208— 

5 (i) in the section heading, by striking 

6 ‘‘Chapter 1; residual application’’ 

7 and inserting ‘‘Application’’; and 

8 (ii) by adding at the end the fol9 lowing: ‘‘This chapter applies to the extent 

10 that this chapter is not in conflict with 

11 chapter 4.’’; and 

12 (C) in section 307— 

13 (i) in the section heading, by striking 

14 ‘‘Chapter 1; residual application’’ 

15 and inserting ‘‘Application’’; and 

16 (ii) by adding at the end the fol17 lowing: ‘‘This chapter applies to the extent 

18 that this chapter is not in conflict with 

19 chapter 4.’’. 

20 (2) TABLE OF SECTIONS.— 

21 (A) CHAPTER 2.—The table of sections for 

22 chapter 2 of title 9, United States Code, is 

23 amended by striking the item relating to section 

24 208 and inserting the following: 

‘‘208. Application.’’. 


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1 (B) CHAPTER 3.—The table of sections for 

2 chapter 3 of title 9, United States Code, is 

3 amended by striking the item relating to section 

4 307 and inserting the following: 

‘‘307. Application.’’. 

5 (3) TABLE OF CHAPTERS.—The table of chap6 ters for title 9, United States Code, is amended by 

7 adding at the end the following: 

‘‘4. Arbitration of mobile service disputes ................................................ 401’’. 

8 SEC. 4. EFFECTIVE DATE. 

9 This Act, and the amendments made by this Act shall 

10 take effect on the date of enactment of this Act and shall 

11 apply with respect to any dispute or claim that arises on 

12 or after the date of enactment of this Act. 

Æ 


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