Clear and unmistakable evidence is the standard a business has to meet before a court will let an arbitrator decide whether a TCPA claim belongs in arbitration at all. A delegation clause, or an arbitration provision that adopts the AAA’s rules, usually meets it, and then the court’s job shrinks to enforcing the delegation. For a company facing a TCPA class action, that can move the fight over the agreement’s scope out of court and into a forum where a class waiver is easier to enforce.
What is a delegation clause?
A provision that gives the arbitrator, not the court, the power to decide threshold questions about the arbitration agreement itself. Those are questions like whether the agreement is enforceable and whether a particular claim falls inside it. Without a delegation, a judge answers them first.
The Supreme Court has said parties can make that choice by contract. In Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. 63 (2019), the Court wrote that it “has consistently held that parties may delegate threshold arbitrability questions to the arbitrator, so long as the parties’ agreement does so by” clear and unmistakable evidence.
Can a court refuse to enforce a delegation because the arbitration argument is weak?
No. Some circuits used to let judges keep a case when the argument for arbitration was baseless on its face. The Supreme Court ended that in Henry Schein. The Court held that “when the parties’ contract delegates the arbitrability question to an arbitrator, a court may not override the contract, even if the court thinks that the arbitrability claim is wholly groundless.”
That matters in TCPA cases because plaintiffs often argue that the calls or texts at issue have nothing to do with the contract that holds the arbitration clause. A plaintiff might say a service agreement can’t cover marketing texts sent years after the account closed. With a valid delegation in place, that’s an argument for the arbitrator, not a reason for the court to deny the motion to compel.
Does adopting the AAA rules count as a delegation?
In the Ninth Circuit, yes, at least for the contract in front of it. In Brennan v. Opus Bank, 796 F.3d 1125 (9th Cir. 2015), the court held that “incorporation of the AAA rules constitutes clear and unmistakable evidence that contracting parties agreed to arbitrate arbitrability.” The AAA’s rules give the arbitrator power to rule on its own jurisdiction, so a clause that adopts them carries that power with it.
Brennan has a limit that consumer-facing businesses should know about. The case involved an executive’s employment agreement, and the court left open the effect of incorporating AAA rules into consumer contracts. The opinion states that its holding “does not foreclose the possibility that this rule could also apply to unsophisticated parties or to consumer contracts,” and district courts have since disagreed about how far to take it. A company that relies only on a cross-reference to the AAA rules in its consumer terms is betting on an open question. An express sentence delegating arbitrability is the safer drafting.
How do TCPA plaintiffs try to get around a delegation clause?
Three ways come up most, and the first one usually fails. The plaintiff attacks the whole contract as unconscionable or otherwise unenforceable. Under Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010), a delegation provision is treated as its own agreement, and a challenge to the contract as a whole is for the arbitrator. The Court said that “unless Jackson challenged the delegation provision specifically, we must treat it as valid” under the FAA, and a plaintiff who aims the argument at the contract in general has given the court nothing to decide.
The second route is a challenge aimed at the delegation clause itself. That one the court does decide. Plaintiffs’ lawyers know Rent-A-Center, so expect the opposition brief to repeat its unconscionability arguments with the delegation clause named as the target. The defense answer is to show that the arguments aren’t really about delegation at all.
The third route is the strongest. The plaintiff says no agreement to arbitrate with this defendant ever existed. Formation is for the court, and a delegation clause can’t help a company that can’t show the plaintiff agreed to arbitrate with it. That’s where most TCPA arbitration motions are won or lost.
Can a company use another company’s arbitration clause?
Sometimes, and a TCPA case from the Ninth Circuit shows where that stops. In Revitch v. DIRECTV, LLC, 977 F.3d 713 (9th Cir. 2020), the plaintiff sued DIRECTV over marketing calls, and DIRECTV moved to compel arbitration under the plaintiff’s earlier wireless contract with AT&T Mobility, which covered AT&T’s affiliates. DIRECTV became an affiliate years after the plaintiff signed. The court held that “a valid agreement to arbitrate between Revitch and DIRECTV does not exist,” reasoning that a cell phone customer couldn’t have expected to arbitrate disputes with a later-acquired satellite TV company.
The delegation question never got off the ground in Revitch, and the reason is a drafting lesson. According to the court, the wireless agreement itself provided that “issues relating to the scope and enforceability of the arbitration provision are for the court to decide.” A clause that sends scope questions to a judge does the opposite of a delegation clause. Companies that inherit customer contracts through an acquisition, or that sell through affiliates and lead partners, should read their terms for that kind of sentence before assuming an arbitrator will hear the dispute.
| Plaintiff’s argument | Who decides | What the business needs to show |
|---|---|---|
| The calls fall outside the agreement’s scope | Arbitrator, if there’s a valid delegation | Clear and unmistakable delegation language or AAA incorporation |
| The whole contract is unconscionable | Arbitrator, under Rent-A-Center | That the challenge isn’t aimed at the delegation clause specifically |
| The delegation clause itself is unconscionable | Court | That the specific arguments fail as to the delegation clause |
| The plaintiff never agreed to arbitrate with this defendant | Court | Formation evidence: the sign-up record, the terms version, assent |
| The defendant isn’t a party to the contract | Court | A contract term or state-law theory that extends the clause to this defendant |
What to pull before moving to compel
- Put a litigation hold on the call and text logs for the plaintiff’s number, the platform data for the campaign, and the consent records, including the sign-up page and the terms version shown that day.
- Pull the opt-out history and the internal do-not-call list for the number, with dates.
- Pull the Registry scrub records and their version dates, since a Registry claim may be pleaded alongside the consent claim.
- Collect every version of the customer terms, the vendor and lead-source contracts, and any affiliate or assignment language that ties the calling company to the contract.
- Have a lawyer review the file before answering the complaint or proposing a settlement, because filing an answer and litigating the merits first can waive the right to arbitrate.
The terms-version point is the one companies most often can’t prove. A delegation clause in the current terms does nothing if the plaintiff signed up under a 2021 version without one, and the TCPA class action defense lawyers handling the motion will need the archived page the customer actually saw. The earlier post on TCPA mass arbitration covers what happens when plaintiffs’ firms turn an arbitration clause back on the business by filing hundreds of demands at once.
Questions about delegation clauses in TCPA cases
Does the delegation clause have to use the word “arbitrability”?
No particular words are required, but clarity matters. A sentence saying the arbitrator decides any dispute about the scope or enforceability of the arbitration agreement is the cleanest version. Vague language that a court could read either way risks failing the clear-and-unmistakable test, and courts resolve that doubt against delegation.
What if our terms say a court decides class-waiver disputes?
Then a court will decide those, even with a general delegation clause elsewhere. Many consumer agreements carve class-waiver challenges out of the delegation on purpose, so a court, not an arbitrator, rules on whether a class can proceed. Read the carve-outs together with the delegation clause before filing, because they decide which arguments you’ll make in which forum.
Is a delegation clause enforceable in California state court?
California courts generally enforce clear delegation clauses in agreements governed by the Federal Arbitration Act. They’ll still hear a challenge aimed specifically at the delegation clause, and California’s unconscionability doctrine is more demanding of drafters than many states’. One-sided terms in the delegation clause itself are the usual target.
Should the motion to compel argue scope at all?
Usually only in the alternative. If the delegation is valid, the court shouldn’t reach scope, and leading with scope arguments can invite the court to decide them. The stronger motion establishes formation and the delegation and then asks the court to stop there.
If your company is moving to compel arbitration of a TCPA claim
If your company has been sued over calls or texts to a customer whose terms include an arbitration clause, the version of the terms that customer accepted and its delegation language usually decide which forum hears the case. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including motions to compel arbitration of TCPA claims. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statute is the Telephone Consumer Protection Act, 47 U.S.C. § 227. The arbitration statute is the Federal Arbitration Act, 9 U.S.C. § 2.
The Supreme Court decisions are Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. 63 (2019), and Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010). The Ninth Circuit decisions are Brennan v. Opus Bank, 796 F.3d 1125 (9th Cir. 2015), and Revitch v. DIRECTV, LLC, 977 F.3d 713 (9th Cir. 2020).
This post is general information about the Telephone Consumer Protection Act and related laws as of July 10, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.