JUSTICE STEWART[fn1] delivered the opinion of the court: [fn1] Originally, Justice McGlynn was assigned to this panel. Justice Stewart was later substituted on the panel and has read the briefs and listened to the audiotape of oral argument.

The defendant, DirecTV, Inc. (DirecTV), appeals from an order of the circuit court of St. Clair County denying its motion to stay proceedings and to compel arbitration. DirecTV argues that the circuit court erred in finding that the arbitration agreement was procedurally and substantively unconscionable and, therefore, unenforceable. We affirm.

BACKGROUND

DirecTV provides television programming services via satellite to consumers throughout the nation. To obtain these services, a potential DirecTV subscriber typically first purchases from an "independent retailer" the equipment necessary to receive a satellite signal. The potential customer then calls DirecTV and contracts for one or more of DirecTV's programming packages. DirecTV then activates the subscriber's service and mails the customer a copy of the parties' proposed written contract, entitled "Customer Agreement" (Customer Agreement), along with his or her first bill. The Customer Agreement sets forth the parties' rights and obligations and explains the terms and conditions under which DirecTV provides its service.

On November 28, 1999, after purchasing the necessary equipment, Charlotte Bess contracted with DirecTV for satellite television service, and DirecTV activated her requested service. Thereafter, DirecTV mailed her a copy of the October 1999 Customer Agreement, along with her first billing statement. The Customer Agreement provides that DirecTV will send the customer a billing statement once every 30 days, that payment of the outstanding balance is due in full each month, and that if DirecTV does not receive the customer's payment before issuing her next statement, DirecTV may charge her an administrative late fee of up to $5. This administrative late fee is the subject of Bess's complaint.

The Customer Agreement also specifies that if the customer does not accept the terms of the Customer Agreement, she is to notify DirecTV immediately, and DirecTV will cancel her agreement for DirecTV service. If she does not so notify DirecTV and continues to receive DirecTV service, she thereby accepts the terms of the Customer Agreement. If the agreement for service is cancelled, the Customer Agreement provides for a "deactivation fee." There is no provision for the reimbursement for the cost of the necessary equipment purchased if the agreement is cancelled.

The Customer Agreement also contains informal and formal dispute-resolution clauses. Under the informal dispute-resolution clause, the complaining party must first notify the other of a claim at least 60 days before starting any formal proceeding, so that the parties can attempt an informal resolution of the claim. The formal dispute-resolution clause (the arbitration provision) provides, in pertinent part:

" Formal Resolution. Except as provided in Section 8(d), if we cannot resolve a Claim informally, any Claim either of us asserts will be resolved only by binding arbitration. The arbitration will be conducted under the Commercial Arbitration Rules of the American Arbitration Association that are in effect at the time the arbitration is initiated (referred to as the `AAA Rules') and under the rules set forth in this Agreement. If there is a conflict between the AAA Rules and the rules set forth in this Agreement, the rules set forth in this Agreement will govern. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL. If you initiate the arbitration, you agree to pay a fee of $125 or, if less and you tell us in writing, the amount that you would pay to initiate a lawsuit against us in the appropriate court of law in your state. We agree to pay any additional fee or deposit required by the American Arbitration Association in excess of your filing fee. We also agree to pay the costs of the arbitration proceeding up to a maximum of one-half day (four hours) of hearings. Other fees, such as attorney's fees, expenses of travel to the arbitration[,] and the costs of a proceeding that goes beyond one-half day[,] will be paid in accordance with the AAA Rules. The arbitration will be held at a location within one hundred miles of your residence unless you and we both agree to another location."

The October 1999 Customer Agreement further provides that it could be replaced by subsequent, updated agreements and that the customer would accept the terms of any subsequent agreements in the same manner that she agreed to the terms of the initial Customer Agreement-by continuing to accept DirecTV service. Bess did not cancel her agreement for service upon receipt of the October 1999 Customer Agreement.

The October 1999 Customer Agreement was subsequently replaced by the September 2001 Customer Agreement, which contains the same late-fee clause and arbitration provision as the October 1999 agreement and provides that the customer accepts the terms of the agreement by continuing to receive service from DirecTV. Bess did not cancel her DirecTV service after DirecTV mailed her a copy of the September 2001 Customer Agreement. She remained a DirecTV customer at the time of this appeal.

On November 22, 2000, Bess filed a first amended complaint alleging that DirecTV's $5 administrative late fee violates Illinois law. The gist of Bess's complaint is that DirecTV's true cost for a late-paying customer is far below $5. Bess argues that DirecTV's practice constitutes unjust enrichment and violates both Illinois common law concerning liquidated damages and the Illinois Consumer Fraud and Deceptive Business Practices Act ( 815 ILCS 505/1 et seq. (West 2000)).

By letter dated December 4, 2000, DirecTV notified Bess that it intended to avail itself of the parties' contractual dispute-resolution clause. On December 7, 2000, DirecTV filed a motion to compel arbitration and to stay Bess's action so that the arbitration could proceed. On March 27, 2003, the circuit court denied DirecTV's motion, concluding that the arbitration agreement was unconscionable and unenforceable because it did not provide for class arbitration. On August 24, 2004, on DirecTV's appeal from that order, this court reversed the circuit court's denial of DirecTV's motion to stay proceedings and to compel arbitration and held that an arbitrator must determine whether the arbitration clause permits the arbitration to proceed on behalf of a class. Bess v. DirecTV, Inc., 351 Ill. App. 3d 1148, 1153-54, 815 N.E.2d 455, 459-60 (2004). This court then remanded the matter to the circuit court to determine the validity of the arbitration provision. Bess, 351 Ill. App. 3d at 1157, 815 N.E.2d at 462.

On remand, the parties briefed the remaining issues Bess raised in opposition to DirecTV's motion. Those issues include the following: whether the arbitration provision is procedurally and substantively unconscionable and whether Bess voluntarily and knowingly waived her right to a jury trial.

In an order entered on June 1, 2005, the circuit court held that Bess waived her argument that she did not knowingly and voluntarily waive her right to a jury trial. The court then denied DirecTV's motion to stay and to compel arbitration, finding the arbitration provision both procedurally and substantively unconscionable. On July 1, 2005, DirecTV filed a timely notice of interlocutory appeal. We have jurisdiction over the instant appeal pursuant to Illinois Supreme Court Rule 307(a)(1) (188 Ill. 2d R. 307(a)(1)). See Salsitz v. Kreiss, 198 Ill. 2d 1, 11-12, 761 N.E.2d 724, 730 (2001) (an order denying a motion to compel arbitration is injunctive in nature and is, therefore, appealable under Rule 307(a)(1)).

ANALYSIS

In 1925, Congress enacted the Federal Arbitration Act (FAA) ( 9 U.S.C. § 1 et seq. (2000)) "to reverse the longstanding judicial hostility to arbitration agreements that had existed at English common law and had been adopted by American courts and to place arbitration agreements upon the same footing as other contracts." Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24, 114 L. Ed. 2d 26, 36, 111 S. Ct. 1647, 1651 (1991). Section 2 of the FAA provides:

"A written provision in *** a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction *** shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2 (2000).

Section 4 of the FAA provides for orders compelling arbitration when one party has failed, neglected, or refused to comply with an arbitration agreement. 9 U.S.C. § 4 (2000).

In Doctor's Associates, Inc. v. Casarotto, 517 U.S. 681, 134 L. Ed. 2d 902, 116 S. Ct. 1652 (1996), the United States Supreme Court explained the preemptive effect of the FAA:

"`[S]tate law, whether of legislative or judicial origin, is applicable if that law arose to govern issues concerning the validity, revocability, and enforceability of contracts generally. A state-law principle that takes its meaning precisely from the fact that a contract to arbitrate is at issue does not comport with [the text of § 2].' [Citation.]" (Emphasis in original.) Doctor's Associates, Inc., 517 U.S. at 685, 134 L. Ed. 2d at 907, 116 S. Ct. at 1655.

Although the Supreme Court has stressed that federal policy under the FAA favors the enforcement of valid arbitration agreements ( Gilmer, 500 U.S. at 24-25, 114 L. Ed. 2d at 36, 111 S. Ct. at 1651), the Court has been equally clear that a party can be forced into arbitration only if he or she has in fact entered into a valid, enforceable contract waiving his or her right to a judicial forum. ATT Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648, 89 L. Ed. 2d 648, 655, 106 S. Ct. 1415, 1418 (1986). Whether the parties actually agreed to arbitrate is determined under ordinary state-law contract principles. Penn v. Ryan's Family Steak Houses, Inc., 269 F.3d 753, 758-59 (7th Cir. 2001). The Supreme Court has confirmed that "generally applicable contract defenses, such as fraud, duress, or unconscionability, may be applied to invalidate arbitration agreements without contravening [the FAA]." Doctor's Associates, Inc., 517 U.S. at 687, 134 L. Ed. 2d at 909, 116 S. Ct. at 1656.

On appeal, DirecTV first argues that the circuit court improperly analyzed the unconscionability of the Customer Agreement as a whole, which is a matter to be determined by the arbitrator, not the court. We disagree.

"Challenges to the validity of arbitration agreements `upon such grounds as exist at law or in equity for the revocation of any contract' can be divided into two types." Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 444, 163 L. Ed. 2d 1038, 1042, 126 S. Ct. 1204, 1208 (2006). "One type challenges specifically the validity of the agreement to arbitrate." Buckeye Check Cashing, Inc., 546 U.S. at 444, 163 L. Ed. 2d at 1042-43, 126 S. Ct. at 1208. "The other challenges the contract as a whole, either on a ground that directly affects the entire agreement ( e.g., the agreement was fraudulently induced) or on the ground that the illegality of one of the contract's provisions renders the whole contract invalid." Buckeye Check Cashing, Inc., 546 U.S. at 444, 163 L. Ed. 2d at 1043, 126 S. Ct. at 1208.

In Prima Paint Corp. v. Flood Conklin Manufacturing Co., 388 U.S. 395, 18 L. Ed. 2d 1270, 87 S. Ct. 1801 (1967), the Court addressed the question of who-court or arbitrator-decides these two types of challenges. The Court held, "[I]f the claim is fraud in the inducement of the arbitration clause itself-an issue which goes to the `making' of the agreement to arbitrate-the federal court may proceed to adjudicate it. But the statutory language does not permit the federal court to consider claims of fraud in the inducement of the contract generally." Prima Paint Corp., 388 U.S. at 403-04, 18 L. Ed. 2d at 1277, 87 S. Ct. at 1806.

Similarly, in Buckeye Check Cashing, Inc., because the respondents challenged the contract as a whole, and not specifically its arbitration provisions, the Court concluded that the arbitration provisions were enforceable apart from the remainder of the contract. Buckeye Check Cashing, Inc., 546 U.S. at 446, 163 L. Ed. 2d at 1044, 126 S. Ct. at 1209. Accordingly, the Court concluded that the challenge should be considered by the arbitrator, and not the court. Buckeye Check Cashing, Inc., 546 U.S. at 446, 163 L. Ed. 2d at 1044, 126 S. Ct. at 1209.

Thus, the focus in determining whether the court or an arbitrator determines a challenge to an arbitration provision is whether the party challenging the provision makes any claim that the contract as a whole is invalid. In the present case, unlike in Buckeye Check Cashing, Inc. and Prima Paint Corp., Bess is not challenging the validity of the Customer Agreement as a whole. Instead, she is specifically challenging the validity of the arbitration provision itself. Accordingly, the issue is one for the court, and not the arbitrator, to decide. See Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1271 (9th Cir. 2006) ("Where, as here, no claim threatens to invalidate or otherwise directly affect the entire contract, the *** court must decide claims attacking the validity of the arbitration provision, even if substantive state law requires an examination of the making of the entire contract as part of that analysis").

Bess argues that the arbitration provision contained in the Customer Agreement is unenforceable because it is both procedurally and substantively unconscionable. "A finding of unconscionability may be based on either procedural or substantive unconscionability or a combination of both." Kinkel v. Cingular Wireless, LLC, 223 Ill. 2d 1, 21, 857 N.E.2d 250, 263 (2006). "[T]he issue of unconscionability should be examined with reference to all of the circumstances surrounding the transaction." Kinkel, 223 Ill. 2d at 24, 857 N.E.2d at 265. "In addition, the doctrine of unconscionability should be at least as protective of individual consumers who enter into contracts with commercial entities as it is of one business that enters into a contract with another business." Kinkel, 223 Ill. 2d at 24, 857 N.E.2d at 265; see also Pierce v. Catalina Yachts, Inc., 2 P.3d 618, 623 (Alaska 2000) ("Courts are more likely to find unconscionability when a consumer is involved, when there is a disparity in bargaining power, and when the consequential damages clause is on a preprinted form" (quoted with approval in Kinkel, 223 Ill. 2d at 24, 857 N.E.2d at 265)). "The determination of whether a contract or a portion of a contract is unconscionable is a question of law, which we review de novo." Kinkel, 223 Ill. 2d at 22, 857 N.E.2d at 264.

"Procedural unconscionability refers to a situation where a term is so difficult to find, read, or understand that the plaintiff cannot fairly be said to have been aware he was agreeing to it." Razor v. Hyundai Motor America, 222 Ill. 2d 75, 100, 854 N.E.2d 607, 622 (2006). "This analysis also takes into account the disparity of bargaining power between the drafter of the contract and the party claiming unconscionability." Kinkel, 223 Ill. 2d at 22, 857 N.E.2d at 264.

In the present case, the circuit court found the arbitration provision contained in the Customer Agreement procedurally unconscionable, stating:

"The arbitration provision is procedurally unconscionable because it is printed in *** about eight[-]point font in a ten[-]paneled fold[-]up pamphlet with each panel of the pamphlet containing approximately seven-hundred *** words. The `Customer Agreement' is force fed to subscribers *** on a take[-] it[-]or[-]leave[-]it basis. There is no opportunity for a consumer to negotiate the terms of the document. The provision regarding arbitration is inconspicuously placed in the pamphlet, where it was unlikely to be noticed, much less read, and sent after the purchase and installation of the equipment and after service had already begun."

In its brief on appeal, DirecTV argues that the Customer Agreement containing the arbitration provision is not an adhesion contract under Illinois law. We disagree. The parties-Bess, a consumer, and DirecTV, a nationwide provider of satellite television services-are in disparate bargaining positions. In addition, the Customer Agreement containing the arbitration provision is a form contract, which Bess had no hand in drafting and which DirecTV offered to Bess on a take-it-or-leave-it basis. See Williams v. Illinois State Scholarship Comm'n, 139 Ill. 2d 24, 72, 563 N.E.2d 465, 487 (1990) (an adhesion contract is one in which the parties are in disparate bargaining positions and one party has no hand in drafting the agreement but, instead, must "take it or leave it" as the other party drafted it).

However, "the fact that a contract is offered in a form contract on a take-it-or-leave-it basis does not automatically render a contract term procedurally unconscionable." Kinkel v. Cingular Wireless, LLC, 357 Ill. App. 3d 556, 563, 828 N.E.2d 812, 818 (2005), aff'd, 223 Ill. 2d 1, 857 N.E.2d 250 (2006). "This, of course, does not mean that offering a contract term on a take-it-or-leave-it basis is irrelevant in determining whether a contract provision is procedurally unconscionable; indeed, it is an important factor to consider." Kinkel, 357 Ill. App. 3d at 563, 828 N.E.2d at 818-19. "It simply means that something more is required before we find a provision to be procedurally unconscionable." Kinkel, 357 Ill. App. 3d at 563, 828 N.E.2d at 819. "Illinois courts have long found provisions offered on a take-it-or-leave-it basis and also `hidden in a maze of fine print' to be procedurally unconscionable." Kinkel, 357 Ill. App. 3d at 563, 828 N.E.2d at 819 (quoting Frank's Maintenance Engineering, Inc. v. C.A. Roberts Co., 86 Ill. App. 3d 980, 990, 408 N.E.2d 403, 410 (19 80)).

As the Illinois Supreme Court recently noted:

"`Procedural unconscionability consists of some impropriety during the process of forming the contract depriving a party of a meaningful choice. [Citations.] Factors to be considered are all the circumstances surrounding the transaction including the manner in which the contract was entered into, whether each party had a reasonable opportunity to understand the terms of the contract, and whether important terms were hidden in a maze of fine print; both the conspicuousness of the clause and the negotiations relating to it are important, albeit not conclusive factors in determining the issue of unconscionability. [Citation.] To be a part of the bargain, a provision *** must *** have been bargained for [or] brought to the [consumer's] attention or be conspicuous.'" Kinkel, 223 Ill. 2d at 23, 857 N.E.2d at 264 (quoting Frank's Maintenance Engineering, Inc., 86 Ill. App. 3d at 989-90, 408 N.E.2d at 410.

In the present case, DirecTV argues that the arbitration provision in the Customer Agreement is conspicuous. The arbitration provision is separated by a break in the text and is identified by a heading printed in bold, all-capitalized letters that states: " RESOLVING DISPUTES." However, the arbitration provision is printed in single-spaced lines of very small font on the last two panels of the multipaneled fold-up pamphlet. Moreover, as the Illinois Supreme Court explained in Razor:

"It simply does not matter how large the type was or how clearly the disclaimer was expressed if the consumer did not have the opportunity to see the language before entering into the contract ***. [Citation.] As previously noted, procedural unconscionability refers to a situation where a term is so difficult to find, read, or understand that the plaintiff cannot fairly be said to have been aware he was agreeing to it. Surely, whatever other context there might be in which a contractual provision would be found to be procedurally unconscionable, that label must apply to a situation such as the case at bar where plaintiff has testified that she never saw the clause; nor is there any basis for concluding that plaintiff could have seen the clause, before entering into the sale contract." (Emphasis in original.) Razor, 222 Ill. 2d at 101, 854 N.E.2d at 623.

Similarly, in the present case, it is undisputed that DirecTV did not mail Bess a copy of the Customer Agreement containing the arbitration provision until after she had already purchased the satellite television equipment and after she had contracted to receive DirecTV service. Therefore, Bess did not see, and could not have seen, the arbitration provision before entering into the contract with DirecTV. Accordingly, as the Illinois Supreme Court stated in Razor, "[s]urely, whatever other context there might be in which a contractual provision would be found to be procedurally unconscionable, that label must apply to a situation such as the case at bar" ( Razor, 222 Ill. 2d at 101, 854 N.E.2d at 623), where Bess did not see and could not have seen the arbitration provision before entering into the con tract.

DirecTV argues that although it sent Bess the Customer Agreement after she had contracted for DirecTV service, she had the opportunity to cancel the service if she rejected the terms of the arbitration provision. However, under the terms of the Customer Agreement, DirecTV could charge Bess a deactivation fee if she chose to discontinue the service instead of accepting the terms of the arbitration provision. Moreover, at that point, Bess had already purchased the satellite television equipment, and the Customer Agreement did not provide for the reimbursement of her equipment costs if she chose to discontinue the service instead of accepting the terms of the arbitration provision; nor is there any indication that she could have returned the equipment without incurring a penalty. It is clear that DirecTV required Bess to contract to receive its service and substantially change her economic position before she was provided with the Customer Agreement that contained the arbitration provision. Therefore, Bess was deprived of a "meaningful choice" in determining whether to accept the arbitration provision of the Customer Agreement. See Kinkel, 223 Ill. 2d at 23, 857 N.E.2d at 264 (quoting Frank's Maintenance Engineering, Inc., 86 Ill. App. 3d at 989, 408 N.E.2d at 410).

Given all the circumstances in the present case, we conclude that the arbitration provision is procedurally unconscionable and that the procedural unconscionability is sufficient to invalidate the arbitration provision. The parties-Bess, a consumer, and DirecTV, a nationwide provider of satellite television services-were in disparate bargaining positions. The Customer Agreement containing the arbitration provision was a preprinted form contract, and it was a contract of adhesion in that Bess had no hand in drafting it but, instead, had to "take it or leave it" as DirecTV drafted it. The arbitration provision was printed in single-spaced lines of very small font on the last two panels of a multipaneled pamphlet, which DirecTV mailed to Bess along with her monthly bill after Bess had already purchased satellite television equipment and contracted to receive DirecTV service.

Accordingly, Bess had not seen and could not have seen the arbitration provision before entering into the contract with DirecTV. See Razor, 222 Ill. 2d at 101, 854 N.E.2d at 623. Under the terms of the Customer Agreement, if Bess had opted to discontinue her DirecTV service instead of accepting the terms of the arbitration provision, DirecTV could have charged her a deactivation fee and did not agree to reimburse her for the cost of the equipment; nor is there any indication that she could have returned the equipment without incurring a penalty. Under all the circumstances presented in this case, we conclude that it would be un conscionable to enforce the arbitration provision, because Bess was deprived of a "meaningful choice" in entering into the contract. See Kinkel, 223 Ill. 2d at 23, 857 N.E.2d at 264 (quoting Frank's Maintenance Engineering, Inc., 86 Ill. App. 3d at 989, 408 N.E.2d at 410).

The circuit court also found the arbitration provision substantively unconscionable because the costs to bring a class action in arbitration are prohibitive. However, because we find that the arbitration provision is procedurally unconscionable and that the procedural unconscionability is sufficient to invalidate the arbitration provision, we need not address the issue of whether the arbitration provision is also substantively unconscionable. See Kinkel, 223 Ill. 2d at 21, 857 N.E.2d at 263 ("[a] finding of unconscionability may be based on either procedural or substantive unconscionability or a combination of both").

CONCLUSION

For the foregoing reasons, the order of the circuit court of St. Clair County denying DirecTV's motion to stay proceedings and to compel arbitration is affirmed.

Affirmed.

SPOMER, J., concurs.