United States v. Dish Network, L. L.C.

75 F.Supp.3d 942

United States of America, and the States of California, Illinois, North Carolina, and Ohio, Plaintiffs

v.Dish Network, L.L.C., Defendant.

No. 09–3073

United States District Court, C.D. Illinois, Springfield Division .

Signed December 11, 2014

Filed December 12, 2014

Albert N. Shelden, California Attorney General's Office, San Diego, CA, Daniel Kadane Crane–Hirsch, Lisa K. Hsiao, Patrick R. Runkle, Sang H. Lee, U.S. Dept of Justice, Washington, DC, Elizabeth A. Blackston, Paul A. Isaac, Illinois Attorney General, Gregory M. Gilmore, U.S. Atty., Springfield, IL, Erin B. Leahy, Michael S. Ziegler, Ohio Attorney General's Office, Columbus, OH, Jeffrey Mark Feltman, Office of the Attorney General, Carbondale, IL, Kevin Anderson, North Carolina Department of Justice, Raleigh, NC, for Plaintiffs.

Catherine Emily James, Henry T. Kelly, Kelley Drye & Warren LLP, Chicago, IL, Damon William Suden, Kelley Drye & Warren, New York, NY, Edward Ellis Weiman, Kelley Drye & Warren LLP, Los Angeles, CA, Geoffrey W Castello, III, Joseph A. Boyle, Lauri A. Mazzuchetti, Kelley Drye & Warren LLP, Parsippany, NJ, for Defendant.

OPINION

SUE E. MYERSCOUGH, U.S. District Judge:

This cause is before the Court on Plaintiffs' Motion for Summary Judgment (d/e 341/402) (Motion 341/402) and Defendant Dish Network L.L.C.'s (Dish) Motion for Summary Judgment (d/e 346) (Motion 346) (collectively the Motions). The Plaintiffs seek summary judgment on eleven of twelve claims alleged in the Second Amended Complaint and Demand for Jury Trial (d/e 257) (Second Amended Complaint). Dish seeks summary judgment on all claims.

Dish sells satellite television programming and related services. Dish was known as Echostar Communications Corporation (Echostar) until it changed its name on January 1, 2008. Motion 341, Statement of Undisputed Fact (PSUF), ¶ 4. Dish markets its services in several ways, including telemarketing. Dish employees engage in telemarketing directly; Dish contracts with two telemarketing vendors eCreek Service Group (eCreek) and EPLDT–Ventus (EPLDT or Libertad) (collectively Telemarketing Vendors) to provide telemarketing services to Dish; and Dish contracts with authorized retailers (Retailers) to market Dish's products and services, and some of these authorized retailers engage in telemarketing to market Dish products and services. The Plaintiffs allege that Dish violated state and federal laws (“Do–Not–Call” or “DNC” Laws) governing: (1) outbound telemarketing calls to persons who have indicated that they do not want to receive such calls, and (2) outbound telemarketing calls that convey a prerecorded message.

On October 17, 2014, the Court heard oral argument on the Motions. The Plaintiff United States of America appeared by its attorneys from the U.S. Department of Justice Patrick R. Runkle, Lisa K. Hsiao, and Sang H. Lee, and, as of counsel, Federal Trade Commission attorney Russell Deitch; the Plaintiff State of California appeared by its attorney from the California Attorney General's Office Jin Ohta; the Plaintiff State of Illinois appeared by its attorney from the Illinois Attorney General's Office Paul A. Isaac; the Plaintiff State of North Carolina by its attorney from the North Carolina's Attorney General's Office David N. Kirkman; and the Plaintiff State of Ohio by its attorney from the Ohio Attorney General's Office Erin B. Leahy. Dish appeared by its attorneys Joseph Boyle, Henry T. Kelly, Lauri A. Mazzuchetti, and Damon W. Suden.

After careful consideration of the submissions of the parties and the arguments of counsel, the Court finds with respect to each count as follows:

Count I

The Plaintiff United States is entitled to partial summary judgment establishing Dish's liability with respect to the following outbound telemarketing calls for Dish products and services: (1) calls to telephone numbers on the National Do–Not–Call Registry (Registry), (a) 1,707,713 calls on the 2007–2010 Dish call records, and (b) 2,386,386 calls that Dr. Yoeli determined were made to numbers on the Registry which Dish failed to dispute with any evidence; (2) 2,349,031 calls that Dish Retailer JSR Enterprises (JSR) made to numbers on the Registry; and (3) 381,811 calls that Dish Retailer Satellite Systems Network (Satellite Systems or SSN) made to numbers on the Registry. The United States is further entitled to partial judgment that Dish is not entitled to the safe harbor defense. Issues of fact preclude summary judgment for either party with respect to remedies for Dish's partial summary judgment liability under Count I or with respect to any other issue related to Count I.

Count II

The Plaintiff United States is entitled to partial summary judgment establishing Dish's liability with respect to the following outbound telemarketing calls for Dish products and services: (1) 903,246 calls to persons whose telephone numbers were on Dish's internal do-not-call list at the time of the call; and (2) 140,349 calls to numbers marked “DNC” by Dish Telemarketing Vendor eCreek. The United States is further entitled to partial judgment that Dish is not entitled to the safe harbor defense under the TSR. Issues of fact preclude summary judgment for either party with respect to remedies for Dish's partial summary judgment liability under Count II or with respect to any other issue related to Count II.

Count III

The Plaintiff United States is entitled to partial summary judgment establishing Dish's liability with respect to the following prerecorded outbound telemarketing calls for Dish products and services that constituted illegally abandoned calls: (1) 98,054 prerecorded calls made by Dish; (2) 43,100,876 prerecorded calls made at the direction of Dish Retailer Star Satellite, LLC; (3) 6,637,196 prerecorded calls made at the direction of Dish Retailer Dish TV Now; and (4) the one prerecorded call made by Dish Retailer American Satellite, Inc. (American Satellite). Issues of fact preclude summary judgment for either party with respect to remedies for Dish's liability under Count III.

Count IV

The Defendant Dish is entitled to partial summary judgment on that portion of Count IV that alleges that Dish provided substantial assistance or support to Retailer Dish TV Now even though dish knew or consciously avoided knowing that Dish TV Now was making prerecorded calls that constituted abandoned calls. Issues of fact preclude summary judgment for either party on any other issue related to Count IV.

Count V

The Plaintiff States are entitled to a finding under Federal rule of Civil Procedure 56(g) that: (1) Dish engaged in a pattern or practice of making outbound telemarketing calls for Dish products and services to residents of the Plaintiff States whose telephone numbers were on the Registry as reflected in the 2007–2010 Dish call records; and (2) Dish Retailers: JSR and Satellite Systems engaged in a pattern or practice of making outbound telemarketing calls for Dish products and services to residents of the Plaintiff States whose telephone numbers were on the Registry. The Plaintiff States are also entitled to partial summary judgment that Dish is not entitled to a safe harbor defense. Issues of fact preclude summary judgment for either party on any other issue related to Count V.

Count VI

The Plaintiff States are entitled to findings under Rule 56(g) that: (1) Dish engaged in a pattern or practice of making prerecorded outbound telemarketing calls for Dish products and services to residents of the Plaintiff states; and (2) Dish Retailers: Dish TV Now and Star Satellite engaged in a pattern or practice of making prerecorded outbound telemarketing calls for Dish products and services to residents of the Plaintiff states. Issues of fact preclude summary judgment for either party on any other issue related to Count VI.

Count VII

The State of California is entitled to a finding under Rule 56(g) that Dish made outbound telemarketing calls for Dish products and services to telephone numbers of California residents at a time when the numbers were on the Registry as reflected in the 20072010 Dish call records. Issues of fact preclude summary judgment for either party on any other issue related to Count VII.

Count VIII

The State of California is entitled to findings under Rule 56(g) that: (1) Dish made outbound telemarketing calls for Dish products and services to telephone numbers of California residents at a time when the numbers were on the Registry as reflected in the 2007–2010 Dish call records; and (2) Dish made prerecorded outbound telemarketing calls for Dish products and services to telephone numbers of California residents. Issues of fact preclude summary judgment for either party on any other issue related to Count VIII.

Count IX

The State of North Carolina is entitled to findings under Rule 56(g) that: (1) Dish made prerecorded calls using autodialing equipment to residents of North Carolina; and (2) Dish Retailers: Dish TV Now and Star Satellite made prerecorded calls using autodialing equipment to residents of North Carolina. Issues of fact preclude summary judgment for either party on any other issue related to Count IX.

Count X

The State of North Carolina is entitled a finding under Rule 56(g) that Dish made prerecorded calls using autodialing equipment to residents of North Carolina. Issues of fact preclude summary judgment for either party on any other issue related to Count X.

Count XI

The State of Illinois is entitled to findings under Rule 56(g)(1) that Dish made prerecorded calls using autodialing equipment to residents of Illinois; and (2) Dish Retailers: Dish TV Now and Star Satellite made prerecorded calls using autodialing equipment to residents of North Carolina. Issues of fact preclude summary judgment for either party on any other issue related to Count XI.

Count XII

Issues of fact preclude Dish's request for summary judgment of Count XII. The Plaintiffs do not seek summary judgment on Count XII.

The facts in this case are best understood in the context of...