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United States v. Dish Network

February 4, 2010

UNITED STATES OF AMERICA, ET AL., PLAINTIFFS,
v.
DISH NETWORK, LLC, DEFENDANT.



The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge

OPINION

This matter comes before the Court on Defendant Dish Network, LLC's (Dish Network) Motion for Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b) or, in the Alternative, for Reconsideration (d/e 21) (Motion). This Court denied Dish Network's Motion to Dismiss. Opinion entered November 2, 2009 (d/e 20) (Opinion). Dish Network now asks the Court to certify the Opinion for interlocutory appeal, or in the alternative, to reconsider the Opinion. For the reasons set forth below, the Court sees no basis to certify the Opinion for interlocutory appeal and no basis for reconsideration. The Motion is, therefore, denied.

I. CERTIFICATION FOR INTERLOCUTORY

APPEAL As explained more fully in the Opinion, the Plaintiffs filed an eleven- count First Amended Complaint and Demand for Jury Trial (d/e 5) (Complaint), alleging that Dish Network, directly and through its authorized dealers (Dealers) and third parties, violated the Federal Trade Commission's (FTC) Telemarketing Sales Rule (TSR), the Federal Trade Commission Act (FTC Act), the Telephone Consumer Protection Act (TCPA), and the Federal Communications Commission's Rule (FCC Rule) that regulates telemarketing. Opinion, at 2-7; 15 U.S.C. § 45; 47 U.S.C. § 227; 16 C.F.R. Part 310, as amended; 47 C.F.R. § 64.1200. Dish Network moved to dismiss: (1) those parts of Counts I, II, IV and V that allege that Dish Network is liable based on the actions of its Dealers with which it contracted to provide telemarketing services; (2) all of Count III; (3) all claims for civil penalties for violation of the FTC Act; and (4) those supplemental state law claims in Counts VI through XI that were based on interstate telephone calls. The Court denied the Motion for the reasons explained in the Opinion. Opinion, at 7-27.

Dish Network asserts that the Opinion raises six questions of law that are appropriate for interlocutory appeal:

a. Whether "cause" under the TSR should be defined to impose strict liability on a seller for the telemarketing activity of a retailer regardless of whether the act constituting such "cause" related directly to a violation of the TSR;

b. Whether a seller's successful use of the TSR's "safe harbor" procedures will shield it from the strict liability standard for third party acts as imposed by the Court;

c. Whether a seller's mere compensation of third party retailers for their services, without more, is sufficient to constitute "substantial assistance" of a violation of the TSR under the Section 310.3(b);

d. Whether an "on behalf"of claim under the TCPA requires allegations of control and authority by the seller relative to the entity making a telemarketing call;

e. Whether TCPA preempts state law claims based on interstate calls; and

f. Whether the FTC has violated the APA by advancing its theories of "causation" and "substantial assistance" liability in this case.

Motion, at 3-4.

This Court is directed to certify an interlocutory order, such as the Opinion, for immediate appeal if this Court is, "of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation."

28 U.S.C. ยง 1292(b). In this case, the Court is of the opinion that: (1) the issues identified by Dish Network, other than the preemption issue, do not involve a controlling question of law as to which there is a substantial ground for differences of opinion; and (2) an immediate appeal of any of these issues, including the preemption issue, will not materially advance the ultimate termination of the litigation. Thus, this Court ...


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