United States District Court, C.D. Illinois, Springfield Division
UNITED STATES OF AMERICA and the STATES OF CALIFORNIA, ILLINOIS, NORTH CAROLINA, and OHIO, Plaintiffs,
DISH NETWORK L.L.C., Defendant.
ORDER FOR PERMANENT INJUNCTION
MYERSCOUGH UNITED STATES DISTRICT JUDGE
the United States of America, acting upon notification and
authorization to the Attorney General by the Federal Trade
Commission (“FTC” or the
“Commission”), and the States of California,
Illinois, North Carolina, and Ohio (“Plaintiff
States”) filed their Complaint, subsequently amended as
the Third Amended Complaint and Demand for Jury Trial (the
“Complaint”), for a permanent injunction, civil
penalties, and other relief in this matter. The FTC's
claims are pursuant to Sections 13(b), 19, 16(a)(1) of the
Federal Trade Commission Act (“FTC Act”), 15
U.S.C. §§ 53(b), 57b, and 56(a)(1), and various
provisions of the Telemarketing Sales Rule, 16 C.F.R. Part
310. The Plaintiff States' claims are pursuant to the
Telephone Consumer Protection Act (“TCPA”), 47
U.S.C. § 227, California Business & Professions Code
§§ 17592 and 17200, Illinois Automatic Telephone
Dialers Act 815 ILCS 305/1 et seq., North Carolina
General Statutes §§ 75-101, 75-102 and 75-104, and
Ohio Consumer Sales Practices Act, Revised Code §
1345.01 et seq.
Court granted Plaintiffs' motion for summary judgment in
part on December 11, 2014 (Opinion 445), finding inter
alia, that Defendant Dish Network, L.L.C. (“Dish,
” or Dish Network”), was liable for committing
violations of the Telephone Sales Rule and FTC Act as alleged
by the United States, and reconsidered and vacated parts of
Opinion 445 in Opinion 478; the rulings in Opinions 445 and
478 incorporated by reference herein. The Court tried the
Plaintiffs' remaining claims, including claims for civil
penalties and damages and injunctive relief during a bench
trial that was conducted January 19 through February 17,
2016, October 25 through 27, 2016, and November 2, 2016, and
has issued its Findings of Fact and Conclusions of Law on the
same date as this Injunction Order. Pursuant to the Findings
of Fact and Conclusions of Law, the Court hereby enters this
Order for Permanent Injunction (“Injunction
Order”). THEREFORE, it is ORDERED as follows:
Court has jurisdiction over this matter.
Complaint charges that Defendant Dish participated in acts or
practices in violation of Section 5 of the FTC Act, 15 U.S.C.
§ 45, the Telemarketing Sales Rule, the TCPA, and
various state laws by making telemarketing calls to persons
with telephone numbers on the National Do Not Call Registry,
making telemarketing calls to persons who previously stated
that they did not wish to receive telemarketing calls on
behalf of Defendant Dish, abandoning calls, using automated
voice telemarketing (“prerecorded telemarketing
calls”), and assisting others in these violations.
Entry of this Injunction Order is in the public interest.
purpose of this Injunction Order, the following definitions
“Activation” means a completed sale of Dish
Network goods or services to a new customer.
“Authorized Telemarketer” means a person who has
received express, written authorization from Dish Network to
use telemarketing to market Dish Network goods or services
except for National Accounts. The term Authorized
Telemarketer also includes any employee, agent, assign,
independent contractor, or any other person hired, retained
or used by an Authorized Telemarketer to engage in, or
provide any assistance in, telemarketing.
term “Automatic Telephone Dialing System” means
equipment which has the capacity-
(A) to store or produce telephone numbers to be called, using
a random or sequential number generator; and
(B) to dial such numbers.
definition is derived from TCPA, 47 U.S.C. § 227(a)(1),
and shall be interpreted consistently with that statutory
“Customer” means any person who is or may be
required to pay for goods or services.
“Defendant, ” “Dish Network, ” or
“Dish” means Dish Network L.L.C., its
subsidiaries, successors, officers, agents, servants,
employees, and attorneys.
“Dish Network goods or services” means satellite
television programming and all other goods or services
marketed by Dish now or in the future while this Injunction
Order remains in effect.
“Effective Date” means the date of entry of this
Injunction Order; provided however, that if this Injunction
Order is subject to a stay pending appeal, the term
“Effective Date” shall mean that date that such
stay pending appeal is lifted.
“Established business relationship” or
“EBR” means a relationship between the seller and
a person based on: (a) the person's purchase, rental, or
lease of the seller's goods or services or a financial
transaction between the person and seller, within the
eighteen (18) months immediately preceding the date of the
telemarketing call; or (b) the person's inquiry or
application regarding a product or service offered by the
seller, within the three months immediately preceding date of
a telemarketing call.
“Internal Do Not Call List” means a list or
compilation pursuant to 16 C.F.R. § 310.4(b)(1)(iii)(A)
containing telephone numbers of persons who have stated to
Dish, an Authorized Telemarketer, or a Retailer that they do
not wish to receive telemarketing calls for Dish Network
goods or services.
“National Accounts” means a person who markets
Dish Network goods or services and who operates ten (10) or
more retail stores in ten (10) or more different states,
which stores also market goods or services other than Dish
Network goods or services to customers in person in the
“National Do Not Call Registry” means the
National Do Not Call Registry maintained by the FTC pursuant
to 16 C.F.R. § 310.4(b)(1)(iii)(B).
“Outbound telemarketing call” means a telephone
call initiated by a telemarketer to induce the purchase of
goods or services or to solicit a charitable contribution.
“Person” means any individual, group,
unincorporated association, limited or general partnership,
corporation, or other business entity.
“Plaintiff States” means the States of
California, Illinois, Ohio, and North Carolina.
“Plaintiffs” means the FTC and the Plaintiff
“Prerecorded telemarketing call” means an
outbound telemarketing call that uses an artificial or
prerecorded voice to deliver a message without the prior
express written consent of the called party, except for a
prerecorded message authorized by 16 C.F.R. §
310.4(b)(1)(v) or (b)(4)(iii) and 47 C.F.R. §
“Primary Retailer” means every Authorized
Telemarketer or Retailer that, during the calendar year 2016,
or any subsequent calendar year while this Injunction Order
is in effect:
a. used directly or indirectly, or through a third party, an
Automatic Telephone Dialing System in connection with
telemarketing Dish Network goods or service; or
b. secured 600 activations of Dish Network goods or service.
Retailer” also includes any employee, agent, assign,
vendor, service provider, independent contractor, or any
other person or third-party affiliate contracted with, hired,
retained, or used by a Primary Retailer to engage in, or
provide any assistance in, marketing Dish Network goods or
“Relevant State Statutes” means California
Business & Professions Code §§ 17592 and 17200,
North Carolina General Statutes §§ 75-101, 75-102
and 75-104, and Ohio Consumer Sales Practices Act, Ohio
Revised Code §§ 1345.01-1345.03.
“Retailer” means any person who markets Dish
Network goods or services, solicits orders for Dish Network
goods or services, or offers Dish Network goods or services
except for National Accounts. “Retailer” also
includes any employee, agent, assign, vendor, service
provider, independent contractor, or any other person or
third-party affiliate contracted with, hired, retained, or
used by a Retailer to engage in, or provide any assistance
in, marketing Dish Network.
“Safe Harbor Provisions” means the Telephone
Sales Rule safe harbor provision 16 C.F.R. §§
310.4(b)(3) and (b)(4) and the TCPA safe harbor provision 47
C.F.R. §§ 64.1200(c)(2)(i).
a. any person who, in connection with a telemarketing
transaction, provides, offers to provide, or arranges for
others to provide goods or services to the customer in
exchange for consideration, whether or not such person is
under the jurisdiction of the FTC, or
b. any person or entity on whose behalf a telephone call or
message is initiated for the purpose of encouraging the
purchase or rental of, or investment in, property, goods, or
services, which is transmitted to any person.
“Signature” shall include an electronic or
digital form of signature, to the extent that such form of
signature is recognized as a valid signature under applicable
federal law or state contract law.
a. any person who, in connection with telemarketing,
initiates or receives telephone calls to or from a customer
or donor, or
b. any person or entity that initiates a telephone call or
message for the purpose of encouraging the purchase or rental
of, or investment in, property, goods, or services, which is
transmitted to any person.
“Telemarketing” means a plan, program, or
campaign which is conducted to induce the purchase of goods
or services or a charitable contribution, by use of one or
more telephones and which involves more than one interstate
telephone call. The term does not include the solicitation of
sales through the mailing of a catalog which: contains a
written description or illustration of the goods or services
offered for sale; includes the business address of the
seller; includes multiple pages of written material or
illustrations; and has been issued not less frequently than
once a year, when the person making the solicitation does not
solicit customers by telephone but only receives calls
initiated by customers in response to the catalog and during
those calls takes orders only without further solicitation.
For purposes of the previous sentence, the term
“further solicitation” does not include providing
the customer with information about, or attempting to sell,
any other item included in the same catalog which prompted
the customer's call or in a substantially similar
“Telemarketing Sales Rule” or “Rule”
means the FTC Rule entitled “Telemarketing Sales Rule,
” 16 C.F.R. Part 310, attached hereto as Appendix A,
and as it may hereafter be amended.
“Telephone Consumer Protection Act” or
“TCPA” means 47 U.S.C. § 227, and as 47
U.S.C. § 227 may hereafter be amended, and any rule
enacted pursuant to it, including but not limited to 47
C.F.R. § 64.1200, and as 47 C.F.R. § 64.1200 may
hereafter be amended. A copy of the TCPA and 47 C.F.R. §
64.1200 are attached as Appendix B.
“Third-party monitoring service” means a
qualified, independent third-party monitoring organization
experienced in monitoring and producing reports on compliance
with the Telemarketing Sales Rule.
TELEMARKETING BY DISH AND PRIMARY RETAILERS IT IS HEREBY
ORDERED that within 90 days of the Effective Date,
Defendant Dish shall demonstrate to the Plaintiffs, to the
Plaintiffs' satisfaction, that Dish and each Primary
Retailer: (1) are fully complying with the Safe Harbor
Provisions; and (2) have made no prerecorded telemarketing
calls at any time during the five (5) years immediately
preceding the Effective Date (collectively the Demonstration
fails to prove the Demonstration Requirements to the
Plaintiffs' satisfaction within the 90 day period, the
Plaintiffs shall file a notice to that effect
(Plaintiffs' Notice) with the Court and serve a copy of
the Notice on Dish. Unless Dish files a request for a hearing
with this Court within two (2) business days of service of
Plaintiffs' Notice, then for a period of two (2) years
from the filing of the Plaintiff's Notice, Dish and the
Primary Retailers shall be barred from conducting any
outbound telemarketing of Dish Network goods or services and
Dish shall be barred from accepting any orders from any
Primary Retailer. If Dish files a timely request for a
hearing, the Court will set the matter for a hearing within
30 days of Dish's request. No additional discovery will
be allowed before the hearing. Dish shall have the burden to
prove the Demonstration Requirements to the Court at the
hearing. If Dish fails to prove that Dish's direct
marketing operations meets the Demonstration ...