Antitrust Law Daily Wrap Up, CONSUMER PROTECTION—C.D. Ill.: Dish Network found to have made millions of calls in violation of TSR, (Dec 15, 2014)

By Greg Hammond, J.D.

Dish Network LLC, through its own employees and through vendors and retailers, has made over 55 million telemarketing calls in violation of the FTC’s Telemarketing Sales Rule (TSR), the federal district court in Springfield, Illinois, has determined. The United States has received partial summary judgment against Dish. In a separate decision, a government expert’s reports were deemed reliable and relevant to the 12-count complaint (U.S. v. Dish Network LLC, December 11, 2014, Myerscough, S.).

Dish sells satellite television programming and related services to consumers. As part of its marketing practices, Dish employees directly engage in telemarketing, and Dish contracts with vendors and authorized dealers to provide telemarketing services. The United States filed suit, alleging that Dish violated the TSR by: (1) engaging in or causing a telemarketer to engage in initiating an outbound telephone call to a person’s telephone number on the National Do Not Call Registry (NDNCR); (2) engaging in or causing other telemarketers to engage in initiating an outbound telephone call to a person who has previously stated that he or she did not wish to receive such a call made by or on behalf of Dish Network; (3) abandoning or causing telemarketers to abandon an outbound telephone call by failing to connect the call to a sales representative within two seconds of the completed greeting of the person answering the call; and (4) providing substantial assistance or support to vendors even though Dish knew or consciously avoided knowing that certain vendors abandoned outbound telephone calls.

TSR claims. The court determined that the government was entitled to partial summary judgment establishing Dish’s liability with respect to the following outbound telemarketing calls for Dish products and services: (1) over 6.7 million calls made by Dish and its retailers to numbers on the NDNCR; (2) over 1 million calls made by Dish and its vendors that were internally marked "do-not-call"; and (3) nearly 50 million prerecorded outbound telemarketing calls for Dish products that were made by Dish, its vendors, and its retailers, which constituted illegally abandoned calls.

Conversely, Dish was granted partial summary judgment over allegations that it provided substantial assistance or support to an authorized dealer, even though Dish knew or consciously avoided knowing that the dealer was making prerecorded calls that constituted abandoned calls.

State claims. The Attorneys General for California, Illinois, North Carolina, and Ohio also filed claims against Dish for allegedly violating their telemarketing and consumer protection laws. They were entitled to a finding that Dish and certain vendors engaged in a pattern or practice of making prerecorded outbound telemarketing calls.

Expert testimony. Prior to the summary judgment proceeding, Dish moved to preclude the expert testimony of Dr. Erez Yoeli, an FTC economist. Yoeli’s analyses and opinions were based on telemarketing call records from Dish, Dish’s telemarketing vendors, and several of Dish’s authorized retailers. Despite Dish’s arguments that Yoeli’s testimony lacked a reliable foundation, was based on fatally flawed factual assumptions, was irrelevant, and would not assist the trier of fact, the court found: (1) the motion was untimely for purposes of summary judgment; and (2) in considering the merits of the motion for purposes of trial, Yoeli was a qualified expert, his methodology was reliable, and his opinions and analyses were relevant. The motion to preclude was therefore denied.

The case number is 09-3073.

Attorneys: Albert N. Shelden, California Attorney General’s Office. Daniel Kadane Crane-Hirsch, U.S. Department of Justice. Elizabeth A. Blackston, Illinois Attorney General’s Office. Erin B. Leahy, Ohio Attorney General’s Office. Kevin Anderson, North Carolina Department of Justice. Catherine Emily James (Kelley Drye & Warren LLP) for Dish Network LLC.

Companies: Dish Network LLC

Cases: ConsumerProtection Privacy IllinoisNews