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E-FILED
Monday, 05 June, 2017 02:39:56 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
UNITED STATES OF )
AMERICA and the STATES )
OF CALIFORNIA, ILLINOIS, )
NORTH CAROLINA, and )
OHIO, )
)
Plaintiffs, ) Case No. 09-3073
)
v. )
)
DISH NETWORK L.L.C., )
)
Defendant. )
ORDER FOR PERMANENT INJUNCTION
Plaintiffs, 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
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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.
The 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
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Conclusions of Law, the Court hereby enters this Order for
Permanent Injunction (“Injunction Order”).
THEREFORE, it is ORDERED as follows:
FINDINGS
1. This Court has jurisdiction over this matter.
2. The 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.
3. Entry of this Injunction Order is in the public interest.
DEFINITIONS
For the purpose of this Injunction Order, the following definitions
shall apply:
1. “Activation” means a completed sale of Dish Network goods or
services to a new customer.
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2. “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.
3. The 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.
This definition is derived from TCPA, 47 U.S.C. § 227(a)(1), and
shall be interpreted consistently with that statutory definition.
4. “Customer” means any person who is or may be required to pay
for goods or services.
5. “Defendant,” “Dish Network,” or “Dish” means Dish Network
L.L.C., its subsidiaries, successors, officers, agents, servants,
employees, and attorneys.
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6. “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.
7. “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.
8. “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.
9. “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.
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10. “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 stores.
11. “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).
12. “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.
13. “Person” means any individual, group, unincorporated
association, limited or general partnership, corporation, or other
business entity.
14. “Plaintiff States” means the States of California, Illinois, Ohio,
and North Carolina.
15. “Plaintiffs” means the FTC and the Plaintiff States.
16. “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
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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. § 64.1200(b).
17. “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.
“Primary 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 services.
18. “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.
19. “Retailer” means any person who markets Dish Network goods
or services, solicits orders for Dish Network goods or services, or
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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.
20. “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).
21. “Seller” means:
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.
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22. “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.
23. “Telemarketer” means:
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.
24. “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
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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 catalog.
25. The “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.
26. The “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.
27. “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.
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ORDER
I. 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 Requirements).
If Dish 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
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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
Requirements, Dish shall be barred from conducting any outbound
telemarketing for two (2) years. If Dish fails to prove that a Primary
Retailer meets the Demonstration Requirements, Dish shall be
barred from accepting orders from such Primary Retailer for two (2)
years.
II. TELEMARKETING COMPLIANCE PLAN
IT IS FURTHER ORDERED THAT
A. Defendant Dish shall:
1. Within 60 days of the Effective Date, hire a
telemarketing-compliance expert who will prepare a plan
to ensure that Primary Retailers and Dish shall continue
to comply with the telemarketing laws and this
Injunction Order;
2. Within 120 days of the Effective Date, transmit the
expert’s plan to the Court and the Department of Justice,
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the Federal Trade Commission, and the Plaintiff States;
and
3. Fully implement the plan prepared by the expert.
B. Within 180 days of the Effective Date, Dish and the
telemarketing-compliance expert shall transmit to the Court
and the Plaintiffs a comprehensive written Status Report
regarding telemarketing compliance of Dish and the Primary
Retailers.
1. Within 30 days of receipt of the Status Report,
Plaintiffs may respond to the Status Report and petition
the Court for further injunctive relief.
2. Unless otherwise ordered, the Court shall decide such
a petition without allowing additional discovery beyond
the Status Report and the Plaintiffs’ response.
III. TELEMARKETING COMPLIANCE MATERIALS AND
INSPECTIONS
IT IS FURTHER ORDERED that Dish shall retain all telemarketing
compliance materials and transmit them to the Plaintiffs on a semi-
annual basis for a period of ten (10) years from the Effective Date.
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A. The telemarketing compliance materials to be retained and
transmitted shall include:
1. All outbound telemarketing call records;
2. All records of leads, EBRs, and consents-to-call
associated with those call records;
3. All telemarketing complaints Dish received during the
prior quarter;
4. All internal emails, internal instant messages, and
internal Siebel database entries discussing telemarketing
compliance over the prior quarter; and
5. Any other relevant telemarketing-compliance related
information.
B. After the Effective Date and while this Injunction Order
remains in effect, a Plaintiff may make ex parte applications to
this Court for approval of unannounced inspections of any
Dish or Primary Retailer facility or records.
1. An ex parte application to inspect Dish must
demonstrate probable cause necessary for administrative
warrants to believe that Dish is violating this Injunction
Order; the plan developed by the telemarketing-
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compliance expert; or the TSR, TCPA, or any Relevant
State Statute. An ex parte application to inspect a
Primary Retailer must demonstrate probable cause
necessary for administrative warrants to believe that
subject of the requested inspection is violating the TSR,
TCPA, or any Relevant State Statute. An ex parte
application must state with reasonable specificity for
administrative inspections the location to be inspected
and the information sought from the inspection.
2. If upon review of the application the Court determines
that the requisite probable cause exists, the Court may
issue an Order (Inspection Order) authorizing the
requested inspection, either as requested or as modified
by the Court (Authorized Inspection).
3. Within forty-eight (48) hours of the issuance of an
Inspection Order, the requesting Plaintiff shall conduct
the Authorized Inspection upon presentation of the
Inspection Order to the person or persons at the location
subject to the Authorized Inspection. The Plaintiff
conducting the Authorized Inspection must also notify
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Dish of the Authorized Inspection within thirty (30)
minutes of the commencement of the inspection and
provide Dish with a copy of the Inspection Order.
4. The inspecting Plaintiff shall make any information
secured during an Authorized Inspection available to
Dish within thirty (30) days of the inspection.
C. Within ninety (90) days of (1) receipt of any semi-annual
transmission of telemarketing compliance materials from Dish
or (2) an Authorized Inspection, Plaintiffs may petition the
Court for further injunctive relief, up to and including a
complete telemarketing ban. Unless otherwise ordered, the
Court shall decide such a petition on the record only and
without allowing additional discovery beyond the
telemarketing compliance materials Dish transmitted to
Plaintiffs, any information acquired during an Authorized
Inspection, and the parties’ analyses of those materials.
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IV. PROHIBITIONS AGAINST AN ABUSIVE PATTERN OF
TELEMARKETING CALLS
IT IS HEREBY ORDERED that, Defendant Dish Network, whether
acting directly or indirectly through Authorized Telemarketers or
Retailers, is hereby permanently restrained and enjoined from:
A. Initiating or causing the initiation of any outbound
telephone call to a person when:
1. that person previously has stated to Dish Network or
an Authorized Telemarketer or Retailer that he or she
does not wish to receive an outbound telephone call
made by or on behalf of Dish Network;
2. that person’s telephone number is on the National Do
Not Call Registry, unless:
a. Dish Network has obtained the express
agreement, in writing, of such person to place calls
to that person, which clearly evidences such
person’s authorization that calls made by or on
behalf of Dish Network may be placed to that
person, and the authorization includes the
telephone number to which the calls may be placed
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and the signature of that person, and that person
has not revoked the express agreement; or
b. Dish Network has an established business
relationship with such person, and that person has
not stated to Dish Network or an Authorized
Telemarketer or Retailer, pursuant to
310.4(b)(1)(iii)(A) of the Telemarketing Sales Rule,
that he or she does not wish to receive outbound
telephone calls.
B. Initiating or causing the initiation of any outbound
telephone call that delivers a prerecorded message, other than
a prerecorded message permitted for compliance with the call
abandonment safe harbor in 16 C.F.R. § 310.4(b)(4)(iii),
unless:
1. prior to making any such call to induce the purchase
of any good or service, the seller has obtained from the
recipient of the call an express agreement, in writing,
that:
a. the seller obtained only after a clear and
conspicuous disclosure that the purpose of the
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agreement is to authorize the seller to place
prerecorded telemarketing calls to such person;
b. the seller obtained without requiring, directly or
indirectly, that the agreement be executed as a
condition of purchasing any good or service;
c. evidences the willingness of the recipient of the
call to receive calls that deliver prerecorded
messages by or on behalf of a specific seller; and
d. includes such person’s telephone number and
signature; and
2. in any such call to induce the purchase of any good or
service, the seller or telemarketer:
a. allows the telephone to ring for at least fifteen
(15) seconds or four (4) rings before disconnecting
an unanswered call; and
b. within two (2) seconds after the completed
greeting of the person called, plays a prerecorded
message that promptly provides the disclosures
required by 16 C.F.R. § 310.4(d) or (e), followed
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immediately by a disclosure of one or both of the
following:
(1) in the case of a call that could be answered
in person by a consumer, that the person
called can use an automated interactive voice
and/or keypress-activated opt-out mechanism
to assert a Do Not Call request pursuant to 16
C.F.R. § 310.4(b)(1)(iii)(A) at any time during
the message. The mechanism must:
(a) automatically add the number called
to the seller’s entity-specific Do Not Call
list;
(b) once invoked, immediately disconnect
the call;
(c) be available for use at any time during
the message; and
(2) in the case of a call that could be answered
by an answering machine or voicemail service,
that the person called can use a toll free-
number to assert a Do Not Call request
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pursuant to 16 C.F.R. § 310.4(b)(1)(iii)(A). The
number provided must connect directly to an
automated interactive voice or keypress-
activated opt-out mechanism that:
(a) automatically adds the number called
to the seller’s entity-specific Do Not Call
list;
(b) immediately thereafter disconnects the
call; and is accessible at any time
throughout the duration of the
telemarketing campaign; and complies
with all other requirements of the
Telemarketing Sales Rule and other
applicable federal and state laws; and
(c) complies with all other requirements of
the Telemarketing Sales Rule and other
applicable federal and state laws.
C. Abandoning or causing the abandonment of any outbound
telephone call to a person by failing to connect the call to a
representative within two (2) seconds of the person’s
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completed greeting, unless the following four (4) conditions are
met:
1. Dish Network or an Authorized Telemarketer employ
technology that ensures abandonment of no more than
three (3) percent of all calls answered by a person,
measured over the duration of a single calling campaign,
if less than thirty (30) days, or separately over each
successive 30-day period or portion thereof that the
campaign continues;
2. Defendant or an Authorized Telemarketer, for each
telemarketing call placed, allows the telephone to ring for
at least fifteen (15) seconds or four (4) rings before
disconnecting;
3. Whenever a representative is not available to speak
with the person answering the call within two (2) seconds
after the person’s completed greeting, Dish Network or an
Authorized Telemarketer promptly plays a recorded
message that states the name and telephone number of
the seller on whose behalf the call was placed; and
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4. Dish Network or an Authorized Telemarketer retains
records, in accordance with 16 C.F.R. § 310.5(b)-(d),
establishing compliance with the preceding three
conditions.
D. Violating the Telemarketing Sales Rule, 16 C.F.R. Part 310,
attached as Appendix A.
E. Violating the rules promulgated pursuant to the Telephone
Consumer Protection Act, 47 C.F.R § 64.1200, attached as
Appendix B.
If any of Dish’s Authorized Telemarketers or Retailers violate the
TSR or TCPA, Dish shall be liable for those violations as if Dish
itself had placed the calls.
Nothing in this Section IV shall be construed to supersede the
Safe Harbor Provisions.
V. ADDITIONAL PROHIBITIONS
IT IS HEREBY ORDERED THAT:
A. If a Plaintiff notifies Dish, or if Defendant Dish otherwise
knows or should know, that a Primary Retailer is not
complying with the Safe Harbor Provisions, then within two (2)
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days of receipt of a Plaintiff’s notice or of otherwise learning of
the noncompliance, Dish shall:
1. Notify the Primary Retailer in writing that it is not
complying with the Safe Harbor Provisions, and inform
the Primary Retailer that it will be terminated if it does
not comply fully with the Safe Harbor provisions within
thirty (30) days; and
2. Terminate the Primary Retailer if the Primary Retailer
does not comply fully with the Safe Harbor provisions
within the thirty (30) day period.
B. Dish shall terminate any Retailer that Dish knows or
should know is telemarketing without express written
authorization from Dish; and
C. Dish shall not accept any activations from a Retailer unless
Dish can prove that either the Retailer was authorized in
writing by Dish to engage in telemarketing or the activations
or sales did not involve any telemarketing.
VI. PROHIBITION ON ASSISTING AND FACILITATING
IT IS FURTHER ORDERED Dish is hereby permanently restrained
and enjoined from providing substantial assistance and support to
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any Authorized Telemarketer or Retailer when Dish Network knows
or consciously avoids knowing that the Authorized Telemarketer or
Retailer is engaged in one or more violations of the TSR, the TCPA,
or any Relevant State Statute.
VII. COMPLIANCE WITH STATE LAW PROVISIONS
IT IS FURTHER ORDERED that, Dish Network is enjoined and
prohibited from:
A. Violating the following California state statutes:
1. California Business and Professions Code Section
17592(c), by making or causing to be made telephone
calls marketing Dish Network’s goods or services to
California telephone numbers on the Registry;
2. California Civil Code Section 1770(a)(22)(A), by
disseminating unsolicited prerecorded messages by
telephone with an unrecorded, natural voice, without
first informing the person answering the telephone of the
name of the caller or the organization being represented,
and either the address or the telephone number of the
caller, and without obtaining the consent of that person
to listen to the pre-recorded message; or
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3. California Business and Professions Code Section
17200 by violating California Business and Professions
Code Section 17592(c); California Civil Code Section
1770(a)(22); or the TCPA.
B. Violating the following North Carolina state statutes:
1. The North Carolina Unwanted Telephone Solicitations
Act, N.C. Gen. Stat. §§ 75-102(a), 75-102(d), by making
telephone solicitations to a North Carolina telephone
subscriber’s telephone number if the subscriber’s
telephone number appears in the latest edition of the
Registry; or
2. N.C. Gen. Stat. § 75-102(d), by failing to implement
systems and procedures to prevent telephone
solicitations to telephone subscribers whose numbers
appear in the Registry and to monitor and enforce
compliance by its employees and independent
contractors in those systems and procedures; or
3. N.C. Gen. Stat. § 75-104, by placing prerecorded
unsolicited telephone calls using an automated dialer
unless a live operator states the nature of the call and
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receives the recipient’s prior approval to play the
recording.
C. Violating the following Ohio state statutes:
1. Consumer Sales Practices Act, Revised Code Section
1345.02 by engaging in a pattern or practice of initiating
outbound telemarketing calls to consumers in the State
of Ohio more than thirty-one (31) days after such
consumers’ telephone numbers are listed on the National
Do-Not-Call Registry; or
2. Consumer Sales Practices Act, Revised Code Section
1345.02 by engaging in a pattern or practice of initiating
outbound telemarketing calls to consumers in the State
of Ohio using artificial or prerecorded voices to deliver a
message without the prior express consent of the called
party or without falling within specified exemptions
delineated within the TCPA in violation of the TCPA, 47
U.S.C. 27(B)(1)(b) and 47 C.F.R. 64.1200(a)(2); or
3. Consumer Sales Practices Act, Revised Code Sections
1345.02 and 1345.03 by engaging in a pattern or
practice of initiating outbound telemarketing calls to
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consumers in the State of Ohio while failing to record and
honor prior do-not-call requests made by those respective
consumers.
If any of Dish’s Authorized Telemarketers or Retailers violates any of
the State statutes as set forth in this section of the Injunction
Order, Dish shall be liable for those violations as if Dish itself had
placed the calls.
VIII. COMPLIANCE MONITORING
IT IS FURTHER ORDERED that, for the purpose of monitoring
Defendant’s compliance with the Injunction Order:
A. Within fourteen (14) days of receipt of written notice from
Plaintiffs, Dish Network must: submit additional compliance
reports or other requested information, which must be sworn
under penalty of perjury; appear for depositions; and produce
document, for inspection and copying. The Plaintiffs are also
authorized to obtain discovery, without further leave of court,
using any of the procedures prescribed by Federal Rules of
Civil Procedure 29, 30 (including telephonic depositions), 31,
33, 34, 36, 45, and 69;
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B. For matters concerning this Injunction Order, Plaintiffs are
authorized to communicate with Dish Network through
counsel of record in this litigation, or such other counsel as
Dish may designate in writing to the Plaintiffs. If at any time
counsel no longer represents the Dish Network, the Plaintiffs
are authorized to communicate directly with the Dish Network.
All notices to Dish related to this Injunction Order shall be in
writing and shall be emailed or sent by overnight courier;
C. Dish Network must permit representatives of Plaintiffs to
interview any employee or other person affiliated with Dish
Network who has agreed to such an interview. The person
interviewed may have counsel present; and
D. Plaintiffs may use all other lawful means, including posing,
through their representatives, as consumers, suppliers, or
other individuals or entities, to Dish Network or to any
individual, vendor, Retailer, or other entity affiliated with
Defendant, without the necessity of identification or prior
notice.
E. Nothing in this Injunction Order limits the Commission’s
lawful use of compulsory process, pursuant to Sections 9 and
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20 of the FTC Act, 15 U.S.C. §§ 49, 57b-1. Nor shall anything
in this Injunction Order limit any of the Plaintiff States’ lawful
use of compulsory process granted to any such Plaintiff
pursuant to the State laws of that Plaintiff.
IX. COMPLIANCE REPORTING
IT IS FURTHER ORDERED that Dish Network make timely
submissions to Plaintiffs:
A. One hundred eighty (180) days after the Effective Date, Dish
Network must submit a compliance report, sworn to under
penalty of perjury. This report must:
(a) identify the primary physical, postal, and email
address and telephone number, as designated points of
contact, which Plaintiffs’ representatives may use to
communicate with Defendant; (b) identify all of Dish
Network’s businesses by all of their names, telephone
numbers, and physical, postal, email, and Internet
addresses; (c) describe the activities of each business,
including the goods and services offered, the means of
advertising, marketing, and sales; (d) describe in detail
whether and how Dish Network is in compliance with
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each Section of this Injunction Order; and (e) provide a
copy of each Injunction Order Acknowledgment obtained
pursuant to this Injunction Order, unless previously
submitted to the Plaintiffs.
B. For 20 years after the Effective Date, Dish Network must
submit a compliance notice, sworn under penalty of perjury,
within 14 days of any change in (a) any designated point of
contact; or (b) the structure of Dish Network or any entity that
Dish Network has any ownership interest in or controls
directly or indirectly that may affect compliance obligations
arising under this Injunction Order, including: creation,
merger, sale, or dissolution of the entity or any subsidiary,
parent, or affiliate that engages in any acts or practices
subject to this Injunction Order;
C. Dish Network must submit to Plaintiffs notice of the filing of
any bankruptcy petition, insolvency proceeding, or any similar
proceeding by or against Dish Network within 14 days of its
filing.
D. Any submission to the Plaintiffs required by this Injunction
Order to be sworn under penalty of perjury must be true and
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accurate and comply with 28 U.S.C. § 1746, such as by
concluding: “I declare under penalty of perjury under the laws
of the United States of America that the foregoing is true and
correct. Executed on:_____” and supplying the date, signatory’s
full name, title (if applicable), and signature.
E. Unless otherwise directed by a Commission representative
in writing, all submissions to the Commission pursuant to this
Injunction Order must be emailed to [email protected] or sent
by overnight courier to:
Associate Director for Enforcement
Federal Trade Commission
600 Pennsylvania Avenue, NW
Washington, DC 20580
The subject line must begin: US v. Dish Network
X090039
F. For the purposes of this Injunction Order, unless otherwise
directed by the Plaintiff States’ authorized representatives, Dish
Network shall send all submissions to the Plaintiff States by email
or overnight courier to the following addresses:
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Jinsook Ohta
Deputy Attorney General
Consumer Law Section
Office of the Attorney General
110 W. “A” Street, Suite 1100
San Diego, California 92101-3702
Telephone: 619-645-3182
Fax: 619-645-2062
Elizabeth Blackston
Paul Isaac
Philip Heimlich
Assistant Attorneys General
Office of the Attorney General
500 S. Second St.
Springfield, IL 62706
217-782-4436
217-782-1097 (facsimile)
Teresa Townsend
Assistant Attorney General
Consumer Protection Division
N.C. Department of Justice
114 W. Edenton St.
Raleigh, NC 27603
Telephone: 919-716-6000
Fax: 919-716-6050
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Erin B. Leahy
Assistant Attorney General
Consumer Protection Section
Ohio Attorney General’s Office
30 East Broad St., 14th Floor
Columbus, Ohio 43215
Direct telephone: (614) 752-4730
Toll Free: (800) 282-0515
Fax: (866) 768-2448
X. RECORD KEEPING PROVISIONS
IT IS FURTHER ORDERED that Dish Network must create records
for 20 years after Effective Date, and retain each such record for 5
years. Specifically, Dish Network, in connection with telemarketing
must create and retain the following records:
A. Accounting records showing the revenues from all goods or
services sold, all costs incurred in generating those revenues,
and the resulting net profit or loss;
B. Personnel records showing, for each person providing
services, whether as an employee or otherwise, that person’s:
name, addresses, and telephone numbers; job title or position;
dates of service; and, if applicable, the reason for termination;
C. Complaints and refund requests, whether received directly
or indirectly, such as through a third party, and any response;
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D. All records necessary to demonstrate the full compliance
with each provision of this Injunction Order, including all
submissions to the Commission;
E. Telemarketing call records;
F. Records necessary to show the existence of EBRs with
specific consumers, including inquiries and consents to be
contacted; and
G. Requests from persons who have previously stated that he
or she does not wish to receive an outbound telemarketing call
made to promote Dish Network goods or services or made by
or on behalf of Dish Network.
XI. DISTRIBUTION AND ACKNOWLEDGEMENT OF INJUNCTION
ORDER
IT IS FURTHER ORDERED that Dish Network obtain
acknowledgments of receipt of this Injunction Order:
A. Dish Network, within seven (7) days of the issuance of this
Injunction Order, must submit to Plaintiffs an
acknowledgment of receipt of this Injunction Order sworn
under penalty of perjury.
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B. For five (5) years after the Effective Date, Dish Network
must deliver a copy of this Order to: (1) all principals, officers,
directors, and LLC managers and members; (2) all employees,
agents, and representatives who participate in telemarketing;
and (3) any business entity resulting from any change in
structure as set forth in the Section titled Compliance
Reporting. Delivery must occur within 7 days of the Effective
Date for current personnel. For all others, delivery must occur
before they assume their responsibilities.
C. From each individual or entity to which Dish Network
delivered a copy of this Injunction Order, Dish Network must
obtain, within 30 days, a signed and dated acknowledgment of
receipt of this Injunction Order.
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XII. RETENTION OF JURISDICTION
IT IS FURTHER ORDERED that this Court shall retain jurisdiction
of this matter for purposes of construction, modification, and
enforcement of this Injunction Order.
Dated June 5, 2017.
IT IS SO ORDERED.
/s Sue E. Myerscough
UNITED STATES DISTRICT JUDGE
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