United States of America et al v. Dish Network LLC

Filing 480

OPINION entered by Judge Sue E. Myerscough on 2/13/2015. PossibleNow, Inc.'s Motion for Intervention Pursuant to F.R.C.P. 24 for Leave to File Motion for Reconsideration, Instanter, d/e 454 is ALLOWED. PossibleNOW may intervene and is given l eave to file Intervening Defendant's Motion for Reconsideration, Instanter, of Opinion 445 (Motion to Reconsider). The Clerk is directed to file the Motion to Reconsider, a copy of which is attached as an exhibit to PossibleNOW's Memorandum in Support of Motion for Intervention Pursuant to F.R.C.P. 24, d/e 455 . The Motion to Reconsider is ALLOWED in part. The first full paragraph on page 211 of this Courts Opinion entered December 11, 2014, d/e 445 (Opinion 445), which starts on th e third line of page 211, is stricken except for the last sentence which reads, "Dish is not entitled to a safe harbor defense in Count V." This last sentence remains in Opinion 445. The Clerk is directed to strike through the stricken part of this paragraph of Opinion 445. All of the holdings in Opinion 445 remain unchanged by the one factual change made by this Opinion. (MAS, ilcd)

E-FILED

Tuesday, 17 February, 2015 05:17:56 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,
v.
DISH NETWORK, LLC,
Defendant,

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No. 09-3073

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
This matter comes before the Court on PossibleNow, Inc.’s
(PossibleNOW) Motion for Intervention Pursuant to F.R.C.P. 24 for
Leave to File Motion for Reconsideration, Instanter (d/e 454)
(Motion). For the reasons set forth below, the Motion is ALLOWED
and PossibleNOW’s request for reconsideration is ALLOWED in
part.
PossibleNOW asks the Court for leave to make a limited
intervention in this case to request reconsideration of one
paragraph in this Court’s Opinion entered December 11, 2014 (d/e
Page 1 of 7

445 ) (Opinion 445). All parties have no objection to the request to
intervene. Plaintiffs’ Response to PossibleNOW’s Motion to
Intervene and Proposed Motion to Reconsider Opinion 445 (d/e 466)
(Plaintiffs’ Response), at 1; Statement that Defendant Dish Network,
L.L.C. Does not Oppose PossibleNOW, Inc.’s (1) Motion for
Intervention or (2) Motion for Reconsideration (d/e 468) (Dish
Response), at 1. Therefore, the Court allows PossibleNOW to
intervene for the limited purpose of presenting its proposed
“Intervening Defendant’s Motion for Reconsideration, Instanter, of
Opinion 445” (Motion to Reconsider), attached as an exhibit to
PossibleNOW’s Memorandum in Support of Motion for Intervention
Pursuant to F.R.C.P. 24 (d/e 455).
The Motion to Reconsider asks the Court to strike from
Opinion 445 the first full paragraph on page 211 (Paragraph). The
Paragraph states:
The FCC Rule safe harbor also requires the party
seeking the safe harbor to purchase access to the Registry
“from the administrator of the national database.” 47
C.F.R. § 64.1200 (c)(2)(i)(E). In 2008, Dish stopped
acquiring the updated versions of the Registry from the
administrator, the FTC. Dish started acquiring the
updated Registry from PossibleNOW, in violation of this
requirement of the FCC Rule safe harbor. Dish is not
entitled to a safe harbor defense in Count V.
Page 2 of 7

Opinion 445, at 211. The “Registry” is the National Do-Not-Call
Registry (also referred to the NDNCR) administered by the Federal
Trade Commission (FTC). Dish was required to purchase updated
versions of the Registry from the administrator, the FTC, to comply
with the safe harbor provisions of the Federal Communication
Commission’s (FCC) Rule promulgated under the Telephone
Consumer Protection Act (TCPA). 47 U.S.C. § 227; 47 C.F.R. §
64.1200 (c)(2)(i)(E). See Opinion 445, at 27-30 for a discussion of
the safe harbor provisions of the FCC Rule.
Defendant Dish Network, L.L.C. has no opposition to
PossibleNOW’s Motion to Reconsider. Dish Response, at 1.
The Plaintiffs also have no opposition to PossibleNOW’s Motion
to Reconsider as long as the striking of the Paragraph does not
affect the finding that Dish is not entitled to a safe harbor defense
under either the FCC Rule or the Telephone Sales Rule (TSR). The
TSR was promulgated by the FTC pursuant to the Telemarketing
Consumer Fraud and Abuse Prevention Act. 15 U.S.C. § 6102; see
Opinion 445, at 10-24 for a discussion of the TSR.Plaintiffs’
Response, at 1.
Page 3 of 7

The Plaintiffs also have changed their position with respect to
the factual issue of whether Dish stopped acquiring an updated
version of the Registry from the FTC in 2008. At summary
judgment, the Plaintiffs disputed whether Dish properly acquired
updated versions of the Registry. Dish stated as an undisputed fact
in its summary judgment briefing:
21. In addition, DISH maintained a current version of the
FTC’s NDNCR, which it updated monthly. (DX-157, Davis
Dep. 257:5-15.)
Defendant Dish Network L.L.C.’s Memorandum of Law in Support of
its Motion for Summary Judgment (d/e 349), at 17 Statement of
Undisputed Fact (DSUF) ¶ 21. The Plaintiffs disputed DSUF ¶ 21
as follows:
Response: Registry records establish that Dish did not
update its version of the Registry monthly.
Declaration of Ami Dziekan at ¶ 9, Ex. A,
Mar. 4, 2014 (Pls.’ Ex. 300). In fact, when
the Registry debuted in 2003, Dish did not
maintain a current version of the Registry for
several months. Id. Furthermore, Dish itself
stopped downloading the Registry in 2008
and has not downloaded it since. Id. at ¶ 9.
A reasonable factfinder could reject DUF21
based on this evidence.
Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment
(d/e 378), at 22, Response to DSUF ¶ 21 (emphasis in the original).
Page 4 of 7

The Plaintiffs now do not dispute that Dish properly
purchased updated versions of the Registry after 2008, “Thus, even
though Dish purchased access to the National Do-Not-Call
Registry—a point the Plaintiffs do not contest—the Court correctly
found that Dish satisfied neither the TSR nor the TCPA safe harbor
. . . .” Plaintiffs’ Response, at 2.
Because the Plaintiffs no longer dispute whether Dish properly
purchased updated versions of the Registry from the FTC after
2008, the Court will allow the Motion to Reconsider in part. The
Court will strike all of the Paragraph except the last sentence, “Dish
is not entitled to a safe harbor defense in Count V.” The last
sentence will remain because, even without the struck statement,
Dish is not entitled to the safe harbor defense under the FCC Rule
in Count V for the other reasons stated in Opinion 445. See
Opinion 445, at 210-11.
This change does not affect any other portion of Opinion 445.
The FCC Rule safe harbor defense does not relate Count VI brought
under the TCPA. See Opinion 445, at 210 n. 27. The TSR safe
harbor provision does not contain a requirement that the seller
must purchase the Registry directly from the administrator. 16
Page 5 of 7

C.F.R. § 310.4(b)(3). Thus, the change does not affect any issue
related to the claims brought under the TSR. The remaining claims
are based on state law and do not relate to the FCC Rule safe
harbor defense except for Count VIII. Count VIII alleges a violation
of the California Unfair Competition Law, in part, because Dish
violated the TCPA and the FCC Rule as alleged in Count V. See
Opinion 445, at 217-18. The holdings for Count VIII, therefore,
depend in part on the determination that Dish is not entitled to the
safe harbor defense in Count V. The Court’s striking of portions of
the Paragraph does not affect the Court’s holding that the safe
harbor defense is not available in Count V, and so, does not change
the holdings for Count VIII. The holdings in Opinion 445 are not
changed by this one factual change made by this Opinion.
THEREFORE, PossibleNow, Inc.’s Motion for Intervention
Pursuant to F.R.C.P. 24 for Leave to File Motion for
Reconsideration, Instanter (d/e 454) is ALLOWED. PossibleNOW
may intervene and is given leave to file Intervening Defendant’s
Motion for Reconsideration, Instanter, of Opinion 445 (Motion to
Reconsider). The Clerk is directed to file the Motion to
Reconsider, a copy of which is attached as an exhibit to
Page 6 of 7

PossibleNOW’s Memorandum in Support of Motion for
Intervention Pursuant to F.R.C.P. 24 (d/e 455). The Motion to
Reconsider is ALLOWED in part. The first full paragraph on page
211 of this Court’s Opinion entered December 11, 2014 (d/e 445)
(Opinion 445), which starts on the third line of page 211, is stricken
except for the last sentence which reads, “Dish is not entitled to a
safe harbor defense in Count V.” This last sentence remains in
Opinion 445. The Clerk is directed to strike through the
stricken part of this paragraph of Opinion 445. All of the
holdings in Opinion 445 remain unchanged by the one factual
change made by this Opinion.
Enter: February 13, 2015

/s Sue E. Myerscough
UNITED STATES DISTRICT JUDGE

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