United States of America et al v. Dish Network LLC

Filing 581

OPINION entered by Judge Sue E. Myerscough on 1/13/2016. Plaintiffs' Motion to Preclude the Expert Testimony of Kenneth Sponsler and Strike his Expert Report, d/e 522 is DENIED. Plaintiffs' Motion to Preclude the Expert Testimony of Ave ry Abernethy and Strike his Expert Report, d/e 523 is ALLOWED in part and DENIED in part. Plaintiffs' Motion to Preclude the Expert Testimony of Robert Fenili and Strike his Expert Report, d/e 524 is DENIED. (SEE WRITTEN OPINION) (MAS, ilcd)

E-FILED

Wednesday, 13 January, 2016 01:32:09 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 Plaintiffs’ Motion to
Preclude the Expert Testimony of Kenneth Sponsler and Strike his
Expert Report (d/e 522) (Motion 522); Plaintiffs’ Motion to Preclude
the Expert Testimony of Avery Abernethy and Strike his Expert
Report (d/e 523) (Motion 523); and Plaintiffs’ Motion to Preclude the
Expert Testimony of Robert Fenili and Strike his Expert Report (d/e
524) (Motion 524) (collectively the Motions). For the reasons set
forth below, the Motion 523 is ALLOWED in part and DENIED in
part, and Motions 522 and 524 are DENIED.

Page 1 of 30

BACKGROUND
The Plaintiffs allege that Defendant Dish Network, L.L.C.
(Dish) made or caused to be made millions of illegal telemarketing
calls in violation of the Telemarketing and Consumer Fraud and
Abuse Prevention Act, 15 U.S.C. § 6105 (Telemarketing Act); the
Federal Trade Commission Act, 15 U.S.C. § 45 (FTC Act); the
Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA); the
Federal Trade Commission (FTC) regulation entitled the
Telemarketing Sales Rule promulgated under the Telemarketing Act
and the FTC Act, 16 C.F.R. Part 310 (TSR); the Federal
Communications Commission (FCC) regulation promulgated under
the TCPA, 47 C.F.C. § 64.1200 (FCC Rule); and the laws of each
Plaintiff State. Third Amended Complaint and Demand for Jury
Trial (d/e 483), Counts I through XII. The Court has entered partial
summary judgment. Opinion entered December 12, 2014 (d/e 445)
(Opinion 445), at 231-38, 75 F.Supp.3d 942, 1032-34 (C.D. Ill.
2014). The matter is set for bench trial commencing on January
19, 2016.
Dish has listed Kenneth Sponsler, Dr. Avery Abernethy, Ph.D.,
and Dr. Robert Fenili, Ph.D., as expert witnesses whose opinion
Page 2 of 30

evidence Dish intends to present at trial in this matter. See Pretrial
Order (d/e 564), Attachment I, Defendant’s Witness List, at 1; Joint
List of Witnesses to Appear in Person (d/e 563), at 4. Dish
disclosed Sponsler, Dr. Abernethy, and Dr. Fenili as expert
witnesses during discovery and provided expert reports. See Fed.
R. Civ. P. 26(a)(2). The Plaintiffs move in limine to exclude the
expert opinion testimony of Sponsler, Dr. Abernethy, and Dr. Fenili
at trial and to strike their expert reports.1
ANALYSIS
Federal Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in the
form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue;
(b) the testimony is based on sufficient facts or
data;
(c) the testimony is the product of reliable
principles and methods; and
(d) the expert has reliably applied the principles
and methods to the facts of the case.
1

The Plaintiffs do not move in limine to bar Sponsler as a fact witness. Motion 522, at 1 n.1.

Page 3 of 30

Fed. R. Evid. 702. This Court must perform a gate-keeping
function to determine that expert testimony is reliable and relevant
under the principles codified in Rule 702. See Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993). In
performing this function, the Court must determine the reliability
and the relevance of the evidence. Ammons v. Aramark Uniform
Services, Inc., 368 F.3d 809, 816 (7th Cir. 2004). The Court must
evaluate the qualifications of the expert. The Court must determine
that the expert’s opinions are based on sufficient facts and data.
The Court then must determine whether the expert testimony is
reliable and relevant and whether his opinions will assist the trier of
fact in determining a fact in issue. See Ammons, 368 F.3d at 816;
Wasson v. Peabody Coal Co., 542 F.3d 1172, 1176 (7th Cir. 2008).
The Court must evaluate the reliability of the expert’s
methodology. Manpower, Inc. v. Insurance Co. of Pennsylvania,
732 F.3d 796, 806 (7th Cir. 2013). The Court, however, does not
evaluate the quality of the underlying data or the quality of the
expert’s conclusions. “The soundness of the factual underpinnings
of the expert’s analysis and the correctness of the expert’s
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conclusions based on that analysis are factual matters to be
determined by the trier of fact, or, where appropriate, on summary
judgment.” Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir.
2000).
The Court must also evaluate whether the expert’s opinions
are relevant and fit the issue to which the expert is testifying. See
Deimer v. Cincinnati Sub-Zero Prods., Inc., 58 F.3d 341, 344 (7th
Cir. 1995). The Court will evaluate each expert’s opinions under
these principles separately. The Court will address Dr. Abernethy
last because he relies in part on Dr. Fenili’s opinions.
This Opinion relates solely the Court’s gatekeeping function
under Rule 702. The Court is not deciding the weight to be given to
any of these opinions at trial or the merits of any position of any
party on any issues to which the opinions may relate. The Court is
only deciding whether the opinions meet the standard for
admissibility as expert opinion evidence.
A. Kenneth Sponsler
Sponsler prepared a report responding to the report of
Plaintiffs’ expert Debra Green. Both Green and Sponsler are
experts in the field of telemarketing. Green is a business
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consultant with over twenty years of experience in telesales and call
center services in the financial services and telecommunications
industries. Sponsler has years of experience as a consultant in the
field of compliance with telemarketing laws. Defendant Dish
Network L.L.C.’s Opposition to Plaintiffs’ Motion to Preclude the
Expert Testimony of Kenneth Sponsler and Strike his Expert Report
(d/e 545) (Opposition 545), attached Declaration of John L. Ewald,
Exhibit A, Expert Report of Debra Green (Green Report), ¶ 1; and
Exhibit C, Curriculum Vitae of Kenneth R. Sponsler. The Plaintiffs
do not challenge Sponsler’s qualifications as an expert in this field.
The Plaintiffs provided Green with the Amended Complaint
(d/e 5), discovery deposition transcripts, and other documents
produced in discovery. Green Report, ¶ 2. Green opined on
whether Dish’s “efforts to achieve and enforce compliance with the
FTC Telemarketing Sales Rule (‘TSR’) and the Telephone Consumer
Protection Act (‘TCPA’) comported with industry standards and best
practices.” Green Report, ¶ 7. Green opined that:
(1)

“Dish did repeatedly make calls to numbers on the [National
Do Not Call Registry (Registry)].”

(2)

“Dish did make . . . automated sales calls.”
Page 6 of 30

(3)

“Dish did not have an effective internal compliance program”
to “monitor and enforce its own compliance with the
telemarketing laws.”

(4)

“Dish did not conduct itself in accordance with industry
standards” in “its policies and practices for ensuring that its
outside retailers’ (sic) complied with the telemarketing laws.”

(5)

“Dish’s lack of monitoring, its failure to take meaningful
enforcement action when it learned or found that its retailers
had violated the TCPA or TSR, and its apparent tolerance of
such telemarketing violations in light of a retailers continued
sales, created an environment that allowed Dish’s retailers to
continue committing such violations as long as they were
generating additional sales for Dish.”

Green Report, ¶¶ 53, 54, and 65. The Plaintiffs intend to call Green
as an expert witness at trial. Pretrial Order, Attachment H,
Plaintiffs’ Witness List, at 2; Joint List of Witnesses to Appear in
Person (d/e 563), at 2.
Dish retained Sponsler to respond to the Green Report.
Motion 522, Exhibit 2, Expert Report of Ken Sponsler (Sponsler

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Report), at 1.2 Sponsler reviewed the same material that Green had
reviewed. Id. Sponsler described his methodology as follows:
In drafting this report and rendering my opinions in this
case, I considered the expert report of Debra Green as
well as my experience in compliance matters from clientseller, service provider (call center) and mutual support
standpoints. I stay current with industry
developments—both in terms of technology and
compliance—and this has also informed my opinions.
Id.
Sponsler criticized Green for what he described as
“inconsistencies” in the terms she used to refer to business entities
that offer Dish products and services through telemarketing.
Sponsler Report, at 1. Sponsler opined that business entities that
offer Dish products and services through telemarketing fit into two
categories: “Service Providers” and “Retailers.” Id., at 3-4. Service
Providers are “typically neither sellers [such as Dish] nor retailers. .
. . . [T]hese entities provide telemarketing related services that may
assist others in telemarketing.” Id., at 3. Sponsler stated that a
subset of Service Provides called “Service Bureaus” may provide
outbound telemarketing services for a Seller. Id. Sponsler stated
Retailers “are independently owned companies that may contact
2

The Sponsler Report has no page numbers. The Court refers to the pagination assigned by
the Court’s CM/ECF system to the copy of the Sponsler Report attached to Motion 522.

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consumers through telemarketing to offer Dish Network, other
satellite provider services as well as services or products unrelated
to satellite services.” Id., at 4.
Sponsler opined that the Green Report “accurately describes
many of the due diligence requirements that the Seller/Service
Bureau relationship requires including contracts, compliance
guidelines and training, monitoring and enforcement as well as
audits.” Sponsler Report, at 4.
Sponsler, however, disagreed with Green’s opinion that the
same “due diligence requirements” applied to the relationship
between Sellers and Retailers, “In my experience Seller compliance
responsibilities in relationships with “retailers” and “vendors” are
not accurately described in [the Green Report]. . . . Sellers enter
into contractual relationships with Service Bureaus specifically for
services related to inbound/outbound telemarketing . . . on their
behalf.” Sponsler Report, at 4. Sponsler opined that “Dish-Retailer
relationships in terms of compliance responsibilities can be
extremely complex. . . . [R]etailers are sellers in their own right. . . .
[E]ach retailer is responsible to insure their telemarketing and other
activities are incompliance with the applicable laws . . . .” Id., at 5.
Page 9 of 30

Sponsler opined that consumers often misdirect their
complaints about a Retailer’s telemarketing violations to Dish
rather than the responsible Retailer. Sponsler opined Dish acts
reasonably in its response to these types of complaints,
[D]ish expends significant resources to determine the
nature of the complaint and initiate reasonable measures
in an attempt to prevent future occurrences. The
“reasonableness” of these measures is highly variable
and for the most part is determined by the severity and
magnitude of the perceived non-compliance. . . . Dish
has limited control and recourse options in retailer
relationships with severing of the contract being the
ultimate course of action. It is for this reason that Dish
often expends significant resources to identify issues and
work to remediate corrective measures even though they
have little control over the operational compliance
processes of other Sellers such as retailers.
Sponsler Report, at 5. Sponsler effectively opines Dish acted
reasonably by dealing with each complaint of a Retailers’
telemarketing law violation on a case-by-case basis.
The Court finds that Sponsler’s opinion is based on sufficient
data. Fed. R. Evid. 702(b); see Wasson, 542 F.3d 1172, 1176 (7th
Cir. 2008). The Plaintiffs provided Green with the Amended
Complaint and extensive deposition transcripts and other discovery
materials on which to base her opinions. Sponsler reviewed the

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same materials. These materials provide a sufficient factual basis
for each expert’s opinion.
In this case, Sponsler’s reliance on his experience is an
appropriate methodology for opining on whether Dish’s actions in
monitoring and enforcing compliance with telemarketing laws were
reasonable or consistent with industry standards. In appropriate
circumstances, an expert opinion may be based on the expert’s
experience in the industry. See Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137, 150 (1999) (“In other cases, the relevant reliability
concerns may focus upon personal knowledge or experience.”);
Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir.
2010) (“An expert's testimony is not unreliable simply because it is
founded on his experience rather than on data. . . .”). Both Green
and Sponsler base their opinions on their experience in the
industry. Green describes her opinion of industry standards in
much greater detail, but she relies on her experience as the basis
for those opinions. See e.g., Green Report, ¶ 53 (I have been asked
to render an opinion . . . based on my expertise in the field . . . .”).
Neither expert relies on any published reference materials or other
authority to support their opinions.
Page 11 of 30

Nonetheless, Sponsler and Green substantially agree on the
applicable industry standards for monitoring and enforcing
compliance with respect to telemarketers that Sponsler calls Service
Bureaus. They disagree on whether the same standards apply to
telemarketers that Sponsler calls Retailers. Green opines that the
same standards apply to any authorized third party who uses
outbound telemarketing to sell Dish’s products and services.
Sponsler opines that the telemarketing industry applies a different
standard to Retailers, as he defines the term.
In this situation, where no recognized authoritative published
industry standards or other authority apparently exist, these
experts’ opinions based on their experience in the industry will
assist the Court as the fact finder in determining whether Dish’s
practices were consistent with industry standards. The Court finds
that Sponsler used a reliable methodology.
The Plaintiffs rely on cases that involve scientific or
engineering questions to challenge Sponsler’s use of his experience
as a basis for his opinions. See e.g., Bielski v. Louisville Ladder,
Inc., 663 F.3d 887, 894 (7th Cir. 2011). In cases involving scientific
or technical issues, the experts should evaluate the specific
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circumstances using scientific or technical testing methods. The
Court’s gatekeeping inquiry under Rule 702, however, is “‘a flexible
one’” that “must be tied to the facts of a particular case.” Kumho
Tire Co., 526 U.S. at 150 (quoting Daubert, 509 U.S. at 591, 594).
In this case, Green and Sponsler both opine on industry standards
in the telemarketing industry. Each expert has special knowledge
of the practices in the telemarketing industry because of his or her
experience. That knowledge gained from experience provides a
sufficient basis to provide opinions that will aid the trier of fact. In
this context, the evaluation of the data based on experience is an
appropriate method of analysis. See Kumho Tire Co., 526 U.S. at
150.
The Plaintiffs argue that Sponsler’s use of a case-by-case
approach to evaluate Dish’s conduct lacks any methodology at all.
The Court does not agree that Sponsler uses a case-by-case
approach. Rather, Sponsler opines that Dish uses a case-by-case
approach to monitor and enforce Retailer compliance with
telemarketing laws and regulations. Sponsler opines that Dish’s
case-by-case approach is reasonable. Sponsler bases that opinion
on his experience in the telemarketing compliance industry. Green
Page 13 of 30

disagrees. She bases her opinion on her experience in the
telemarketing industry. Counsel may demonstrate the relative
credibility of these differing opinions through direct and crossexamination. Both experts, however, use the same appropriate
experienced-based methodology in this context.
For purposes of Motion 522, the Court will not address
whether Sponsler’s opinions are relevant and fit an issue in this
case. See Deimer, 58 F.3d at 344. The parties do not identify the
issues to which either of these expert’s opinions are relevant. This
case is about whether Dish violated federal and state telemarketing
laws and regulations, not whether it violated industry standards.
The Plaintiffs, however, do not challenge Sponsler’s opinions on
relevance grounds. The Court will consider both Green and
Sponsler’s opinions presented at trial and give them the appropriate
weight. Motion 522 is denied.
B. Dr. Robert Fenili
Dr. Fenili is an experienced economist qualified to perform
statistical analyses. Dr. Fenili rendered opinions of (1) the number
of telephone lines registered on the Registry that fit into each of four
categories: residential, wireless, business, and inactive lines in each
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year from 2003 to 2011; and (2) the percentage of the lines
registered on the Registry that fit into each of the four categories in
each year from 2003 to 2011. Dr. Fenili used three sets of data: (1)
a 2004 published analysis of the make-up of the Registry as of
September 2004 (2004 Data); (2) a 2009 analysis of the make-up of
the telephone lines registered on the Registry as of March 2009
(2009 Data); and (3) the FTC’s National Do Not Call Registry Data
Book for Fiscal Year 2011 (2011 Data Book). The 2011 Data Book
contained data on the number of lines registered on the Registry for
each year from its inception in October 2003 to 2011.
Dr. Fenili is qualified to analyze data to estimate rates of
change and growth in data sets, such as rates of change and growth
types of telephone lines registered on the Registry. He has
experience in analyzing such data sets. See Motion 524, Exhibit A,
Report of Robert N. Fenili, ¶¶ 4-9. He is qualified to analyze data
sets to estimate the proportions of sets of data and rates of change
in sets of data.
The Plaintiffs argue that Dr. Fenili is not qualified to perform
any analysis of data of the make-up of the Registry because he is
not an expert in the Registry. The Court disagrees. Dr. Fenili
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analyzed three sets of data about the size and make-up of the
Registry to estimate rates of change and growth in different types of
telephone lines registered on the Registry. He is qualified to
perform these types of analyses. The significance of Dr. Fenili’s
analyses depends, in part, on the validity of 2004 Data, the 2009
Data, and the 2011 Data Book. The Court does not evaluate the
quality of the data when performing the Daubert gatekeeping
function. Smith, 215 F.3d at 718.
The Plaintiffs argue that Dr. Fenili’s opinions are really “an
attempt to launder specific inadmissible facts through an expert in
order to admit what is otherwise not admissible.” Motion 524, at 5.
The Plaintiffs argue that Dish is using Dr. Fenili as a vehicle to
present the 2009 Data. The 2009 Data comes from a report issued
by PossibleNOW, Inc. (PossibleNOW Report). The Plaintiffs argue
that the PossbileNOW Report is inadmissible hearsay. The Plaintiffs
argue that Dr. Fenili is only parroting the inadmissible information
in the PossibleNOW Report as expert opinion to allow Dish to skirt
the hearsay rule.
Dr. Fenili, however, may rely on inadmissible information if
experts in his field would reasonably rely on such data. Fed. R.
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Evid. 703. The Plaintiffs do no dispute that economists studying
rates of change and growth rely on data sets that may be
inadmissible hearsay under the Federal Rules of Evidence. The
Court will not bar Dr. Fenili’s opinion on these grounds.
The validity of the PossibleNOW Report, as well as the 2004
Data and the 2011 Data Book, are relevant to determining the
weight to be given Dr. Fenili’s opinions. See Smith, 215 F.3d at 718.
The Court also will not consider the underlying data as evidence
unless the data are otherwise admissible. See Matter of James
Wilson Associates, 965 F.2d 160, 173 (7th Cir. 1992).
Dish asserts that it can lay a proper foundation to admit the
PossibleNOW Report under exceptions to the hearsay rule.
Defendant Dish Network L.L.C.’s Opposition to Plaintiffs’ Motion In
Limine to Preclude the Expert Testimony of Robert Fenili and Strike
His Expert Report (d/e 551) (Opposition 551), at 3. If so, the
Plaintiffs’ concerns about “laundering” inadmissible evidence will be
moot.
The Plaintiffs also argue that Dr. Fenili’s opinions are
irrelevant. The Court disagrees. As the Court recently explained,

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the types of telephone numbers registered on the Registry are
relevant to this case:
In this case, the composition of the telephone
numbers on the Registry is relevant to Count V at least.
Count V alleges violations of the Telephone Consumer
Protection Act (TCPA), 47 U.S.C. § 227, and the Federal
Communications Commission Rule (FCC Rule)
promulgated thereunder, 47 C.F.R. § 12.6400. Third
Amended Complaint and Demand for Jury Trial (d/e 483)
(Complaint), Count V. The applicable portions of the
TCPA and the FCC Rule bar calls to residential telephone
subscribers whose telephone numbers are on the
Registry. See Opinion entered December 12, 2014 (d/e
445), at 202. The types of numbers on the Registry (e.g.,
residential landlines, Voice over Internet Protocol (VoIP),
wireless) may be relevant to determining whether
telemarketing calls were directed to residential telephone
subscribers.
Opinion entered December 7, 2015 (d/e 562) (Opinion 562), at 2-3.
Dr. Fenili’s opinions on the make-up of types of telephone lines on
the Registry are relevant.
Last, the Plaintiffs argue that Dr. Fenili’s opinions should be
excluded under Rule 403 because his opinions are confusing and
will waste time. The Court again disagrees. This Court also
explained in Opinion 562 that the Court would not be confused by
evidence regarding the composition of the Registry:
The Plaintiffs also argue that the evidence will be
confusing. The Court may exclude relevant evidence if its
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probative value is substantially outweighed by a danger
of confusion. Fed. R. Evid. 403. This is a bench trial. The
Court has reviewed the extensive filings in this case and
is quite familiar with the legal and factual issues. The
risk that the Court would be confused is minimal. The
Plaintiffs have not shown that this minimal risk
outweighs the probative value of the evidence. The Court
will not exclude this evidence under Rule 403.
Opinion 562, at 3. The Court similarly will not be confused by Dr.
Fenili’s opinion in the bench trial. Motion 524 is denied.
C. Dr. Avery Abernethy
Dr. Abernethy is an economist specializing in the economics of
advertising and marketing, including telemarketing. See Motion
524, Exhibit A, Expert Report of Avery M. Abernethy in the Matter
of United States of America and the States of California, Illinois,
North Carolina, and Ohio v. Dish Network, LLC (Abernethy Report),
at 2. Dr. Abernethy states the scope of his opinions as follows:
1] I was retained . . . to provide expert opinion and
testimony regarding the public policy underlying the
National Do Not Call Registry (“DNCR”) from a marketing
and economic standpoint. I was also asked for an
explanation as to whether a DNCR over-populated with
numbers that do not belong to properly registered
consumers is consistent or inconsistent with the goal of
the DNCR from an economic and public policy
standpoint. I was also asked to consider the costs to
consumers and business (sic) when consumers who want
to receive telemarketing calls do not receive them, the
costs of an inaccurate DNCR, and the costs to consumers
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and the economy of legitimate telemarketers being
impeded due to an inaccurate DNCR.
Abernethy Report, at 1. Dr. Abernethy reviewed the Fenili Report
and the three data sets on which Dr. Fenili relied; the
Telemarketing Act and related statutes; and publically available
documents, including published statements by the FTC. Dr.
Abernethy relied on peer reviewed academic articles on the
economics of advertising, including the economics of telemarketing.
Dr. Abernethy states thirteen major conclusions based on his
review of these materials:
My major conclusions are:
2] Truthful advertising benefits consumers.3
3] Telemarketing provides benefits to consumers and the
economy.
4] Do Not Call Registry provides benefits and costs to
consumers and the economy.
5] Do Not Call Registry is based on legislation and the
FTC documents that establish it was intended to provide
consumers a choice. It is opt in and opt out.
6] Do Not Call rules explicitly exclude some groups from
coverage including those who contact the firm with
inquiries, those with an established business relationship
and all business lines.
3

Dr. Abernethy’s conclusions begin with the number 2 because he numbered his statement of
the scope of his opinions, quoted above, as paragraph 1.

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7] Legislation (Do Not Call Improvement Act of 2007)
requires an accurate Do Not Call Registry.
8] To provide consumer choice and maximize consumer
welfare, the Do Not Call Registry must be accurate.
9] The Federal Trade Commission (“FTC”) has not made a
good faith effort to remove business and other improper
numbers from the Do Not Call Registry.
10] Dish Network has the legal right to contact business
numbers. From a marketing perspective, many
businesses are a potentially profitable target market for
Dish Network.
11] The FTC has imposed somewhat burdensome
requirements on consumers who change their minds and
want telemarketing calls.
12] An inaccurate Registry discourages and penalizes
legitimate commerce. The DNCR appears to be highly
inaccurate.
13] According to the FTC and my professional judgment,
many telemarketing complaints are erroneous. FTC has
not made a good faith effort to determine which
consumer complaints are accurate. Erroneous
complaints penalize legitimate commerce.
14] An inaccurate Registry is not consistent with the
goals of Do Not Call from an economic and public policy
standpoint. An inaccurate Registry imposes costs on
consumers, businesses, and telemarketers.
Abernethy Report, at 1-2. Dr. Abernethy expounded on each of
these conclusions in the Abernethy Report.
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Dr. Abernethy is not qualified to render some of the quoted
opinions. Dr. Abernethy is an economist, not an expert in
administrative agency process. He therefore is not qualified to
opine on whether the FTC made good faith efforts. He also is not
qualified to opine on Congressional intent. He also is not qualified
to interpret statutes and regulations. All such opinions are barred.
Dr. Abernethy is qualified to render opinions about the
economic effect of public policy. The Court finds that the vast
majority of Dr. Abernethy’s opinions regarding economic public
policy are not relevant and do not fit an issue in this case. See
Deimer, 58 F.3d at 344. Dr. Abernethy’s discussion of economic
public policy is not relevant to any liability issues in the case. The
Plaintiffs will prove or fail to prove their cases, and Dish will either
prove or fail to prove any affirmative defenses. Policy concerns are
not relevant to liability.
Most of Dr. Abernethy’s opinions are also irrelevant to the
remedial issues in the case. Dr. Abernethy opines extensively about
the effect of inaccuracies in the Registry. Any inaccuracies in the
Registry will be resolved at the liability phase of this case. Dr.
Abernethy repeatedly mentions business telephone numbers are
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not subject to the TSR, and so, he opines that those numbers are
not supposed to be on the Registry. Dr. Abernethy also mentions
that Dish may call the telephone numbers of consumers who have
an Established Business Relationship with Dish. Dish has an
affirmative defense to claims of liability under the TSR for calls to
businesses. See Opinion 445, at 162. The State Plaintiffs must
prove that Dish initiated calls to residential telephone subscribers
to establish liability under the TCPA. See Opinion 445, at 200.
Dish also has an affirmative defense for calls to consumers that
have an Established Business Relationship with Dish. See Opinion
445, at 162. Therefore, Dish should not be held liable for calls to
business numbers on the Registry or calls to consumers who have
Established Business Relationships with Dish. Dr. Abernethy’s
concerns about the economic impact of business numbers on the
Registry or about calls to consumers who have Established
Business Relationships with Dish are not relevant to the remedies
phase of the trial.
Dr. Abernethy incorrectly states certain other numbers are
inaccurately on the Registry. Dr. Abernethy incorrectly states that
wireless numbers are not properly on the Registry. Telemarketing
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calls to wireless numbers are subject to the TSR, and so, can
properly be registered on the Registry. Opinion 445, at 15-16. The
Federal Communications Commission has stated that wireless
numbers may be registered on the Registry because consumers may
use wireless numbers as residential telephones for purposes of the
TCPA. See Opinion 445, at 29-30. The presence of wireless
numbers on the Registry does not constitute an inaccuracy in the
Registry.
Dr. Abernethy criticizes the FTC for leaving disconnected
numbers on the Registry. Congress directed the FTC to keep valid
telephones number on the Registry indefinitely and to remove valid
telephone numbers only if the numbers have been both
disconnected and reassigned. 15 U.S.C. § 6155; see Opinion 445,
at 23. The FTC’s compliance with this federal statute does not
constitute an inaccuracy. Congress wants these disconnected
numbers to remain on the Registry.
Dr. Abernethy states two opinions concerning consumer injury
that may have some relevance to the remedial phase of the case:
1. An inaccurate DNCR removes or curtails consumer
choice. If a consumer that desires or is indifferent to
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telemarketing calls is placed on the DNCR, then that
consumer choice was removed from them.
2. Similarly, although a consumer effectively exercises
the choice to remove a number from the DNCR when
they disconnect a phone number that was previously
registered, the FTC maintains that number on the
DNCR unless and until it is reassigned. There are an
unspecified quantity of telephone numbers on the
DNCR which if called by a telemarketer would not
result in annoyance to any consumers. But if those
inactive numbers were called the FTC might seek to
fine telemarketers for calling.
Abernethy Report, at 6 (Consumer Injury Opinions).4 The
Consumer Injury Opinions could support an inference that two
types of telemarketing calls to numbers on the Registry may violate
the relevant telemarketing laws, but do not cause consumer
injuries: (1) calls to numbers on the Registry even though the call
recipients do not want their numbers on the Registry, and (2) calls
to inactive numbers. The latter may occur during the time period
when a number is disconnected but not yet reassigned. The former
may occur for various reasons. For example, a lag time may
sometimes exist from the date that a registered number is
reassigned to a new consumer who does not want the number
registered to the date that Registry is updated and the reassigned
4

The Consumer Injury Opinions are not numbered in the Abernethy Report, but are
statements within the body of the text.

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number is removed from the Registry (The Reassignment Lag
Time).5 Dr. Abernethy’s Consumer Injury Opinions may be relevant
to whether Dish caused consumer injury if any of the illegal calls in
this case were made to these two classes of telephone numbers.
The question of consumer injury may be relevant to the award
of civil penalties. Section 5(m) of the FTC Act direct that this Court
“shall take into account the degree of culpability, any history of
prior such conduct, ability to pay, effect on ability to continue to do
business, and such other matters as justice may require,” when
deciding that amount of civil penalties, if any, to award for
violations of the TSR. 15 U.S.C. § 45(m)(1)(C). Congress ratified the
establishment of the Registry in order to protect consumers. 15
U.S.C. § 6151, see Opinion 445, at 15. Justice may require the
Court to consider consumer injury in this case. The Court finds
that the Consumer Injury Opinions are relevant to the issue of civil
penalties in this case for purposes of Rule 702. All of Dr.
Abernethy’s other opinions are barred because Dr. Abernethy is not

5

The comments in this Opinion regarding Reassessment Lag Time are made for conducting the
Rule 702 gatekeeping function only. The Court similarly does not preclude Dish from
presenting evidence on reasons that telephone numbers may be on the Registry, but the
consumer holding of the number does not want the number to be registered. The Court is not
making findings of fact for purposes of trial.

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competent to render the opinions or the opinions are not relevant
and do not fit an issue in this case.
The Consumer Injury Opinions are based on sufficient facts
and data, and Dr. Abernethy’s methodology for these two opinions
is reliable. Dr. Abernethy reviewed the Fenili Report and the
underlying data on which Dr. Fenili relied. Dr. Abernethy also
relied on publically available statements by the FTC concerning the
Registry and relevant statutes. These provide sufficient facts and
data on which to base the Consumer Injury Opinions. Dr.
Abernethy based his analysis on published scholarly articles on the
economics of advertising, including the economics of telemarketing.
Reliance on scholarly articles is a reliable method for economists
performing the type of qualitative analysis performed by Dr.
Abernethy. The qualitative opinions may assist the Court as a trier
of fact in the bench trial. The Court finds that Dr. Abernethy’s
Consumer Injury Opinions meet the requirements of Rule 702 for
expert opinion testimony.
The Plaintiffs argue that the Consumer Injury Opinions are
speculative and not based on any methodology. The Court
disagrees. Congress directed the FTC to leave valid telephone
Page 27 of 30

numbers on the Registry until the numbers are both disconnected
and reassigned. This statutory requirement supports the inference
that: (1) valid disconnected numbers are on the Registry; and (2)
reassigned numbers may remain on the Registry during the
Reassignment Lag Time. The scholarly economic articles cited by
Dr. Abernethy support his opinion that telemarketing calls provide
benefits to some consumers. The existence of these two classes of
numbers on the Registry and the economic theory cited by Dr.
Abernethy provides a sufficient basis and a reliable methodology for
the Consumer Injury Opinions. The Consumer Injury Opinions are
qualitative and the weight to be given to them is a matter for trial.
The Consumer Injury Opinions, however, are not speculative. The
Consumer Injury Opinions meet the requirements of Rule 702.
Dish argues that Dr. Abernethy’s other opinions about the
economic and public policy effect of the Registry and its
maintenance may be relevant to: (1) the State Plaintiffs’ burden to
prove that calls were made to the residential telephone subscribers
and (2) Dish’s burden to prove its affirmative defense to the TSR
claims that calls were made to businesses. Defendant Dish
Network L.L.C.’s Opposition to Plaintiffs’ Motion to strike the Expert
Page 28 of 30

Report of Avery Abernethy and Preclude His Expert Testimony (d/e
555), at 3-5; see Opinion 445, at 162, 202.
The Court disagrees. Dr. Abernethy’s opinions about public
policy and economic effects do not tend to prove or disprove that
calls were made to a residential telephone subscriber or to a
business. Dr. Abernethy’s statements about the composition of the
Registry or its maintenance are mere recitations of the Fenili
Report, the data underlying the Fenili Report, or other information
provided to him. Dish may present Dr. Fenili to admit his opinions
at trial. Dr. Abernethy will not be allowed to rehearse them a second
time. His remaining opinions, such as his opinions about the FTC’s
lack of good faith, are not admissible because he is not competent
to present opinions. Dr. Abernethy’s opinions, other than the
Consumer Injury Opinions, are not relevant and do not fit the
issues of whether calls were made to residential telephone
subscribers or whether calls were made to businesses. Dr.
Abernethy’s opinions are barred except for the two Consumer Injury
Opinions.

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CONCLUSION
THEREFORE Plaintiffs’ Motion to Preclude the Expert
Testimony of Kenneth Sponsler and Strike his Expert Report
(d/e 522) is DENIED; Plaintiffs’ Motion to Preclude the Expert
Testimony of Avery Abernethy and Strike his Expert Report
(d/e 523) is ALLOWED in part and DENIED in part; and
Plaintiffs’ Motion to Preclude the Expert Testimony of Robert
Fenili and Strike his Expert Report (d/e 524) is DENIED.
Enter: January 13, 2016

/s Sue E. Myerscough
UNITED STATES DISTRICT JUDGE

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