United States of America et al v. Dish Network LLC
Filing
821
OPINION entered by Judge Sue E. Myerscough on 8/10/2017. Defendant Dish Network LLC's (Dish) Motion to Clarify, Alter and Amend the Order for Permanent Injunction (d/e 798 ) ("Injunction Order") (d/e 808 ) is ALLOWED in part and DENIED in part. The Court will enter an amended Injunction Order consistent with this Opinion. The Clerk will enter an amended judgment under Federal Rule of Civil Procedure 58. (SEE WRITTEN OPINION)(MAS, ilcd)
E-FILED
Thursday, 10 August, 2017 11:10:56 AM
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 Defendant Dish
Network LLC’s (Dish) Motion to Clarify, Alter and Amend the Order
for Permanent Injunction (d/e 798) (“Injunction Order”) (d/e 808)
(Motion 808). On December 11, 2014, the Court entered an Order
allowing partial summary judgment finding Dish liable on some of
Plaintiffs’ claims. Opinion entered December 11, 2014 (d/e 445)
(Opinion 445). On June 5, 2017, this Court entered its Findings of
Fact and Conclusions of Law (d/e 797) (Findings and Conclusions)
and the Injunction Order. On July 3, 2017, Dish filed Motion 808
Page 1 of 27
to ask the Court to alter, amend, or clarify the Injunction Order,
and to extend its time to comply with portions of the Injunction
Order. The Court addresses each request in order.
I.
Alter or Amend Judgment
To prevail on a motion to alter or amend a judgment, Dish
must establish the existence of a manifest error of law or fact, or
must present newly discovered evidence. Fed. R. Civ. P. 59(e); Blue
v. Hartford Life & Acc. Ins. Co., 698 F.3d 587, 598 (7th Cir. 2012);
see Caisse Nationale de Credit Agricole v. CBI Industries, Inc., 90
F.3d 1264, 1269 (7th Cir. 1996). Dish may not rely on evidence and
arguments that could have been presented at trial. See Bordelon v.
Chicago School Reform Bd. of Trustees, 233 F.3d 524, 529 (7th Cir.
2000).
Dish identified two manifest errors. First, the Injunction
Order incorrectly describes California Civil Code Section
1770(a)(22)(A). Injunction Order, § 7.A.2 at 25. The correct
language is:
2. California Civil Code 1770(a)(22)(A), by disseminating
unsolicited prerecorded messages by telephone without
an unrecorded, natural voice first informing the person
answering the telephone of the name of the caller or the
organization being represented, and either the address or
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the telephone number of the caller, and without
obtaining the consent of that person to listen to the
prerecorded message; or
The Court will amend the Injunction Order to include the revised
language.
Second, the definition of Relevant State Statute in the
Injunction Order does not properly limit the applicability of
California Business and Professions Code § 17200 to telemarketing
law violations. Injunction Order, Definition 18 at 7. Section 17200
is extremely broad potentially covering any business practice that
violated any state or federal law. See Findings and Conclusions, at
382-83; Opinion 445, at 217. Dish correctly notes that the
reference to § 17200 in the definition should be limited to
telemarketing calls. Plaintiff State of California agrees that a
limitation should be included, but Plaintiff State of California
disagrees on Dish’s proposed language. California does not want
the Injunction Order to include language that limits the definition
to calls to California telephone numbers. California states that the
limitation is unnecessary. The Court agrees. The relevant
California statutes apply to telemarketing calls to California
residents. See Opinion 445, at 206-07, 238-39. As a result, the
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additional language limiting the definition to calls to California
telephone numbers is superfluous. Therefore, the Court will adopt
the Plaintiffs’ proposed language. The language sufficiently limits
the applicable scope of § 17200 in this case to California telephone
numbers. The revised language adopted by the Court states:
“Relevant State Statutes” means California Business and
Professions Code sections 17592 and 17200 (with respect
to unlawful telephone calls marketing Dish Network
goods or services);
Dish also asks for limiting language in § VII.A.3 of the
Injunction Order. Injunction Order, § VII.A.3 at 26. The Court will
add the same language to this provision. The additional language is
appropriate to limit the applicability of the provision to
telemarketing calls.
Dish demonstrates no other manifest errors on law or fact in
the Injunction Order. Dish further presents no new evidence. Dish
only presents supplemental declarations from two of its trial
witnesses, Joey Montano and Blake Van Emst. At the time of trial,
Montano and Van Emst had all of the information that they
presented in their supplemental declarations. The information,
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therefore, is not new evidence and does not support a motion to
alter or amend.
Dish also disputes the Court’s description in the Findings and
Conclusions of the evidence Dish presented regarding the issuance
of an injunction. The Court correctly described the evidence
presented. The request to alter or amend the Injunction Order is
denied except for the two changes set forth above.
II.
Clarification of Injunction Order
Dish also asks the Court to clarify several provisions in the
Injunction Order. A party may seek clarification of a judgment
under Rule 59(e). See Tri-State Business Machines, Inc., v. Lanier
Worldwide, Inc., 221 F.3d 1015, 1019, n.2 (7th Cir. 2000);
Lentomyynti Oy v. Medivac, Inc., 997 F.2d 364, 368 (7th Cir. 1993);
The Court addresses Dish’s requests for clarification below.
1. “Authorized Telemarketer” Definition
Dish asks the Court to clarify and modify the definition of
“Authorized Telemarketer” in the Injunction Order. Injunction
Order, Definition 2 at 4. The Court denies the request. The
definition is clear and accurately defines the entities intended to be
within that term. The term covers all entities that Dish authorizes
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to engage in telemarketing except National Accounts. The evidence
showed that Order Entry Retailers and TVRO retailers engaged in
telemarketing. See e.g., Findings and Conclusions, at 13. The
Court intended the Injunction Order to cover all of these entities as
a prophylactic measure to ensure that all entities authorized to
telemarket Dish programming and services will comply with
relevant telemarketing laws.
2. Meaning of “Telemarketing”
Dish asks the Court to clarify throughout the Injunction Order
whether the term “telemarketing” includes only outbound
telemarketing or both inbound and outbound telemarketing. The
term telemarketing includes both inbound and outbound
telemarketing. Dish is correct that this case concerns outbound
telemarketing. See Findings and Conclusions, at 12. The Plaintiffs
point out, however, that inbound telemarketing calls provide
significant sources of information relevant to outbound
telemarketing compliance. Consumers may call Dish’s inbound
telemarketing centers to make do-not-call requests. Inbound
telemarketing calls may also provide information regarding the
commencement of Inquiry Based Established Business
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Relationships. See e.g., Findings and Conclusions, at 17-18, 30.
The Injunction Order covers inbound telemarketing to monitor and
provide data on this and any other aspects of inbound
telemarketing that may be relevant to making sure Dish complies
with the TSR, TCPA, and Relevant State Statutes.
In addition, numerous Order Entry Retailers used press 1
prerecorded telemarketing calls, which obscured the fact that they
were engaging in illegal outbound telemarketing. Under this
system, the prerecorded message on the outbound call invites the
consumer to press the number 1 on the phone key pad to speak to
a telemarketer. The telemarketer receives what appears to be an
inbound call from the recipient who pressed 1. See Findings and
Conclusions, at 84-85. The Court wants to make sure that the
Injunction Order covers this type of activity. The Court, therefore,
intended that the term “telemarketing” cover all inbound and
outbound telemarketing.
3. “Primary Retailer” Definition
Dish asks the Court to clarify or modify the definition of
“Primary Retailer.” Injunction Order, Definition 17 at 7. The Court
denies this request. The term is accurate as written. The term
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covers the major entities engaged in telemarketing except National
Accounts. The Court defined the term to include major retailers
that engaged in telemarketing. The Court did not use Dish’s
current categories of telemarketers because those categories could
change over time. The evidence at trial showed that retailers that
made 150 activations per month engaged in telemarketing. See
Findings and Conclusions, at 76. The Court, therefore, defined the
term to cover all significant retailers that the evidence showed
would engage in telemarketing.
Dish states that approximately 100 TVRO Retailers are
included in the definition because they make 150 activations per
month or 600 per year. The Court finds that inclusion of those
retailers is an appropriate prophylactic measure to ensure that all
major retailers engaged in telemarketing will comply with the
applicable requirements of the Injunction Order.
The Court included within the term “Primary Retailer”
Authorized Telemarketers and Retailers that used Automatic
Telephone Dialing Systems because the evidence showed that
Retailers used those systems to initiate massive numbers of illegal
prerecorded calls. See e.g., Findings and Conclusions, at 124.
Page 8 of 27
Entities that use these systems also need to be subject to the
prophylactic provisions of the Injunction Order that address
Primary Retailers. The Court notes that this latter portion of the
definition should not affect TVRO Retailers. Van Emst states that
Dish does not authorize TVRO Retailers to use Automatic Telephone
Dialing Systems. See Motion 808, Exhibit C, Van Emst Declaration
¶ 9.
4. Demonstration Requirements
Dish asks the Court to clarify that Dish must demonstrate
that Primary Retailers comply with the Safe Harbor Provisions in
their telemarketing of Dish Network goods or services in order to
prove the Demonstration Requirements. The Court intended the
Demonstration Requirements to relate to Primary Retailers’
telemarketing of Dish Network goods or services rather than
telemarketing of other goods. The Court will clarify this provision.
The Court, however, intended to cover all telemarketing by
Dish. The Court is concerned that Dish may start telemarketing
other products or services that Dish’s parent Dish Network
Corporation (Dish Corp.) may offer for sale now or in the future.
See T 621: 1440-42 (DeFranco) (discussing Sling TV). Dish Corp.
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has also invested billions of dollars in broadband spectrum. Dish
Corp. will certainly develop products and services that use this
broadband spectrum. See T 621: 1532-35 (DeFranco); see also
Findings and Conclusions, at 438. The Injunction Order may fail to
reach Dish’s telemarketing of these other products if Dish only has
to prove the Demonstration Requirements for Dish Network goods
or services. Dish must show that all of its telemarketing meets the
Demonstration Requirements.
5. “Retailer” Definition
Dish asks the Court to clarify the definition of “Retailer” in
several respects. Injunction Order, Definition 19 at 7-8. Dish asks
the Court to clarify that the definition only applies to telemarketing
Dish Network goods or services. The Court intended the definition
to apply to marketing of Dish Network goods or services rather than
marketing of some other product. The Court will make that
clarification in the last phrase of the definition.
Dish asks the Court to limit the definition to outbound
telemarketing. The Court will not limit the definition to outbound
telemarketing for the reasons set forth above.
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Dish also asks the Court to include only retailers authorized
by Dish to sell Dish Network goods and services. The Court will
allow this request in part. The Court included retailers that Dish
did not directly authorize to sell Dish Network goods or services
because the evidence showed that third party entities often sold
Dish services and programming indirectly through authorized
retailers. For example, third parties marketed Dish services and
programming through Order Entry Retailer Dish Nation’s affiliate
program or under Dish Nation’s umbrella. See Findings and
Conclusions, at 131, 144. Order Entry Retailers also used third
parties to make illegal calls on their behalf. See Findings and
Conclusions, at 112, 121-27 (discussing Dish TV Now and Star
Satellite’s use of Guardian to make prerecorded calls.) The Court
intended the Injunction Order to cover the activities of these
entities. The last sentence of the definition of Retailer, however,
covers a “third-party affiliate . . . used by a Retailer to engage in, or
provide any assistance in marketing” Dish Network goods or
services. Injunction Order, Definition 19 at 8. Dish had no
objection to this language in the definition. This last sentence
covers the situations that concerned the Court. The Court will limit
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the first sentence of the definition to Retailers authorized by Dish
and will broaden the last sentence slightly to include third parties
“allowed” by Dish to engage in or provide assistance in marketing
Dish Network goods or services.
Dish also asks the Court to exclude from the definition
marketing activity to businesses. The Court will make this change.
The Court only intended to cover marketing to consumers. The
Plaintiffs complain that Injunction Order should cover
telemarketing to a consumer at his or her place of employment or
business. The Court agrees. See Opinion entered December 11,
2014, (d/e 444), at 53 (citing FTC v. Publishers Business Services,
Inc., 821 F.Supp.2d 1205, 1221 (D. Nev. 2010)). The Court will
exclude from the definition of “telemarketing” activity that meets the
business exclusion provision in the TSR. 16 C.F.R. § 310.6(b)(7);
see Opinion 445, at 18-19. That will ensure that the Injunction
Order still covers telemarketing calls to consumers at work.
6. Injunction Order Sections IV, and VII.E
Dish asks the Court to clarify or modify these provisions of
the Injunction Order. Injunction Order § IV at 17 and 23; and § VII,
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at 28.1 The Court denies the request. The terms are accurate and
do not need modification or clarification. The provisions impose on
Dish an obligation to cause parties telemarketing Dish goods or
services to comply with the TSR, TCPA, and Relevant State Statutes
and imposes liability for failure to do so. Under the TSR, Dish’s
liability for causing illegal telemarketing can extend to such third
party retailers. See Findings and Conclusions, at 327; Opinion
entered December November 2, 2009 (d/e 20), at 13-15. The
provisions are appropriate prophylactic measures to ensure
compliance to all telemarketing within the scope of the TSR as well
as the TCPA and the Relevant State Statutes. Sections IV and VII
need no clarification or modification.
7. “National Accounts” Definition
Dish asks the Court to clarify or modify the definition of
National Accounts to include local exchange carriers, competitive
local exchange carriers, or other types of telecommunications
carriers. Injunction Order, Definition 10 at 6. The evidence at trial
supports this modification. The evidence showed that Dish’s
Dish denominates the concluding paragraph of § IV as §IV.F and the concluding paragraph of
§ VII as § VII.E. The concluding paragraphs are not so denominated in the text of the
Injunction Order. The concluding paragraphs apply to all portions of the respective sections.
1
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marketing consisted of a “direct channel” and an “indirect channel.”
The direct channel was Dish’s internal marketing and
Telemarketing Vendors. The indirect channel consisted of TVRO
Retailers, Order Entry Retailers, and National Accounts. The
National Accounts were major retailers, such as Radio Shack and
Sears, and telecommunication companies such as AT&T. See
Findings and Conclusions, at 64, 74. The evidence at trial showed
that the telecommunication companies in the National Accounts
also included other telephone companies. See T 625: 2113, 2115
(Neylon); T 626: 2287-88 (Ahmed). The current definition does not
cover these other telephone companies. The Court will modify the
definition to exclude from the definition the following entities:
incumbent local exchange carriers as defined in 47 C.F.R. § 51.5,
competitive local exchange carriers as defined in 47 C.F.R. §
51.903, and other telecommunications carriers as defined in 47
C.F.R. § 51.5.
The Plaintiffs argue that this clarification could swallow the
rule because so many telecommunications carriers exist. The Court
disagrees. The Plaintiffs presented no evidence that the
telecommunications companies in Dish’s indirect marketing
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channel engaged in illegal outbound telemarketing. The Court
intended to exclude the telecommunications companies in the
indirect channel from the scope of the Injunction Order. The
clarification will achieve this purpose.
Dish also asks the Court to modify the definition of National
Accounts to include businesses that have ten or more retail stores
in ten or more different states or territories. The definition
currently does not mention territories. The Court will make this
clarification.
8. “Internal Do Not Call List” Definition
Dish asks the Court to clarify or modify the definition of
Internal Do Not Call List to limit its coverage to Telemarketing
Vendors and Primary Retailers. Injunction Order, Definition 9 at 5.
The Court denies the request. The definition says that the Internal
Do Not Call List includes the “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 and services.” Id. The Internal Do Not Call List should
include all entities with which Dish has an agency relationship with
Dish to telemarket Dish services and programming. See Findings
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and Conclusions, at 288-92; Opinion 445, at 182-84. Dish’s failure
to maintain a proper Internal Do Not Call List for all of its
marketing agents resulted in millions of illegal calls to consumers.
Dish authorized the Authorized Telemarketers to use telemarketing
to sell Dish services and programming. The inclusion of Authorized
Telemarketers in this definition is an appropriate prophylactic
measure to ensure that Dish will honor all do-not-call requests
made to all of its marketing agents.
The term Retailers, as modified above, now covers entities that
Dish authorized to engage in marketing Dish Network goods or
services. Under the circumstances of this case, The Court finds as
an appropriate prophylactic measure that Dish should not call
consumers who have told Dish’s Retailers that they do not want to
be bothered by Dish telemarketing. The Court notes that Dish
witnesses stated that Dish did not want to call people who made donot-call requests in any event. See T 629: 3224 (Montano). The
inclusion of Retailers in the provision of the Injunction Order,
therefore, should not interfere significantly with Dish’s marketing,
but should provide significant protections to consumers who do not
want calls telemarketing Dish Network goods or services.
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9. Compliance Material Retention
Section III of the Injunction Order requires Dish to retain
certain compliance materials and transmit them to Plaintiffs
semiannually. Injunction Order, § III, at 13-16. The Court
intended this provision to apply to Dish’s internal compliance
materials. Dish asks the Court to make that clear. The Court
agrees. Section III will be modified to clarify that the materials
referenced are Dish’s internal compliance materials. The Plaintiffs
argue that Dish should be required to maintain compliance material
on all telemarketing by all Retailers. The Court agrees with Dish
that such a requirement would be unnecessarily burdensome on
thousands of TVRO Retailers.
Dish asks that the material retention provision be limited to
Dish’s telemarketing of Dish Network goods or services. The Court
denies this request. As discussed above, the Injunction Order
covers all of Dish’s telemarketing, not just telemarketing of Dish
goods or services.
Dish asks the Court to clarify § III to state that Dish must only
provide the Plaintiffs with unprivileged documents. The Plaintiffs
agree that Dish may withhold privileged documents, but Plaintiffs
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oppose any clarification of the Injunction Order on this point. See
Plaintiffs’ Opposition to Dish’s Motion to Clarify, Alter and Amend
the Order for Permanent Injunction (d/e 808) (d/e 815) (Plaintiffs’
Response), at 17. The Court will clarify § III by stating that Dish
must retain all the documents currently identified in § III, Dish may
withhold privileged documents from the regular document
productions called for in § III, but Dish must accompany each
production with a privilege log of all withheld documents. The
privilege log must meet the requirements of Federal Rule of Civil
Procedure 26(b)(5). Dish and the Plaintiffs must meet to resolve any
dispute regarding the validity of the privilege claims. The Plaintiffs
may ask the Court to compel production of the withheld documents
in accordance with the procedures for compelling discovery in
Federal Rule of Civil Procedure 37(a) if the parties are unable to
resolve the dispute claims of privilege by themselves.
Dish also asks the Court to delete § III.A.5. This provision
requires Dish to retain “Any other relevant telemarketingcompliance related information.” Dish argues that the phrase is
vague for an injunction term. The Court agrees. The Court will
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modify § III.A.4 to include “documents” in the list of materials
discussing telemarketing compliance that must be retained.
10. Compliance Reports
Section X of the Injunction Order requires Dish to create
records for 20 years after the Effective Date. Injunction Order, § X
at 34-35. Dish asks for several clarifications or modifications to
this section. Dish asks that the Court clarify that Dish must create
these records from its own internal records. The Court intended § X
to be limited to Dish’s internal records. The Court will clarify § X to
state this more clearly.
Dish asks that the requirement to collect information on
complaints and refund requests be limited to those related to
telemarketing. Section X states in the opening paragraph that all of
the records created pursuant to § X are limited to matters that are
“in connection with telemarketing.” Thus, the provision is limited to
telemarketing related complaints and requests for refunds. No
additional clarification is necessary.
Dish asks that the Court clarify that the telemarketing records
to be retained are outbound telemarketing records only. The Court
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denies this request. As explained above, the Injunction Order
covers inbound and outbound telemarketing.
Dish asks to limit the reports under § X to telemarketing of
Dish Network goods or services. The Court denies this request.
The reports under § X cover all of Dish’s telemarketing, not just
telemarketing of Dish Network goods or services.
Dish asks the Court to delete the word “previously” from §
X.G. Subsection X.G requires Dish to keep the following records:
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.
Injunction Order, § X.G at 35. As written, the subsection is limited
to records of requests from persons who made a previous do-notcall request. The Court intended to require retention of records of
all do-not-call requests, not just persons who made two or more
requests. The Court will delete the word “previously” from § X.G of
the Injunction Order.
11. Telemarketing Compliance Plan
The Injunction Order directs Dish to retain a telemarketing
compliance expert to develop a telemarketing compliance plan for
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Dish and the Primary Retailers. Injunction Order, § II at 12-13.
Dish asks the Court to clarify that the plan will only cover the
marketing of Dish services and programming. Dish notes that some
Primary Retailers market other products. The Court agrees that the
telemarketing compliance plan with respect to Primary Retailers will
be limited to marketing Dish Network goods or services. The
compliance plan will cover all of Dish’s telemarketing for the
reasons discussed above. The Court will clarify this provision of the
Injunction Order.
The Injunction Order also directs the telemarketing
compliance expert to develop a plan to ensure continued
compliance with the telemarketing laws generally. Dish asks the
Court to clarify that the term telemarketing laws means the TSR,
the TCPA, and the Relevant State Statutes. The Court agrees that
such a revision will provide greater clarity and guidance to the
parties. The Court will make this revision.
12. Modification of term “Telephone Call”
Several provisions in the Injunction Order use the term
“telephone call” rather than telemarketing call. The language tracks
language in the TSR. The TSR, however, defines the term
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“telephone call” to mean “a telephone call initiated by a
telemarketer to induce the purchase of goods or services or to solicit
a charitable contribution.” 16 C.F.R. § 310.2(x). The Plaintiffs have
no objection including the TSR definition of the term “telephone
call” in the Injunction Order. Plaintiffs’ Response, at 11 n.2. The
Court will add the TSR definition of “telephone call” to the
Injunction Order to clarify this aspect of the Injunction Order.
13. TCPA Safe Harbor Reference
Dish states that the definition of the Safe Harbor Provisions
contains a typographical error in the citation to the FCC Rule
provision. Injunction Order, Definition 20 at 8. The Court made an
error, but not the error suggested by Dish. The Court correctly
cited the applicable FCC safe harbor provision, 47 C.F.R. §
64.1200(c)(2)(i), but inadvertently included a double section sign
“§§”. The Court will correct the typographical error. Dish suggested
that the Court intended to include the additional subparagraph §
64.1200(c)(2)(ii). The additional provision relates to a prior written
agreement with a customer granting permission to call for purposes
of telemarketing. The Court did not intend to include that
provision. The Court intended to include in the Injunction Order
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the safe harbor provisions that set forth policies, procedures, and
practices designed to avoid making illegal telephone calls. Section
64.1200 (c)(2)(i) contains the provisions that the Court intended to
include in the Injunction Order. The Court will correct the
typographical error.
14. Illinois Automatic Telephone Dialers Act
Dish suggests that the Court inadvertently omitted from the
definition of “Relevant State Statutes” the Illinois Automatic
Telephone Dialers Act, 815 ILCS 305/1 et seq. Injunction Order,
Definition 18, at 7. The omission was not inadvertent. Illinois
failed to prove a violation of the Illinois Automatic Telephone Dialers
Act. See Findings and Conclusions, at 401-03. The Court,
therefore, did not grant injunctive relief under that Illinois statute.
15. Outside Counsel
Dish asks the Court to clarify or modify the Injunction Order
to indicate clearly that the reference to attorneys in the definition of
Defendant Dish does not include outside counsel. Injunction
Order, Definition 5, at 4. The definition states that references to
Dish includes Dish’s “subsidiaries, officers, agents, servants,
employees, and attorneys.” The Court intended to include in-house
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counsel in the definition of Dish, not all outside counsel. The
Plaintiffs argue that Dish’s outside counsel should be aware of the
Injunction Order and its terms. The Court agrees, but that purpose
can be achieved by amending § XI.B of the Injunction Order to
require delivery of the Injunction Order to all of Dish’s outside
attorneys. The Court will clarify and modify the Definition of Dish
and § XI.B accordingly.
16. Notice to Non-Complying Primary Retailers
Dish asks for clarification of the notice provision in § V.A of
the Injunction Order. The introductory statement of § V.A provides:
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) days of receipt of a Plaintiff’s notice or of
otherwise learning of the noncompliance, Dish shall: . . . .
Injunction Order, § V.A at 23. Dish asks that the notice time be
two business days. The Plaintiffs argue that modification of the
Injunction Order is not necessary because two days in a federal
court order means two business days. Fed. R. Civ. P. 6(a). The
Plaintiffs are incorrect. The Federal Rules only exclude Saturdays,
Sundays, and holidays if those days are the last days of the time
periods. Fed. R. Civ. P. 6(a)(1)(C). Counting only business days
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would also exclude those days even if they were intermediate days
in the time period. The Court used two business days in § I of the
Injunction Order. Injunction Order, § I at 11. For consistency, the
Court will clarify this provision to state two business days for
consistency.
Dish also asks the Court to modify § V.A.1. This provision
states that Dish must notify a Primary Retailer that it is not
complying with the Safe Harbor Provisions. Dish asks the Court to
clarify the provision to state that the notice states that Dish or the
Plaintiffs believe the Primary Retailer is not complying with the Safe
Harbor Provisions. The Plaintiffs object to the term “believe” as
being too subjective. The Court sees no reason to change the
language of this provision. The language is clear as stated. The
word “believe” does not add anything to the substance of the notice.
III.
Request for Extension of Time
The Injunction Order required Dish to prove the
Demonstration Requirements to the Plaintiffs to the Plaintiffs’
satisfaction within 90 days of the Effective Date. Injunction Order,
§ I at 11. Dish asks for 30 additional days to prove the
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Demonstration Requirements for the Primary Retailers.2 The
Plaintiffs argue that Dish has had plenty of time to collect this
information. The Court will allow the extension. The Primary
Retailers include approximately 100 TVRO Retailers. Collecting
information from them may reasonably require additional time. The
Court, however, will extend the time for Dish to prove all of the
Demonstration Requirements to the Plaintiffs. The Plaintiffs’ duty
to notify the Court and Dish’s right to ask for a hearing is triggered
if Dish fails to prove the Demonstration Requirements to the
Plaintiffs to the Plaintiffs’ satisfaction within the time set by the
Injunction Order. The Court designed the Injunction Order to have
one triggering event, not two. The Court, therefore, will extend the
time to prove all of the Demonstration Requirements to the
Plaintiffs.
THEREFORE, Defendant Dish Network LLC’s (Dish) Motion
to Clarify, Alter and Amend the Order for Permanent Injunction
(d/e 798) (“Injunction Order”) (d/e 808) is ALLOWED in part
and DENIED in part. The Court will enter an amended
Requests for extension of time may be made in Rule 59 motions. See U.S. E.E.O.C. v. Gurnee
Inns, Inc., 956 F.2d 146, 148 (7th Cir. 1992).
2
Page 26 of 27
Injunction Order consistent with this Opinion. The Clerk will
enter an amended judgment under Federal Rule of Civil
Procedure 58.
ENTER:
August 10, 2017
s/ Sue E. Myerscough
UNITED STATES DISTRICT JUDGE
Page 27 of 27
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