57,606,609. That’s the staggering number of illegal telemarketing calls a federal judge in Illinois has ruled that satellite TV company Dish Network is liable for. The Order granting partial summary judgment against Dish is the latest development in an ongoing case filed by the Department of Justice on behalf of the FTC and in cooperation with four states – California, Illinois, North Carolina, and Ohio. The complaint alleges that Dish violated the Telemarketing Sales Rule, the Telephone Consumer Protection Act, related rules, and state telemarketing laws.
We’ll go through the legal substance of the opinion in just a minute, but let’s remember there’s a personal story behind each call a company places in violation of the law. The Motion for Summary Judgment in the Dish case recounts just a few of them.
One consumer works the night shift at a North Carolina hotel. Turning the phone off when she tries to sleep during the day isn’t an option. Her husband has a serious medical condition and she needs to be available in case of emergency. After getting repeated calls about Dish service, she took steps to put an end to the annoyance. She listened to the whole recorded sale pitch, hoping a live person would pick up so she could beg them to stop calling. When she finally got somebody on the line, she told them to put her on their Do Not Call list. She started sleeping on the couch with pencil and paper in hand so she could document the calls when they woke her up. Ultimately, she filed two complaints with her State AG. Dish responded that she probably already was on the company's entity-specific Do Not Call list, but she would be added “in an abundance of caution.” But despite all that, the calls kept coming – and according to the government’s motion, she was never put on the entity-specific list.
That's just one example of the kind of conduct that led to the lawsuit. Where else did Dish go wrong? First, the company made outbound telemarketing calls – or caused calls to be made – to numbers on the National Do Not Call Registry. The Court found Dish liable for placing 4,094,099 of those calls either directly or through a company it hired to do telemarketing. Another 2,730,842 were placed by Dish’s authorized dealers or retailers. The Court specifically found Dish liable for the retailers' calls since: 1) Dish retained the retailers, 2) Dish authorized them to market Dish products or services, and 3) the retailers violated the Telemarketing Sales Rule by initiating Dish telemarketing calls to numbers on the Do Not Call Registry.
The Court also held that Dish violated the entity-specific provisions of the TSR. That portion of the Rule makes it illegal for a business to call a particular number after that person says they don’t want any more calls from that company. The Judge ruled Dish was responsible for 1,043,595 of those illegal calls. The Court left for trial the question of whether Dish is liable for retailers’ entity-specific violations.
In addition, the Court found Dish responsible for 49,738,073 abandoned calls. Consumers know what we’re talking out: You race out of the shower or run downstairs to answer a ringing phone only to find nobody on the line. Under the Telemarketing Sales Rule, companies that place a call have to connect people to a sales rep within two seconds after the consumer finishes saying hello. The Court found Dish liable both for calls it abandoned and for abandoned calls by its retailers.
The Court also ruled in the states’ favor on a number of related claims. For example, the Court found that the company made outbound calls to residents of states whose numbers were on the DNC Registry.
Other matters reserved for trial include the amount of civil penalties for the violations, but even at this stage, the opinion offers a wealth of compliance insights for other companies. Here are just a few tips telemarketers can take from the preliminary ruling.
Liability is broad under the Telemarketing Sales Rule. The TSR makes it clear that “But I wasn’t the one doing the dialing” isn’t a defense. The ruling underscores that point by holding Dish responsible for illegal calls it initiated and for illegal calls others placed.
The burden is on companies to prove they meet the “safe harbor” defense. The TSR includes a safe harbor provision that excuses certain inadvertent violations, but the trial judge expressly rejected Dish’s claim that it qualified for that defense. To meet the safe harbor requirements, the seller or telemarketer must demonstrate that:
- it has written procedures in place to comply with Do Not Call;
- it trains its staff in how to abide by the law;
- it monitors and enforces compliance;
- it maintains – and honors – a company-specific Do Not Call list;
- it accesses the Registry no more than 31 days before calling any consumer, and maintains records documenting the process; and
- call made in violation of Do Not Call was the result of error.
The FTC has free resources to help streamline your compliance obligations.
The states and feds are united in the fight against illegal telemarketing. The FTC, DOJ, and State AGs remain committed to working together to protect consumers from illegal telemarketing calls. The ongoing Dish litigation is just one example of that close cooperative relationship.