U.S. v. Dish Network L.L.C.

Record contained sufficient evidence to support Dist. Ct.'s judgment in favor of plaintiffs in action alleging that defendants violated Telephone Consumer Protection Act (TCPA) and Telemarketing Sales Rule where defendants (cable company and third-parties whom cable company had contracted to make telemarketing sales calls) had placed calls to individuals who had previously registered on do-not-call list. While contract between cable company and third-parties indicated that contract did not create agency relationship, contract gave cable company right to control third-parties’ actions so as to support finding that agency relationship existence between cable company and third-parties. Moreover, calls made by third-parties were done within scope of agency relationship so as to make cable company liable for calls placed by third-parties on cable company’s behalf. Fact that contract told third-parties to follow all applicable laws did not negate cable company’s liability for third-parties placement of telemarketing calls that violated TCPA and Telemarketing Sales Rule, especially where cable company was aware of what third-parties were doing. However, Dist. Ct. erred in finding cable company liable under section 310.3(b) of Telemarketing Sales Rule for substantially assisting third-party in making “abandoned calls,” where record showed that cable company was essentially assisting itself in making said calls. Dist. Ct. also erred in calculating damages at $280 million, where said calculation was based on percentage of cable company’s profits, as opposed to calculation based on cable company’s degree of culpability, its history of prior misconduct and other similar factors.