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Brief for FCC - DISH Network L.L.C. v. FCC & USA (D.C. Cir.)

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Released: November 8, 2013
ORAL ARGUMENT NOT YET SCHEDULED
USCA Case #13-1182 Document #1465249 Filed: 11/07/2013 Page 1 of 84
BRIEF FOR FEDERAL COMMUNICATIONS COMMISSION
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO. 13-1182

DISH NETWORK L.L.C.,
PETITIONER,
V.
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA,
RESPONDENTS.

ON PETITION FOR REVIEW OF AN ORDER OF THE
FEDERAL COMMUNICATIONS COMMISSION


SEAN A. LEV

GENERAL COUNSEL



JACOB M. LEWIS

ASSOCIATE GENERAL COUNSEL



LAURENCE N. BOURNE

COUNSEL


FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
(202) 418-1740


USCA Case #13-1182 Document #1465249 Filed: 11/07/2013 Page 2 of 84

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES



1. Parties, Intervenors, and Amici.
The parties in this Court are:
Petitioner
DISH Network L.L.C.
Respondents
Federal Communications Commission
United States of America

There are no intervenors in this case.
The Cruise Lines International Ass’n, Inc. is participating in this case

as an amicus curiae.

All parties participating in the FCC proceedings below are listed in
petitioner’s brief.
2. Ruling under review.
In the Matter of The Joint Petition Filed by DISH Network, LLC, the
United States of America, and the States of California, Illinois, North
Carolina, and Ohio for Declaratory Ruling Concerning the Telephone
Consumer Protections Act (TCPA) Rules, et al. (CG Docket No. 11-50),
Declaratory Ruling, 28 FCC Rcd 6574 (released May 9, 2013) (“Order”)
(A459).


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3. Related cases.
There are two related cases, as set forth in petitioner’s brief.






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TABLE OF CONTENTS


Table Of Authorities ......................................................................................... ii 
Glossary .......................................................................................................... vii 
Jurisdiction ........................................................................................................ 1 
Questions Presented .......................................................................................... 2 
Statutes And Regulations .................................................................................. 3 
Counterstatement Of The Case ......................................................................... 3 
Counterstatement Of Facts ................................................................................ 4 
I.  Regulatory Background ............................................................................. 4 
II.  The Administrative Proceedings Below .................................................... 7 
Summary Of Argument ................................................................................... 15 
Standard Of Review ........................................................................................ 18 
Argument ......................................................................................................... 18 
I.  The Commission’s Guidance Is Not A Reviewable Final
Order And, In Any Event, DISH’s Challenge To That
Guidance Is Unripe. ................................................................................. 18 
A.  The Challenged Guidance Is Not A “Final Order”
Subject To Judicial Review Under 47 U.S.C. § 402(a)
And 28 U.S.C. §§ 2342(1) And 2344. ................................................. 19 
B.  DISH’s Challenge To The Commission’s Guidance Is
Not Ripe For Review. .......................................................................... 26 
II.  The Commission’s Guidance Is Reasonable............................................ 30 
Conclusion ....................................................................................................... 45 
i

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TABLE OF AUTHORITIES

CASES

 
Abbott Laboratories v. Gardner, 387 U.S. 136
(1967) ................................................................................................... 16, 27
Allnet Commc’n Serv., Inc. v. Nat’l Exch. Carrier
Ass’n, 965 F.2d 1118 (D.C. Cir. 1992) ......................................................... 7
American Family Ass’n v. FCC, 365 F.3d 1156
(D.C. Cir. 2004) ........................................................................................... 41
American Petroleum Inst. v. EPA, 684 F.3d 1342
(D.C. Cir. 2012) ........................................................................................... 24
American Soc’y of Mech. Eng’rs, Inc. v. Hydrolevel
Corp., 456 U.S. 556 (1982) ......................................................................... 10
Anderson v. Liberty Lobby, Inc., 477 U.S. 242
(1986) .......................................................................................................... 44
*
AT&T Corp. v. FCC, 349 F.3d 692 (D.C. Cir. 2003) ........................ 16, 27, 29
Bennett v. Spear, 520 U.S. 154 (1997) ..................................................... 20, 21
Borg-Warner Protective Servs. Corp. v. EEOC, 245
F.3d 831 (D.C. Cir. 2001) ........................................................................... 20
Bridgeview Health Care Ctr. Ltd v. Clark, 2013 WL
1154206 (N.D. Ill. Mar. 19, 2013) .............................................................. 39
Bridgeview Health Care Ctr. Ltd. v. Clark, 2013
WL 4495221 (N.D. Ill. Aug. 21, 2013) ................................................ 29, 39
C.A.R. Transp. Brokerage Co., Inc. v. Darden
Rests., Inc., 213 F.3d 474 (9th Cir. 2000) ................................................... 44
C.C. Eastern, Inc. v. NLRB, 60 F.3d 855 (D.C. Cir.
1995) ............................................................................................................ 31
*
Center for Auto Safety v. National Highway Traffic
Safety Admin., 452 F.3d 798 (D.C. Cir. 2006) ................... 16, 21, 22, 23, 26
Charvat v. EchoStar Satellite, LLC, 630 F.3d 459
(6th Cir. 2010) ........................................................................................ 7, 32
Charvat v. EchoStar Satellite, LLC, 676 F. Supp. 2d
668 (S.D. Ohio 2009), remanded, 630 F.3d 459
(6th Cir. 2010) ............................................................................................... 8
ii

USCA Case #13-1182 Document #1465249 Filed: 11/07/2013 Page 6 of 84
*
Christensen v. Harris Cnty., 529 U.S. 576 (2000) ................................... 20, 33
DBI Architects, P.C. v. American Express Travel-
Related Servs. Co., Inc., 388 F.3d 886 (D.C. Cir.
2004) ............................................................................................... 35, 38, 40
Florida Power & Light Co. v. EPA, 145 F.3d 1414
(D.C. Cir. 1998) .............................................................................. 21, 26, 29
*
Fox Television Stations, Inc. v. FCC, 280 F.3d 1027
(D.C. Cir. 2002) .............................................................................. 16, 20, 21
Independent Equip. Dealers Ass’n v. EPA, 372 F.3d
420 (D.C. Cir. 2004) .................................................................................... 26
Industrial Safety Equip. Ass’n, Inc. v. EPA, 837
F.2d 1115 (D.C. Cir. 1988) .................................................................. 23, 26
Kennecott Utah Copper Corp. v. U.S. Dept. of
Interior, 88 F.3d 1191 (D.C. Cir. 1996) ...................................................... 27
Mainstream Mktg. Servs., Inc. v. FTC, 358 F.3d
1228 (10th Cir. 2004) ............................................................................. 5, 13
McFadden v. Ballard Spahr Andrews & Ingersoll,
LLP, 611 F.3d 1 (D.C. Cir. 2010) ............................................................... 44
Mey v. Monitronics Int’l, Inc., __ F. Supp. 2d __,
2013 WL 4105430 (N.D. W.Va. Aug. 14, 2013) ........................................ 29
Meyer v. Holley, 537 U.S. 280 (2003) ............................................................ 10
*
Mims v. Arrow Fin. Servs. Inc., 132 S. Ct. 740
(2012) ........................................................................................... 5, 6, 31, 32
Mount Wilson FM Broadcasters, Inc. v. FCC, 884
F.2d 1462 (D.C. Cir. 1990) ......................................................................... 19
*
National Ass’n of Home Builders v. Norton, 415
F.3d 8 (D.C. Cir. 2005) ........................................................................ 16, 26
NLRB v. Downtown Bid Servs. Corp., 682 F.3d 109
(D.C. Cir. 2012) ........................................................................................... 39
NLRB v. Kentucky Tennessee Clay Co., 295 F.3d
436 (4th Cir. 2002) ...................................................................................... 35
NLRB v. United Ins. Co. of Am., 390 U.S. 254
(1968) .......................................................................................................... 31
iii

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Skidmore v. Swift & Co., 323 U.S. 134 (1944) ........................................ 20, 33
Smith v. State Farm, 2013 WL 5346430 (N.D. Ill.
Sept. 23, 2013) ............................................................................................. 29
Sprint Corp. v. FCC, 331 F.3d 952 (D.C. Cir. 2003) ...................................... 29
*
Steiger v. Chevy Chase Sav. Bank, F.S.B., 666 A.2d
479 (1995) ............................................................................................ 38, 40
The Savanna Group, Inc. v. Trynex, Inc., 2013 WL
4734004 (N.D. Ill. Sept. 3, 2013) ................................................................ 44
Union Pac. R.R. Co. v. Surface Transp. Bd., 628
F.3d 597 (D.C. Cir. 2010) ........................................................................... 44
United States v. DISH Network, LLC, 667 F. Supp.
2d 952 (C.D. Ill. 2009) .................................................................................. 8
US West Commc’ns, Inc. v. Hamilton, 224 F.3d
1049 (9th Cir. 2000) .................................................................................... 20
Walker v. Pacific Mobile Homes, Inc., 413 P.2d 3
(Wash. 1966) ............................................................................................... 35
Wilderness Soc’y v. Norton, 434 F.3d 584 (D.C.
Cir. 2006) ..................................................................................................... 21

STATUTES

 
5 U.S.C. § 554(e) ........................................................................................ 7, 31
5 U.S.C. § 706(2)(A) ....................................................................................... 18
15 U.S.C. § 15 ................................................................................................. 10
*
28 U.S.C. § 2342(1) ................................................................... 1, 2, 15, 19, 20
*
28 U.S.C. § 2344 ........................................................................ 1, 2, 15, 19, 20
47 U.S.C. § 208 ................................................................................................. 6
47 U.S.C. § 227 ................................................................................................. 2
47 U.S.C. § 227 note (Congressional Findings) ............................................... 4
47 U.S.C. § 227(b)(1)(B) ......................................................................... 3, 4, 9
47 U.S.C. § 227(b)(2) ...................................................................................... 31
47 U.S.C. § 227(b)(3)(A) .................................................................................. 5
47 U.S.C. § 227(c) ........................................................................................... 31
iv

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47 U.S.C. § 227(c)(1) – (4) ............................................................................... 5
47 U.S.C. § 227(c)(5) ........................................................................................ 6
47 U.S.C. § 227(g)(1) ........................................................................................ 6
47 U.S.C. § 227(g)(3) ........................................................................................ 6
47 U.S.C. § 227(g)(7) ................................................................................. 6, 31
*
47 U.S.C. § 402(a) ...................................................................... 1, 2, 15, 19, 20
47 U.S.C. § 405(a) ........................................................................................... 41
47 U.S.C. § 503(b)...................................................................................... 6, 31
47 U.S.C. § 504(a) ...................................................................................... 6, 31
Do-Not-Call Implementation Act, Pub. L. No. 108-
10, 117 Stat. 557 (2003) .............................................................................. 13

TREATISES

 
Restatement (Third) of Agency § 1.01 (2006) ......................................... 11, 41
Restatement (Third) of Agency § 1.02 cmt. d (2006) ..................................... 43
*
Restatement (Third) of Agency § 2.03 cmt. c (2006) .................. 11, 34, 39, 42
*
Restatement (Third) of Agency § 2.03 cmt. d (2006) ........................ 17, 28, 35
*
Restatement (Third) of Agency § 2.03 reporter’s
note a (2006) ................................................................................... 11, 34, 36
Restatement (Third) of Agency § 4.01 cmt. b (2006) ..................................... 42
*
Restatement (Third) of Agency § 4.01 cmt. d (2006) .................. 11, 17, 24, 28

REGULATIONS

 
47 C.F.R. § 1.2(a) ....................................................................................... 7, 32
47 C.F.R. § 64.1200(c)(2) ........................................................................ 3, 5, 9
47 C.F.R. § 64.1200(f)(7) .................................................................................. 9
47 C.F.R. § 64.1200(f)(9) .................................................................................. 9

ADMINISTRATIVE DECISIONS

 
Consumer.Net v. AT&T Corp., 15 FCC Rcd 281
(1999) ............................................................................................................ 6
v

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Consumer.Net v. Verizon Commc’ns, Inc., 25 FCC
Rcd 2737 (E.B. 2010) .................................................................................... 6


* Cases and other authorities principally relied upon are marked with
asterisks.

vi

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GLOSSARY

APA

Administrative Procedure Act
DISH

DISH Network L.L.C.
DOJ

U.S. Department of Justice
FCC or Commission

Federal Communications Commission
FTC

Federal Trade Commission
TCPA

Telephone Consumer Protection Act of 1991



vii

USCA Case #13-1182 Document #1465249 Filed: 11/07/2013 Page 11 of 84
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO. 13-1182

DISH NETWORK L.L.C.,
PETITIONER,
V.
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA,
RESPONDENTS.

ON PETITION FOR REVIEW OF AN ORDER OF THE
FEDERAL COMMUNICATIONS COMMISSION

BRIEF FOR FEDERAL COMMUNICATIONS COMMISSION

JURISDICTION

The Commission’s Order was released on May 9, 2013.1 The petition
for review was filed on May 17, 2013. This Court has jurisdiction to review
“final orders” of the Federal Communications Commission under 47 U.S.C. §
402(a) and 28 U.S.C. §§ 2342(1) and 2344. As discussed in Argument I,

1 In the Matter of The Joint Petition Filed by DISH Network, LLC, the
United States of America, and the States of California, Illinois, North
Carolina, and Ohio for Declaratory Ruling Concerning the Telephone
Consumer Protections Act (TCPA) Rules, et al.
(CG Docket No. 11-50),
Declaratory Ruling, 28 FCC Rcd 6574 (released May 9, 2013) (“Order”)
(A459).

USCA Case #13-1182 Document #1465249 Filed: 11/07/2013 Page 12 of 84
however, jurisdiction is lacking in this case because, among other things, the
only portion of the Order on review that petitioner DISH Network L.L.C.
(“DISH”) challenges is not a reviewable final order.

QUESTIONS PRESENTED

In the Order under review, the Commission ruled that the Telephone
Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. § 227, and its
implementing regulations permit vicarious seller liability for the unlawful
calls of third-party telemarketers under federal common-law agency
principles. Order ¶ 28 (A469); see generally id. ¶¶ 29-45 (A469-477). In a
single paragraph of that Order, the Commission also provided certain
“illustrative examples” as “guidance” regarding the types of evidence that
“may” support vicarious liability. See Order ¶ 46 (A477).
This case presents the following questions:
(1) Whether the Court should dismiss the petition for review for lack
of jurisdiction because it challenges “guidance” that does not
constitute a “final order” of the Federal Communications
Commission made judicially reviewable by 47 U.S.C. § 402(a) and
28 U.S.C. §§ 2342(1) and 2344.
(2) Whether this Court should dismiss the petition for review because
it challenges Commission guidance that is not ripe for review.
2

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(3) Whether, if reviewable, the challenged guidance is lawful.

STATUTES AND REGULATIONS

Pertinent statutes and regulations are included in the Addendum to this
brief.

COUNTERSTATEMENT OF THE CASE

In the Order on review, the FCC addressed three petitions for
declaratory ruling regarding the proper construction of the TCPA, which
protects residential consumers and others from certain unwanted and intrusive
telemarketing calls. The Commission ruled that a seller is not directly liable
for unlawful telemarketing calls that are “initiate[d]” by third-party
telemarketers within the meaning of the TCPA and its implementing
regulations. Order ¶¶ 25-27 (A467-469) (citing 47 U.S.C. § 227(b)(1)(B) and
47 C.F.R. § 64.1200(c)(2)). At the same time, the Commission construed the
statute and its rules to permit vicarious seller liability for the unlawful calls of
third-party telemarketers under federal common-law agency principles,
including not only formal agency, but also broader agency principles of
apparent authority and ratification. Order ¶ 28 (A469); see generally id. ¶¶
29-45 (A469-477).
DISH Network L.L.C., which employs third-party telemarketers to
promote its satellite television service, filed for review of the Commission’s
3

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Order. DISH does not take issue with the Commission’s determination that
the TCPA and the Commission’s implementing rules provide for vicarious
liability; nor does DISH dispute that vicarious liability is governed by federal
common-law principles of agency. Br. 3. Instead, DISH seeks to overturn a
single paragraph of the Order to excise certain “illustrative examples” that
the Commission provided as non-binding “guidance” regarding the types of
evidence that “may” support or “be persuasive” in supporting a finding of
vicarious liability. See Order ¶ 46 (A477).

COUNTERSTATEMENT OF FACTS

I.

REGULATORY BACKGROUND

The TCPA “regulates the use of telemarketing – the marketing of
goods or services by telephone.” Order ¶ 2 (A459). “Among its
provisions,” and as relevant here, the statute makes it unlawful, subject to
certain exceptions, for any person within the United States to “initiate any
telephone call to any residential telephone line using an artificial or
prerecorded voice … without the prior express consent of the called party.”
47 U.S.C. § 227(b)(1)(B). Congress had determined that residential
telephone subscribers viewed such calls – often referred to as “robocalls” – as
“a nuisance and an invasion of privacy.” TCPA § 2(10), 105 Stat. 2394, note
following 47 U.S.C. § 227 (Congressional Findings).
4

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The statute also authorizes the FCC “to establish a national ‘do-not-
call’ registry that consumers can use to notify telemarketers that they object
to receiving telephone solicitations.” Order ¶ 3 (A460) (citing 47 U.S.C. §
227(c)(1) – (4)). The Commission’s implementing regulations provide –
again, subject to certain exceptions – that no person or entity may “initiate
any telephone solicitation … [to any] residential telephone subscriber who
has registered his or her telephone number on the national do-not-call
registry.” 47 C.F.R. § 64.1200(c)(2). See Mainstream Mktg. Servs., Inc. v.
FTC, 358 F.3d 1228, 1233-34 (10th Cir. 2004) (upholding FCC do-not-call
rules).
“Congress provided complementary means of enforcing the [TCPA].”
Mims v. Arrow Fin. Servs. Inc., 132 S. Ct. 740, 746 (2012). First, the statute
establishes separate private rights of action for violations of the robocalling
and do-not-call restrictions. With respect to robocalling, section 227(b)(3)
states that “[a] person or entity” may bring “an action [for damages and
injunctive relief] based on a violation” of the statutory prohibition or the
Commission’s implementing regulations. 47 U.S.C. § 227(b)(3)(A). With
respect to the do-not-call restrictions, section 227(c)(5) permits “persons” to
seek damages and injunctive relief if they have “received more than one
telephone call within any 12-month period by or on behalf of the same entity
5

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in violation of the regulations prescribed under this subsection.” 47 U.S.C. §
227(c)(5).
Second, the TCPA provides that “State Attorneys General may ‘bring a
civil action [in federal district court] on behalf of [State] residents,’ if the
Attorney General ‘has reason to believe that any person has engaged … in a
pattern or practice’” of violating the statute or the FCC’s implementing
regulations. Mims, 132 S. Ct. at 746 (quoting 47 U.S.C. § 227(g)(1)).
Third, the statute contemplates multiple avenues for TCPA
administration and enforcement by the FCC itself. “The TCPA envisions
civil actions instituted by the Commission for violations of [its] implementing
regulations.” Mims, 132 S. Ct. at 746 n.4 (citing 47 U.S.C. § 227(g)(7)).
“The Commission may also seek forfeiture penalties for willful or repeated
failure to comply with the Act or regulations.” Id. (citing 47 U.S.C. §§
503(b), 504(a)). Additionally, “[t]he Commission may intervene in [State
Attorney General] suits.” Id. at 746 (citing 47 U.S.C. § 227(g)(3)). The
Commission may also entertain administrative complaints alleging that
telecommunications common carriers have violated the TCPA. See 47
U.S.C. § 208.2 And the Commission may issue declaratory rulings to clarify

2 See, e.g., Consumer.Net v. Verizon Commc’ns, Inc., 25 FCC Rcd 2737
(E.B. 2010); Consumer.Net v. AT&T Corp., 15 FCC Rcd 281 (1999).
6

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the law and remove controversies, for example, when (as occurred here, see
infra 7-15) asked to do so on primary jurisdiction referral from courts in
which TCPA actions are pending. See Allnet Commc’n Serv., Inc. v. Nat’l
Exch. Carrier Ass’n, 965 F.2d 1118, 1120 (D.C. Cir. 1992) (referral of
Communications Act issues to FCC under the doctrine of primary jurisdiction
is warranted to ensure uniformity of outcomes and the application of agency’s
expert judgment); see also Charvat v. EchoStar Satellite, LLC, 630 F.3d 459,
465-68 (6th Cir. 2010) (referring TCPA issues to the FCC under the doctrine
of primary jurisdiction); 47 C.F.R. § 1.2(a) (providing that “[t]he
Commission may, in accordance with [5 U.S.C. § 554(e)] … issue a
declaratory ruling terminating a controversy or removing uncertainty”).

II.

THE ADMINISTRATIVE PROCEEDINGS BELOW

The administrative proceedings leading to the Order on review began
with the filing of three petitions for declaratory ruling. Those petitions were
filed in response to primary jurisdiction referrals in two federal lawsuits
alleging that DISH had violated telemarketing prohibitions under the TCPA
and the FCC’s regulations. See Order ¶¶ 5-10 (A461-63) (describing
background of TCPA litigation in Charvat v. EchoStar Satellite, LLC, 676 F.
7

USCA Case #13-1182 Document #1465249 Filed: 11/07/2013 Page 18 of 84
Supp. 2d 668 (S.D. Ohio 2009), remanded, 630 F.3d 459 (6th Cir. 2010); and
United States v. DISH Network, LLC, 667 F. Supp. 2d 952 (C.D. Ill. 2009)).3

On April 4, 2011, the FCC’s Consumer and Governmental Affairs
Bureau issued a Public Notice seeking comment on the petitions. The Bureau
asked generally for comment “on the circumstances under which a person or
entity is liable for telemarketing violations committed by dealers or other
third parties that act on the person’s or entity’s behalf,” and posed two sets of
questions:
1) Under the TCPA, does a call placed by an entity that markets
the seller’s goods or services qualify as a call made on behalf
of, and initiated by, the seller, even if the seller does not
make the telephone call (i.e., physically place the call)?
2) What should determine whether the telemarketing call is
made “on behalf of” a seller, thus triggering liability for the
seller under the TCPA? Should federal common law agency
principles apply? What, if any, other principles could be used
to define “on behalf of” liability for a seller under the TCPA?
Order ¶ 13 (A463-64) (quoting Public Notice, DA 11-594, at 4 (released
April 4, 2011) (A87)).

3 As noted above, there were three petitions for declaratory ruling generated
by these cases. In response to the referral from the United States v. DISH
Network
case, DISH, the United States, and the States of California, Illinois,
North Carolina and Ohio filed a joint petition with the FCC. Joint Petition
(A50). In response to the referral from the Charvat litigation, plaintiff Philip
Charvat and defendant DISH (previously known as EchoStar) filed separate
petitions with the FCC. Charvat Petition (A7); DISH Petition (A28).
8

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After receiving numerous comments, the FCC issued the declaratory
Order on review. The Commission first held that a seller is not directly liable
for unlawful telemarketing calls that are “initiate[d]” by third-party
telemarketers within the meaning of the TCPA and its implementing
regulations. Order ¶¶ 25-27 (A467-469) (citing 47 U.S.C. § 227(b)(1)(B) and
47 C.F.R. § 64.1200(c)(2)). In the Commission’s view, reading the statute to
mean that a seller generally “initiates” calls made by its third-party
telemarketers would sweep too broadly – encompassing “a host of activities
which have only a tenuous connection with the making of a telephone call.”
Id. ¶ 26 (A468). Moreover, the Commission noted, such a reading would be
inconsistent with the agency’s existing regulations defining the separate terms
“seller” and “telemarketer.” Id. ¶ 27 (A468-69) (citing 47 C.F.R. §
64.1200(f)(7) & (9)).
The FCC then determined that a seller nevertheless could be held
vicariously liable for the unlawful calls of third-party telemarketers under
federal common-law agency principles, including not only formal agency, but
also broader agency principles of apparent authority and ratification. Order
28 (A469); see generally id. ¶¶ 29-45 (A469-477). In this regard, the
Commission explained that “[f]ederal statutory tort actions, such as those
authorized under the TCPA, typically are construed to incorporate federal
9

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common law agency principles of vicarious liability where, as here, the
language of the statute permits such a construction and doing so would
advance statutory purposes.” Order ¶ 29 (A469). Thus, the Commission
noted, the Supreme Court had held that the Federal Housing Act imposed
vicarious liability for racial discrimination according to agency principles4
and that “general principles of agency,” including “apparent authority
theory,” may establish a basis for liability in private antitrust actions under 15
U.S.C. § 15.5 And the Commission cited similar lower court rulings
(including a TCPA case) holding that, absent liability predicated on agency
doctrines of vicarious liability, parties could execute “an end-run around the
TCPA’s prohibitions.”6

The Commission stated that the TCPA should be construed to
incorporate the full panoply of agency-related theories of vicarious liability,
because such a reading would best advance the policies of the statute. These
agency doctrines, the Commission explained, go beyond classical agency,

4 Order ¶ 29 n.84 (A469) (citing Meyer v. Holley, 537 U.S. 280, 285
(2003)).
5 Order ¶ 29 n.84 (A469) (quoting American Soc’y of Mech. Eng’rs, Inc. v.
Hydrolevel Corp., 456 U.S. 556, 565-74 (1982)). See also id. ¶ 36 (A472)
(discussing Hydrolevel case).
6 Order ¶ 29 n.84 (A469) (quoting Accounting Outsourcing, LLC v. Verizon
Wireless Personal Commc’ns, 329 F. Supp. 2d 789, 794-95, 805-06 (M.D.
La. 2004)).
10

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which “contemplates ‘the fiduciary relationship that arises when one person
(a “principal”) manifests assent to another person (an “agent”) that the agent
shall act on the principal’s behalf and subject to the principal’s control.’”
Order ¶ 34 (A471) (quoting Restatement (Third) of Agency § 1.01 (2006)).
The Commission concluded that vicarious liability under the TCPA also
should attach, for example, under principals of “apparent authority,” which
“holds a principal accountable for the results of third-party beliefs about an
actor’s authority to act as an agent when the belief is reasonable and is
traceable to a manifestation of the principal.” Id. (quoting Restatement
(Third) of Agency § 2.03, cmt. c (2006)). Under “apparent authority,” the
Commission noted, “a principal’s manifestation” need not “be directed to a
specific third party in a communication made directly to that person,” but can
arise in multiple ways, such as “by appointing a person to a particular
position” from which third parties reasonably may infer authority. Order
34 n.102 (A471-72) (quoting Restatement (Third) of Agency § 2.03,
reporter’s note a (2006)). In addition, the Commission noted, vicarious
liability under the TCPA may incorporate agency-related principles of
“ratification,” under which a principal knowingly accepts the benefits of the
agent’s unlawful activities. Id. ¶ 34 (A472) (citing Restatement (Third) of
Agency § 4.01, cmt. d (2006)).
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The Commission determined that construing the TCPA to incorporate
the full range of agency-related vicarious liability principles would best serve
the statute’s consumer protection goals, not only by giving consumers a fair
opportunity to seek compensation for unlawful invasions of privacy, but also
by deterring future violations. Order ¶ 36 (A472). Addressing the record
before it, the Commission found agreement among consumers, government
commenters, and the telemarketing industry that the seller is in the best
position to monitor and police TCPA compliance by third-party
telemarketers.7 Potential seller liability under agency-related principles
would thus “give the seller appropriate incentives to ensure that [its]
telemarketers comply” with the law. Order ¶ 37 (A473). By contrast, the
Commission found that reading the TCPA to narrow the range of available
agency-based vicarious liability theories could permit the seller to “benefit
from undeterred unlawful acts, and the statute’s purpose … [to] go
unrealized.” Order ¶ 37 (A473). The Commission also determined that a
broad incorporation of agency-related vicarious liability principles into the

7 Order ¶ 37 (A473) (citing FTC Comments at 7 (A145); United States
Comments at 13 (A212); Comments of the States of California, Illinois,
North Carolina and Ohio (“States Comments”) at 8 (A126); American
Teleservices Ass’n Comments at 3 (A151); Joe Shields Comments at 2
(A229); Stewart Abramson Comments at 2-3 (A232-33); Robert Biggerstaff
Reply at 9-10 (A297-98)).
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TCPA would “advance[] Congress’ intent that the Commission harmonize its
TCPA enforcement, to the extent possible, with that undertaken by the
[Federal Trade Commission (“FTC”)] in connection with its [parallel]
Telemarketing Sales Rule.” Order ¶ 37 (A473-74) (citing Mainstream Mktg.
Servs., 358 F.3d at 1234 n.4).8 The FCC noted that, “[u]nder that Rule, the
FTC has taken the position that sellers are responsible for the violations of
their authorized dealers.” Order ¶ 37 (A474).

Finally, the Commission found that its reading of the TCPA was
entirely consistent with Congressional intent to preserve legitimate
telemarketing practices while protecting consumer privacy. The Commission
explained that its interpretation allows sellers to “protect their legitimate
commercial interests by exercising reasonable diligence in selecting and
monitoring reputable telemarketers and by including indemnification clauses
in their contracts with those entities.” Order ¶ 44 (A476).

Having concluded that the TCPA broadly incorporates agency-related
principles of vicarious liability, the Commission provided, as “guidance in
this area,” some “illustrative examples of evidence that may demonstrate”
that such principles are satisfied. Order ¶ 46 (A477) (emphasis added). The

8 See Do-Not-Call Implementation Act, Pub. L. No. 108-10, 117 Stat. 557
(2003).
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Commission noted, “[f]or example,” that apparent authority “may be
supported” by “evidence that the seller allows the outside sales entity access
to information and systems that normally would be within the seller’s
exclusive control.” Id. The Commission stated that a telemarketer’s “ability
… to enter consumer information into the seller’s sales or customer systems,”
as well as its authority to use the seller’s trade name, trademark, or service
mark “may also be relevant.” Id. The Commission observed that “[i]t may
also be persuasive” that the seller “approved, wrote or reviewed the outside
entity’s telemarketing scripts.” Id. Noting that DISH had acknowledged as
much in its filings with the agency,9 the Commission also posited that a seller
“would be responsible” for the “unauthorized conduct of a third-party
telemarketer that is otherwise authorized to market on the seller’s behalf if the
seller knew (or reasonably should have known) that the telemarketer was
violating the TCPA on the seller’s behalf and the seller failed to take effective
steps” to curb such conduct. Id. The Commission opined that these types of
evidence – once developed through discovery, if the consumer is not privy to
it at the time the complaint is filed – “should” be sufficient to place upon the
seller the burden of moving forward with evidence that “a reasonable

9 Order ¶ 46 n.138 (A477) (citing, e.g., DISH Notice of Ex Parte
Presentation, Dec. 9, 2011, at 2 (A427)).
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consumer would not sensibly assume that the telemarketer was acting as the
seller’s authorized agent.” Id. (A477-78).

Explaining its decision to offer this illustrative guidance, the
Commission observed that – in addition to the authority Congress delegated
to it to interpret and enforce the TCPA – its “decades of experience” in
administering the TCPA provided a practical understanding of “the
circumstances in which telemarketing call[s] may arise.” Order ¶ 46 n.137
(A477). The agency thus concluded that announcing its views on how the
agency principles might apply in the telemarketing context would benefit
“regulated parties, consumers, and courts.” Id.

SUMMARY OF ARGUMENT

DISH’s judicial challenge in this case is aimed at persuading this Court
to edit a single paragraph of non-binding illustrative guidance regarding the
types of evidence that “may” be relevant to the existence of vicarious liability
under common-law agency principles. See Br. 3 (citing Order ¶ 46 (A477)).
Because the challenged guidance is neither a “final order” reviewable under
47 U.S.C. § 402(a) and 28 U.S.C. §§ 2342(1) and 2344, nor ripe for review,
DISH’s petition for review should be dismissed. In the alternative, if the
guidance is reviewable, it is nevertheless lawful, and the petition for review
should be denied.
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I.A. FCC pronouncements are not reviewable “final orders” unless (1)
they reflect the “consummation of the agency’s decisionmaking process” and
(2) determine “rights or obligations.” Fox Television Stations, Inc. v. FCC,
280 F.3d 1027, 1037 (D.C. Cir. 2002) (citation omitted). The challenged
guidance in paragraph 46 of the Order does not satisfy this test.
In particular, the guidance is non-binding and thus does not determine
rights or obligations. Rather, its force is dependent entirely on its power to
persuade. In those circumstances, it is well settled that the practical – as
opposed to legal – consequence that a party may be required to defend itself
before the agency or in court against claims predicated on that guidance does
not render it a final reviewable order. National Ass’n of Home Builders v.
Norton, 415 F.3d 8, 15 (D.C. Cir. 2005) (guidance not reviewable where it
has no binding effect on administrative enforcement or citizen suit); see also
Center for Auto Safety v. National Highway Traffic Safety Admin., 452 F.3d
798, 810-11 (D.C. Cir. 2006) (“Center for Auto Safety”) (reviewability cannot
be predicated on the practical as opposed to legal effect of guidance).
B. The guidance also is not ripe for review. See AT&T Corp. v. FCC,
349 F.3d 692, 699-700 (D.C. Cir. 2003) (citing Abbott Laboratories v.
Gardner, 387 U.S. 136, 149 (1967) (setting forth ripeness test)). The Court
would benefit from postponing review to see how the guidance is applied in a
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concrete setting, since it is generally a question for the trier of fact whether,
under all the facts and circumstances presented in a particular case, the
predicates of vicarious liability are met under applicable common-law agency
principles. See Restatement (Third) of Agency § 2.03 cmt. d (2006); id. §
4.01 cmt. d. Such postponement would cause no undue hardship.
II. If it reaches the merits of the Commission’s guidance, the Court
should reject DISH’s claim that the guidance is ultra vires and misstates
agency principles.
First, given the FCC’s unchallenged conclusion that the TCPA
incorporates common-law agency principles of vicarious liability, and in light
of the agency’s enforcement and other statutory responsibilities under the
Act, the Commission had ample authority to provide tentative guidance
regarding the types of evidence that might be pertinent to vicarious seller
liability. DISH provides no support for its suggestion that such guidance is
ultra vires.
The guidance, moreover, is reasonable. Contrary to DISH’s argument,
the guidance does not ignore the requirement under common-law agency
principles that apparent liability must be predicated upon a direct or indirect
manifestation of the principal. Rather, the guidance outlines evidence that
may be pertinent to that question, but does not displace the trier of fact’s
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established role in making vicarious liability determinations under common-
law standards. Nor does it establish a strict liability standard or reverse the
burden of persuasion borne by the party alleging the existence of an agency
relationship between the seller and telemarketer.

STANDARD OF REVIEW

As we discuss below, this Court lacks jurisdiction to review DISH’s
challenge to the Commission’s “guidance” regarding the possible application
of pertinent agency principles in the telemarketing context. See Order ¶ 46
(A477-78). The Commission’s guidance does not constitute a judicially
reviewable final order, and, in any event, DISH’s challenge is not ripe for
review. To the extent that the Court determines that the challenged guidance
is a reviewable final order and that it is ripe for review, such review is subject
to the Administrative Procedure Act, under which the Court sets aside agency
action “found to be arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2)(A).

ARGUMENT

I.

THE COMMISSION’S GUIDANCE IS NOT A
REVIEWABLE FINAL ORDER AND, IN ANY EVENT,
DISH’S CHALLENGE TO THAT GUIDANCE IS UNRIPE.

DISH expressly limits its challenge in this case to the “guidance” in
paragraph 46 of the Order regarding “illustrative examples of evidence” that
“may” demonstrate that a seller is liable under common-law agency-related
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principles for TCPA violations committed by its third-party telemarketers.
This Court should not consider that challenge for two threshold reasons.
First, the Court lacks jurisdiction to consider it, because the guidance is not a
reviewable “final order” of the Commission within the meaning of 47 U.S.C.
§ 402(a) and 28 U.S.C. §§ 2342(1) and 2344. Second, even if that guidance
were subject to review under those provisions as a matter of jurisdiction, the
Court should decline to consider DISH’s challenge at this time because it is
unripe. See Mount Wilson FM Broadcasters, Inc. v. FCC, 884 F.2d 1462,
1465-66 (D.C. Cir. 1990) (a final order “nonetheless can be unripe”).

A. The Challenged Guidance Is Not A “Final Order”

Subject To Judicial Review Under 47 U.S.C. § 402(a)
And 28 U.S.C. §§ 2342(1) And 2344.

In deciding to inform “regulated parties, consumers, and courts as to
how [the FCC] understand[s]” principles of “federal agency law” to apply in
the telemarketing context, the Commission relied on its broad experience “in
applying Congress’s goals under the statute” to provide “illustrative
examples” that “may demonstrate” that a telemarketer is a seller’s
“authorized representative” for purposes of vicarious liability under the
TCPA. Order ¶ 46 & n.137 (A477). Such guidance, “like interpretations
contained in policy statements, agency manuals, and enforcement guidelines,
all of which lack the force of law,” is “entitled to respect” commensurate with
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its “power to persuade” and with the Commission’s body of experience
administering the TCPA.10 Christensen v. Harris Cnty., 529 U.S. 576, 587
(2000) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)); Borg-
Warner Protective Servs. Corp. v. EEOC, 245 F.3d 831, 836 (D.C. Cir.
2001). It is not, however, a “final order” of the Commission that is
reviewable in this Court under 47 U.S.C. § 402(a) and 28 U.S.C. §§ 2342(1)
and 2344. The Court, accordingly, should dismiss the petition for review for
want of jurisdiction.11
The test for reviewable “final orders” under the Hobbs Act generally
coincides with the test the Supreme Court announced in Bennett v. Spear, 520
U.S. 154 (1997), for “final agency action” under the APA. See, e.g., Fox
Television Stations, Inc. v. FCC, 280 F.3d at 1037 (applying Bennett test to
determine reviewability of FCC order); US West Commc’ns, Inc. v. Hamilton,
224 F.3d 1049, 1055 (9th Cir. 2000) (applying Bennett in determining
whether FCC decision is a “final order,” because “a ‘final agency action’

10 See pp. 6-7 above (outlining FCC’s TCPA enforcement powers).
11 Although other, unchallenged aspects of the Order are final and would be
reviewable, that does not render the entire Order a “final order” within the
meaning of 28 U.S.C. §§ 2342(1) and 2344. See AT&T Corp. v. FCC, 349
F.3d at 703 (holding that challenged passages in an FCC declaratory ruling
containing “descriptive statements by the agency” but without the “force of
law” were not reviewable).
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under the APA is analytically equivalent to a ‘final order’ under the Hobbs
Act”). Under that test, an order is final and reviewable if: “(1) it is ‘the
consummation of the agency’s decisionmaking process,’ and (2) ‘rights or
obligations have been determined’ by the action or ‘legal consequences will
flow’ from it.” Fox Television, 280 F.3d at 1037 (quoting Bennett, 520 U.S.
at 154). The challenged guidance from paragraph 46 of the Order does not
satisfy this test because it neither determines rights or obligations, nor
imposes legal consequences.
In assessing whether an order determines rights or obligations or
imposes legal consequences sufficient for reviewability, this Court looks to
“‘whether an agency has issued a binding norm or merely’ an unreviewable
‘statement of policy.’” Center for Auto Safety, 452 F.3d at 806 (quoting
Wilderness Soc’y v. Norton, 434 F.3d 584, 595 (D.C. Cir. 2006)). “The
language used by the agency is an important consideration in such
determinations,” although tentative language may at times be overcome by
independent indicia of an intent to bind, such as Federal Register publication
or subsequent agency adjudications that apply the guidance in a binding
manner. Center for Auto Safety, 452 F.3d at 806; see also Florida Power &
Light Co. v. EPA, 145 F.3d 1414, 1420 (D.C. Cir. 1998) (binding nature of
nominal policy statement can be “exhibited” through subsequent
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adjudication). An assessment of these factors in this case makes clear that the
paragraph 46 guidance is not a final order.
The facts of Center for Auto Safety are instructive. In that case, the
National Highway Traffic Safety Administration (“NHTSA”) had sent
generic letters to automobile manufacturers outlining a policy regarding the
circumstances in which a manufacturer might recall automobiles for safety-
related defects on a regional, rather than nationwide, basis. 452 F.3d at 803.
The petitioning public interest groups challenged the Administrator’s action,
arguing among other things, that “approving” regional recalls was contrary to
the NHTSA Authorization Act of 1991. Id. at 804.
This Court ruled that the NHTSA had not established a reviewable
policy regarding regional recalls, finding that the letters “read as guidelines,
not binding regulations.” Id. at 809. The Court noted, for instance, that the
letters stated “that, in general,” it was not appropriate to limit the scope of a
recall if the defect can appear after only short-term – as opposed to long-term
– exposure to regional weather conditions. Id. The Court noted that the
NHTSA letters’ characterization of manufacturers’ obligations to notify
vehicle owners regarding defects was “similarly conditional” – stating that
in some cases it may be permissible for a manufacturer to modify the
[otherwise mandatory] content of the owner notification letter” and that “the
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agency may act favorably on” manufacturers’ modification requests. Id. And
the Court observed that the agency’s description of its views regarding
regional recalls for defects related to long-term exposure to weather
conditions was “only general in its prescriptions” and suggested that “the
agency’s position on regional recalls remains flexible.” Id.
In short, on the basis of that language (and on the fact that the NHTSA
letters had not been published in the Federal Register and had not been
applied as binding norms), the Court determined that “NHTSA has not
commanded, required, ordered, or dictated.” Id. Rather, the guidance
provided in the letters was simply a “privileged viewpoint in the legal
debate,” id. at 808, leaving the agency “free to exercise discretion in
assessing proposed recalls and in enforcing the Act,” id. at 809.
The same is true of the challenged guidance in paragraph 46 of the
Order. That guidance provides the FCC’s views on the types of showings
that might suffice to establish vicarious seller liability under agency-related
principles for the TCPA violations of its third-party telemarketers. First, the
guidance is expressly “illustrative.” See Industrial Safety Equip. Ass’n, Inc.
v. EPA, 837 F.2d 1115, 1120 (D.C. Cir. 1988) (EPA guidance document
regarding recommended respirators for asbestos protection was merely
“illustrative” and did not constitute reviewable binding agency action). It
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also is explicitly tentative and contingent – identifying evidence that “may”
“demonstrate” or “support[]” or be “relevant” to vicarious liability. Order
46 (A477). Using another term that customarily is associated with non-
binding guidance, the Commission also identifies the type of showing that
should be sufficient” to place the burden of production on the seller. Id.
(emphasis added).12
Finally, the guidance posits one circumstance in which the seller
“would be responsible.” Order ¶ 46 (A477). But DISH does not dispute that
the seller “would be responsible” in that circumstance – i.e., where “a third-
party telemarketer that is otherwise authorized to market on the seller’s
behalf” engages in conduct on the seller’s behalf that violates the TCPA and
the seller “kn[ows] (or reasonably should have known)” about it and “fail[s]
to take effective steps within its power to force the telemarketer to cease that
conduct.” Order ¶ 46 (A477-78).13 That fact situation presents a prototypical
case of ratification. See Restatement (Third) of Agency § 4.01 cmt. d

12 See American Petroleum Inst. v. EPA, 684 F.3d 1342, 1348-49 (D.C. Cir.
2012) (finding that EPA guideline that technical work products “should be
peer-reviewed” did not “bind” the agency “to a judicially enforceable norm”).
13 See id. n.138 (A477) (noting that DISH agrees that vicarious liability may
result “if the principal knows that a retailer is repeatedly engaging in violative
telemarketing when selling the principal’s products or services, and the
principal fails to take reasonable measures to address the unlawful conduct”)
(quoting DISH December 9, 2011 Ex Parte Letter at 2 (A427)).
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(ratification may occur where the seller “is aware of ongoing conduct
encompassing numerous acts by the [telemarketer]” and the seller “fail[s] to
terminate” the telemarketer).
There are, in addition, no independent indicia of intent to bind that
would contradict the permissive language used in paragraph 46. The guidance
was not published in the Federal Register, and the agency has not applied the
guidance in a binding manner.
DISH nevertheless contends (Br. 24) that the Commission’s guidance
may cause “confusion among litigants and courts in private TCPA litigation”
and that courts may “accept[]” litigants’ arguments based on that guidance
(Br. 21). See also Br. 5 (arguing that courts “may erroneously conclude that,
because the Commission is charged to administer and implement the TCPA,
its views on the application of common-law agency principles in that area are
entitled to deference”). The Commission, of course, issued the guidance in
the expectation that consumers, regulated parties, and the courts would find it
useful and accord it the respect its persuasive power warrants. Such potential
impact, however, does not convert the guidance into a reviewable final order.
It is well settled that the fact that non-binding guidance may have “practical”
(as opposed to “legal”) consequences – such as signaling a potential threat of
future litigation or administrative enforcement action – does not convert it
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into a reviewable final order. See National Ass’n of Home Builders v.
Norton, 415 F.3d at 15 (the practical effect of potentially having to defend
against administrative enforcement or “citizen suit” does not render guidance
reviewable, if it would not have binding effect in such proceedings); see also
Independent Equip. Dealers Ass’n v. EPA, 372 F.3d 420, 428 (D.C. Cir.
2004) (“practical consequences, such as the threat of having to defend itself
in an administrative hearing should the agency actually decide to pursue
enforcement, are insufficient to bring an agency’s conduct under [the Court’s]
purview”) (citation omitted); Center for Auto Safety, 452 F.3d at 810-11
(reviewability cannot be predicated on the practical as opposed to legal effect
of guidance); Industrial Safety Equip. Ass’n, 837 F.2d at 1120 (“agency
process without binding effect, even if it leads to significant ‘practical
consequences,’ is not reviewable”).

B. DISH’s Challenge To The Commission’s Guidance Is Not

Ripe For Review.

Even if there were doubt about whether the Commission intended to
provide non-binding guidance or binding norms in paragraph 46 of the Order,
DISH’s challenge to that paragraph would not be ripe for review. Indeed,
where such doubt exists, “the issues of reviewability and ripeness converge”
and dictate that judicial review await a concrete application of the guidance.
Florida Power & Light Co. v. EPA, 145 F.3d at 1420 (quoting Kennecott
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Utah Copper Corp. v. U.S. Dept. of Interior, 88 F.3d 1191, 1223 (D.C. Cir.
1996)).
The established framework for determining ripeness requires a
reviewing court to evaluate “both the fitness of the issue for judicial decision
and the hardship to the parties of withholding court consideration.” AT&T
Corp. v. FCC, 349 F.3d at 699 (quoting Abbott Laboratories, 387 U.S. at
149). “Under the ‘fitness of the issues’ prong, the first question for a
reviewing court is ‘whether the disputed claims raise purely legal questions
and would, therefore, be presumptively suitable for judicial review.” Id.
(citations omitted). The court then considers “whether the court or the
agency would benefit from postponing review until the policy in question has
sufficiently ‘crystallized’ by taking on a more definite form.” Id. at 700
(citation omitted).
“[W]here there are strong interests militating in favor of
postponement,” courts consider the “hardship” prong of Abbott Laboratories.
AT&T Corp., 349 F.3d at 700. But “[i]f ‘[t]he only hardship [a claimant] will
endure as a result of delaying consideration of [the disputed] issue is the
burden of having to [engage in] another suit,’ this will not suffice to
overcome an agency’s challenge to ripeness.” Id.
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The Commission’s guidance simply provides illustrative examples of
the types of evidence that “may” be persuasive in resolving questions of
apparent authority. Order ¶ 46 (A477). It is not possible in the abstract to
determine how the Commission’s guidance may be applied or whether such
application will comply with agency principles.
Moreover, on questions of apparent authority – a major focus of the
paragraph 46 guidance – “[i]t is usually a question for the trier of fact whether
a … third party would believe that an agent had the authority or the right to
do a particular act,” and “[i]t is a separate but related question of fact whether
such a belief is traceable to a manifestation of the principal.” Restatement
(Third) of Agency § 2.03 cmt. d (2006). Similarly, “[i]t is a question of fact
whether conduct is sufficient to indicate consent” in determining whether a
person may be deemed to have ratified another party’s action. Id. § 4.01 cmt.
d. Under the circumstances, therefore, both the Court and the agency would
benefit from postponing review of the Commission’s guidance to see how it
applies in a concrete setting – either in FCC enforcement proceedings or in
court proceedings.
Nor would postponing review cause DISH undue hardship. Although
DISH expresses concern about how the guidance with be applied in future
court proceedings, it is well settled that “the burden of participating in further
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administrative and judicial proceedings does not constitute sufficient hardship
to overcome the agency’s challenge to ripeness.” AT&T Corp. v. FCC, 349
F.3d at 702. Accord Sprint Corp. v. FCC, 331 F.3d 952, 958 (D.C. Cir.
2003); Florida Power & Light Co. v. EPA, 145 F.3d at 1421. In this regard,
although the courts that have considered the Order thus far have correctly
found it to be binding on the interpretative question of whether the TCPA
incorporates principles of apparent authority and ratification (as well as
classical agency) – a proposition DISH does not contest – no court to date has
held that the paragraph 46 guidance itself is binding or disposes of any
particular dispute.14 In any event, parties are free to challenge the
applicability or persuasiveness of the guidance in the concrete context of the
facts of a particular case if the guidance becomes an issue in district court
TCPA litigation.

14 See, e.g., Smith v. State Farm, 2013 WL 5346430 at *2, *3-*6 (N.D. Ill.
Sept. 23, 2013); Bridgeview Health Care Ctr. Ltd. v. Clark, 2013 WL
4495221 at *2 (N.D. Ill. Aug. 21, 2013); Mey v. Monitronics Int’l, Inc., __ F.
Supp. 2d __, 2013 WL 4105430 at *4-*5 (N.D. W.Va. Aug. 14, 2013). DISH
suggests (Br. 5 & n.2) that the district court in Mey treated the paragraph 46
guidance as dispositive. However, the “guidance” with which the court was
“armed” in Mey, was the Commission’s unchallenged general holding in the
Order that vicarious liability under the TCPA “does not require a formal
agency relationship,” but also may arise under “principles of ratification and
apparent authority.” Mey at *4.
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II.

THE COMMISSION’S GUIDANCE IS REASONABLE.

DISH argues that the paragraph 46 guidance should be set aside on
several grounds. Most broadly, DISH suggests that – apparently, right or
wrong – the guidance should be vacated because the FCC allegedly “has no
expertise or authority concerning common-law agency principles.” Br. 19;
see also id. at 24. DISH also alleges that the guidance in various respects
misstates “the meaning and application of the common-law agency doctrine,”
and suffers from arbitrary internal inconsistencies. Br. 18-19, 20. Finally,
DISH claims that the guidance unlawfully purports to reverse the applicable
burden of proof. Br. 21. If the Court considers the merits of DISH’s
challenge, it should reject these claims.
1. There is no basis for DISH’s claim that the Court should vacate the
FCC’s guidance solely on the ground that the agency lacks “expertise or
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authority” over agency principles.15 Whether or not the Commission’s
guidance regarding the content of common-law agency principles is entitled
to Chevron deference, it was well within the agency’s statutory authority to
offer such guidance. First, the Commission reasonably determined – and
DISH does not dispute (Br. 3) – that the TCPA incorporates common-law
agency principles of vicarious liability into the statute itself. Moreover, as
outlined above (at pp. 6-7) and as the Supreme Court has confirmed, the
Communications Act authorizes the Commission to implement the TCPA in
multiple ways, including through the adoption of regulations, Mims, 132 S.
Ct. at 746 (citing 47 U.S.C. § 227(b)(2) & 227(c)), through civil actions in
court and administrative enforcement actions, id. at 746 n.4 (citing 47 U.S.C.
§§ 227(g)(7), 503(b), 504(a)), and through declaratory ruling proceedings to
terminate controversies or remove uncertainty, see 5 U.S.C. § 554(e), 47

15 None of the cases DISH cites (Br. 22-25) stands for the proposition that
agency findings regarding the application of agency principle to particular
factual settings are per se reversible as outside the agency’s expertise.
Indeed, the cited National Labor Relations Board cases – which involved
questions of whether individuals were “employees” or “independent
contractors” under agency principles – were not even subject to de novo
review. Rather, the courts acknowledged that the NLRB determinations at
issue would be upheld if they reflected the agency’s “choice between two
fairly conflicting views,” even if the court, on its own, would have come to a
different conclusion. NLRB v. United Ins. Co. of Am., 390 U.S. 254, 260
(1968); accord C.C. Eastern, Inc. v. NLRB, 60 F.3d 855, 858 (D.C. Cir.
1995).
31

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C.F.R. § 1.2(a). Indeed, this declaratory ruling proceeding was commenced
precisely for the purpose of removing uncertainty in response to a Sixth
Circuit primary jurisdiction referral. See Charvat, 630 F.3d at 465-68.
Even apart from its statutory authority to interpret the TCPA (which
should be sufficient to dispose of DISH’s argument), the FCC also had sound
reasons to voice its views on the basis of its experience both in examining
“the circumstances in which telemarketing call[s] may arise on behalf of
sellers” and “in applying Congress’s goals” under the TCPA. Order ¶ 46
n.137 (A477). Such guidance helps serve a central purpose of the TCPA, i.e.,
promoting uniformity of regulation in telemarketing. See Mims, 132 S. Ct. at
751; see also Order ¶ 36 n.107 (A472-73) (compiling TCPA legislative
history reflecting Congressional intent to promote uniformity of regulation).
And the agency’s knowledge of the telemarketing industry – acquired in the
course of interpreting and enforcing the TCPA16 – is particularly pertinent,
because determining the existence of agency relationships is highly fact-
based and contextual. See p. 28, above. Accordingly, if it finds the guidance

16 A list of the numerous FCC enforcement actions regarding the TCPA’s
robocall and do-not-call restrictions may be found on the Commission’s
website. See, e.g., http://transition.fcc.gov/eb/tcd/DNCall.html (listing FCC
enforcement actions regarding do-not-call restrictions);
http://transition.fcc.gov/eb/tcd/tsol.html (listing FCC enforcement actions
regarding robocall restrictions); http://transition.fcc.gov/eb/tcd/Robocall.html
(listing additional FCC enforcement actions regarding robocall restrictions).
32

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to be reviewable, the Court not only should reject DISH’s ultra vires claim;
the Court also should, at a minimum, accord that guidance “respect”
commensurate with its “power to persuade.” Christensen v. Harris Cty., 529
U.S. at 587 (quoting Skidmore v. Swift & Co., 323 U.S. at 140).
2. DISH contends generally that the Commission’s examples of
evidence that “may” support vicarious seller liability are inconsistent with
agency principles in various respects and otherwise are arbitrary and
capricious. In this regard, it is notable that DISH does not challenge part of
the guidance at all – i.e., the statement that “a seller would be responsible
under the TCPA for the unauthorized conduct of a third-party telemarketer
that is otherwise authorized to market on the seller’s behalf if the seller knew
(or reasonably should have known) that the telemarketer was violating the
TCPA on the seller’s behalf and the seller failed to take effective steps within
its power to force the telemarketer to cease that conduct.” Order ¶ 46
(A477). Indeed, as the Commission noted (id. n.138 (A477)), DISH
acknowledged below that such conduct could form a basis for vicarious seller
liability. As explained below, DISH’s complaints regarding the remaining
aspects of the Commission’s guidance are without merit.
DISH argues that the illustrative examples the Commission provided of
evidence that may support a finding of apparent authority – evidence that the
33

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telemarketer has access to the seller’s “information and systems,” can “enter
consumer information” into those systems, or may use the seller’s trade
name, service mark and telemarketing scripts – all ignore the common-law
requirement that the principal must make a “manifestation” that reasonably
leads the third party to believe that the actor is authorized to act on the
principal’s behalf. Br. 30; see also id. at 26-27. In DISH’s view, these
examples all focus on “interactions between the principal and the purported
agent of which the injured party would be wholly unaware.” Br. 30
As the Commission explained, however, “a principal’s manifestation”
need not “be directed to a specific third party in a communication made
directly to that person.” Order ¶ 34 n.102 (A471-72) (quoting Restatement
(Third) of Agency § 2.03, reporter’s note a (2006)). Instead, a principal may
create apparent authority in multiple ways, including “by appointing a person
to a particular position” or by “permit[ting] an agent to acquire a reputation of
authority … by acquiescing in conduct by the agent under circumstances
likely to lead to a reputation.” Id. (quoting Restatement (Third) of Agency §
2.03 cmt. c (2006)). Thus, DISH ignores case law establishing that a finding
of apparent authority may be supported by, among other factors, a principal’s
decision “to take a role of minimum involvement” with third parties while
making the agent the lone (or almost the lone) interface with such parties.
34

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NLRB v. Kentucky Tennessee Clay Co., 295 F.3d 436, 445 (4th Cir. 2002)
(finding employees apparent agents for union); Walker v. Pacific Mobile
Homes, Inc., 413 P.2d 3, 5 (Wash. 1966) (salesman’s “solitary presence in the
company office and about the lot on several occasions,” among other factors,
“allowed a person of ordinary business prudence to reasonably assume that
the salesman had authority” to receive trailers on consignment). As pertinent
here, a marketing business model in which the principal initially eschews
direct interaction with potential customers and farms out the marketing
function to third-party telemarketers that use the seller’s trade name and can
access the seller’s price lists and internal systems may similarly clothe the
telemarketer with apparent authority.
Moreover, as noted above, questions regarding “whether a … third
party would believe that an agent had the authority or the right to do a
particular act” and “whether such belief is traceable to a manifestation of the
principal” are generally for the trier of fact. Restatement (Third) of Agency §
2.03 cmt. d (2006); see also DBI Architects, P.C. v. American Express
Travel-Related Servs. Co., Inc., 388 F.3d 886, 890 (D.C. Cir. 2004) (“The
existence of apparent authority is a question of fact that should normally be
left to the jury.”). A consumer might reasonably assume that a telemarketer
that provides detailed price quotes, uses the seller’s trade name and service
35

USCA Case #13-1182 Document #1465249 Filed: 11/07/2013 Page 46 of 84
mark, and promises to submit customer orders is doing so because the
principal has made its systems available to the telemarketer – an indirect
manifestation by the principal that the telemarketer in fact is authorized to
make the call. See Restatement (Third) of Agency § 2.03, reporter’s note a
(2006) (Third Restatement “eliminate[s] any inference that, to create apparent
authority, a principal’s manifestation must be directed to a specific third
person in a communication made directly to that person”) (emphasis added).
Indeed, DISH argues (Br. 33-34) that sellers commonly give telemarketers
such access.
DISH further asserts that the Commission effectively acknowledged
that factors such as access to price lists and internal systems are not relevant
manifestations of the authority of the seller, when it stated that plaintiffs
could acquire such information through discovery if they were not privy to
that information at the time the complaint is filed. Br. 31 (citing Order ¶ 46
(A478)). That is so, according to DISH, because apparent authority “is
measured by the injured person’s understanding at the time of the relevant
event.” Br. 31. As previously explained, however, it may be reasonable for
the consumer to believe – and to reasonably allege – that a telemarketer that
provides detailed price quotes, uses the seller’s trade name and service mark,
and promises to submit customer orders is doing so because the seller
36

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manifested the telemarketer’s authority to do so by making the seller’s
systems available to the telemarketer. Discovery provides a way for the
consumer to confirm that the indirect manifestation actually occurred as the
consumer alleges (i.e., that the seller actually gave the telemarketer access
and thus that the telemarketer could have acted as the consumer alleges), but
this vehicle for developing proof in no way refutes the possibility that the
consumer reasonably discerned the presence of apparent authority at the time
of the call. Conversely, it is open to the seller to prove that such access was
not provided and, accordingly, that there was no manifestation.
DISH contends that the manifestation required to establish apparent
authority must be of authority “specifically to engage in unlawful
telemarketing on the seller’s behalf,” and that the examples the Commission
provided in paragraph 46 of the Order represent, at most, evidence that the
telemarketer may market a seller’s services under some (lawful)
circumstances. Br. 33 (emphasis added). However, if the telemarketer is
using the seller’s systems, pricing information, trade name and service mark
in the course of its telemarketing – actions that reasonably may reflect the
seller’s indirect manifestation to the consumer of having made those systems
and information available to the telemarketer – it would not be unreasonable
for the called party to assume that the manifestation covers not just lawful
37

USCA Case #13-1182 Document #1465249 Filed: 11/07/2013 Page 48 of 84
marketing, but the actual call being made even if it turns out the call was
unlawful.
Courts have reached similar conclusions in analogous circumstances.
For instance, “[n]early every jurisdiction that has addressed a factual situation
where a [credit] cardholder voluntarily and knowingly allows another to use
his card and that person subsequently misuses the card … has determined that
the agent had apparent authority.” Steiger v. Chevy Chase Sav. Bank, F.S.B.,
666 A.2d 479, 482-83 (1995) (cataloguing authority) (quotation marks and
citations omitted). In such cases, not only is the cardholder liable for
unauthorized charges by the person to whom the cardholder relinquishes the
card, but also the relevant (and sufficient) manifestation of the cardholder
may consist solely of the indirectly expressed representation (attributable to
the agent’s possession of the card) that the agent is an authorized user.17
Nevertheless, that manifestation is sufficient because the cardholder principal
“place[d] the agent in such a position as to mislead third persons into
believing that the agent was clothed with authority.” Id. at 482. See also DBI
Architects, 388 F.3d at 890 (citing Steiger test for apparent authority with
approval).

17 No such manifestation would exist if the card were stolen, rather than
voluntarily relinquished by the cardholder, and the cardholder may avoid
liability by showing that the card was stolen. Steiger, 666 A.2d at 483.
38

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More generally, it is well-established that “[r]estrictions on an agent’s
authority that are known only to the principal and the agent do not defeat or
supersede the consequences of apparent authority,” Restatement (Third) of
Agency § 2.03 cmt. c (2006). Thus, as the Commission properly noted, “the
presence of contractual terms purporting to forbid a third-party marketing
entity from engaging in unlawful telemarketing activities would not, by
themselves, absolve the seller of vicarious liability.” Order ¶ 34 n.102
(A471-72).18
DISH contends (Br. 33-34) that factors such as access to the seller’s
pricing information, use of the seller’s trade name and service mark and
access to the seller’s sales and customer systems are present in most every
case in which a retailer sells the products or services of another entity and that
apparent authority cannot reasonably be predicated on such common
arrangements. As an initial matter, nothing in paragraph 46 says that the

18 DISH cites NLRB v. Downtown Bid Servs. Corp., 682 F.3d 109, 113
(D.C. Cir. 2012) and Bridgeview Health Care Ctr. Ltd v. Clark, 2013 WL
1154206 at *5-7 (N.D. Ill. Mar. 19, 2013) for a contrary conclusion here. Br.
32. However, the pertinent employees’ unlawful harassing conduct at issue
in Downtown Bid Services went well beyond the scope of the union’s
manifestation with respect to those employees’ authority. And the court in
Bridgeview Health Care was not addressing apparent authority at all. See
Bridgeview Health Care Ctr.
, 2013 WL 4495221 at *1 (noting that prior
opinion was based on pre-Order assumption that vicarious liability “was
limited to circumstances of actual authority or ratification”).
39

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presence of any one of the identified factors, by itself, would be enough to
establish an agency relationship; instead, that paragraph simply identifies
circumstances that are relevant to the agency inquiry. Moreover, assuming
that the identified relationships between sellers and telemarketers are
common in the telemarketing context, the fact that such telemarketing ties
may be routine does nothing to diminish their potential relevance under
apparent authority theory. In either case, by employing third-party
telemarketers in this manner, the seller puts them “in such a position as to
mislead third persons into believing that the [telemarketer] is clothed with
authority.” Steiger, 666 A.2d at 482; DBI Architects, 388 F.3d at 890.
Nor does the frequency with which apparent authority might arise
convert it into strict liability. See Br. 40. Liability would still be dependent
upon a trier of fact’s finding that the identified factors actually occurred and
constituted manifestations of the seller, and that the consumer reasonably
40

USCA Case #13-1182 Document #1465249 Filed: 11/07/2013 Page 51 of 84
concluded, on the basis of those manifestations, that the telemarketer was
authorized to act on the seller’s behalf.19
DISH also argues that the illustrative examples provided in paragraph
46 of the Order violate common-law agency principles because they fail to
establish that the seller had the right to control the telemarketer’s activities.
Br. 34-36. Contrary to DISH’s underlying premise, proof of the right of
control is not a necessary predicate for liability under apparent authority or
ratification. Compare Restatement (Third) of Agency § 1.01 (2006) (defining

19 Relatedly, the Commission in the Order “reject[ed] DISH’s contention
… that vicarious liability beyond strict, classical agency relationships would
extend seller liability to the marketing by ‘big box stores and national dealers
(such as Best Buy, Sears, etc.) who sell numerous manufacturers’ products
(such as Sony televisions, Whirlpool appliances, etc.).’” Order ¶ 45 (A477)
(quoting DISH Comments at 3 (A175)). While positing that big box
appliance hypothetical, DISH did not argue below that big box stores
marketed DISH’s own satellite television services. The Commission thus
reasonably found that DISH’s “hypothetical appear[ed] to bear no
relationship” its own “telemarketing model,” and noted further that to the
extent that a store is “selling on its own account – i.e., it has purchased goods
[e.g., televisions or appliances] from a manufacturer and is reselling them –
the manufacturer would not be a seller at all.” Id. In its appellate brief, DISH
now asserts that big box stores in fact do “sell DISH products” and “do not
purchase subscriptions to DISH’s satellite television service and then resell
those subscriptions ‘on their own account.’” Br. 36-37 & n.4 (emphasis
added). This change in DISH’s argument is barred by 47 U.S.C. § 405(a)
because it was not first presented to the Commission. See American Family
Ass’n v. FCC
, 365 F.3d 1156, 1166 (D.C. Cir. 2004) (section 405(a) bars the
Court “‘from considering any issue of law or fact upon which the
Commission has been afforded no opportunity to pass’”) (quoting 47 U.S.C.
§ 405(a)).
41

USCA Case #13-1182 Document #1465249 Filed: 11/07/2013 Page 52 of 84
classical agency as “the fiduciary relationship that arise when one person (a
‘principal’) manifests assent to another person (an ‘agent’) that the agent shall
act on the principal’s behalf and subject to the principal’s control”) with id. §
2.03 cmt. c (apparent authority theory “holds a principal accountable for the
results of third-party beliefs about an actor’s authority to act as an agent when
the belief is reasonable and is traceable to a manifestation of the principal”),
and id. § 4.01 cmt. b (“The sole requirement for ratification is a manifestation
of assent or other conduct indicative of consent by the principal.”).
Finally, DISH argues that the alleged disconnect between the
Commission’s guidance and proper common-law agency principles is
confirmed by the fact that the guidance is drawn from a list of factors that the
Department of Justice proposed as an alternative to agency principles. Br.
37-40 (citing DOJ October 26, 2011 Ex Parte Letter at 5-6 (A345-346)). The
asserted disconnect, however, is illusory. Although DOJ urged the
Commission not to adopt agency principles into the TCPA “wholesale,” it
acknowledged that the factors it proposed “track some agency concepts used
42

USCA Case #13-1182 Document #1465249 Filed: 11/07/2013 Page 53 of 84
to determine secondary liability,”20 and it stated that “the agency law concept
closest to what the TCPA demands is that of ‘apparent authority.’”21
In sum, DISH has not established that the Commission’s general
guidance is inconsistent with agency principles.
3. There is no merit to DISH’s separate claim (Br. 40-41) that the
Commission’s guidance unlawfully imposes on the seller the burden of
disproving agency. In stating that evidence of the “kinds of relationships”
identified in paragraph 46 “should be sufficient to place upon the seller the
burden of demonstrating that a reasonable consumer would not sensibly
assume that the telemarketer was acting as the seller’s authorized agent”
(A477-78), the Commission was not suggesting that the consumer could
avoid the ultimate burden of persuasion regarding agency. See Restatement
(Third) of Agency § 1.02 cmt. d (2006) (noting that “the party asserting that a
relationship of agency exists generally has the burden in litigation of
establishing its existence”). Rather, the Commission was speaking only of
the distinct burden of moving forward with additional evidence.

20 DOJ November 15, 2011 Ex Parte Letter at 2-3 (A371-372); accord DOJ
November 30, 2011 Ex Parte Letter at 3-4 (A391-92).
21 DOJ October 26, 2011 Ex Parte Letter at 4 (A344).
43

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It is well settled that in adjudicatory proceedings the party “who holds
the ultimate burden of persuasion does not necessarily have the burden of
production.” Union Pac. R.R. Co. v. Surface Transp. Bd., 628 F.3d 597, 605
(D.C. Cir. 2010). Indeed, the burden of moving forward often switches back
and forth between the parties depending of the evidence submitted in support
of their positions. See, e.g., McFadden v. Ballard Spahr Andrews &
Ingersoll, LLP, 611 F.3d 1, 3 (D.C. Cir. 2010) (in Title VII case, “[i]f the
plaintiff establishes a prima facie case, the defendant must come forward with
a legitimate nondiscriminatory reason for its actions…, [and] if the defendant
meets its burden of production, the burden shifts back to the plaintiff”);
C.A.R. Transp. Brokerage Co., Inc. v. Darden Rests., Inc., 213 F.3d 474, 480
(9th Cir. 2000) (describing shifting burden of production on question of
agency); The Savanna Group, Inc. v. Trynex, Inc., 2013 WL 4734004 at *3
(N.D. Ill. Sept. 3, 2013) (noting in TCPA case involving claim of vicarious
liability that “[a]fter ‘a properly supported motion for summary judgment is
made, the adverse party must set forth specific facts showing that there is a
genuine issue for trial’”) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986)).
In context, the challenged statement simply asserts that the types of
illustrative evidence outlined in paragraph 46 are relevant to a finding of
44

USCA Case #13-1182 Document #1465249 Filed: 11/07/2013 Page 55 of 84
vicarious seller liability and may, in appropriate circumstances, impose upon
the seller a duty to explain why they do not support a finding of vicarious
liability. If, as shown above, such evidence is pertinent to vicarious liability
under common-law agency principles, the Commission’s statement poses no
conflict with the applicable burden of proof.

CONCLUSION

The petition for review should be dismissed. If not dismissed, the
petition for review should be denied.

Respectfully submitted,

SEAN A. LEV
GENERAL COUNSEL

JACOB M. LEWIS
ASSOCIATE GENERAL COUNSEL

/s/ Laurence N. Bourne

LAURENCE N. BOURNE
COUNSEL

FEDERAL COMMUNICATIONS
COMMISSION
WASHINGTON, D.C. 20554
(202) 418-1740
November 7, 2013
45

USCA Case #13-1182 Document #1465249 Filed: 11/07/2013 Page 56 of 84
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT


DISH NETWORK L.L.C.,
PETITIONER,
v.
NO. 13-1182
FEDERAL COMMUNICATIONS COMMISSION AND

UNITED STATES OF AMERICA,
RESPONDENTS.



CERTIFICATE OF COMPLIANCE

Pursuant to the requirements of Fed. R. App. P. 32(a)(7), I hereby
certify that the accompanying Brief for Federal Communications
Commission in the captioned case contains 9,723 words.

/s/ Laurence N. Bourne
Laurence N. Bourne
Counsel
Federal Communications Commission
Washington, D.C. 20554
(202) 418-1740 (Telephone)
(202) 418-2819 (Fax)
November 7, 2013



USCA Case #13-1182 Document #1465249 Filed: 11/07/2013 Page 57 of 84





















STATUTORY APPENDIX








28 U.S.C. § 2342(1)
28 U.S.C. § 2344

47 U.S.C. § 227
47 U.S.C. § 402(a)
47 U.S.C. § 405





USCA Case #13-1182 Document #1465249 Filed: 11/07/2013 Page 58 of 84
28 U.S.C. § 2342(1)




UNITED STATES CODE ANNOTATED
TITLE 28. JUDICIARY AND JUDICIAL PROCEDURE
PART VI. PARTICULAR PROCEEDINGS
CHAPTER 158. ORDERS OF FEDERAL AGENCIES; REVIEW


§ 2342. Jurisdiction of court of appeals

The court of appeals (other than the United States Court of Appeals for the
Federal Circuit) has exclusive jurisdiction to enjoin, set aside, suspend (in
whole or in part), or to determine the validity of--

(1) all final orders of the Federal Communications Commission made
reviewable by section 402(a) of title 47;

* * * * * *

USCA Case #13-1182 Document #1465249 Filed: 11/07/2013 Page 59 of 84
28 U.S.C. § 2344




UNITED STATES CODE ANNOTATED
TITLE 28. JUDICIARY AND JUDICIAL PROCEDURE
PART VI. PARTICULAR PROCEEDINGS
CHAPTER 158. ORDERS OF FEDERAL AGENCIES; REVIEW


§ 2344. Review of orders; time; notice; contents of petition; service

On the entry of a final order reviewable under this chapter, the agency shall
promptly give notice thereof by service or publication in accordance with its
rules. Any party aggrieved by the final order may, within 60 days after its
entry, file a petition to review the order in the court of appeals wherein
venue lies. The action shall be against the United States. The petition shall
contain a concise statement of--

(1) the nature of the proceedings as to which review is sought;

(2) the facts on which venue is based;

(3) the grounds on which relief is sought; and

(4) the relief prayed.

The petitioner shall attach to the petition, as exhibits, copies of the order,
report, or decision of the agency. The clerk shall serve a true copy of the
petition on the agency and on the Attorney General by registered mail, with
request for a return receipt.






USCA Case #13-1182 Document #1465249 Filed: 11/07/2013 Page 60 of 84
47 U.S.C. § 227




UNITED STATES CODE ANNOTATED
TITLE 47. TELEGRAPHS, TELEPHONES, AND
RADIOTELEGRAPHS
CHAPTER 5. WIRE OR RADIO COMMUNICATION
SUBCHAPTER II. COMMON CARRIERS
PART I. COMMON CARRIER REGULATION

§ 227. Restrictions on use of telephone equipment

(a) Definitions

As used in this section--

(1) The term “automatic telephone dialing system” means equipment
which has the capacity--

(A) to store or produce telephone numbers to be called, using a random
or sequential number generator; and

(B) to dial such numbers.

(2) The term “established business relationship”, for purposes only of
subsection (b)(1)(C)(i) of this section, shall have the meaning given the
term in section 64.1200 of title 47, Code of Federal Regulations, as in
effect on January 1, 2003, except that--

(A) such term shall include a relationship between a person or entity and
a business subscriber subject to the same terms applicable under such
section to a relationship between a person or entity and a residential
subscriber; and

(B) an established business relationship shall be subject to any time
limitation established pursuant to paragraph (2)(G))



USCA Case #13-1182 Document #1465249 Filed: 11/07/2013 Page 61 of 84
(3) The term “telephone facsimile machine” means equipment which has
the capacity (A) to transcribe text or images, or both, from paper into an
electronic signal and to transmit that signal over a regular telephone line,
or (B) to transcribe text or images (or both) from an electronic signal
received over a regular telephone line onto paper.

(4) The term “telephone solicitation” means the initiation of a telephone
call or message for the purpose of encouraging the purchase or rental of, or
investment in, property, goods, or services, which is transmitted to any
person, but such term does not include a call or message (A) to any person
with that person's prior express invitation or permission, (B) to any person
with whom the caller has an established business relationship, or (C) by a
tax exempt nonprofit organization.

(5) The term “unsolicited advertisement” means any material advertising
the commercial availability or quality of any property, goods, or services
which is transmitted to any person without that person's prior express
invitation or permission, in writing or otherwise.

(b) Restrictions on use of automated telephone equipment

(1) Prohibitions

It shall be unlawful for any person within the United States, or any person
outside the United States if the recipient is within the United States--

(A) to make any call (other than a call made for emergency purposes or
made with the prior express consent of the called party) using any
automatic telephone dialing system or an artificial or prerecorded voice--

(i) to any emergency telephone line (including any “911” line and any
emergency line of a hospital, medical physician or service office, health
care facility, poison control center, or fire protection or law
enforcement agency);

(ii) to the telephone line of any guest room or patient room of a
hospital, health care facility, elderly home, or similar establishment; or

(iii) to any telephone number assigned to a paging service, cellular
telephone service, specialized mobile radio service, or other radio


USCA Case #13-1182 Document #1465249 Filed: 11/07/2013 Page 62 of 84
common carrier service, or any service for which the called party is
charged for the call;

(B) to initiate any telephone call to any residential telephone line using an
artificial or prerecorded voice to deliver a message without the prior
express consent of the called party, unless the call is initiated for
emergency purposes or is exempted by rule or order by the Commission
under paragraph (2)(B);

(C) to use any telephone facsimile machine, computer, or other device to
send, to a telephone facsimile machine, an unsolicited advertisement,
unless--

(i) the unsolicited advertisement is from a sender with an established
business relationship with the recipient;

(ii) the sender obtained the number of the telephone facsimile machine
through--

(I) the voluntary communication of such number, within the context
of such established business relationship, from the recipient of the
unsolicited advertisement, or

(II) a directory, advertisement, or site on the Internet to which the
recipient voluntarily agreed to make available its facsimile number for
public distribution,

except that this clause shall not apply in the case of an unsolicited
advertisement that is sent based on an established business
relationship with the recipient that was in existence before July 9,
2005, if the sender possessed the facsimile machine number of the
recipient before such date of enactment; and

(iii) the unsolicited advertisement contains a notice meeting the
requirements under paragraph (2)(D),

except that the exception under clauses (i) and (ii) shall not apply with
respect to an unsolicited advertisement sent to a telephone facsimile
machine by a sender to whom a request has been made not to send future
unsolicited advertisements to such telephone facsimile machine that
complies with the requirements under paragraph (2)(E); or

USCA Case #13-1182 Document #1465249 Filed: 11/07/2013 Page 63 of 84

(D) to use an automatic telephone dialing system in such a way that two
or more telephone lines of a multi-line business are engaged
simultaneously.

(2) Regulations; exemptions and other provisions

The Commission shall prescribe regulations to implement the requirements
of this subsection. In implementing the requirements of this subsection, the
Commission--

(A) shall consider prescribing regulations to allow businesses to avoid
receiving calls made using an artificial or prerecorded voice to which
they have not given their prior express consent;

(B) may, by rule or order, exempt from the requirements of paragraph
(1)(B) of this subsection, subject to such conditions as the Commission
may prescribe--

(i) calls that are not made for a commercial purpose; and

(ii) such classes or categories of calls made for commercial purposes as
the Commission determines--

(I) will not adversely affect the privacy rights that this section is
intended to protect; and

(II) do not include the transmission of any unsolicited advertisement;

(C) may, by rule or order, exempt from the requirements of paragraph
(1)(A)(iii) of this subsection calls to a telephone number assigned to a
cellular telephone service that are not charged to the called party, subject
to such conditions as the Commission may prescribe as necessary in the
interest of the privacy rights this section is intended to protect;

(D) shall provide that a notice contained in an unsolicited advertisement
complies with the requirements under this subparagraph only if--

(i) the notice is clear and conspicuous and on the first page of the
unsolicited advertisement;


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(ii) the notice states that the recipient may make a request to the sender
of the unsolicited advertisement not to send any future unsolicited
advertisements to a telephone facsimile machine or machines and that
failure to comply, within the shortest reasonable time, as determined by
the Commission, with such a request meeting the requirements under
subparagraph (E) is unlawful;

(iii) the notice sets forth the requirements for a request under
subparagraph (E);

(iv) the notice includes--

(I) a domestic contact telephone and facsimile machine number for
the recipient to transmit such a request to the sender; and

(II) a cost-free mechanism for a recipient to transmit a request
pursuant to such notice to the sender of the unsolicited advertisement;
the Commission shall by rule require the sender to provide such a
mechanism and may, in the discretion of the Commission and subject
to such conditions as the Commission may prescribe, exempt certain
classes of small business senders, but only if the Commission
determines that the costs to such class are unduly burdensome given
the revenues generated by such small businesses;

(v) the telephone and facsimile machine numbers and the cost-free
mechanism set forth pursuant to clause (iv) permit an individual or
business to make such a request at any time on any day of the week;
and

(vi) the notice complies with the requirements of subsection (d) of this
section;

(E) shall provide, by rule, that a request not to send future unsolicited
advertisements to a telephone facsimile machine complies with the
requirements under this subparagraph only if--

(i) the request identifies the telephone number or numbers of the
telephone facsimile machine or machines to which the request relates;

(ii) the request is made to the telephone or facsimile number of the
sender of such an unsolicited advertisement provided pursuant to

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subparagraph (D)(iv) or by any other method of communication as
determined by the Commission; and

(iii) the person making the request has not, subsequent to such request,
provided express invitation or permission to the sender, in writing or
otherwise, to send such advertisements to such person at such telephone
facsimile machine;

(F) may, in the discretion of the Commission and subject to such
conditions as the Commission may prescribe, allow professional or trade
associations that are tax-exempt nonprofit organizations to send
unsolicited advertisements to their members in furtherance of the
association's tax-exempt purpose that do not contain the notice required
by paragraph (1)(C)(iii), except that the Commission may take action
under this subparagraph only--

(i) by regulation issued after public notice and opportunity for public
comment; and

(ii) if the Commission determines that such notice required by
paragraph (1)(C)(iii) is not necessary to protect the ability of the
members of such associations to stop such associations from sending
any future unsolicited advertisements; and

(G)(i) may, consistent with clause (ii), limit the duration of the existence
of an established business relationship, however, before establishing any
such limits, the Commission shall--

(I) determine whether the existence of the exception under paragraph
(1)(C) relating to an established business relationship has resulted in a
significant number of complaints to the Commission regarding the
sending of unsolicited advertisements to telephone facsimile machines;

(II) determine whether a significant number of any such complaints
involve unsolicited advertisements that were sent on the basis of an
established business relationship that was longer in duration than the
Commission believes is consistent with the reasonable expectations of
consumers;

(III) evaluate the costs to senders of demonstrating the existence of an
established business relationship within a specified period of time and

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the benefits to recipients of establishing a limitation on such established
business relationship; and

(IV) determine whether with respect to small businesses, the costs
would not be unduly burdensome; and

(ii) may not commence a proceeding to determine whether to limit the
duration of the existence of an established business relationship before
the expiration of the 3-month period that begins on July 9, 2005.

(3) Private right of action

A person or entity may, if otherwise permitted by the laws or rules of court
of a State, bring in an appropriate court of that State--

(A) an action based on a violation of this subsection or the regulations
prescribed under this subsection to enjoin such violation,

(B) an action to recover for actual monetary loss from such a violation, or
to receive $500 in damages for each such violation, whichever is greater,
or

(C) both such actions.

If the court finds that the defendant willfully or knowingly violated this
subsection or the regulations prescribed under this subsection, the court
may, in its discretion, increase the amount of the award to an amount
equal to not more than 3 times the amount available under subparagraph
(B) of this paragraph.

(c) Protection of subscriber privacy rights

(1) Rulemaking proceeding required

Within 120 days after December 20, 1991, the Commission shall initiate a
rulemaking proceeding concerning the need to protect residential telephone
subscribers' privacy rights to avoid receiving telephone solicitations to
which they object. The proceeding shall--

(A) compare and evaluate alternative methods and procedures (including
the use of electronic databases, telephone network technologies, special

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directory markings, industry-based or company-specific “do not call”
systems, and any other alternatives, individually or in combination) for
their effectiveness in protecting such privacy rights, and in terms of their
cost and other advantages and disadvantages;

(B) evaluate the categories of public and private entities that would have
the capacity to establish and administer such methods and procedures;

(C) consider whether different methods and procedures may apply for
local telephone solicitations, such as local telephone solicitations of small
businesses or holders of second class mail permits;

(D) consider whether there is a need for additional Commission authority
to further restrict telephone solicitations, including those calls exempted
under subsection (a)(3) of this section, and, if such a finding is made and
supported by the record, propose specific restrictions to the Congress;
and

(E) develop proposed regulations to implement the methods and
procedures that the Commission determines are most effective and
efficient to accomplish the purposes of this section.

(2) Regulations

Not later than 9 months after December 20, 1991, the Commission shall
conclude the rulemaking proceeding initiated under paragraph (1) and shall
prescribe regulations to implement methods and procedures for protecting
the privacy rights described in such paragraph in an efficient, effective, and
economic manner and without the imposition of any additional charge to
telephone subscribers.

(3) Use of database permitted

The regulations required by paragraph (2) may require the establishment
and operation of a single national database to compile a list of telephone
numbers of residential subscribers who object to receiving telephone
solicitations, and to make that compiled list and parts thereof available for
purchase. If the Commission determines to require such a database, such
regulations shall--



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(A) specify a method by which the Commission will select an entity to
administer such database;

(B) require each common carrier providing telephone exchange service,
in accordance with regulations prescribed by the Commission, to inform
subscribers for telephone exchange service of the opportunity to provide
notification, in accordance with regulations established under this
paragraph, that such subscriber objects to receiving telephone
solicitations;

(C) specify the methods by which each telephone subscriber shall be
informed, by the common carrier that provides local exchange service to
that subscriber, of (i) the subscriber's right to give or revoke a notification
of an objection under subparagraph (A), and (ii) the methods by which
such right may be exercised by the subscriber;

(D) specify the methods by which such objections shall be collected and
added to the database;

(E) prohibit any residential subscriber from being charged for giving or
revoking such notification or for being included in a database compiled
under this section;

(F) prohibit any person from making or transmitting a telephone
solicitation to the telephone number of any subscriber included in such
database;

(G) specify (i) the methods by which any person desiring to make or
transmit telephone solicitations will obtain access to the database, by area
code or local exchange prefix, as required to avoid calling the telephone

numbers of subscribers included in such database; and (ii) the costs to be
recovered from such persons;

(H) specify the methods for recovering, from persons accessing such
database, the costs involved in identifying, collecting, updating,
disseminating, and selling, and other activities relating to, the operations
of the database that are incurred by the entities carrying out those
activities;



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(I) specify the frequency with which such database will be updated and
specify the method by which such updating will take effect for purposes
of compliance with the regulations prescribed under this subsection;

(J) be designed to enable States to use the database mechanism selected
by the Commission for purposes of administering or enforcing State law;

(K) prohibit the use of such database for any purpose other than
compliance with the requirements of this section and any such State law
and specify methods for protection of the privacy rights of persons whose
numbers are included in such database; and

(L) require each common carrier providing services to any person for the
purpose of making telephone solicitations to notify such person of the
requirements of this section and the regulations thereunder.

(4) Considerations required for use of database method

If the Commission determines to require the database mechanism
described in paragraph (3), the Commission shall--

(A) in developing procedures for gaining access to the database, consider
the different needs of telemarketers conducting business on a national,
regional, State, or local level;

(B) develop a fee schedule or price structure for recouping the cost of
such database that recognizes such differences and--

(i) reflect the relative costs of providing a national, regional, State, or
local list of phone numbers of subscribers who object to receiving
telephone solicitations;

(ii) reflect the relative costs of providing such lists on paper or
electronic media; and

(iii) not place an unreasonable financial burden on small businesses;
and

(C) consider (i) whether the needs of telemarketers operating on a local
basis could be met through special markings of area white pages


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directories, and (ii) if such directories are needed as an adjunct to
database lists prepared by area code and local exchange prefix.

(5) Private right of action

A person who has received more than one telephone call within any 12-
month period by or on behalf of the same entity in violation of the
regulations prescribed under this subsection may, if otherwise permitted by
the laws or rules of court of a State bring in an appropriate court of that
State--

(A) an action based on a violation of the regulations prescribed under this
subsection to enjoin such violation,

(B) an action to recover for actual monetary loss from such a violation, or
to receive up to $500 in damages for each such violation, whichever is
greater, or

(C) both such actions.

It shall be an affirmative defense in any action brought under this
paragraph that the defendant has established and implemented, with due
care, reasonable practices and procedures to effectively prevent telephone
solicitations in violation of the regulations prescribed under this
subsection. If the court finds that the defendant willfully or knowingly
violated the regulations prescribed under this subsection, the court may,
in its discretion, increase the amount of the award to an amount equal to
not more than 3 times the amount available under subparagraph (B) of
this paragraph.

(6) Relation to subsection (b)

The provisions of this subsection shall not be construed to permit a
communication prohibited by subsection (b) of this section.

(d) Technical and procedural standards

(1) Prohibition

It shall be unlawful for any person within the United States--


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(A) to initiate any communication using a telephone facsimile machine,
or to make any telephone call using any automatic telephone dialing
system, that does not comply with the technical and procedural standards
prescribed under this subsection, or to use any telephone facsimile
machine or automatic telephone dialing system in a manner that does not
comply with such standards; or

(B) to use a computer or other electronic device to send any message via
a telephone facsimile machine unless such person clearly marks, in a
margin at the top or bottom of each transmitted page of the message or on
the first page of the transmission, the date and time it is sent and an
identification of the business, other entity, or individual sending the
message and the telephone number of the sending machine or of such
business, other entity, or individual.

(2) Telephone facsimile machines

The Commission shall revise the regulations setting technical and
procedural standards for telephone facsimile machines to require that any
such machine which is manufactured after one year after December 20,
1991, clearly marks, in a margin at the top or bottom of each transmitted
page or on the first page of each transmission, the date and time sent, an
identification of the business, other entity, or individual sending the
message, and the telephone number of the sending machine or of such
business, other entity, or individual.

(3) Artificial or prerecorded voice systems

The Commission shall prescribe technical and procedural standards for
systems that are used to transmit any artificial or prerecorded voice
message via telephone. Such standards shall require that--

(A) all artificial or prerecorded telephone messages (i) shall, at the
beginning of the message, state clearly the identity of the business,
individual, or other entity initiating the call, and (ii) shall, during or after
the message, state clearly the telephone number or address of such
business, other entity, or individual; and

(B) any such system will automatically release the called party's line
within 5 seconds of the time notification is transmitted to the system that


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the called party has hung up, to allow the called party's line to be used to
make or receive other calls.

(e) Prohibition on provision of inaccurate caller identification information

(1) In general

It shall be unlawful for any person within the United States, in connection
with any telecommunications service or IP-enabled voice service, to cause
any caller identification service to knowingly transmit misleading or
inaccurate caller identification information with the intent to defraud, cause
harm, or wrongfully obtain anything of value, unless such transmission is
exempted pursuant to paragraph (3)(B).

(2) Protection for blocking caller identification information

Nothing in this subsection may be construed to prevent or restrict any
person from blocking the capability of any caller identification service to
transmit caller identification information.

(3) Regulations

(A) In general

Not later than 6 months after December 22, 2010, the Commission shall
prescribe regulations to implement this subsection.

(B) Content of regulations

(i) In general

The regulations required under subparagraph (A) shall include such
exemptions from the prohibition under paragraph (1) as the
Commission determines is appropriate.

(ii) Specific exemption for law enforcement agencies or court orders

The regulations required under subparagraph (A) shall exempt from the
prohibition under paragraph (1) transmissions in connection with--

(I) any authorized activity of a law enforcement agency; or

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(II) a court order that specifically authorizes the use of caller
identification manipulation.

(4) Report

Not later than 6 months after December 22, 2010, the Commission shall
report to Congress whether additional legislation is necessary to prohibit
the provision of inaccurate caller identification information in technologies
that are successor or replacement technologies to telecommunications
service or IP-enabled voice service.

(5) Penalties

(A) Civil forfeiture

(i) In general

Any person that is determined by the Commission, in accordance with
paragraphs (3) and (4) of section 503(b) of this title, to have violated
this subsection shall be liable to the United States for a forfeiture
penalty. A forfeiture penalty under this paragraph shall be in addition to
any other penalty provided for by this Act. The amount of the forfeiture
penalty determined under this paragraph shall not exceed $10,000 for
each violation, or 3 times that amount for each day of a continuing

violation, except that the amount assessed for any continuing violation
shall not exceed a total of $1,000,000 for any single act or failure to act.

(ii) Recovery

Any forfeiture penalty determined under clause (i) shall be recoverable
pursuant to section 504(a) of this title.

(iii) Procedure

No forfeiture liability shall be determined under clause (i) against any
person unless such person receives the notice required by section
503(b)(3)of this title or section 503(b)(4) of this title.

(iv) 2-year statute of limitations

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No forfeiture penalty shall be determined or imposed against any
person under clause (i) if the violation charged occurred more than 2
years prior to the date of issuance of the required notice or notice or
apparent liability.

(B) Criminal fine

Any person who willfully and knowingly violates this subsection shall
upon conviction thereof be fined not more than $10,000 for each
violation, or 3 times that amount for each day of a continuing violation,
in lieu of the fine provided by section 501 of this title for such a
violation. This subparagraph does not supersede the provisions of section
501 of this title relating to imprisonment or the imposition of a penalty of
both fine and imprisonment.

(6) Enforcement by States

(A) In general

The chief legal officer of a State, or any other State officer authorized by
law to bring actions on behalf of the residents of a State, may bring a
civil action, as parens patriae, on behalf of the residents of that State in an
appropriate district court of the United States to enforce this subsection
or to impose the civil penalties for violation of this subsection, whenever
the chief legal officer or other State officer has reason to believe that the
interests of the residents of the State have been or are being threatened or
adversely affected by a violation of this subsection or a regulation under
this subsection.

(B) Notice

The chief legal officer or other State officer shall serve written notice on
the Commission of any civil action under subparagraph (A) prior to
initiating such civil action. The notice shall include a copy of the
complaint to be filed to initiate such civil action, except that if it is not
feasible for the State to provide such prior notice, the State shall provide
such notice immediately upon instituting such civil action.




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(C) Authority to intervene

Upon receiving the notice required by subparagraph (B), the Commission
shall have the right--

(i) to intervene in the action;

(ii) upon so intervening, to be heard on all matters arising therein; and

(iii) to file petitions for appeal.

(D) Construction

For purposes of bringing any civil action under subparagraph (A),
nothing in this paragraph shall prevent the chief legal officer or other
State officer from exercising the powers conferred on that officer by the
laws of such State to conduct investigations or to administer oaths or
affirmations or to compel the attendance of witnesses or the production
of documentary and other evidence.

(E) Venue; service or process

(i) Venue

An action brought under subparagraph (A) shall be brought in a district
court of the United States that meets applicable requirements relating to
venue under section 1391 of Title 28.

(ii) Service of process

In an action brought under subparagraph (A)--

(I) process may be served without regard to the territorial limits of the
district or of the State in which the action is instituted; and

(II) a person who participated in an alleged violation that is being
litigated in the civil action may be joined in the civil action without
regard to the residence of the person.




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(7) Effect on other laws

This subsection does not prohibit any lawfully authorized investigative,
protective, or intelligence activity of a law enforcement agency of the
United States, a State, or a political subdivision of a State, or of an
intelligence agency of the United States.

(8) Definitions

For purposes of this subsection:

(A) Caller identification information

The term “caller identification information” means information provided
by a caller identification service regarding the telephone number of, or
other information regarding the origination of, a call made using a
telecommunications service or IP-enabled voice service.

(B) Caller identification service

The term “caller identification service” means any service or device
designed to provide the user of the service or device with the telephone
number of, or other information regarding the origination of, a call made
using a telecommunications service or IP-enabled voice service. Such
term includes automatic number identification services.

(C) IP-enabled voice service

The term “IP-enabled voice service” has the meaning given that term by
section 9.3 of the Commission's regulations (47 C.F.R. 9.3), as those
regulations may be amended by the Commission from time to time.

(9) Limitation

Notwithstanding any other provision of this section, subsection (f) shall not
apply to this subsection or to the regulations under this subsection.

(f) Effect on State law

(1) State law not preempted


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Except for the standards prescribed under subsection (d) of this section and
subject to paragraph (2) of this subsection, nothing in this section or in the
regulations prescribed under this section shall preempt any State law that
imposes more restrictive intrastate requirements or regulations on, or
which prohibits--

(A) the use of telephone facsimile machines or other electronic devices to
send unsolicited advertisements;

(B) the use of automatic telephone dialing systems;

(C) the use of artificial or prerecorded voice messages; or

(D) the making of telephone solicitations.

(2) State use of databases

If, pursuant to subsection (c)(3) of this section, the Commission requires
the establishment of a single national database of telephone numbers of
subscribers who object to receiving telephone solicitations, a State or local
authority may not, in its regulation of telephone solicitations, require the
use of any database, list, or listing system that does not include the part of
such single national database that relates to such State.

(g) Actions by States

(1) Authority of States

Whenever the attorney general of a State, or an official or agency
designated by a State, has reason to believe that any person has engaged or
is engaging in a pattern or practice of telephone calls or other transmissions
to residents of that State in violation of this section or the regulations
prescribed under this section, the State may bring a civil action on behalf
of its residents to enjoin such calls, an action to recover for actual
monetary loss or receive $500 in damages for each violation, or both such
actions. If the court finds the defendant willfully or knowingly violated
such regulations, the court may, in its discretion, increase the amount of
the award to an amount equal to not more than 3 times the amount
available under the preceding sentence.



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(2) Exclusive jurisdiction of Federal courts

The district courts of the United States, the United States courts of any
territory, and the District Court of the United States for the District of
Columbia shall have exclusive jurisdiction over all civil actions brought
under this subsection. Upon proper application, such courts shall also have
jurisdiction to issue writs of mandamus, or orders affording like relief,
commanding the defendant to comply with the provisions of this section or
regulations prescribed under this section, including the requirement that the
defendant take such action as is necessary to remove the danger of such
violation. Upon a proper showing, a permanent or temporary injunction or
restraining order shall be granted without bond.

(3) Rights of Commission

The State shall serve prior written notice of any such civil action upon the
Commission and provide the Commission with a copy of its complaint,
except in any case where such prior notice is not feasible, in which case the
State shall serve such notice immediately upon instituting such action. The
Commission shall have the right (A) to intervene in the action, (B) upon so
intervening, to be heard on all matters arising therein, and (C) to file
petitions for appeal.

(4) Venue; service of process

Any civil action brought under this subsection in a district court of the
United States may be brought in the district wherein the defendant is found
or is an inhabitant or transacts business or wherein the violation occurred
or is occurring, and process in such cases may be served in any district in
which the defendant is an inhabitant or where the defendant may be found.

(5) Investigatory powers

For purposes of bringing any civil action under this subsection, nothing in
this section shall prevent the attorney general of a State, or an official or
agency designated by a State, from exercising the powers conferred on the
attorney general or such official by the laws of such State to conduct
investigations or to administer oaths or affirmations or to compel the
attendance of witnesses or the production of documentary and other
evidence.


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(6) Effect on State court proceedings

Nothing contained in this subsection shall be construed to prohibit an
authorized State official from proceeding in State court on the basis of an
alleged violation of any general civil or criminal statute of such State.

(7) Limitation

Whenever the Commission has instituted a civil action for violation of
regulations prescribed under this section, no State may, during the
pendency of such action instituted by the Commission, subsequently
institute a civil action against any defendant named in the Commission's
complaint for any violation as alleged in the Commission's complaint.

(8) “Attorney general” defined

As used in this subsection, the term “attorney general” means the chief
legal officer of a State.

(h) Junk Fax Enforcement report

The Commission shall submit an annual report to Congress regarding the
enforcement during the past year of the provisions of this section relating to
sending of unsolicited advertisements to telephone facsimile machines,
which report shall include--

(1) the number of complaints received by the Commission during such
year alleging that a consumer received an unsolicited advertisement via
telephone facsimile machine in violation of the Commission's rules;

(2) the number of citations issued by the Commission pursuant to section
503 of this title during the year to enforce any law, regulation, or policy
relating to sending of unsolicited advertisements to telephone facsimile
machines;

(3) the number of notices of apparent liability issued by the Commission
pursuant to section 503 of this title during the year to enforce any law,
regulation, or policy relating to sending of unsolicited advertisements to
telephone facsimile machines;

(4) for each notice referred to in paragraph (3)--

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(A) the amount of the proposed forfeiture penalty involved;

(B) the person to whom the notice was issued;

(C) the length of time between the date on which the complaint was filed
and the date on which the notice was issued; and

(D) the status of the proceeding;

(5) the number of final orders imposing forfeiture penalties issued pursuant
to section 503 of this title during the year to enforce any law, regulation, or
policy relating to sending of unsolicited advertisements to telephone
facsimile machines;

(6) for each forfeiture order referred to in paragraph (5)--

(A) the amount of the penalty imposed by the order;

(B) the person to whom the order was issued;

(C) whether the forfeiture penalty has been paid; and

(D) the amount paid;

(7) for each case in which a person has failed to pay a forfeiture penalty
imposed by such a final order, whether the Commission referred such
matter for recovery of the penalty; and

(8) for each case in which the Commission referred such an order for
recovery--

(A) the number of days from the date the Commission issued such order
to the date of such referral;

(B) whether an action has been commenced to recover the penalty, and if
so, the number of days from the date the Commission referred such order
for recovery to the date of such commencement; and

(C) whether the recovery action resulted in collection of any amount, and
if so, the amount collected.

USCA Case #13-1182 Document #1465249 Filed: 11/07/2013 Page 81 of 84
47 U.S.C. § 402(a)




UNITED STATES CODE ANNOTATED
TITLE 47. TELEGRAPHS, TELEPHONES, AND
RADIOTELEGRAPHS
CHAPTER 5. WIRE OR RADIO COMMUNICATION
SUBCHAPTER IV. PROCEDURAL AND ADMINISTRATIVE
PROVISIONS

§ 402. Judicial review of Commission's orders and decisions

(a) Procedure

Any proceeding to enjoin, set aside, annul, or suspend any order of the
Commission under this chapter (except those appealable under subsection
(b) of this section) shall be brought as provided by and in the manner
prescribed in chapter 158 of Title 28.

* * * * * *



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47 U.S.C. § 405




UNITED STATES CODE ANNOTATED
TITLE 47. TELEGRAPHS, TELEPHONES, AND RADIOTELEGRAPHS
CHAPTER 5. WIRE OR RADIO COMMUNICATION
SUBCHAPTER IV. PROCEDURAL AND ADMINISTRATIVE
PROVISIONS


§ 405. Petition for reconsideration; procedure; disposition; time of
filing; additional evidence; time for disposition of petition for
reconsideration of order concluding hearing or investigation; appeal of
order


(a) After an order, decision, report, or action has been made or taken in any
proceeding by the Commission, or by any designated authority within the
Commission pursuant to a delegation under section 155(c)(1) of this title,
any party thereto, or any other person aggrieved or whose interests are
adversely affected thereby, may petition for reconsideration only to the
authority making or taking the order, decision, report, or action; and it shall
be lawful for such authority, whether it be the Commission or other authority
designated under section 155(c)(1) of this title, in its discretion, to grant such
a reconsideration if sufficient reason therefor be made to appear. A petition
for reconsideration must be filed within thirty days from the date upon
which public notice is given of the order, decision, report, or action
complained of. No such application shall excuse any person from complying
with or obeying any order, decision, report, or action of the Commission, or
operate in any manner to stay or postpone the enforcement thereof, without
the special order of the Commission. The filing of a petition for
reconsideration shall not be a condition precedent to judicial review of any
such order, decision, report, or action, except where the party seeking such
review (1) was not a party to the proceedings resulting in such order,
decision, report, or action, or (2) relies on questions of fact or law upon
which the Commission, or designated authority within the Commission, has
been afforded no opportunity to pass. The Commission, or designated
authority within the Commission, shall enter an order, with a concise
statement of the reasons therefor, denying a petition for reconsideration or
granting such petition, in whole or in part, and ordering such further

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proceedings as may be appropriate: Provided, That in any case where such
petition relates to an instrument of authorization granted without a hearing,
the Commission, or designated authority within the Commission, shall take
such action within ninety days of the filing of such petition.
Reconsiderations shall be governed by such general rules as the Commission
may establish, except that no evidence other than newly discovered
evidence, evidence which has become available only since the original
taking of evidence, or evidence which the Commission or designated
authority within the Commission believes should have been taken in the
original proceeding shall be taken on any reconsideration. The time within
which a petition for review must be filed in a proceeding to which section
402(a) of this title applies, or within which an appeal must be taken under
section 402(b) of this title in any case, shall be computed from the date upon
which the Commission gives public notice of the order, decision, report, or
action complained of.

(b)(1) Within 90 days after receiving a petition for reconsideration of an
order concluding a hearing under section 204(a) of this title or concluding an
investigation under section 208(b) of this title, the Commission shall issue
an order granting or denying such petition.

(2) Any order issued under paragraph (1) shall be a final order and may be
appealed under section 402(a) of this title.



USCA Case #13-1182 Document #1465249 Filed: 11/07/2013 Page 84 of 84
13-1182

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

DISH NETWORK, LLC, PETITIONERS

v.

FEDERAL COMMUNICATIONS COMMISSION AND THE
UNITED STATES OF AMERICA, RESPONDENTS


CERTIFICATE OF SERVICE


I, Laurence N. Bourne, hereby certify that on November 7, 2013, I electronically
filed the foregoing Brief for Federal Communications Commission with the Clerk
of the Court for the United States Court of Appeals for the D.C. Circuit by using
the CM/ECF system. Participants in the case who are registered CM/ECF users
will be served by the CM/ECF system.


Barbara
A.
Miller
Abby
C.
Wright
Steven
Augustino
Mark
B.
Stern
Kelley, Drye & Warren, LLP

U.S. Department of Justice
3050 K Street, N.W.



Civil Division, Appellate Staff
Suite
400
950
Pennsylvania
Ave.,
N.W.
Washington,
D.C.
20007
Suite
7252
Counsel for: Dish Network
Washington,
D.C.
20530







Counsel for: USA
Samir C. Jain
Wilmer, Cutler, Pickering,
Hale, & Dorr, LLP
1875 Pennsylvania Ave., N.W.
Washington, D.C. 20006
Counsel for: Dish Network

/s/ Laurence N. Bourne

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