Full opinion text
OPINION AND ORDER MARBLEY, District Judge. I. INTRODUCTION This matter comes before the Court on the parties’ cross-motions for partial summary judgment. On February 24, 2006, Plaintiffs moved this Court for partial summary judgment as to the applicability of the Motor Carrier Exemption to Plaintiffs. On the same day, Defendant, Digital Dish, moved for summary judgment on the same issue. For the reasons set forth herein, the Court DENIES Plaintiffs’ Motion for Partial Summary Judgment and GRANTS Defendant’s Motion for Partial Summary Judgment. II. STATEMENT OF FACTS A. Background 1. Digital Dish Defendant Digital Dish (“Defendant” or “Digital Dish”) is a privately-held, family-owned corporation whose primary purpose is to act as the Ohio Regional Service Provider (“RSP”) for its parent company, DISH Network. Digital Dish possesses an exclusive license to deliver and install DISH Network equipment, which consists primarily of satellite dishes and receivers, in an area encompassing Ohio, and portions of Kentucky, Indiana, and West Virginia. Each of the three named plaintiffs, Dominic Musarra (“Musarra”), Kevin Klug (“Klug”) and Charles Everett, Jr. (“Everett”) (collectively “Plaintiffs”), worked for Digital Dish as a “satellite technician” (hereinafter “technician”) during the time period between June 2003 through December 2004. During that time period, Digital Dish employed approximately 300 such delivery and installation technicians. Technicians have a myriad of duties, and their primary responsibilities consist of building, installing, repairing, and removing digital satellite equipment for DISH Network customers. Digital Dish receives all of the goods that its technicians deliver, install, and service from out of state. DISH Network ships the goods via freight primarily from its facilities in Illinois, to pass onto its customers. DISH Network sends Digital Dish at least one or two tractor trailers of equipment each day. All incoming equipment goes to the Digital Dish distribution center in Millersburg, Ohio, and from there, is distributed to one of Digital Dish’s thirteen Ohio warehouses. To determine the amount of product to- ship to Digital Dish each day, DISH Network uses a formula based on the current needs of DISH Network customers in Digital Dish’s geographic area. DISH Network extends a “credit limit” reflecting the amount of equipment that Digital Dish may receive per week, based on the number of customer jobs in queue—in other words, on the number of customers in Digital Dish’s area of coverage who actually ordered product, made trouble calls, or requested changes and/or upgrades. Digital Dish earns the most “credit” for each new connection currently in the job queue, and these “new connects” account for the largest part of the “credit limit” of shipped goods. Digital Dish receives a lesser “credit” for each pending trouble call in its area and for each pending customer “change or upgrade.” To translate these “credits” into projected inventory requirements, DISH Network adds the above three “credit” categories together, doubles the result to account for inventory still in transit, and then multiplies by eighty percent. DISH Network then compares this “total credit” to Digital Dish’s current credit balance, re-evaluating the need for a higher credit limit when and if the numbers reveal an increase in customer installation or service activity. The amount of “credit” DISH Network extends to Digital Dish changes constantly, rising and falling according to customer demand. After the DISH Network equipment arrives at Digital Dish’s Millersburg distribution center, Digital Dish employees break it down and sort it by warehouse. Receivers and dishes arrive on pallets. Receivers come in their own individual box on pallets that contain 50 to 70 boxes, depending on the model size. Each pallet is wrapped entirely in plastic, which must be removed when the warehouse workers break the pallets down. The warehouse workers scan each piece of equipment and determine which of the Digital Dish warehouses will receive it. Digital Dish maintains three tractor-trailers to deliver equipment from the Millersburg, Ohio distribution facility to its other Ohio warehouses. DISH Network maintains tight control over the equipment it ships to Digital Dish, shipping only on a consignment basis, and retaining title to its equipment until it is delivered to customers. In order to determine how long an individual piece of equipment sits in Digital Dish’s warehouse, DISH Network also uses a tracking system based on the serial numbers of its equipment. Although DISH Network attaches a serial number to each piece of equipment it sends to Digital Dish, Digital Dish has its own tracking system as well. Pursuant to the Digital Dish system, Digital Dish assigns a second serial number to all incoming equipment before preparing it for distribution. DISH Network requires that Digital Dish retain equipment in its distribution centers for fewer than ten days before passing it onto DISH Network customers, and the equipment is usually transported to customers within three to four days. 2. Sales Referrals In general, a DISH Network customer who wants to purchase DISH Network equipment contacts DISH Network directly either by phone or through the Internet. Digital Dish concedes, however, that approximately 0.5% of its monthly installations arise from Digital Dish referrals rather than from customers’ direct contact with DISH Network. Digital Dish employs one “salesperson” at its Millersburg, Ohio distribution center. Customers can contact that salesperson by phone or by walking into the Millersburg facility. There is no counter service for walk-in customers, but there are signs erected in the Digital Dish office that read, “Ask About Dish Network Service.” If a person inquires about DISH Network, he or she is not guaranteed to become a DISH Network customer. If a person makes an inquiry, the Digital Dish salesperson contacts DISH Network who subsequently processes the person’s information through its system to determine whether to “accept” him as a new customer. If DISH Network approves the customer, the customer’s referral is processed as a standard DISH Network order. After installation on a sales referral is complete, DISH Network considers the referral “successful” and the referring salesperson receives a $5.00 commission. Technicians can also make sales referrals. If a technician refers a new customer to Digital Dish to purchase DISH Network equipment, once that customer has been approved and the DISH Network equipment has been successfully installed, the technician receives a $30.00 commission on the sale. Aside from these commissions, all money from Digital Dish sales referrals goes directly to DISH Network. 3. DISH Network’s Distribution of Work Orders to Digital Dish DISH Network distributes work orders to Digital Dish based on the application of a complex formula which works on a “point system.” Essentially, each Digital Dish technician who works in a particular geographic area represents a number of available “work points,” depending on his background, experience, skill set, and availability. Digital Dish maintains a computer system to which DISH Network has access, which allows DISH Network to assess the amount of “points” Digital Dish has available in any give geographic area within its assigned region. When DISH Network receives a customer order, it examines the number of “points” available in that customer’s geographic region, and if Digital Dish has sufficient points, DISH Network will forward the customer’s order to Digital Dish, which will then assign the order to a specific Digital Dish technician. Each day, Digital Dish e-mails the upcoming DISH Network orders to its technicians, assigning orders based on each technician’s geographic proximity to the customers. 4. Daily Tasks of a Technician Technicians typically receive their next day’s work orders in the evening and pre-call customers to schedule service appointments in advance. The Digital Dish warehouses open at approximately 7:00 a.m. each day. When a technician arrives at one of Digital Dish’s warehouses in the morning, he picks up the DISH Network equipment necessary to complete his day’s assigned work orders. Technicians also pick up consumable supplies from the warehouses, such as nuts, bolts, cable, and poles, much of which are shipped to Digital Dish by DISH Network. Prior to leaving the Digital Dish warehouse, technicians generally attach the mounting structure, arms, and certain lowmoise block feed-horns to satellite dishes to make more space in their trucks. Further, technicians often spend fifteen to twenty minutes downloading the necessary programs onto the receivers set for delivery, so they can save time once they arrive at a customer’s home. The warehouse worker scans all outgoing receivers and dishes, noting the DISH Network and Digital Dish serial numbers and the corresponding technician who took possession of the equipment. The worker also collects signed paperwork indicating that the technician actually received the equipment. The individual receivers and dishes are not assigned to a technician based on any specifically identified customer; each technician decides what receivers he needs based on his day’s work orders. Technicians also pull equipment in advance, and store it in their truck to use in subsequent service calls or, on occasion, to trade with other technicians. With the equipment in hand, each technician then sets out to complete his day’s schedule. In general, a technician’s primary task is the delivery and installation of DISH Network equipment, but technicians also do repairs, upgrades, and returns. Each technician completes approximately two to three installations per day. When installing satellites and receivers, a technician must mount a dish on the outside of the customer’s home and then activate the customer’s satellite service. The process depends on the serial number on the customer’s receiver which validates his or her satellite service, confirms his or her account with DISH Network, and acts as a tracking number so that DISH Network can establish that the customer is in good standing. Once the equipment is installed, the DISH Network serial number is linked to the particular customer and can only be changed by a call from a technician to DISH Network reporting a problem. After the technician completes a service call, he secures the customer’s approval on a DISH Network Customer Service Agreement and (in the case of satellite receiver equipment installations) activates the customer’s satellite subscription by contacting DISH Network. Only DISH Network can activate service. 5. Returns and Exchanges Returns, exchanges, and other servicing of DISH Network products are typically initiated by customers who call DISH Network to report equipment problems and/or a desire to secure an equipment upgrade. Returns can occur in a number of situations, including faulty receivers, upgraded receivers, and incorrectly installed receivers. After a customer makes his initial request for a return to DISH Network, a Digital Dish technician travels to the customer’s home to determine what is wrong with the system. If there is an equipment-related problem, Digital Dish notifies DISH Network, who then draws up a work order which Digital Dish subsequently assigns to a technician within the closest geographic area. Throughout each day, technicians intersperse their installations and deliveries with any assigned returns and/or exchanges. If a customer’s equipment is broken, technicians retrieve it and return it to their home Digital Dish facility. If, however, a customer requests a dish upgrade, technicians often use that customer’s old dish for a new customer. Warehouse employees then package and label some of the returns for shipping to DISH Network’s out-of-state facilities. For each such return, Digital Dish receives an addition to its “credit limit” from DISH Network. B. Procedural History On June 3, 2005, Plaintiffs filed a complaint against Digital Dish (the “Complaint”) alleging that the company’s system of compensation violated 29 U.S.C. §§ 206(a) and 207(a) of the Fair Labor Standards Act (“FLSA”), as well as various provisions of the Ohio Minimum Fair Wages Standards Act (“OMFWSA”), Ohio Rev Code. §§ 4111, et seq. Complaint ¶¶ 80-87. Plaintiffs seek declaratory, in-junctive and monetary relief in connection with Digital Dish’s alleged wrongful denial of overtime compensation for technicians. Id. at 15. On October 18, 2005, the parties agreed to limit initial discovery and proceedings to the issue of whether the Motor Carrier Act (“MCA”) exemption, 29 U.S.C. § 213(b)(1), applies to liability for overtime compensation under the FLSA. On February 17, 2006, the Court entered a stipulated protective order to protect certain knowledge obtained during discovery that contained confidential or proprietary information concerning Defendant or other businesses or customer information. The parties completed discovery and, on February 24, 2006, filed cross motions for summary judgment limited to the issue of the applicability of the MCA exemption. III. STANDARD OF REVIEW Summary judgment is appropriate “[i]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c). The movant has the burden of establishing that there are no genuine issues of material fact, which may be accomplished by demonstrating that the non-moving party lacks evidence to support an essential element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388-89 (6th Cir.1993). In response, the non-moving party must then present “significant probative evidence” to show that “there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris Cos., 8 F.3d 335, 339-40 (6th Cir.1993) (citations omitted). In evaluating a motion for summary judgment, the evidence must be viewed in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The Court also must interpret all reasonable inferences in the non-movant’s favor. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (stating that the court must draw all reasonable inferences in favor of the non-moving party and must refrain from making credibility determinations or weighing the evidence). The existence of a mere scintilla of evidence in support of the non-moving party’s position will not be sufficient; however, there must be evidence from which the jury reasonably could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Cope land v. Machulis, 57 F.3d 476, 479 (6th Cir.1995); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (finding summary judgment appropriate when “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party”). Finally, when parties file cross-motions for summary judgment, “the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist.” Parks v. LaFace Records, 329 F.3d 437, 444-45 (6th Cir.2003) (quoting B.F. Goodrich Co. v. United States Filter Corp., 245 F.3d 587, 593 (6th Cir.2001)). IV. ANALYSIS A. Background—the FLSA and the MCA The FLSA provides that any employee who “is engaged in commerce or in the production of goods for commerce” shall be paid a minimum of “one and one-half times the regular rate at which he is employed for every hour over forty hours he works in a workweek.” 29 U.S.C. § 207. But, under the MCA exemption, the FLSA exempts from its overtime pay requirement any employee subject to the Secretary of Transportation’s power to establish qualifications and maximum hours of service “pursuant to the provisions of § 204 of the [MCA] of 1934.” M§ 213(b)(1)., The MCA exemption applies to employees for whom the Secretary of Transportation may prescribe requirements for qualifications and maximum hours of service under the Motor Carrier Act, 49 U.S.C. § 31502. 29 U.S.C. § 213(b)(1) (2004). According to 49 U.S.C. § 31502, the MCA exemption applies to transportation set forth in 49 U.S.C. §§ 13501 and 13502, which provide that the Secretary of Transportation may prescribe requirements for qualifications and maximum hours of service for “motor carriers” and for “motor private carriers,” “when needed to promote the safety of operations.” See 49 U:S.C. § 31502(b). A “motor carrier” is a “person providing commercial motor vehicle (as defined in section 31132) transportation for compensation.” 49 U.S.C. § 13102(14). A “commercial motor vehicle” is: a self-propelled or towed vehicle used on the highways in interstate commerce to transport passengers or property, if the vehicle— (A) has a gross vehicle weight of at least 10,001 pounds, whichever is greater; (B) is designed or used to transport more than 8 passengers (including the driver) for compensation; (C) is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or (D) is used in transporting material found by the Secretary of Transportation to be hazardous under section 5103 of this title and transported in a quantity requiring placarding under regulations prescribed by the Secretary under section 5103. See 49 U.S.C. § 31132(1). It is undisputed that the trucks driven by Digital Dish technicians are not “commercial motor vehicles.” Accordingly, Plaintiffs are not “motor carriers.” Therefore, the question becomes whether Plaintiffs are “motor private carriers.” A “motor private carrier” is: a person, other than a motor carrier, transporting property by commercial motor vehicle (as defined in section 31122) when: (A) the transportation is as provided in section 13501 of this title; (B) the person is the owner, lessee, or bailee of the property being transported; and (C) the property is being transported for sale, lease, rent, or bailment or to further a commercial enterprise. 49 U.S.C. § 13102(15) (emphasis added). 49 U.S.C. § 13501(1), which governs the Secretary of Transportation’s jurisdiction under the MCA, provides: The Secretary and the Board have jurisdiction, as specified in this part, over transportation by motor carrier and the procurement of that transportation, to the extent that passengers, property, or both, are transported by motor carrier— (1) between a place in-—- (A) a State and a place in another State; (B) a State and another place in the same State through another State; (C) the United States and a place in a territory or possession of the United States to the extent the transportation is in the United States; (D) the United States and another place in the United States through a foreign country to the extent the transportation is in the United States; or (E) the United States and a place in a foreign country to the extent the transportation is in the United States See 49 U.S.C. § 13501 (“General jurisdiction”). B. Statutory Interpretation 1. Interpreting the Jurisdiction of the Secretary of Labor Under 49 U.S.C. § 31502 Before this Court can consider whether Plaintiffs qualify as “motor private carriers” covered by the MCA exemption, it must consider Plaintiffs’ argument that 49 U.S.C. § 31502 applies to “motor carriers” only. 49 U.S.C. § 31502(b) states that the Department of Labor (“DOL”) has the power to regulate the hours worked of both “motor carriers” and, when necessary, “motor private carriers.” See 49 U.S.C. § 31502(b) (“Motor carrier and private motor carrier requirements”). 49 U.S.C. § 31502(a) provides that the section applies to transportation described in sections 13501 and 13502 of title 49; however, section 13501 states that “[t]he Secretary and the Board have jurisdiction ... over transportation by motor carrier and the procurement of that transportation, to the extent that passengers, property, or both, are transported by motor carrier.” 49 U.S.C. § 13501 (emphasis added). According to Plaintiffs, because the plain language of section 13501 limits its description of interstate transportation to “motor carriers,” Congress did not intend the MCA exemption to apply to “motor private carriers.” In Friedrich v. U.S. Computer Servs., the Third Circuit rejected an identical argument by plaintiffs asserting claims for overtime pay under the FLSA. See 974 F.2d 409, 412-13 (3d Cir.1992). The Friedrich court explained that although sections 13501 and 13502 “speak only of ‘motor carriers,’ which are later defined as motor common carriers and motor contract carriers, 49 U.S.C. § 10102(13),” “section 3102(a)(1) simply refers to sections 10521 and 10522 for a description of the type of transportation subject to the DOT’s jurisdiction, that is interstate transportation,” and the plaintiffs’ proffered interpretation would “render section 3102(b)(2) meaningless.” See id. at 413. Moreover, in dicta, other courts, including the Sixth Circuit Court of Appeals, have interpreted section 31502(b)(2) as vesting the Secretary of Transportation with the authority to regulate the hours for employees who work for “motor private carriers” when necessary to “promote safety of operation.” See Vaughn v. Watkins Motor Lines, Inc., 291 F.3d 900, 904 (6th Cir.2002) (citing 49 U.S.C. § 31502(b)(2) as “providing that the Secretary of Transportation has the power to specify the maximum number of hours for employees who work for private motor carriers when needed to promote safety of operation”); see also Ballou v. DET Distrib. Co., 2006 WL 2035729, at *11 (M.D.Tenn. July 17, 2006) (same); Harrington v. Despatch Inds., L.P., 2005 WL 1527630, at *4, 2005 U.S. Dist. LEXIS 12781, at *12 (D. Mass. June 29, 2005) (“Under the MCA, the Secretary of Transportation is authorized to prescribe qualifications and maximum hours of service of employees of and standards of equipment of, a[’]motor private carrier,[’] when needed to promote safety of operation. 49 U.S.C. § 31502(b)(2).”). Based on the reasoning in Friedrich as well as other courts’ liberal interpretations of the statute, the Court finds unpersuasive Plaintiffs’ literal reading of 49 U.S.C. § 31502(b)(2). Thus, the Court holds that the statute provides the Secretary of Transportation with the power to regulate interstate transportation by both “motor carriers” and “motor private carriers.” 2. Whether the SAFETEA-LU Amendment Applies As set forth supra, the SAFETEA-LU Amendment, passed on August 10, 2005, altered the MCA exemption to eliminate drivers of all non-commercial motor vehicles from coverage. See supra, note 19. The parties agree that Digital Dish technicians’ tracks (if they have one) do not qualify as “commercial motor vehicles” under 49 U.S.C. § 31132(1). See supra, Part IV.A. The parties disagree, however, as to whether SAFETEA-LU applies to the instant case. Plaintiffs concede that they were Digital Dish employees before SAFE-TEA-LU was passed. Plaintiffs argue, however, that employees who worked for Digital Dish after the enactment of SAFE-TEA-LU might later opt into the suit, expanding the proposed class to include both pre-SAFETEA-LU and post-SAFE-TEA-LU employees. Defendants counter that Plaintiffs’ argument fails because the Court cannot certify a class action in which the class representative is not a part of and/or similarly situated to the rest of the class. As a threshold matter, the Court notes that retroactive application of SAFETEA-LU is highly disfavored. See Landgraf v. USI Film Prods., 511 U.S. 244, 280, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (“If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent dear congressional intent favoring such a re-suit.”); Michigan Ass’n of Governmental Employees v. Michigan Dep’t. of Corr., 992 F.2d 82, 84 (6th Cir.1993) (noting that “the FLSA does not authorize retroactive rule-making”). SAFETEA-LU does not include any language evincing Congressional intent to apply the amendment retroactively, and such a finding would result in confusion and unfairness as various individuals who until August 10, 2005 were exempt. Further, because the parties moved for summary judgment solely on the issue of whether Plaintiffs fell under the MCA exemption while working for Defendant, at this stage of the litigation, the Court need not decide whether SAFE-TEA-LU is applicable to other putative class members who may later opt into the suit. C. The MCA Exemption 1. The DOL’s Stipulation of Dismissal in Chao v. Digital Dish In 2004, the DOL, by way of the Secretary of Labor, Elaine L. Chao, sued Digital Dish, alleging that the company had violated federal wage and hour law, specifically section 207 of the FLSA by allegedly failing to pay overtime to certain Digital Dish employees. Chao v. Digital Dish, Inc., Case No. 5:04-cv-01793 (hereinafter, “Chao ”). On July 15, 2005, Digital Dish filed a Motion for Summary Judgment asserting that the MCA exemption nullified the FLSA claims at issue. On August 3, 3005, the DOL voluntarily dismissed the case, stating only: Plaintiff concludes that technicians employed by Defendant Digital Dish, Inc. are (and were, for all periods relevant to this case) exempt from the overtime requirements of the Fair Labor Standards Act under 29 U.S.C. [§ ] 213(b)(1). Therefore, pursuant to Rule 41(a)(1)(ii) of the Rules of Civil Procedure, the parties hereby agree that this matter be dismissed with prejudice, with the parties bearing their own costs. See Chao Stipulation of Dismissal. In its Motion, Defendant asserts that the DOL’s dismissal in Chao is entitled to significant judicial deference under Chevron USA Inc. v. Natural Res. Defense Council, Inc., and suggests that this Court should rely on the Chao dismissal to dismiss this instant case. See 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). At oral argument, however, counsel for Defendant conceded that though the DOL’s decision should be given “a lot of weight,” such weight does not amount to Chevron deference. Plaintiffs counter that the Chao stipulation of dismissal is not entitled to substantial deference under Chevron because it does not amount to a legislative or quasi-legislative act. Moreover, Plaintiffs note that the DOL’s “decision to dismiss the case appears to have been motivated by the fact that the [DOL] was itself a party to the case, as well as the author of various regulations and contradictory opinion letters.” Under Chevron, an agency’s interpretation of a statutory provision is accorded deference “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation was promulgated in the exercise of that authority.” United States v. Mead Corp., 533 U.S. 218, 226-27,121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (interpreting Chevron, 467 U.S. at 837, 104 S.Ct. 2778). The Court finds Chevron inapplicable to the instant case. America Online, Inc. v. AT & T Corp. is instructive on the issue. 243 F.3d 812 (4th Cir.2001). In AOL, plaintiff, AOL, sued defendant AT & T seeking preliminary and permanent injunctive relief for AT & T’s alleged infringement of its trademarks. 243 F.3d at 812. One of the trademarks at issue was AOL’s “Buddy List” trademark. Id. at 816. “AOL’s principal argument for the validity of ‘Buddy List’ as a ‘suggestive’ mark rested on the significance of its having obtained a certificate of registration from the Patent and Trademark Office (“PTO”).” Id. AOL argued that the district court erred in failing to give Chevron deference to the expert decision of the PTO to register the mark without requiring evidence of secondary meaning. Id. The Fourth Circuit disagreed, explaining that the PTO’s decision, which amounted to a quasi-adjudicatory action, rather than relating to the PTO’s statutory interpretation, related to principles “governed by administrative adjudications of mixed questions of law and fact.” Id. at 817 (emphasis added). Accordingly, the AOL court held that the PTO’s decision was not entitled to Chevron deference, and found instead that the PTO’s determination “ought not be reversed if it was supported by substantial evidence.” Id. As in AOL, the DOL’s stipulation of dismissal is more akin to a quasi-adjudicatory action than to a legislative action. The DOL’s decision, rather than interpreting 29 U.S.C. § 213(b), applies the MCA exemption to Chao to determine whether it is applicable—a mixed question of law and fact. Accordingly, as in AOL, the DOL’s determination ought not be reversed if it was supported by “substantial evidence.” The DOL’s stipulation of dismissal sets forth no evidence, let alone substantial evidence. The reader is given no indication as to why the MCA exemption applies, just that it does. Other courts to consider the applicability of the exemption have done so in detail. See, e.g., Friedrich, 974 F.2d at 409, Foxworthy v. Hiland Dairy Co., 997 F.2d 670 (10th Cir.1993); Billings v. Rolling Frito-Lay Sales, LP, 413 F.Supp.2d 817 (D.Tex.2006). Because there is no evidence to support the DOL’s finding that the MCA exemption applies to Digital Dish technicians, the Court will consider the merits of the parties’ arguments on the issue. 2. Whether the MCA Exemption Applies to Plaintiffs Exemptions from the FLSA are narrowly construed against employers and are to be withheld except as to persons “plainly and unmistakably” within their terms and spirit. Auer v. Robbins, 519 U.S. 452, 462, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997); Mitchell v. Kentucky Fin. Co., 359 U.S. 290, 295-96, 79 S.Ct. 756, 3 L.Ed.2d 815 (1959). Moreover, the employer bears the burden of proving that the exemption applies to the employee in question. Douglas v. Argo-Tech. Corp., 113 F.3d 67, 69 (6th Cir.1997). Accordingly, in order to invoke the MCA exemption, Digital Dish must produce sufficient evidence to show that: (1) Digital Dish is a “motor private carrier”; (2) Plaintiffs were (or could have been) engaged in activities that “affect the safe operation of motor vehicles on public highways”; and (3) Plaintiffs were (or could have been) called upon to transport goods in interstate commerce. See 49 U.S.C. § 31502 (defining the scope of the MCA exemption). Though the parties agree that Plaintiffs were engaged in' activities that affect the safe operation of motor vehicles on public highways, they dispute whether Digital Dish is a “motor private carrier,” and whether Plaintiffs transported goods in interstate commerce. a. Whether Digital Dish is a “Motor Private Carrier” As noted above, before the enactment of SAFETEA-LU, a “motor private carrier” was defined as: a person, other than a motor carrier, transporting property by motor vehicle when— (A) the transportation is as provided in section 13501 of this title; (B) the person is the owner, lesseé, or bailee of the property being transported; and (C) the property is being transported for sale, lease, rent or bailment or to further a commercial enterprise. See 49 U.S.C. § 31502(b)(2). Digital Dish is a “person ... transporting property by motor vehicle.” Id. Digital Dish is the “bailee of the property being transported” and “the property is being transported for sale ... or to fúrther a commercial enterprise.” See id. Thus, Digital Dish meets the requirements of a “motor private carrier” if, as set forth in 49 U.S.C. § 13501, it transports DISH Network goods in interstate commerce. It is undisputed that Digital Dish technicians performed their deliveries and installations solely within the state of Ohio; however, the Supreme Court has held that transportation within a single state may remain “interstate” in character when it forms a part of a “practical continuity of movement” across state' lines from the point of origin to the point of destination. Walling v. Jacksonville Paper Co., 317 U.S. 564, 568, 63 S.Ct. 332, 87 L.Ed. 460 (1943). The characterization of such transportation as interstate or intrastate depends upon the “essential character of the shipment.” Texas N.O.R.R. v. Sabine Tram Co., 227 U.S. 111, 33 S.Ct. 229, 57 L.Ed. 442 (1913). Moreover, a crucial factor in determining the character of a particular shipment is the “original and persisting intention of the shippers.” Baltimore & O.S.W.R.R. v. Settle, 260 U.S. 166, 174, 43 S.Ct. 28, 67 L.Ed. 189 (1922); see also Texas & N.O.R.R. v. Sabine Tram Co., 227 U.S. 111, 33 S.Ct. 229, 57 L.Ed. 442 (1913) (the time when a shipment of goods can be ascribed to interstate commerce is when shipment begins its transportation for destination in another state). i. Whether MC-48 or MC-207 Applies Though the parties agree that this Court’s inquiry centers on the issue of whether Digital Dish’s deliveries and installation indicate a “practical continuity of movement” across state lines, they disagree as to the proper test to apply to determine the “shipper’s intent” at the time of shipment. Plaintiffs assert that the Court should use the test developed by the ICC in 1957; whereas, Defendants advocate the use of an alternate test developed by the ICC in 1992. In 1957, the ICC formulated a three-prong test to aid in the determination of a shipper’s “fixed and persisting intent at the time of shipment,” where “the transportation was confined to points in a single State from a storage terminal of commodities which have had a prior movement by rail, pipeline, motor, or water from an origin in a different state.” 29 C.F.R. § 782.7 (citing Ex Parte No. MC-48 (71 M.C.C. 17, 29) (hereinafter, “MC-48”)). This test, which is also set forth in 29 C.F.R. 782.7(b)(2), provides that: There is no fixed and persisting intent [to ship via interstate commerce] where: (i) At the time of shipment there is no specific order being filled for a specific quantity of a given product to be moved through to a specific destination beyond the terminal storage, and (ii) the terminal storage is a distribution point or local marketing facility from which specific amounts of the product are sold or allocated, and (in) transportation in the furtherance of this distribution within the single State is specifically arranged only after sale or allocation from storage. 29 C.F.R. § 782.7(b)(2). In Baird v. Wagoner Transp. Co., the Sixth Circuit adopted the ICC’s 1957 test. 425 F.2d 407, 409 (6th Cir.1970). In Baird, the defendant, Standard Oil, shipped petroleum products from out-of-state to a terminal in Muskegon, Michigan, based upon its “sophisticated” forecasts of the needs of its Michigan customers. Id. at 409, 411. Customers placed their orders with Standard’s sales department either through requirements contracts or through regular or occasional individual orders. Id. These orders informed the terminal’s manager and the shipper of the quantities and destinations of upcoming deliveries. Id. Although Standard knew the identities of its Michigan customers, it did not know the exact amount of petroleum products each customer would order when it shipped its products to the Muske-gon terminal. Id. at 411. Using the ICC’s three-part test, the Sixth Circuit found that because (1) the final delivery arrangements were not made until after the product had been stored at the terminal, (2) the forecasts were mere estimates, not specific orders, and (3) the terminal’s “through-put rate” was only six times its capacity, the terminal where the products were shipped was essentially a “local marketing facility,” suggesting that the petroleum was not being transported in interstate commerce. Id. In subsequent years, a number of courts determined that other factors were relevant to the determination of whether there is a fixed and persisting intent to ship products in interstate commerce, including: the length of time movement of the product is interrupted by storage; whether the product distribution center has a low ‘through-put’ compared to its storage capability; whether the products are shipped on a ‘predetermined’ ordering cycle; whether the carrier is in continuous possession of the product until delivery; whether the product is processed or commingled in any way at the storage location; whether the final destination is designated by the out-of-state shipper or by an instate intermediator; whether the goods were intended for particular customers; and whether temporary storage simply provides an efficient opportunity to convert the means of delivery from one form of transportation to another. See Foxworthy, 997 F.2d at 672-73 (citing Middlewest Motor Freight Bureau v. I.C.C., 867 F.2d 458 (8th Cir.1989)); Texas v. United States, 866 F.2d 1546, 1556-57 (5th Cir.1989); Galbreath v. Gulf Oil Corp., 413 F.2d 941, 947 (5th Cir.1969). In 1990, the Fifth and Ninth Circuits noted that MC-48 has been “phased out,” and the Eighth Circuit specifically declined to adopt it, deeming it “outmoded.” Roberts v. Levine, 921 F.2d 804, 812 (8th Cir.1990) (finding the test used in Baird “outmoded” and declining to adopt it); California Trucking Ass’n v. I.C.C., 900 F.2d 208, 213 (9th Cir.1990) (“Even though the ICC has never explicitly stated that it was abandoning the more structured [1957] test, it appears that its use of that standard has been refined, if not phased out.”); Central Freight v. I.C.C., 899 F.2d 413, 421 (5th Cir.1990) (stating that ICC “appears to have implicitly recharacterized the applicable test”). These circuit courts approved the more recent test developed by the ICC in its 1986 decision, Armstrong World, Inc. v. I.C.C. See 2 I.C.C.2d 63, 69 (1986). In Armstrong, the ICC broadened the relevant inquiry to determine whether a shipper intended to transport goods in interstate commerce, explaining that: The determination of whether transportation between two points in [a] State is interstate (or foreign) or intrastate in nature depends on the “essential character” of the shipment ... Crucial to this determination is the shipper’s fixed and persisting intent at the time of shipment ... [and] is ascertained from all the facts and circumstances surrounding the transportation. Id. Moreover, in a 1992 Policy Statement and a subsequent 1994 administrative decision involving the delivery of petroleum products, the ICC established detailed guidelines to determine the intent of the shipper from the facts and surrounding circumstances. Policy Statement, No. MC-207, 8 I.C.C.2d 470, 1992 MCC LEXIS 50 (Apr. 27, 1992) (hereinafter, “MC-207”); Advantage Tank Lines, Inc., No. MC-C-30198, 10 I.C.C.2d 64 (Mar. 2, 1994). The Policy Statement was derived from cases decided by the ICC, federal courts, and the Supreme Court, which explained the differences between intrastate and interstate trucking services provided within a single state. The ICC outlined the following factors to “consider in establishing that the in-State for-hire transportation component is part of a continuing movement in interstate commerce.” See MC-207 at *4. First, the ICC explained that interstate intent may be found where: Although the shipper does not know in advance the ultimate destination of specific shipments, it bases its determination of the total volume to be shipped through the warehouse on projections of customer demand that have some factual basis, rather than a mere plan to solicit future sales within the State. The factual basis for projecting customer demand may include, but is not limited to, historic sales in the State, actual present orders, relevant market surveys of need. Id. Additionally, the ICC stated that the following factors were also indicative of interstate intent: (1) “no processing or substantial modification of substance occurs at the warehouse or distribution facility”; (2) “while in the warehouse, the merchandise is subject to the shipper’s control and direction as to the subsequent transportation”; (3) “modern systems allow tracking and documentation of most, if not all, of the shipments coming in and going out of the warehouse or distribution center”; (4) “the shipper or consignees must bear the ultimate payment for transportation charges even if the warehouse or distribution center directly pays the transportation charges to the carrier”; (5) “the warehouse utilized is owned by the shipper”; (6) “the shipments move through the warehouse pursuant to a storage in transit tariff provision.” Id. Most recently, on January 11, 2005, the DOL, upon consideration of a request for an opinion regarding certain intrastate delivery drivers, set forth factors to apply in determining whether the “fixed and persisting intent” of the shipper is that goods continue in interstate commerce when moving goods on a wholly intrastate leg of their journey, providing: 1.Even if a shipper does not know the ultimate destination of specific shipments, it bases its determination on the total volume to be shipped through the warehouse on projections of customer demand that have some factual basis, rather than a mere plan to solicit future sales within the State. This may include, but is not limited to, historical sales in the State, actual present orders, and relevant market surveys of need. 2. No processing or substantial product modification of substance occurs at the warehouse or distribution center. However, repackaging or reconfiguring (secondary packaging) may be performed. 3. While in the warehouse, the merchandise is subject to the shipper’s control and direction to the subsequent transportation. 4. Modern tracking systems allow tracking and documentation of most, if not all, of the shipments coming in and going out of the warehouse or distribution center. 5. The shipper or consignee must bear the ultimate payment for transportation charges even if the warehouse or distribution center directly pays the transportation charges to the carrier. 6. The shipments move through the warehouse pursuant to a storage in transit provision. See January 11, 2005 Opinion Letter, “Intra/interstate transportation of gasoline and section 13(b)(1)” FLSA2005-10 (citing 57 Fed.Reg. 19812, 19813 (May 8, 1992)); Advantage Tank Lines, Inc., No. MC-C-30198, 10 I.C.C.2d 64 (1993); Atlantic Indep. Union v. Sunoco, 2004 WL 1368808, at *7 (E.D.Pa. June 16, 2004). In their Motion, Plaintiffs argue that the Court should apply MC-48, while Defendant advocates for the application of MC-207. Plaintiffs assert that Baird remains good law in the Sixth Circuit, and is, therefore, entitled to deference by this Court. See 425 F.2d at 412. Defendant counters that though MC-48 has never been expressly overruled, other courts have deemed MC-48 outdated. See, e.g., Atlantic Indep. Union, 2004 WL 1368808, at *7, 2004 U.S. Dist. LEXIS 11223, at *19-23; Billings, at 821. The Atlantic Indep. Union court explained: Many reasons compel the application of the more recent test delineated by the ICC. First and foremost, the determination regarding whether the commerce at issue is interstate or intrastate has always been determined by a totality of the circumstances. Moreover, since its inception, many courts, including the Baird court that first adopted [MC-48], have treated the test merely as a starting point from which to look at the totality of circumstances and have looked to factors outside the three-part test in order to determine a shipper’s intent. Additionally, before the ICC revised its older test, three circuit courts noted that the 1957 test was outmoded. Finally the ICC is now using the flexible multi-factor test in its own decision. See id., at 2004 WL 1368808, *7, 2004 U.S. Dist. LEXIS 11223, *21-22 (internal citations omitted). Since its decision in Baird, the Sixth Circuit has not had occasion to revisit whether to apply MC-A18 or MC-207 in determining a shipper’s intent. Recently, however, a court within the Sixth Circuit considered the issue. See Ballou, 2006 WL 2035729, at *11. The Ballou court considered whether defendant DET’s beer distribution business qualified as interstate commerce when plaintiffs, various DET distributors, traveled only within Tennessee state lines. Id. at *1. Though the Ballou court adhered to Baird in adopting MC-48, in a lengthy footnote, it supplemented MC-48 with four of the seven factors set forth in MC-207. See id. at *11, n. 4. The Ballou court stated: The Court notes that in 1992, the ICC listed several factors in analyzing whether goods remain in interstate commerce beyond the terminal storage point. Those DOT factors include: (1) Whether the goods are ordered based on projections of customer demand that have some factual basis, including without limitation, historical sales, actual present orders, and relevant market surveys of need. (2) Whether the goods undergo processing or substantial product modification of substance while at the warehouse or distribution center, but repackaging or reconfiguring (secondary packaging) may be performed. (3) Whether while in the warehouse, the merchandise is subject to the shipper’s control and direction to the subsequent transportation. (4) Whether modern tracking systems allow tracking and documentation of most, if not all, of the shipments coming in and going out of the warehouse or distribution center. Id. (internal citations omitted). In harmony with the court in Ballou, this Court finds that in the face of modern advancements and new shipping techniques, MC^48 is not longer sufficient to determine a shipper’s intent accurately. Digital Dish’s shipping system is more similar to those modern systems at issue in the recent cases adopting MC-207 than the 1957 petroleum shipping system at issue in Baird. Accordingly, although this Court does not repudiate the rule in Baird, this Court finds Baird factually inapposite. Thus, in harmony with courts from other circuits and the ICC itself in ARMSTRONG, this Court will apply MC-207 to determine whether Digital Dish ships goods in interstate commerce. ii. Application of MC-207 As set forth above, MC-207 includes seven factors to use in determining whether the “fixed and persisting” intent of a shipper is that goods continue in interstate commerce when moving goods on a wholly intrastate leg of their journey, and by extension, whether the intrastate journey may be considered interstate in character. See MC-207. The Court recognizes that no particular factor is, in and of itself, determinative and notes that the Court’s analysis should be based upon the practical realities of the transportation at issue. See Northwest Terminal Elevator Ass’n. v. Minnesota Pub. Util. Comm’n., 576 F.Supp. 22, 25 (D.Minn.1983). With this in mind, the Court will consider each of the seven factors with regards to the facts at issue. 1) Determination of the Total Volume to be Shipped The Court must first consider whether the method DISH Network uses to determine the total volume of equipment to ship to Digital Dish each day is evidence that when DISH Network ships its equipment to Digital Dish, the company intends that equipment to continue in interstate commerce until it arrives at the homes of Ohio customers. Defendant asserts that DISH Network’s intent to ship equipment in interstate commerce is clear because the “credit system” it uses to determine the amount of equipment to ship to Digital Dish accurately projects customer demand to maintain a quick turn-around time. In other words, according to Defendant, because the “credit system” employed by DISH Network allows the company to ship specific types and models of equipment to Digital Dish warehouses in accordance with customer demand, DISH Network equipment moves from DISH Network facilities to Ohio customers quickly—on average, in fewer than ten days. Plaintiffs counter that DISH Network’s intent is not clear from its “credit system.” They assert that the DISH Network equipment to be installed in customer homes is “diverted and allocated several times after it has left interstate commerce, going through several warehouses in intrastate commerce, and by all accounts [is] not linked with a specific customer until” it has been successfully installed. Further, Plaintiffs claim that the ultimate destination of DISH Network equipment is actually determined by the technicians who install that equipment, not by DISH Network. This case is distinguishable from similar cases in which the shipper transports products that have been set aside for a specific customer. See Klitzke v. Steiner Corp., 110 F.3d 1465 (9th Cir.1997) (local delivery driver for linen service that ordered roughly half of the materials it supplied from out-of-state suppliers, based on specific customers’ orders delivered goods in interstate commerce); Badgett v. Rent-Way, Inc., 350 F.Supp.2d 642 (W.D.Pa.2004) (plaintiff was covered by the MCA exemption when the items shipped by defendant distributor to local warehouses were already earmarked for specific customers); Hutson v. Rentr-A-Center, Inc., 209 F.Supp.2d 1353 (M.D.Ga.2001) (products delivered both in-state and out-of-state were shipped by vendors pursuant to specific customer orders). Though Defendant contends that its system is rooted in a calculation of present customer need, it is based on estimates of customers’ needs. When DISH Network ships its equipment to Digital Dish warehouses in Ohio, the equipment is not sent with a specific customer in mind. Though DISH Network know that the equipment will be going to one of Digital Dish’s Ohio warehouses, beyond that, the equipment’s final destination in Ohio is unknown. In fact, the equipment’s destination is unknown even after the equipment has been pulled for installation by a technician. It is only after that equipment has been successfully installed in a customer’s home and activated by DISH Network that it has come to rest. Despite the fact that DISH Network may not know exactly which of its customers is set to receive each item it ships to Digital Dish, the Supreme Court has ruled that the MCA exception can still apply where goods are shipped based on an anticipation or understanding of the needs of specific customers. See Morris v. McComb, 332 U.S. 422, 431-32, 68 S.Ct. 131, 92 L.Ed. 44 (1947); see also, Jacksonville Paper, 317 U.S. at 570, 63 S.Ct. 332 (leaving open the possibility that shipments purchased in anticipation of the needs of certain customers might remain in interstate commerce when delivered instate, observing that “a wholesaler’s course of business based on anticipation of needs of specific customers, rather than on prior orders or contracts,” might “at times be sufficient to establish that practical continuity in transit necessary to keep a movement of goods ‘in commerce.’ ”). Thus, DISH Network’s “credit system,” which allows DISH Network to estimate the present need of customers based on the service needs of its customers may be sufficient to establish that the company intends to ship equipment in interstate commerce. Defendant’s “credit system” is similar to those at issue in Talton v. Caffey Distrib. Co., Inc, 124 Fed.Appx. 760 (4th Cir.2005) and Guyton v. The Schwan Food Co., 2004 WL 533942, 2004 U.S. Dist. LEXIS 4174 (D.Minn. Mar. 16, 2004), both cases in which courts have found that defendants’ systems of estimated customer need were sufficient to establish their intent to ship goods in interstate commerce. In Talton, plaintiff was a former delivery route driver for a malt beverage and wine wholesaler/distributor, licensed by the state as the exclusive distributor of certain brewer’s products in a number of North Carolina counties. Id. at 761-62. The defendant received its beer from various manufacturers inside and outside North Carolina, as well as from outside the United States. Id. The beer was delivered from the brewer to the defendant distributor’s warehouse, and was then sold and distributed to retailers. Id. In order to determine how much product a retailer would need on an upcoming delivery, defendant’s sales representatives would estimate that retailer’s product needs by talking to retailer managers, and/or analyzing sales data, specifically, a retailer’s current inventory and sales history. Id. at 762. The Fourth Circuit concluded that the goods were delivered in interstate commerce, in relevant part because, “the licensed retailers had an ‘understanding’ with [defendant] that [defendant] was required to provide them with enough beer to meet their sales needs.” Id. at 766. The court explained, “Talton’s contention that the products that he carried could not remain in interstate commerce because they were not specifically ordered by [defendant’s] customers contravenes Jacksonville Paper itself. There, the Supreme Court recognized that goods could be ordered pursuant to an ‘understanding,’ though not part of a specific order.’ ” Id. at 765. Thus, though no one case or keg of beer was earmarked for a certain retailer upon distribution, defendant’s understanding with the retailers that it would supply it with its necessary inventory was sufficient to establish that the beer was intended for shipment in interstate commerce. Id. at 765-66. In Guyton, the court considered whether plaintiffs, former sales managers for defendant, the nation’s largest home delivery frozen food company, delivered goods in interstate commerce, thereby qualifying for the MCA exemption. See 2004 WL 533942, at 4-7,- 2004 U.S. Dist. LEXIS, at *11-18. Defendant shipped its products in caselots to one of its four U.S. distribution centers, from where the caselots were then shipped to one of defendant’s depots via long-haul, over-the-road trucks. See id. at 2004 WL 533942, *1-2, 2004 U.S. Dist. LEXIS, *3-4. Once the food products reached a depot, the caselots were unloaded and broken down into smaller individual sales unit within one to three, days, and stored for less than ten days, at which point they were delivered to Schwan’s customers. Id. at 2004 WL 533942, *1-2, 2004 U.S. Dist. LEXIS, *4. Defendant based the amount of food product it shipped from the distribution centers to the depots on “standing customer orders, historic buying patterns, ... predicted sales to targeted residential customers,” and/or internet sales. Id. at 2004 WL 533942, *1-2, 2004 U.S. Dist. LEXIS, *4-5. Defendant also uploaded the data from each sales order into a central database “that analyzefd] past sales to predict future sales with 95% accuracy.” Id. at 2004 WL 533942, *2, 2004 U.S. Dist. LEXIS, *5. Relying on the Eighth Circuit’s decision in Roberts v. Levine, the Guyton, court found that because the food items were transported to storage facilities on a temporary basis and then distributed in-state based on customer orders, though the goods had not been consigned to any specific customer at the time of shipment, the goods were transported in interstate commerce. See id. at 2004 WL 533942, *5, 2004 U.S. Dist. LEXIS, *14 (citing Roberts, 921 F.2d at 812-13 (where defendant controlled the purchase, shipment and sale of the goods, although the goods were not intended for shipment to a specific customer at the time of shipping, defendant evidenced a “fixed and persisting intent” to transport the goods in interstate commerce)). Just as defendants in Taitón and Guy-ton shipped products based upon estimated customer need, in this case, DISH Network ships equipment to Digital Dish warehouses based upon projections derived from its “credit system,” rather than upon specific customer orders. ‘Though Plaintiffs assert that DISH Network’s system is not accurate enough to establish the DISH Network’s intent to ship its equipment in interstate commerce, the Court disagrees; One hundred percent accuracy is not required. It is enough that DISH Network tracks Digital Dish’s needs, and distributes equipment to the the company accordingly. Moreover, it is notable that Defendant serves as DISH Network’s Ohio RSP. Because of this RSP relationship, DISH Network has a vested interest in maintaining Digital Dish’s inventory. Should DISH Network fail to supply Digital Dish with the product necessary to service its Ohio customers, DISH Network, not Digital Dish, would stand to lose profits. Finally, in regards to Plaintiffs’ argument that DISH Network does not intend to ship its equipment interstate because the technicians determine the ultimate destination of that equipment, this same argument was rejected by the court in Billings. See 413 F.Suppüd at 822. In Billings, plaintiffs, regional service providers, for defendant, snack-food distributor, asserted that the fact that they had discretion over the final destination of a specific product was evidence that the product was not delivered in interstate commerce. Id. The Billings court disagreed, explaining that, [wjhile [plaintiffs] may have discretion when it comes to specific product delivery, they are granted that discretion by their employers and such discretion can be taken away at any time. This discretion is motivated by [defendant’s] goal of maximizing profit. If [plaintiffs] can convince a retailer to accept more product, it is in [defendant’s] best interest for the [plaintiffs] to have that flexibility. Additionally, the discretion of the [plaintiffs] is built into [defendant’s] inventory control system. This is not a case in which the [plaintiffs] are independent contractors who purchase the product from [defendant] for resale to retailers. [Defendant] and its affiliated companies retain control over the product for its entire journey. Id. Just as plaintiffs in Billings were granted discretion to distribute defendant’s products on defendant’s terms, in this case, the fact that Digital Dish technicians make the final decision about what specific piece of DISH Network equipment goes to what customer is merely ancillary to their position as a DISH Network affiliate. Technicians never have title to or authority over the DISH Network equipment, and their daily tasks are assigned to them by Defendant. Accordingly, Plaintiffs’ argument that technicians decide each piece of equipment’s final destination does not negate this Court’s conclusion that DISH Network intends that its goods be shipped within interstate commerce. 2) Processing or Substantial Product Modification A product is more likely to be considered shipped in interstate commerce if, “[n]o processing or substantial product modification of [that product] occurs at the warehouse or distribution center. However, repackaging or reconfiguring (secondary packaging) may be performed.” See MC-207. Plaintiffs suggest that technicians substantially modified the DISH Network equipment before setting out to deliver it to Digital Dish customers. They assert that because they assemble many of the dishes ahead of time and download the software to activate those dishes before installing them in customers’ homes, they substantially modify the DISH Network equipment before passing it onto customers. Defendant, however, argues that these minor equipment modifications do not rise to the level of the processing that may create a discontinuity in interstate commerce. Though it is not a MCA exemption case, Roberts v. Levine provides a helpful discussion of what constitutes “substantial modification.” See 921 F.2d 804, 814 (8th Cir.1990) (plaintiff appealed the district court’s order declaring that he transported goods intrastate