United States v. Dish Network LLC (256 F. Supp. 3d 810, 2017)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Sue E. Myerscough, UNITED STATES DISTRICT JUDGE

. This matter came before the Court on January 19, 2016, for a bench trial. The first phase of the bench trial was completed on February 17, 2016. The trial resumed, on October 26, 2016. The Court heard testimony on October 25-27, 2016 and November 2, 2016. The Plaintiff United States appeared by Assistant United States Attorneys Patrick Runkle, Lisa Hsiao, and Sang Lee, and also by Federal Trade Commission Attorney Russell Deitch and Gary Ivens; the Plaintiff State of California appeared by Assistant Attorneys General Jinsook Ohta, Jon Worm, and Adelina Acuna; the Plaintiff State of Illinois appeared by Assistant Attorneys General Paul Isaac, Elizabeth Backston, and Philip Heimlich; the Plaintiff State of North Carolina appeared by Assistant Attorney General David Kirkman and Teresa Townsend; and the Plaintiff State of Ohio appeared by Assistant Attorneys General Erin Leahy and Jeff Loeser. The Defendant Dish Network, LLC (Dish) appeared by attorneys Peter Bicks, Elyse Echtman, John Ewald, Jamie Shookman, Shasha Zou, Louisa Irving, Joseph Boyle, and Lauri Mazzuchetti. Dish’s in-house counsel Stanton Dodge, Larry Katzin, and Brett Kitei also appeared. On November 2, 2016, the parties and the witness appeared by videoconference, except that Dish in-house counsel Dodge’s and Kitei’s and California’s counsel Ohta and Acuna appeared by telephone.

The Plaintiffs alleged twelve counts against Dish for violations of federal and state laws and regulations prohibiting certain outbound telemarketing calls (Do-Not-Call Laws). The term “Do-Not-Call” is also sometimes referred to as “DNC.” The Plaintiffs allege that.Dish violated the Telemarketing Consumer Fraud and Abuse Prevention Act (Telemarketing Act), 15 U.S.C. § 6101 et seq.; the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227; the Telephone Sales Rule (TSR) promulgated by the Federal Trade Commission (FTC) pursuant to the Telemarketing Act, 16 C.F.R. Part 310; the Rule (FCC Rule) promulgated by the Federal Communications Commission (FCC) pursuant to the TCPÁ, 47 C.F.R. 64.1200 et seq.; the California Do-Not-Call Law, Cal. Bus. & Prof. Code § 17592(c); the California Unfair Competition Law, Cal’ Bus. & Prof. Code § 17200; the North Carolina Do-Not-Call Law, N.C. Gen. Stat. § 75-102(a); the North Carolina Automatic Telephone Dialer Law, N.C. Gen. Stat. § 75-104; the Illinois Automatic Telephone Dialers Act (IATDA), 815 ILCS 305/1 et seq.; and the Ohio Consumer Sales Protection Act, Ohio Rev. Code §§ 1345.02 and 1345.03. Third Amended Complaint (d/e 483), Count I-XII. For a detailed discussion of the applicable statutes and rules, see Opinion entered December 14, 2014 (d/e 445) (Opinion 445), 75 F.Supp.3d 942, 954-62, 1026-31 (C.D. Ill. 2014), vacated in part on reconsideration, 80 F.Supp.3d 917 (C.D. Ill. 2015). The Court entered partial summary judgment on some the Plaintiffs’ claims. Opinion 445, 75 F.Supp.3d at 1032-34.

For the reasons set forth below, this Court enters judgment in favor of the Plaintiffs United States and the States of California, Illinois, North Carolina, and Ohio and against Defendant Dish on Counts I, II, III, V, VI, VII, VIII, IX, X, and XII of the Third Amended Complaint and judgment in favor of. Plaintiff United States and against Defendant Dish on the claim that Defendant provided substantial assistance to Dish Order Entry Retailer Star Satellite as alleged in Count IV of the Third Amended Complaint, and judgment in favor o'f Defendant Dish and against the United States on the claim that Dish provided substantial assistance to Dish Order Entry Retailer Dish TV Now as alleged in Count IV ■ of the Third Amended Complaint. The Court enters judgment in favor of Defendant Dish' and against Plaintiff State of Illinois on Count-XI of the Third Amended Complaint.

The Court awards civil penalties and statutory damages in favor of the Plaintiffs United States and the States of California, Illinois, -North Carolina, and Ohio and against Defendant Dish-in Counts. I, II; III, IV, V, VI, VII, VIII, IX, X, and XII of the Third Amended Complaint in the total súm of $280,000,000.00. The amount awarded in each Count is set forth below in the Conclusion.

The Court also enters.a.Permanent injunction in favor of the Plaintiffs and against Defendant Dish Network, L.L.C. in the manner set forth in the separate Permanent Injunction Order filed with this Findings of Fact and Conclusions of Law.

The following constitutes findings of fact and conclusions of law for the issues remaining for trial. Fed. R. Civ. P. 52(a).

This case is complex and covers years of telemarketing by Dish and numerous related- entities, The Court organizes the findings of fact under various headings. The organizational structure does not limit any findings to any particular issue. Unless otherwise indicated, all findings of fact may be relevant to all issues.

JURISDICTION

This Court has jurisdiction to hear the United States’ claims in Counts I-IV pursuant to 28 U.S.C. §§ .1331, 1337(a), 1345, and 1365; Federal Trade Commission Act (FTC Act), Í5 U.S.C. §§ 45(m)(l)(A), 53(b), 56(a), and 57(b); and the Telemarketing Act, 15 U.S.C. § 6105(a) & (b). The FTC authorized the Attorney General to commence this action on behalf of the United States pursuant to' FTC Act § 56(a). This Court has jurisdiction to hear the -Plaintiff States’ TCPA claims in Counts V & VI' pursuant to 28 U.S.C. §§ 1331, 1337(a), 1345, and 1355; and exclusive jurisdiction pursuant to TCPA, 47 U.S.C. § 227(g)(2). This Court has supplemental jurisdiction to hear the Plaintiff States’ state law claims in Counts VII-XII pursuant to 28 U.S.C. § 1367(a).

Dish argues that the Plaintiff States lack standing to bring the TCPA claims alleged in Counts V and VI. A lack of standing is jurisdictional, Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 93, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). To establish standing, a plaintiff must have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, — U.S. -, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016).

The TCPA § 227(g) authorizes the Plaintiff States to bring this action. Section 227(g)(1) states that when the State Attorney General, “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,” then “the State may bring a civil action on behalf of its residents.” 47 U.S.C.A. § 227(g)(1). The Plaintiff States, therefore, are bringing the claims in Counts V and VI in parens patriae to protect the well-being of each Plaintiff State’s populace. The Plaintiff States must demonstrate Article III standing. The Plaintiff States must demonstrate some concrete injury to its residents by Dish that can be redressed by the claims in Counts V and VI. Alfred L. Snapp & Son, Inc., v. Puerto Rico ex rel. Barez, 458 U.S. 592, 602-05, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982). The Congressional grant of a right to statutory damages in the TCPA § 227(g) is not sufficient by itself to establish standing. The Plaintiff States must show some injury in fact from the unwanted telemarketing calls. Spokeo, 136 S.Ct. at 1543.

Several District Courts have considered whether unwanted calls made in violation of the TCPA cause concrete injury necessary to establish standing. Many of these District Courts have found that the annoyance and distress caused by unwanted calls established concrete injuries sufficient to establish standing. E.g., Krakauer v. Dish Network, L.L.C., 168 F.Supp.3d 843, 845 (M.D. N.C. 2016); Wilkes v. CareSource Management Group Co., 2016 WL 7179298, at *3 (N.D. Ind. December 9, 2016); Mbazomo v, Etourandtravel, Inc., 2016 WL 7165693, at *2 (E.D. Cal. December 8, 2016); Griffith v. ContextMedia, Inc., 2016 WL 6092634, at *1-2 (N.D. Ill. October 19, 2016); LaVigne v. First Community Bancshares, Inc., 216 F.Supp.3d 1138, 1142-43 (D.N.M. 2016); Espejo v. Santander Consumer USA, Inc., 2016 WL 6037625, at *9 n.3 (N.D. Ill. Oct. 14, 2016); Dolemba v. Illinois Farmers Insurance Company, 213 F.Supp.3d 988 (N.D. Ill. 2016); Juarez v. Citibank, N.A., 2016 WL 4547914, at *3 (N.D. Cal. September 1, 2016); Aranda v. Caribbean Cruise Line, Inc., 202 F.Supp.3d 850, 856-59 (N.D. Ill. 2016); A.D. v. Credit One Bank, N.A., 2016 WL 4417077 (N.D. Ill. August 19, 2016). The Court in Aranda described how unwanted telephone calls cause concrete injuries by invading the privacy of the home:

In any event, section 227 establishes substantive, not procedural, rights to be free from telemarketing calls consumers have not consented to receive. Both history and the judgment of Congress suggest that violation of' this substantive ' right is sufficient to constitute a concrete, de facto injury. As other courts have observed, American and English courts have long heard cases in which plaintiffs alleged that defendants affirmatively directed their conduct at plaintiffs to invade their privacy and disturb their solitude. See, e.g., Mey v. Got Warranty, Inc., 193 F.Supp.3d 641, 644 (N.D.W.V.2016) (“[T]he TCPA can be seen as merely liberalizing and codifying the application of [a] common law tort to a particularly intrusive type of unwanted telephone call.”); Caudill v. Wells Fargo Home Mort., Inc., No. 5:16-066-DCR, 2016 WL 3820195, at *2 (E.D.Ky. July 11, 2016) (“[The] alleged harms, such as invasion of privacy, have traditionally been regarded as providing a basis for a lawsuit in the United States.”).

Aranda, 202 F.Supp.3d at 857-58. The Ar-anda Court noted that, “Congress enacted the TCPA to protect consumers from the annoyance, irritation, and unwanted nuisance of telemarketing phone calls, granting protection to consumers’ identifiable concrete interests in preserving their rights to privacy and seclusion.” Id.

Each Plaintiff State further presented testimony from residents who personally suffered injury from unwanted calls by Dish or its related entities. E.g., Deposition David Slaby, at 6, 52-53, 69-70 (California resident); T 613: 24-26 (Skala (Illinois resident)); T 618:856-66 (Krakauer (North Carolina resident)); T 617: 574 (Kitner (Ohio resident)). The Plaintiff States have demonstrated that the calls at issue caused concrete injury necessary to establish standing.

Dish has cited a District Court that found that receipt of unwanted telephone calls did not cause concrete injury necessary to established standing. Romero v. Department Stores National Bank et al. v. Defendants, 199 F.Supp.3d 1256 (S.D. Cal. 2016). The Court respectfully disagrees with the reasoning in the Romero decision and agrees with the reasoning in the Aran-da decision, the Krakauer decision, and the other cases cited immediately above. The Plaintiff States therefore have standing to proceed.

FINDINGS OF FACT

I. Background

In 1980, Charles Ergen and James De-Franco formed Dish’s predecessor corporation called Ecosphere Corporation (Eco-sphere). Ecosphere sold and distributed large satellite dishes 12 feet in diameter designed to receive television signals. T 621: 1478-79 (DeFranco); T 625: 2073 (Neylon), Ecosphere later changed its name to Echostar Communications Corporation (Echostar). Echostar developed a network of local retailers to sell, distribute, and install satellite dishes. T 621: 1487 (DeFranco). In 1995, Echostar made an initial public offering of stock. T 621: 1445 (DeFranco). As discussed below, in 1996, Echostar started a satellite television service called Dish Network. In 2008, Echos-tar reorganized its business' structure. Echostar became the Defendant business entity Defendant Dish Network, LLC. Dish Network, LLC continued the business of selling and providing Dish Network programming. A business entity called Echostar continued to exist as a separate corporation. Both became owned by a holding company, Dish Network Corporation (Dish Corp.). Echostar currently operates satellites used to transmit Dish Network programming. See Opinion 445, 75 F.Supp.3d at 951; PX1093, Dish Annual Report dated December 31, 2011, at 6-7; T 621: 1482 (DeFranco). The Court hereafter uses the term “Dish” to refer the business entity selling Dish Network programming (Echostar before 2008 and Dish Network, LLC thereafter).

In 1996, upon launching Dish Network, Dish went into direct competition with DirecTV, another provider of residential satellite pay television services. DirecTV started this type of service two years before Dish. T 621: .1488 (DeFranco). Dish also competed with cable television services and over-the-air broadcast services. T 621: 1488-89 (DeFranco). By 1999, Dish was offering a 500 channel satellite television service. T 621: 1442 (DeFranco).

Dish marketed Dish Network programming through various means, including direct outbound telemarketing by Dish employees. Dish also retained companies to perform outbound telemarketing services for Dish (Telemarketing Vendors). T 617: 664 (Davis). Outbound telemarketing means making telephone calls to existing or prospective customers to sell products and services. Inbound telemarketing involves advertising through various media (e.g., television, radio, print, direct mail) to generate inbound calls from consumers seeking information about the possible purchase of goods and services. Dish engaged in both inbound and outbound telemarketing. See T 627: 2517 (Dexter). The Plaintiffs’ claims all relate to outbound telemarketing only. Unless otherwise indicated, the Court uses the term “telemarketing” to refer to outbound telemarketing.

Dish divided its marketing structure into direct and indirect marketing, sometime referred to as direct and indirect “channels.” The direct channel consisted of Dish in-house, or direct marketing, and marketing by Dish’s Telemarketing Vendors. The Telemarketing Vendors were telemarketing companies hired by Dish to perform telemarketing services for Dish. The indirect channel consisted of marketing by all other entities authorized by Dish to market Dish Network programming. Within the indirect channel, Dish continued to use its network of retailers, called TVRO or Full Service Retailers, to sell Dish Network programming. TVRO Retailers generally sold, installed, and serviced satellite dishes and related equipment. Some TVRO Retailers engaged in telemarketing. T 626: 2294-95 (Ahmed).

The indirect channel also included national retailers and telecommunications companies that marketed Dish Network programming, such as Radio Shack, Sears, and AT & T. T 625: 2113 (Neylon).

Dish also developed an indirect marketing program called the Order Entry Program. Through this program, Dish authorized marketing businesses to market Dish Network programming nationally. These marketing businesses secured consumers’ offers to purchase Dish Network programming. Dish completed the sales solicited by these businesses. Dish provided and installed the. satellite dishes and related equipment, and Dish provided the programming and related services. Dish called these marketing businesses Order.Entry Retailers or OE Retailers. See T 626: 2358, 2283, 2296 (Ahmed); T 621: 1632 (Mills).

The Plaintiffs’ claims arise from: (1) Dish’s direct telemarketing; (2) the telemarketing activities of Dish’s Telemarketing Vendors EPLDT (also known as Liber-tad), and eCreek; Solutions Group (eCreek); and (3) telemarketing activities of certain Order Entry Retailers.

II. Telemarketing by Dish and its Telemarketing Vendors

A. Telemarketing Practices Before ' 2003

In 1998, Dish began telemarketing Dish Network programming. Dish used an automatic dialer called a predictive dialer to make outbound telemarketing calls. DTX-650, Timeline Email dated December 10, 2007 (Timeline Email). An automatic dialer, or autodialer, can call large numbers of telephone numbers automatically and can distinguish between possible results of each call: either no answer, a busy signal, a response by an answering machine, or an answer by a person. Seé T 627: 2527-28 (Dexter). When a person answers the call, the automatic dialer can connect the call recipient either to a prerecorded message or a live sales person. See T 627: 2655 (Bangert). Dish direct marketing had a policy to connect answered telemarketing calls to live sales persons and not prerecorded messages. T 627: 2690-91 (Ban-gert); T 617: 624 (Davis).

At the time that Dish began telemarketing in 1998, the TSR and'FCC Rule prohibited sellers and telemarketers from initiating telemarketing calls to individuals who previously stated that they did not wish to be called (a “Do-Not-Call Request”). The FCC Rule required sellers and telemarketers to maintain an internal, or entity-specific, Do-Not-Call List of the people who previously asked not to be called again (“Internal Do-Not-Call List”). The FCC Rule required telemarketers and sellers to honor a Do-Not>-Call Request. The TSR prohibited making calls to persons who made a Do-Not-Call Request stating that they did not wish to receive telemarketing calls by or on behalf of the seller. The TSR stated that sellers or telemarketers that wished to comply with the TSR safe harbor provision had to maintain an Internal Do-Not-Call List. See Opinion 445, 75 F.Supp.3d at 954-55, 960. The Court refers to calls made to persons who previously made an Internal Do-Nob-Call Request as “Internal List Calls.”

Dish maintained an Internal Do-Not-Call List. Individuals could have their telephone numbers placed on Dish’s Internal Do-Not-Call List by calling or writing Dish; by telling a Dish telemarketer during a sales call; by telling a Telemarketing Vendor telemarketer during a sales call; by registering on Dish’s Internal Do-Not-Call List on Dish’s website; or by calling a toll-free number. If the automatic dialer failed to connect a call recipient to a sales person within two seconds of the recipient’s answer of the call, the automatic dialer played a prerecorded message that provided the toll-free number,- T 629: 3024-26 (Montano). Dish eventually developed a PowerPoint presentation to. explain how to handle an Internal Do-Not-Call Request. Dish made the PowerPoint presentation available to all employees who came in contact with consumers, including telemarketing employees and customer service employees. DTX 14, PowerPoint Presentation; see T 627: 2504-16, 2590 (Dexter).

The FCC Rule also restricted making outbound telemarketing calls that played prerecorded sales messages to recipients of telemarketing calls. Calls that play prerecorded messages are called by. several different names, including “robocalls,” “prerecorded calls,” “prerecorded messaging,” -“message broadcasting,” “automated messaging,” “automessaging,” “AM,” and sometimes “autodialer calls.” The Court refers to such calls as “Prerecorded Calls.”

The FCC -Rule allowed Prerecorded Calls to cal! recipients who had Established Business Relationships with-the seller or telemarketer making the call, unless thé recipient’s telephone number was on the seller or telemarketer’s Internal Do-Not-Call List. See Opinion 445, 75 F.Supp.3d at 960. The FCC Rule defined Established Business Relationship as:

The term established business relationship for purposes of telephone solicitations means a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a residential, subscriber with or without an exchange of consideration, on the basis of the subscriber’s purchase or transaction, with the entity within the eighteen (Í8) months immediately preceding the date of the telephone call or ’ on the basis of the subscriber’s inquiry or application regarding products or services offered by the entity within the three months immediately preceding the date of the call, which relationship has not been previously terminated by either party.

47 C.F.R. § 64.1200(f)(5). Under this provision, a telemarketer had an Established Business Relationship with a call recipient who was a residential telephone subscriber under one of two conditions: (1) the call recipient made a purchase or engaged in a transaction with the seller within ' 18 months of the date of the call (Transaction-based Established Business Relationship); or (2) the call recipient made an inquiry or application for the seller’s good or services within three months of the date of the call (Inquiry-based Established Business Relationship).

In 1987, States began establishing Do-Not-Call registries for state residents. See Telemarketing Sales Rule, Statement of Basis and Fupose, 48 Fed. Reg. 4580, 4629 . n. 592 (January 29, 2003) (citing Fla. Stat. Ann. § 501.059) (2003 TSR Statement of Basis and Purpose); Marguerite M. Sweeney, Do Not Call: The History of Do Not Call and How Telemarketing has Evolved, NAGTRTI J., Vol.l, No. 4 (August 2016) available at http://www.naag.org/ publications/nagtri-journal/volume-l-number-4/do-not-call-the-history-of-do-not-call-and-how-telemarketing-has-evolved. php. Residents registered their telephone numbers on the state registry if the residents did not wish to receive unsolicited telemarketing calls. The state laws restricted sellers and telemarketers - from making certain telemarketing calls to telephone numbers on the state registries (State -Do-Not-Call Lists). Dish began purchasing State 'Do-Not-Call Lists in 2001. DTX 650, Timeline Email, at 1.

Dish directed almost all of its outbound telemarketing campaigns at residences rather than businesses. T 628: 2810 (Ban-gert); T 627: 2555, 2639, 2641 (Dexter) (most campaigns to residences, but some directed to businesses); T 617: 633-34 (Davis) (same); see T 614: 450-51 (Yoeli); PX 38, Declaration of Dr. Erez Yoeli dated December 18, 2013, Appendix C, Revised Rebuttal Report of Dr. Erez Yoeli dated December 14, 2012 (Yoeli December 14, 2012 report), at 7-8 (Dish’s calling records from September 2007 to March 2010 indicate that .2% of Dish’s direct telemarketing calls which Dr. Yoeli opined were violations of the TSR were answered by businesses.).

. Dish organized its telemarketing into different types of calling campaigns, depending on Dish’s relationship with the intended recipients of the calls and the purposes of the calls. Campaigns that Dish intended to direct at current customers were called Average Revenue Per Unit (ARPU), Upsell, and Premium Upsell campaigns. These campaigns offered additional or upgraded programming or services to existing customers. See PX 0477, Email dated May 9, 2002; T 628: 2708-09 (Ban-gert); T 617: 592 (Davis). Through approximately July 2010, Dish presumed that it had a Transaction-based Established Business Relationship with the recipients of these calls. See PX 1248, Project Scope Document dated February 2, 2010,. (request by Outbound Operations to modify PDialer to use last payment dates); DTX 972, Email thread dated June 30, 2010 to July 2, 2010 between Dish and Possible-NOW representatives; T 633: 3297-99 (Taylor); DTX 670, PDialer Meeting Minutes dated July 1, 2010, at 2 ¶ 7 (indicating change to last payment date); T 629: 3014-15, 3130-34 (Montano). Dish’s calling records from September 2007 through March 2010, however, show that the lists of telephone numbers called (calling lists) in these campaigns included numbers for individuals who had not paid for any programming services from Dish for more than 18 months at the time that Dish called them. The records are discussed in detail below.

Campaigns directed at former customers were called “winback” campaigns. As the name implied, the campaigns sought to win back former customers. The calling lists in winback campaigns were supposed to consist of the telephone numbers of former customers who had their Dish service disconnected on the same day. Dish used disconnect dates to determine when the customer relationship ended. T 633: 3297-99 (Taylor); T 629: 3014-15, 3130-34 (Montano). Dish dialed winback campaign calling lists periodically at certain intervals after the disconnect date, e.g., 48 hours, 30 days, 60 days, 6 months, 12 months, 18 months, and so on up to as long as 61 months after the termination. Dish called winback campaigns “trailing campaigns” because of the periodic calling process. T 627: 2637 (Dexter); see DTX 626A through 626D, Summary Table of Dish Campaigns prepared by Dish Expert John Taylor (Taylor Tables). Until approximately July 2010, Dish presumed that it had a Transaction-based Established Business Relationship with the recipients of these calls if the campaign calls were made 18 or fewer months after the disconnect date for the particular campaign. See T 628: 2969 and 629: 3130 (Montano); PX 1248, Project Scope Document dated February 2, 2010 (requesting modification of PDialer to use last payment date); DTX 972, Email thread dated June 30, 2010 to July 2, 2010 between Dish and PossibleNOW representatives; DTX 670, PDialer Meeting Minutes dated July 1, 2010. The calling records from September 2007 to March 2010 discussed below, however, show that win-back calling lists included many individuals who had not paid for any programming services from Dish for more than 18 months before the date of the calls. The call records are discussed in detail below.

Dish also directed calling campaigns at individuals who purchased Dish Network programming, but Dish did not complete installation and activation of the services. Some of these calling campaigns were called Canceled Work Order (CWO) campaigns. T 617: 588 (Davis); T 628:2708 (Bangert). Dish conducted Canceled Work Order campaigns to reschedule the canceled work orders in order to complete activation of service. T 629: 3075-76 (Mon-tano). Dish employees and former employees sometimes characterized these calling campaigns as telemarketing campaigns and sometimes as non-telemarketing scheduling calls or non-telemarketing calls to collect information. See T 628: 2708-09 (Bangert); T 617: 591 (Davis); T 627: 2522 (Dexter); T 629: 3075-76 (Montano). Dish produced no scripts for any of these campaigns in discovery and presented no scripts at trial. The limited evidence presented establishes that these calling campaigns were directed at individuals who initially agreed to purchase Dish Network programming, but who canceled the installation. Dish ran Canceled Work Order campaigns to reschedule the canceled work orders and complete the installation of Dish Network programming.

Dish also conducted No Line of Sight (NLOS) and Held Work Order (HWO) calling campaigns. No Line of Sight campaigns were directed at individuals who agreed to purchase Dish programming, but the installer could not find a place to install the satellite dish that had a line of sight to receive the signal. Dish ran these calling campaigns to schedule a time for a field service manager to come out and see if he could find a line of sight to complete installation. T 627: 2544 (Dexter). Held Work Order campaigns were directed to an individual who agreed to purchase Dish programming, but whose work order was placed on hold. Dish made Held Work Order calls to reschedule the Work Order to complete activation of service. T 627: 2546-47 (Dexter); T 629: 3075-76 (Mon-tano). Dish employees also sometimes characterized these campaigns as telemarketing campaigns and sometimes as non-telemarketing scheduling calls. Id.

Campaigns directed at individuals who never indicated any interest in Dish programming or services were called “Cold Call” or “Target Marketing” campaigns. See PX 0477, Email dated May 9, 2002; T 628: 2708-09 (Bangert); T 617: 592 (Davis); T 629: 3117 (Montano).

Campaigns called LTS or Lead Tracking System campaigns were directed at individuals who were not Dish customers, but who came into contact with Dish and provided contact information. Dish presented very little competent evidence on how the Lead Tracking System was formulated or how calling lists were derived from the Lead Tracking System. Dish’s Database Marketing Department maintained the Lead Tracking System and created the Lead Tracking System (or LTS) calling lists. T. 627: 2680 (Bangert). Dish presented no testimony from any representative of Database Marketing or anyone else who had personal knowledge of the working of the Lead Tracking System.

Several witnesses summarily testified that Lead Tracking System calling lists were made up of people who inquired about Dish Network programming. Dish presumed that it had an Inquiry-based Established Business Relationship with the recipients of these calls. See T 627: 2681-82 (Bangert); T 628: 2709-10, 2808 (Bangert); T 627: 2643^4 (Dexter); T 617: 590 (Davis); T 629: 3163-64 (Monta-no). Dish failed to establish that any of these witnesses had sufficient personal knowledge to testify regarding the operation of the Lead Tracking System or the make-up of the calling lists derived from the Lead Tracking System. None of these witnesses worked in Database Marketing or had any involvement in the formulation of the Lead Tracking System or the Lead Tracking System calling lists.

The only evidence from Database Marketing cited by the parties that discussed the make-up of the Lead Tracking System consisted of two emails from Database Marketing employees in a single, email thread from August 2004. PX117, Email thread regarding Dish Taking a DTV Sale dated August 11, 2004,’ at PX117-001, 005-006. These two emails indicate that the Lead Tracking System collected the contact information of any individuals who came into contact with Dish and provided such information. According to these, two emails, the Lead Tracking System included individuals who requested information about Dish Network programming, but also included individuals who already received a .telephone sales pitch for Dish programming and services and did not buy, and individuals who began ordering Dish programming online, but did not complete the purchase. See PX117, Email thread regarding Dish Taking a DTV Sale dated August 11, 2004, at PX117-1O01, 005-006. At one point, the Lead Tracking System included contact information for certain individuals that Order'Entry Retailers contacted to sell Dish Network programming, but who decided not to buy. Dish discontinued this latter practice when Order Entry Retailei's complained that Dish direct marketing was taking the Order Entry Retailers’ leads. See PX 117, Email thread regarding Dish Taking .a DTV Sale dated August 11, 2004; T 629: 2711-12 (Bangert). The Court finds that Dish failed to prove that the Lead Tracking System consisted of contact information for the individuals who inquired about Dish Network programming. Rather, the sparse evidence in these two emails seems to indicate that the Lead Tracking System included the contact information for anybody who came in contact with Dish for almost any reason and provided contact information.

By May 2002, Dish had developed a process to scrub certain calling lists. A calling list (or call list) was a list of numbers to be called for a calling campaign. The term “scrubbing” or “scrub” referred to removing from a calling list telephone numbers that could not legally be called under the particular circumstances. In 2002, Dish scrubbed certain calling lists against its Internal Do-Not-Call List and State Do-Not-Oall Lists. See T 627: 2660-61; T 628: 2703-04 (Bangert); DTX 650, Timeline Email, at 1; T 617: 662-63 (Davis).

Dish had some problems with that scrubbing system. In May 2002, Dish was not scrubbing its calling lists against the Oregon State Do-Nob-Call List and was still researching the requirements of the other States. Dish in-house attorneys knew that Oregon officials were investigating Dish’s telemarketing. Dish in-house attorneys knew that the Oregon statute authorized a $25,000.00 per call penalty on willful violations. In May 2002, Dish temporarily stopped all telemarketing in Florida, Illinois, Oregon, and Colorado. PX0477, Email from Vice President PJ Weyforth dated May 9, 2002 3:36 p.m.; PX1430, Email dated May 3,2002, at 004.

In June 2002, Dish limited its outbound telemarketing to residents in 25 states that did not have State Do-Not-Call'Lists in effect. PX0473, Email dated June 12, 2002 3:19 p.m. Dish employees who conducted the scrubbing process in Dish’s Outbound Operations Department testified that Dish could remove telephone numbers of residents of particular states because Dish maintained residential address information associated with the telephone numbers on its various calling lists. See T 628: 2740-41 (Bangert); T 629: 3209-10 (Montano); T 627: 2639-40 (Dexter); T 617: 630 (Davis).

B. Dish Telemarketing Practices Beginning in October 2003

In 2001, Congress authorized the FTC to. promulgate regulations to establish a National Do-Not-Call Registry (Registry), and to prohibit initiating outbound telemarketing calls to persons whose telephone numbers were registered on the Registry. TSR, 16 C.F.R. § 310.4(b)(l)(iii)(B); see Opinion 445, 75 F.Supp.3d at 955-56, 960-61. In 2003, the FTC established the Registry. Individuals registered their telephone numbers on the Registry if they did not wish to receive telemarketing calls. The FTC and the FCC amended the TSR and FCC Rule to prohibit calling a person whose number was on the Registry (Registry Call). The prohibition did not apply if the person had an Established Business Relationship with the seller or. telemarketer. The TSR defined Established Business Relationship as follows:

(o) Established business relationship means a relationship between a seller and a consumer based on:

(1) the consumer’s purchase, rental, or lease of the seller’s goods or services or a financial transaction between the consumer and seller, within the eighteen (18) months immediately preceding the date of a telemarketing call; or

(2) the consumer’s inquiry or application regarding a product or service offered by the seller, within the three (3) months immediately preceding the date of a telemarketing call.

TSR 16 C.F.R. § 310,2(o); see Opinion 445, 75 F.Supp.3d at 957. Like the FCC Rule, the TSR definition established a Transaction-based Established Business Relationship and an Inquiry-based Established Business Relationship. The- TSR definition also used an 18-month time period from the last purchase, rental, lease or financial transaction for the Transaction-based Established Business Relationship and a three-month time period from the last inquiry or application for the Inquiry-based Established Business Relationship.

On September 29, 2003, Congress ratified the establishment of the Registry. Pub. L. 108-82, 117, codified at 15 U.S.C. § 6151. The Registry was scheduled to begin operations on October 1, 2003, but the start of operations was delayed to October 17, 2003. See F.T.C. v. Mainstream Marketing Services, Inc., 345 F.3d 850, 860-61 (10th Cir. 2003); see also Mainstream Marketing Services, Inc. v. F.T.C., 358 F.3d 1228, 1250-51 (10th Cir. 2004).

The TSR and FCC Rule contained safe harbor provisions. Sellers and telemarketers who followed the safe harbor procedures would not be liable for certain illegal calls that resulted from errors or mistakes. The safe harbor provisions required, among other things, written procedures for implementing, the requirement not to call persons whose telephone numbers were on the Registry, and maintenance of records documenting the use of a process to prevent telemarketing to persons whose numbers were on the Registry. The TSR safe harbor applied to Internal List Calls and Registry Calls. The FCC Rule safe harbor only applied to Registry Calls. 16 C.F.R, § 310.4(b)(3); 47 C.F.R. § 64.1200(c)(2)(i); see Opinion 445, 75 F.Supp.3d at 958, 961. Neither safe harbor provision applied to Prerecorded Calls.

The 2003 amendments to the TSR also prohibited abandoning calls. An outbound telemarketing call is abandoned if the person answering a telemarketing call is not connected to a sales representative within two seconds of the person’s completed greeting. 16 C.F.R. § 310.4(b)(l)(iv). A Prerecorded Call that is answered by a person is an abandoned call under the TSR because the person receiving the call is not connected to a sales representative, but to a recording. See Opinion 445, 75 F.Supp.3d at 958-59. This Court refers to Prerecorded Calls that are answered by a person as “Abandoned Prerecorded Calls.” The FTC Statement of Basis and Purpose accompanying the final TSR stated that connecting the call recipient to a prerecorded telemarketing message violated the abandonment provisions:

[Under] the prohibition of abandoned calls, ... telemarketers must connect calls to a sales representative within two seconds of the consumer’s completed greeting to avoid a violation of the Rule. Clearly, telemarketers cannot avoid liability by connecting calls to a recorded solicitation message rather than a sales representative. The Rule distinguishes between calls handled by a sales representative and those handled by an automated dialing-announcing device. The Rule specifies that telemarketers must connect calls to a sales representative rather than a recorded message.

2003 TSR Statement of Basis and Purpose, 68 Fed. Reg. at 4644.

On November 17, 2004, the FTC issued a Notice of Proposed Rulemaking (2004 Notice) to amend the TSR to add an additional safe harbor provision to allow some Abandoned Prerecorded Calls under limited circumstances. 69 Fed. Reg. 67287 (November 17, 2004). The proposed safe harbor amendment would have allowed a seller or telemarketer to make an Abandoned Prerecorded Call to a person with whom the seller or telemarketer had an Established Business Relationship only if the prerecorded message: (1) presented the person with the opportunity to communicate that he or she did not want to be called again within two seconds of the person’s completed greeting (e.g., by pushing a number on the telephone keypad); (2) provided all required disclosures; and (3) otherwise complied with all applicable state and federal laws. 69 Fed. Reg. at 67289; see Opinion 445, 75 F.Supp.3d at 958-59.

The FTC further stated in the 2004 Notice that the FTC would forbear from bringing enforcement actions for prerecorded calls that resulted in abandoned calls if the telemarketer complied with the proposed amendments to the safe harbor provisions:

Therefore, the Commission has determined that, pending completion of this proceeding, the Commission will forbear from bringing any enforcement action for violation of the TSR’s call abandonment prohibition, 16 CFR 310.4(b)(l)(iv), against a seller or telemarketer that places telephone calls to deliver prerecorded telemarketing messages to consumers with whom the seller on whose behalf the telemarketing calls are placed has an established business relationship, as defined in the TSR, provided the seller or telemarketer conducts this activity in conformity with the terms of the proposed amended call abandonment safe harbor.

69 Fed. Reg. at 67290. The FTC ultimately amended the TSR to allow Abandoned Prerecorded Calls only to persons with whom the seller had an Established Business Relationship and only with prior written consent. Final Rule Amendments, 73 Fed. Reg. 51164 (August 29, 2008); see Opinion 445, 75 F.Supp.3d at 958.

Dish witness Russell Bangert opined that the TSR abandonment provisions did not clearly apply to Abandoned Prerecorded Calls. T 627: 2690 (Bangert). The Court finds this testimony to be of no probative value. Bangert conceded at his deposition that he had only a rudimentary understanding of the federal Do-Noi>-Call Laws and regulations. T 627: 2686 (Bangert). Bangert’s attempt to embellish his knowledge of these laws and regulations at the trial was not credible. Further, FTC publicly stated the 2003 TSR Statement of Basis and Purpose and the 2004 Notice that the TSR abandonment provision applied to Abandoned Prerecorded Calls. Dish employed highly qualified attorneys internally and externally. These attorneys would have been well aware that the TSR abandonment provision applied to Abandoned Prerecorded Calls.

In addition, Dish employees understood that Prerecorded Calls were prohibited. T 627, 2565-66, 2625 (Dexter) (Dish had a policy not to make prerecorded telemarketing calls); T 617: 624-25 (Davis) (Dish representatives understood that such calls were illegal.). See also PX523, Email from Dexter to Davis dated May 3, 2010, regarding FTC.gov statement regarding abandonment and safe harbor provisions; DTX 662, Email dated March 23, 2010 from Dexter (prerecorded telemarketing calls prohibited); T 619: 985 (Werner) (same).

In 2002, Dish began planning to adjust its telemarketing practices in light of the upcoming launch of the Registry. T 627: 2658 (Bangert). Dish representatives expected the Registry to increase the volume of telephone numbers affected by the Do-Not-Call Laws. Dish put together a group of individuals from interested departments (Working Group) to develop a process to comply with the new regulations and to deal with the expected increase in the size and scope of the process. See T 627: 2658-61 (Bangert).

In April 2003, Dish entered into a settlement with the state of Indiana for violations of, Indiana’s Do-Not-Call, Law. In connection with that settlement, Dish entered into a court-approved Assurance of Voluntary Compliance (AVC). PX 908, Indiana AVC dated April 11, 2003, and Court Order of Approval dated April 15, 2003. Dish thereafter scrubbed lists to remove calls to Indiana residents from its outbound telemarketing. T 628: 2742 (Bangert).

In August 2003, the state of Missouri filed suit against Dish for violation of the Missouri Do-Not-Call Law. PX 52, Missouri Complaint. The Missouri action was settled in 2005. Dish executed an Assurance of Voluntary Compliance and agreed to pay $50,000.00. PX 544, Missouri ex rel. Nixon v. EchoStar Communications Corp., St. Charles County, 'Mo., Circuit Ct. Case No. 03CV129088, Petition for Approval of Assurance of Voluntary Compliance dated May 4, 2005, attached Assurance of Voluntary Compliance ¶ 16; see PX 53, Email dated April 19, 2006 between Dish Corporate Counsel Steele and Dish SVP Deputy General Counsel Dodge.

In August and September 2003, the Working Group continued to put together a system to comply with the scheduled launch of the Registry on October 1, 2003. Dish in-house counsel Steve Novak suggested not making any outbound telemarketing calls to any number on the Registry, even if Dish had an Established Business Relationship with the potential call recipient. PX 689, Email dated September 4, 2003 from Steve Novak. The suggestion was not adopted. Another participant suggested automating the process of determining whether to scrub a calling list against a particular restricted list such as the Registry, Dish’s internal Do-Not-Call List, or a state Do-Not-Call List. This suggestion was also rejected. PX1176, Email from Dish Employee Brian Pacini dated September 16, 2003; T 627: 2667-68 (Bangert). In' September 2003, Novak stated in an email that “no call center disconnected from, the DNC list [i,e., the Registry] should be making any outbound calls.” PX688, Email September 10, 2003 from Steve Novak. ’

Dish cited no evidence that the Working Group ever discussed the safe harbor provisions of the TSR or FCC Rule or developed a plan to comply with those provisions.

Ultimately, Dish established two separate systems to address the launch of the Registry and the amended Do-Nofc-Call Laws generally., The first system addressed calling campaigns aimed at individuals who had Dish account numbers (Account Number Campaigns). The second system addressed campaigns aimed at individuals who never, had an account with Dish, primarily Cold Calls and Lead Tracking System Calls.

1. Account Number Campaigns

The Account Number Campaigns included campaigns to existing Dish customers, such as Average Revenue Per Unit, Up-sell, and Premium Upsell; campaigns to former customers, such as Winback; and campaigns to individuals who had agreed to purchase Dish Network programming, but did not complete the installation or activation. The last category included Canceled Work Order, No Line of Sight, and Held Work Order campaigns. See Tr. 627: 2680 (Bangert).

Bangert was in charge of scrubbing Account Number Campaign call lists. In 2006, Account Number Campaign scrubbing operations were organized into the Outbound Operations Department (Outbound Operations). T 628: 2949 (Montano). For simplicity, the Court refers to the Dish personnel who performed scrubbing operations for Account Number Campaigns both before and after 2006 as Outbound Operations. Outbound Operations scrubbed lists for Dish’s call centers in Englewood, Colorado; El Paso, Texas; Pi-nebrook, New Jersey; and the Philippines; and also for Telemarketing' Vendors eCreek and EPLDT. Employees at the Dish call center in Bluefield, West Virginia scrubbed the Account Number Campaign lists for calls made for that call center. Dish employees- who scrubbed lists in Bluefield reported to the manager of Outbound Operations. T 617: 647, 680-811 .(Davis); T 628: 2949 (Montano). In 2008, Dish moved all- Account Number Campaign scrubbing operations to Outbound Operations at Dish corporate headquarters in Englewood, Colorado. T 617: 647, 680-81 (Davis); T 628: 2951 (Montano).

Outbound Operations also operated Dish’s automatic telephone dialers in En-glewood, Colorado, and Bluefield, West Virginia. T 627: 2499-2500 (Dexter); T 617: 647-48 (Davis); T 628: 2947-49 (Montano). In 2008, Dish'also moved all dialing operations to Outbound Operations in Englewood, Colorado. T 617: 680 (Davis); T 628: 2951 (Montano). Outbound Operations also maintained current, updated copies of the Registry, Dish’s internal Do-Nob-Call list, state Do-Not-Call lists, and lists of wireless numbers. See Tr. 627: 2677-78 (Bangert); T 628: 2948^9 (Montano).

Other Dish' departments, sent proposed Account Number Campaigns to Outbound Operations with descriptions of the planned calling campaigns, proposed calling lists, and scripts. T 627: 2518-19 (Dexter); T 617: 640-41 (Davis); see e.g., DTX 96¾, Outbound Campaign Request Form. Outbound Operations did not develop proposed calling lists or scripts. Dish’s Data Analytics Department developed the calling lists for Account Number Campaigns. T 627: 2551, 2607, 2610 (Dexter); see T 629: 3021 (Montano). Dish cited no material evidence to the Court on the process by which Dish departments developed proposed Account Number Campaigns, how departments' developed proposed scripts, or how Data Analytics prepared the proposed calling lists. No employee from the Data Analytics Department testified at trial.

Outbound Operations personnel reviewed the campaign descriptions and scripts to determine the type of campaign and the particular scrubbing process to use to remove telephone numbers that could not be called under the particular campaign. See DTX-964, Outbound Campaign Request Form; T 627: 2679 (Ban-gert); T 627: 2518-21, 2525-26, 2531-32 (Dexter); T 617: 628 (Davis). Outbound Operations consulted with Dish’s legal department, if necessary, to determine the appropriate scrubbing process to use. T 627: 2684' (Bangert); T 2533: 2564-65 (Dexter); T 628: 2958 and T 629: 3022-23 (Montano).

At some point, Outbound Operations required two individuals in Outbound Operations to approve a campaign. Outbound Operations instituted this policy because a situation occurred in which a telemarketing campaign was allowed to make Prerecorded Calls. PX46, Email dated November 9, 2007; T 617: 673-75 (Davis); see T 629: 3044 (Montano). Prerecorded Calls were not allowed. T 629: 3045 (Montano). Prerecorded messages could be used in non-telemarketing calling campaigns, such as payment reminders, or informational calls that did not involve the sale of additional services. T 629: 3042 (Montano).

• Outbound Operations had no written policies or procedures for scrubbing lists for compliance with Do-Not-Call Laws. T 628: 2807 (Bangert); T 627: 2596-97 (Dexter); see PX0302, Email thread between Joey Montano and Amy Dexter, dated July 28, 2010. Dish also did not produce in discovery any evidence of written scrubbing procedures or documentation of scrubbing results. See Opinion 445, 75 F.Supp.3d at 1008-09. Dish maintained a written Do-Not-Call Policy, but the Policy did not include any procedures for selecting telephone numbers tó call in compliance with the TSR and FCC Rule. See Opinion 445, 75 F.Supp.3d at 1009.

In practice, Outbound Operations used three categories of scrubs: (1) “All DNC” or “All Scrub;” (2) “No DNC” or “No Scrub;” and (3) “Standard Scrub.” The “All DNC” or “All Scrub” scrubbed proposed calling lists against all restricted lists, including Dish’s Internal Do-Not-Call List, the Registry, State Do-Not-Call lists, and wireless telephoné numbers. A separate provision of the TCPA not at issue in this case generally prohibited using an auto-dialer to call wireless telephone numbers without prior written consent. 47 U.S.C. § 227(b)(l)(A)(iii).' Outbound Operations intended to apply the All Scrub to telemarketing campaigns directed to individuals with whom Dish concluded that it had no Established Business Relationship.

The “No DNC” or “No Scrub” only scrubbed calling lists for wireless numbers. Outbound Operations intended to apply the No Scrub to non-telemarketing campaigns such as collection calls, payment reminder calls, informational calls, or calls to schedule service. T 627: 2638-39, 2648-49 (Dexter); T 617: 633-34 (Davis); T 629: 3096, 3117, 3207 (Montano).

The “Standard Scrub” scrubbed calling lists to remove telephone numbers on the Dish Internal Do-Nob-Call List; numbers of residents in states in which the state law did not allow for an Established Business Relationship exception for calls to numbers on State Do-Not-Call Lists; and wireless numbers. Outbound Operations applied the Standard Scrub to telemarketing campaigns directed to current or former customers with whom Dish concluded that it had Transaction-based Established Business Relationships. T 627: 2668-69 (Bangert); T 617: 638, 682-83 (Davis); T 629: 3096 (Montano). Outbound Operations scrubbed Canceled Work Order, No Line of Sight, and Held Work Order campaigns with the Standard Scrub. T 6278: 2546-47 (Dexter).

Dish employees manually reviewed the Dish files to determine whether Dish had a Transaction-based Established Business Relationship with current and former customers whose telephone numbers were listed in Account Number Campaigns. Dish formulated calling campaign lists based on this manual review. Dish employees, however, did not use the last dates that consumers paid for Dish Network programming to calculate the 18 month Established Business Relationship time period. Rather, Dish used “the disconnect date that was associated with the file name” to formulate these lists. T 629: 2969, 3130 (Montano). These lists of former customers then became the basis for the trailing winbaek campaign calling lists. Dish assumed that a person was a current customer if his or her account did not have a disconnect date regardless of when the person last paid for Dish Network programming. Outbound Operations presumed that Dish had Transaction-based Established Business Relationships with persons whose numbers were on calling lists directed to current customers and trailing winbaek calling lists until the lists were more than 18 months old. T 629: 3014-15 (Montano); see T 627: 2608-09, 2624 (Dexter); T 617: 596-98 (Davis). Dish used this manual process until approximately July 2010. See PX 1248, Project Scope Document dated February 2, 2010 (requesting modification of PDialer to use last payment date); DTX 972, Email thread dated June 30, 2010 to July 2, 2010 between Dish and PossibleNOW representatives; DTX 670, PDialer Meeting Minutes dated July 1, 2010, at 2 ¶ 7; T 628: 2969 and T 629: 3130 (Montano).

Dish ran some recurring outbound telemarketing campaigns. The largest recurring telemarketing campaigns were the trailing winbaek campaigns. Dish also ran recurring Average Revenue Per Unit campaigns to market premium channels or other additional services to current customers. Outbound Operations did not require detailed script reviews of these recurring campaigns. T 627: 2637 (Dexter).

Outbound Operations used software called “PDialer” to scrub Account Number Campaign calling lists. Tr. 627: 2669-70 (Bangert); T 629: 3010 (Montano). The PDialer software compared proposed calling lists to the set of restricted lists included in the selected scrub (All DNC, No DNC, or Standard Scrub) and removed from the proposed calling lists numbers that were also on the applicable restricted lists. An employee in Outbound Operations manually selected the applicable scrub. The PDialer also formatted the calling lists so that they could be loaded into the automatic dialer. T 627: 2670-71 (Bangert). After completing the scrub, Outbound Operations then either: (1) loaded the scrubbed lists into the automatic dialer, and the automatic dialer made the calls for the various Dish call centers; or (2) sent the scrubbed list to a Dish Telemarketing Vendor such as eCreek. T 627: 2678-79 (Bangert); T 628: 2969 (Montano); T 627: 2581 (Dexter); T 617: 664-66 (Davis). Telemarketing Vendor eCreek used its own automatic dialer. Telemarketing Vendor EPLDT used Dish’s automatic dialer. See T 627: 2602 (Dexter).

Outbound Operations’ unwritten practices allowed a scrubbed calling list to be called for a 15-day period from the date of the scrub. The 15-day limit addressed the possibility that the list would become out-of-date. A person who had a telephone number on a calling list could register that number on the Registry. The TSR and FCC Rule safe harbor provisions required a telemarketer to honor a registration on the Registry no later than 31 days after the registration was made. TSR 16 C.F.R. § 310.4(b)(3); FCC Rule 47 C.F.R. § 64.1200(c)(2)(i). Outbound Operations used a 15-day time limit to decrease the possibility that a telephone number on the scrubbed calling list would have been placed on the Registry more than 31 days before the call. See T 627: 2580 (Dexter).

Outbound Operations checked scrub results manually. Outbound Operations inserted into proposed calling lists numbers that should be scrubbed by the process. Outbound Operations checked the results to confirm that the scrub properly removed those numbers. T 627: 2678-79 (Bangert); see T 627; 2542 (Dexter). Outbound Operations personnel testified that they tried to fix any problems to improve the system. E.g., T 617: 649 (Davis); T 629: 3137 (Montano).

Outbound Operations used disposition codes to keep track of responses to calls such as no answer, busy signal, answering machine, or answered call. See T 627: 2552-53 (Dexter); DTX 671, Email dated March 16, 2011, attached glossary of response acronyms. The PDialer recorded some disposition codes automatically such as no answer or busy signal. Dish sales representatives (customer service agents) recorded some disposition codes at the time of the call such as wrong number or business answered. See T 627: 2554 (Dexter).

Outbound Operations was responsible for reviewing and approving Account Number Campaigns to customers interested in foreign language programming. Between 2007 and 2010, Dish employees made prerecorded calls to market foreign language programming 'in 15 Account Number Campaigns. The telemarketing messages were recorded in the language of the programming offered for sale. The translations of the message scripts show that the prerecorded messages were directed to existing Dish customers. The messages offered additional foreign language programming options. A total of 98,054 of these prerecorded calls were answered by individuals and resulted in Abandoned Prerecorded Calls in violation of the TSR. See Opinion 445, 75 F.Supp.3d at 996-97, 1019.

Outbound Operations also monitored eCreek’s operations. T 629: 3033 (Monta-no); see DTX-19, Email thread dated March 9-10, 2010. Outbound Operations kept in daily communication with eCreek. See T 629: 3028, 3205 (Montano). ECreek performed an additional scrub on the lists it received from Dish. T 617: 666 (Davis). ECreek also collected names for its internal Do-Not-Call list and for Dish’s internal Do-Ñot-Cail.list. T 627: 2581 (Dexter). eCreek sent Outbound Operations feedback nightly. The feedback included a “DNC” notation on those call recipients who wanted to be on Dish’s internal Do-Nob-Call list. T 617: 666-67 (Davis); see T 629: 3026-27 (Montano).

Outbound Operations responded to consumer complaints regarding eCreek’s telemarketing, but did not otherwise check eCreek for Do-Not-Call Law compliance. T 627: 2612 (Dexter). Problems existed with eCreek’s Do-Not-Call Law compliance in 2009, .2010, and 2011. If Outbound Operations became aware of problems in eCreek’s telemarketing procedures, Out bound Operations tried to ■ correct, the problem. See T 617: 603 (Davis); T 627: 2617-19 (Dexter); PX59, Email from Mon-tano dated January 28, 2010 regarding eCreek DNC call; PX1079, Email from Montano to eCreek dated January 11,2011 regarding Call Research.

In July 2010, Outbound Operations asked eCreek for a copy of its Do-Not-Call Law policy and procedures. Outbound Operations employee Dexter sarcastically questioned whether eCreek had policies and procedures. See PX302, Email from Dexter dated July 28, 2010, regarding Request-for DNC/TCPA Policies and Procedures; T 627, 2571-72 (Dexter). That same day, eCreek provided a Do-Not-Call Policy consisting of two pages of text and a flow chart. DTX 7, Email from eCreek dated July 28, 2010 regarding Request for DNC/TCPA Policies and Procedures. The two-page document did not include procedures for scrubbing calling lists to comply with the TSR or the FCC Rule.

2. Cold Call and Lead Tracking System Campaigns

Dish’s second Do-Not-Call Law compliance system addressed Cold Call campaigns and Lead Tracking System campaigns. Database Marketing was responsible for operating the Do-Not-Call Law compliance system for these campaigns. Database Marketing also formulated the calling lists for these campaigns. Bangert testified Database Marketing incorporated the Do-Not-Call Law compliance process into the process that it used to formulate these calling lists. Tr, 627: 2680 (Bangert).

Neither party presented any. meaningful evidence on the process Database -Marketing used to comply with the Do-Not-Call Laws. The scant evidence in the record indicates that Database Marketing may have used a lead management system referred to as CRM or a computer .system called a Teradata System-to perform these tasks. No one from Database Marketing testified, and no exhibits cited by the parties. or other competent testimony, explained how this process worked. See T 628: 2780 (Bangert) (used CRM to scrub LTS leads); PX 471, Email from Tobias Plumley dated December 29, 2005 (did not use CRM to scrub LTS leads); DTX 650, Timeline Email, at 4; see also PX482, Email from Wade Osborne dated April 17, 2003 regarding DNC Database (DNC scrubbing must be done within CRM tool). Database Marketing did not use the PDialer to scrub lists; the PDialer could only be used to scrub lists of telephone numbers associated with Dish account numbers. See DTX 670, PDialer Meeting Minutes dated July 1, 2010, at 6-6 ¶ 29 PDialer' Bypass (New contact and lead calling lists bypassed the PDialer because the PDialer deleted any telephone number not associated with an account number).

Dish witness Russell Bangert testified that Database Marketing used the same scrubbing options as Outbound Operations. Bangert testified that Cold Call campaigns received an ALL DNC scrub and that Lead Tracking System campaigns received a Sta