United States v. Dish Network LLC

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. 1 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 *818 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, *819 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 *820 (Kitner (Ohio resident)). 2 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 tele *821 marketing. 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. 3 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). 4

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 *822 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. 5 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.” 6 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 . 7 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 ser *823 vices 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.). 8

. 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 *824 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). 9 *825 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). 10 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 *826 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 *827 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 Prerecord *828 ed 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 pub *829 licly 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 pro *830 visions 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). 11

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). 12 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 pro *831 posed 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). 13 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- *832 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 *833 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 . 14

Outbound Operations also monitored eCreek’s operations. T 629: 3033 (Monta-no); see DTX-19, Email thread dated March 9-10, 2010. 15 Outbound Operations kept in daily communication with eCreek. *834 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. 16 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 *835 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 Standard scrub, T 627: 2680-82 (Ban-gert). Dish failed to establish that Bangert had personal knowledge on which to base these assertions. Bangert worked in Outbound Operations, and so,-did not participate- in Database Marketing compliance processes. Database Marketing did not use the PDialer because the PDialer required account numbers. The Court finds that Bangert’s testimony about the process used by Database Marketing was not based on sufficient personal knowledge and has no- probative value. The Court finds an absence- of proof on the methods used by Database Marketing to process Lead Tracking System calling lists and Cold Call lists to comply-with the TSR, TCPA, PCC Rule, or any other Do-Not-Call Law. As noted above, the Court also found an absence of proof on the methods used to formulate the Lead Tracking System calling lists.

Database' Marketing sent the finished Lead Tracking System and Cold Call calling lists to Outbound Operations. Outbound Operations bypassed scrubbing these files with the PDialer and loaded the lists into the automatic dialer or sent these lists to eCreek. T 629: 3088 (Montano); see DTX 670, PDialer Meeting Minutes, at 5-6 ¶ 29 PDialer Bypass. Outbound Operations received Lead Tracking System campaign lists on a daily basis. T 629: 3165 (Montano). Outbound Operations dialed Lead Tracking System campaign calling lists within 24 to 48 hours of receipt. -Dish presumed that it had Inquiry-based Established Business Relationships with the recipients of Lead Tracking System campaigns because the calls were made within 24 to 48 hours of receipt. T 629:3087-88 (Montano). . ....

C. PossibleNOW

In December 2007, Dish retained a company called PossibleNOW, Inc. (Possible-NOW) to assist it in complying with Do-Not-Call Laws. T. 617: 649-52 (Davis); see Opinion 445, 75 F.Supp.3d 976 -77. Pos-sibleNOW operated a number of web-hosted services to sellers and telemarketers to help them comply with the Do-Not-Call Laws. Beginning in early 2008, Outbound Operations used PossibleNOW’s scrubbing services. See DTX 144, Master Services Agreement dated December 14, 2007. Outbound Operations scrubbed lists with thé PDialer and then sent the scrubbed lists- to PossibleNOW for a second scrubbing. See e.g., T 617: 655 (Davis); T 628: 2967-68 (Montano). 17 PossibleNOW scrubbed and returned the scrubbed lists, and Outbound Operations loaded the lists into the automatic dialer or sent the list to eCreek. T 627: 2539 (Dexter); T 617: 652-55 (Davis); T 628: 2967-68, and T 629; 3129 (Montano).

PossibleNOW also maintained Dish’s Internal Do-Not-Call List, Dish’s copy of the Registry, and Dish’s copies' of State Do-Not-Call Lists. T 617: 653 (Davis); T. 628: 2966-67, 2972-76 (Montano). Possi- *836 bleNOW also maintained lists of wireless numbers. Dish used PossibleNOW’s services to scrub against all these lists. T 617: 634 (Davis); see T 628: 2972 (Montano).

Beginning in April 2008, PossibleNOW began maintaining a combined Internal Do-Not-Call List for Dish, eCreek, and certain Order Entry Retailers. Dish, eCreek, and participating Order Entry Retailers uploaded Internal Do-Not-Call Lists to PossibleNOW. T 617: 654-55 (Davis); T 627: 2573 (Dexter); T 628: 2975-76, 3027 (Montano); T 622: 1842 (Mills). Dish required Order Entry Retailers making 50 activations a month to submit Internal Do-Not-Call Lists to PossibleNOW. T 619: 1018-19 (Werner). PossibleNOW kept an Internal Do-Not-Call List for Dish, an Internal Do-Not-Call List for eCreek, and a combined Internal Do-Not-Call List for all participating Order Entry Retailers. Dish began scrubbing its own calling lists against all three Lists in 2008. T 628: 2975-80 (Montano). Dish also required Order Entry Retailers with 600 activations a year to use PossibleNOW’s scrubbing services. T 622: 1841-43 (Mills).

PossibleNOW’s scrubbing services also checked calling lists to determine whether telephone numbers were associated with individuals who had Established Business Relationships with Dish. PX-1248, Project Scope Document dated February 2, 2010. PossibleNOW did not use Dish’s manually prepared lists of current customers and lists of former customers based on disconnect dates to identify telephone numbers associated with individuals who had Established Business Relationships with Dish. Instead, PossibleNOW required Dish to add two additional fields to calling lists before conducting scrubs: (1) the last payment date; and (2) the date that a person inquired about Dish programming. During the scrubbing process, PossibleNOW identified numbers with whom Dish had: (1) a Transaction-based Established Business Relationship if the last payment date was within 18 months of the campaign calling date, or (2) an Inquiry-based Established Business Relationship if the inquiry date was within three months of the campaign calling date. Id. 18

In approximately July 2010, Dish modified the PDialer to also use the last payment date to check for Transaction-based Established Business Relationships. Dish stopped presuming that it had a Transaction-based Established Business Relationship with all persons whose numbers were on campaigns directed to current customers and winback campaigns that were less than 18 months old. Dish added a field to its calling lists for a last payment date. Dish modified the PDialer to check for this field in a manner similar to the Possible-NOW process. T 629: 3011-15 (Montano); see T 633: 3297-99 (Taylor); 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 PossibleNOW representatives regarding use of last payment dates; DTX 670, PDialer Meeting Minutes dated July 1, 2010, at 2 ¶7 (indicating change to last payment date).

Dish did not add a field for inquiry dates to the PDialer. Dish employee Montano testified that one field was added for simplicity. Montano testified that inquiry dates, if applicable, were entered into the Last Payment Date field. T 629: 3015-16 (Montano). The Court finds this testimony *837 not to be credible. The Court finds that Dish only added a Last Payment Date because Dish only used the PDialer to scrub Account Number Campaigns. Account Number Campaigns were addressed to current and former customers, not individuals inquiring about Dish Network programming. Thus, Dish did not need to add a field for inquiry dates to campaigns run through the PDialer. See T 628: 2780 (Bangert); DTX 670 PDialer Meeting Minutes, at 6 ¶ 29. 19

It is unclear whether Dish used Possi-bleNOW to scrub Lead Tracking System and Cold Call calling list. Witnesses testified that Outbound Operations scrubbed lists with the PDialer and then sent lists to PossibleNOW for a second scrubbing. See e.g„ T 617:655 (Davis); T628:2967-68 (Montano). Outbound Operations only scrubbed Account Number Campaign calling lists through the PDialer. This testimony tends to indicate that Outbound Operations only sent Account Number Calling Lists to PossibleNOW. PossibleNOW’s process, however, included a field for inquiry dates. PX 1248, Project Scope Document dated February 2, 2010. Inquiry dates would be used to determine Inquiry-based Established Business Relationships in Lead Tracking System and Cold Call calling campaigns. Dish, however, never provided any inquiry dates to either its expert Taylor or to the Plaintiffs. See T 633: 3300 (Taylor); T 614: 333-35 (Yoeli) (Dish provided activation dates to Plaintiffs, not inquiry dates). The Court finds that the scant, ambiguous evidence does not establish whether Dish used Possible-NOW to scrub Lead Tracking System calling lists or Cold Call calling lists.

D. Safe Harbor

The Court found at summary judgment that Dish did not comply with the TSR or FCC Rule safe' harbor. Opinion 445, 75 F.Supp.3d at 1008-09 . Dish employee Montano testified that Dish met all requirements for compliance with TSR and TCPA safe harbor provisions. T 628: 2962-65 (Montano). Montano testified that Outbound Operations maintained documentation of its scrubs. T 629: 3183 (Mon-tano). Dish, however, failed to produce in discovery or at trial written scrubbing procedures or documentation that such scrubbing procedures were followed. Such documentation is required to meet safe harbor requirements. See Opinion 445, 75 F.Supp.3d at 1008-10, 1025 . Dish, in fact, had no- written scrubbing procedures. T 628: 2807 (Bangert); T 627: 2596-97 (Dexter); see PX0302, Email thread between Joey Montano and Amy Dexter, dated July 28, 2010. Montano’s testimony on this point contradicted Dexter’s and Davis’s testimony and is not credible.

The Court also barred Dish from producing evidence of scrubbing procedures that was not produced in discovery. Opinion entered April 24, 2013 (d/e 279) (Opinion 279), at 43-44. To the extent that Dish presented Montano’s testimony at trial (or any other witnesses testimony not produced in discovery)- to prove the Dish maintained documentation to comply with safe harbor procedures, the testimony is barred by Opinion 279.

*838 E. Notice to Dish of Calls to -Numbers on the Registry and Internal Do-Not-Call Lists

Beginning in October 2003, Dish personnel periodically discovered that Dish’s direct telemarketing operations made Registry Calls and Internal List Calls. On October 7, 2003, Dish personnel tested the scrubbing process and discovered the process failed to remove numerous telephone numbers from the test call list that were on the Registry. PX 478, Email from Todd Binns dated October 7, 2003, regarding Denver DMA DNC Test.

In February and May 2004, Dish personnel investigated consumer complaints and discovered that Dish made Internal List Calls. PX 438, Email from David Murphy dated February 12, 2004, regarding Consumer Complaint; PX 439, Email from John Dy dated May 2, 2004, regarding Do Not Call Issue. In March 2004, Dish personnel discovered Dish made an Internal List Call. PX 440, Email from Leanna Sultan dated March 16, 2004 - regarding Telemarketing Calls to Current Subscribers.

In December 2005, Lead Tracking System calling lists were not being scrubbed because whatever process Database Marketing was using was not working. PX 471, Email from Tobias Plumley dated December 29, 2005, regarding Casper and Cheyenne.

In October 2006, Dish personnel investigated a consumer complaint and discovered Dish made a Registry Call. PX 566, Email from John Greaney dated October 2, 2006, regarding Telemarketing Complaint.

In November 2007, Dish personnel investigated a consumer complaint and discovered that Dish -made an Internal List Call. The investigators determined that the calling campaign was improperly scrubbed because the campaign was improperly classified as a non-telemarketing campaign. PX 46, Email from Bob Davis dated November 9, 2007. regarding Tahira Sial.

In 2007, Dish conducted an internal audit of telemarketing calling records. The 2007 audit showed that Dish 'made 2,334, 5,324, and 3,405 Registry Calls in June, July, and August 2005 respectively. The 2007 audit also showed that Database Marketing campaigns “were scrubbed but the DNC records.were not removed.” PX 695, Email from Todd Binns dated February 1, 2007, regarding Notes from DNC Meeting, January 30; see T 617: .626-27 (Davis); see PX 696, Email thread dated January 18-26, 2007 regarding 2007 audit; PX 1404, Email dated January 23, 2007 regarding 2007 audit.

In 2009, Dish conducted another internal audit of its telemarketing call records. The audit showed that Dish made 291,000 Registry Calls from October to December 2008. PX733, Email thread regarding 2009 Audit dated June 2, 2009 to January 5, 2010..

Outbound Operations also knew that eCreek made illegal Registry and Internal List Calls. Dexter testified that eCreek did a good job, but Outbound Operations personnel knew that eCreek’s scrubbing process did not work effectively all the time. T 627: 2618 (Dexter). In January 2010, Dish personnel investigated' a consumer complaint and discovered eCreek made a Registry Call. PX 59, Email thread regarding eCreek DNC dated January 25, 2010 to January 28, 2Q1Q. 20 ⅛ ,

*839 III. Dish Order Entry Program

A. Dish’s Relationship with Order Entry Retailers Generally

By 2003, Dish had developed a website interface called the Order Entry (OE) Tool to facilitate the sale of Dish Network products and services by national companies such as'Radio Shack and AT & T. 21 The Order Entry Tool was designed for telephone sales to residential customers and could not be used to open commercial accounts. Dish controlled the programming packages available for sale through the Order Entry Tool and set the pricing and terms of sale, including all promotions. T 626: 2225 (Neylon). Dish controlled access to the Order Entry Tool by issuing specific logins and passwords (collectively logins) to the national companies.

The Order Entry Tool prompted the sales person to ask a series of questions to offer the appropriate programming and services, secure the necessary information, and make the required disclosures to make the -sale. T 626: 2358 (Ahmed); T 621: 1628-32, 1668 and T 622: 1671-73 (Mills); T 626, 2225 (Neylon); PX 1208, Dish Order Entry Tool Instructional Training Guide. The necessary information included customers’ addresses, Social Security Numbers, and credit card account numbers. The disclosures included the terms and conditions of sale and legally required disclosures. Dish provided the language for all disclosures and terms and conditions of sale. T 621; 1629-30 (Mills).

Once the customer’s information was uploaded onto the Order Entry Tool, Dish performed the credit check, approved the sales, supplied all equipment, and performed the installation or arranged for the installation and activation of service. New customers paid Dish directly. See T 626: 2293-94 (Ahmed); T 621: 1626, and T 622: 1668-72 (Mills); PX 61, Letter from Ahmed to David Hagen dated October 7, 2003. The term “activation” referred to activating new service in a residence; the sale was complete when the service was activated. See T 628:2718 (Bangert); T 629:3052 (Montano).

In 2003, Dish began the Order Entry (OE) program to expand the use of-the Order Entry Tool beyond national companies like Radio Shack and AT & T. Under the Order -Entry program, Dish authorized marketing businesses to use the Order Entry Tool to sell Dish Network programming.- T 626: 2283 (Ahméd); Dish controlled access by issuing logins to the marketing businesses. T 621: 1627 (Mills). Dish called- these marketing businesses Order Entry Retailers. 22 The name Order Entry Retailer was a misnomer. These businesses were not retailers, A retailer acquires inventory at wholesale and markets that inventory to the public at retail. A TVRO Retailer, for example, acquired inventory of satellite dishes,, DVRs, cable decoding boxes, and other equipment, and sold, or leased that equipment to customers who bought Dish Network programming. The Order Entry “Retailers” acquired no inventory and sold no product. Rather, these businesses marketed Dish Network programming for Dish. The businesses completed the solicitation and provided the customer information to Dish through the Order Entry Tool. Dish ran *840 the credit check; Dish approved the sale; Dish installed the equipment; Dish sold the programming and services directly to the- customer; the customers became Dish subscribers; and the customers paid Dish directly. The Order Entry “Retailers” were marketing businesses. Dish engaged these marketing businesses to sell Dish Network programming. 23 The Court will use the misnomer “Order Entry Retailer” because the term pervades the exhibits and trial testimony, but the businesses were not retailers.

Dish paid the Order Entry Retailers commissions called “incentives” for activations. 24 Dish established the Order Entry program to compete with DirecTV. DirecTV had already implemented a similar program, and Dish was trying to catch up. T 626: 2296 (Ahmed); T 621: 1632 (Mills).

Order Entry Retailers could market nationally because Dish installed the satellites and related equipment. Existing TVRO Retailers could only market in the geographic areas in which the Retailer could deliver and install Dish satellites and related equipment. See T 626: 2295, 2385 (Ahmed). Order Entry Retailers also had no inventory costs and no costs related to installation and delivery because Dish provided those services to the customer. T 626: 2295-96 (Ahmed); see Deposition of Walter Eric Myers, at 82.

Dish employees testified that Dish developed the Order Entry program to “leverage ... entrepreneurial resources ... in the marketplace.” T 626:2223 (Ney-lon). Dish wanted to take advantage of the

expertise of marketing companies to sell products. See T 626: 2289-90 (Ahmed) (“[Order Entry Retailers] bring specific expertise, .just like all the independent satellite dealers do to their specific niche. And that’s why these guys were very valuable, and they still are today.”); see also Pórtela Deposition, at 76 (Dish sought out direct marketers who were good at selling anything.).

The Order Entry program generated large numbers of activations for Dish. By 2005, Order Entry Retailers passed Dish’s direct marketing in producing activations. By 2007, Order Entry Retailers accounted for 30 percent of all of Dish’s activations. PX 486, Dish Quality Assurance Program Presentation, at 7. As of mid-2007, the Order Entry Retailers were producing 70,-000 to 90,000 activations per month. Dish direct sales were averaging 45,000 to 60,-000 activations per month at the same time period. PX 99, Dish Gross Sales Update Report dated August 6, 2007. From 2004 to 2010, 60 percent of new activations came from Retailers, and the lion’s share of those came from Order Entry Retailers. T 618: 899 (Werner); see also Pórtela Deposition, at 84.

The number of companies in the Order Entry program was always relatively small. At its peak, Dish had approximately 80 Order Entry Retailers, compared to 8,000 TVRO Retailers at the same time. T 619: 1157 (Werner). By the end of 2009, Dish reduced the number of Order Entry Retailers to 32. PX 730,2009 Sales Partner *841 Review, at 13; see also T 619: 1157-58 (Werner). In January 2016, Dish about 3,000 TVRO Retailers and 10 to 20 Order Entry Retailers. T 621: 1558 (DeFranco). As of October 2016, Dish had 17 Order Entry Retailers. T 711; 330 (Mills).

The relationship between Dish and Order Entry Retailers was governed by a standard Retail Agreement. All Order Entry Retailers signed a substantially similar form Retailer Agreement. See PX 152, 180, 200, and 238, Retailer Agreements with various Order Entry Retailers. The Retailer Agreements referred to Order Entry Retailers as “Retailers.” The Retailer Agreements appointed Order Entry Retailers as “Authorized Dealers” for Dish, and authorized Order Entry Retailers to “market, promote, and solicit” orders for Dish throughout the United States. PX 152, Retailer Agreement with Dish TV Now, §§ 3.1-3.2. The Retailer Agreement authorized Order Entry Retailers to use Dish trademarks in their marketing; and gave Dish access to each Retailer’s records with respect to its Dish dealership. Id. § 8.

Sections 7.1, 7.2, and 7.3 provided as follows:

7.1Retailer agrees to use its best efforts to promote and enhance EchoStar’s business, reputation and goodwill. Retailer shall allow only its employees, and shall not use any independent contractors, Affiliates or sub-agents, to fulfilHts obligations hereunder without EchoS-tar’s specific prior written consent, which consent may be withheld in Ech-oStar’s sole and absolute discretion for any reason or no reason. In the event Echostar does grant consent to Retailer to use persons not employed by Retailer to perform activities contemplated hereunder, Retailer shall be responsible for the acts and omissions of such persons under this Agreement to the same extent it is responsible for the acts and omissions of its own employees.

7.2 Retailer shall-not sell Programming under any circumstances. All sales of Programming are transactions solely between EchoStar and DISH Network Subscribers. Retailer shall promptly forward to EchoStar all orders for Pro-: gramming in the manner prescribed by EchoStar from time to time. Retailer understands that EchoStar shall have the right, in its sole and absolute discretion and for any reason or no reason, to accept or reject, in whole or in part, all orders for Programming. Retailer also agrees that it shall not condition, tie or otherwise bundle any purchase of Programming with the purchase of other services or products other than as specifically consented to in writing by Ech-oStar in advance, which consent may be withheld in EchoStar’s sole and absolute discretion for any reason or no reason.

7.3 Retailer shall comply with all Business Rules, including without limitation all Business Rules which govern or are applicable to any Promotional Program in which Retailer participates. Retailer shall disclose to each prospective DISH Network Subscriber the relevant terms of the Promotional Programming which the prospective DISH Network Subscriber is interested as well as any other terms as set forth in any applicable Business Rule. Furthermore, Retailer shall take all actions and refrain from taking any action, as requested by Ech-oStar in connection with the marketing, advertisement, promotion and/or solicitation of orders for Programming and the sale of DISH DBS Systems, and Retailer shall cooperate by supplying EchoStar with information relating to those actions as EchoStar reasonably requests. Failure of Retailer to adhere to any Business • Rules may result in disciplinary action up to and including *842 termination of this- Agreement and/or any Other Agreement in the sole and absolute discretion of EchoStar for any reason or no reason, and the exercise' by EchoStar of any-other .remedy provided in this Agreement, at law, in equity or otherwise.

Id. §§ 7.1, 7.2, and 7.3 (emphasis added). The Retailer Agreement defined Business Rules as: ■

1.6 “Business Rule(s)” means any term, requirement, condition, condition precedent, process or procedure associated with a Promotional Program or otherwise identified as a Business Rule by Echostar which is communicated to Retailer by EchoStar or an Affiliate of EchoStar either directly (including email) or through any method of mass communication reasonably directed to EchoStar’s retailer base, including, without limitation, a “Charlie Chat”, e-mail, facts blast, or posting on EchoStar’s retailer web site. Retailer agrees that Ech-oStar has the right to modify any Business Rule at any time and from time to time in its sole and absolute discretion for any reason ór no reason, upon notice to Retailer,

Id. § 1.6.

Section 17.9 of the Retailer Agreement authorized Dish, to audit Retailers on two days’ notice:

17.9 Records and Audit Rights. During the .Term of this Agreement and for a period of three (3) years thereafter, Retailer shall keep and maintain at its principal place of business complete and accurate records and books of account, as well as all documentation of all material processes and procedures in connection with: (i) its performance under this Agreement.... EchoStar shall have the right, .upon two (2) days prior written notice, to review, audit and make copies of Retailer’s books, records and documentation for the purposes of: (a) determining. Retailer’s compliance with its duties and obligations under this Agreement, .. Any audit conducted .by Ech-oStar shall be conducted by EchoStar or its representative(s) at Retailer’s offices during normal business hours....

Id.§ 17.9.

The Retailer Agreement provided for automatic termination if an Order Entry Retailer violated the terms of. the Retailer Agreement, or “any applicable federal, state or local law or regulation.” Id. § 10.4.

The Retailer Agreement also contained a provision entitled Independent Contractor:

11. INDEPENDENT CONTRACTOR. The relationship of the parties hereto is that of independent contractors. Retailer shall conduct its business as an independent contractor, and all persons employed in the conduct of -such business shall be Retailer’s employees only, and not employees or agents of EchoStar or its Affiliates. Retailer shall prominently state its business name, address and phone number in all communications with the public, including, without limitation, marketing materials, flyers, print ads, television or radio spots, web sites, e-mails, invoices, sales slips, and the like. Notwithstanding anything in this Agreement to the contrary, Retailer (including without limitation its officers, directors, permitted subcontractors, permitted agents and employees) shall not, under any circumstances, hold itself out to the public or represent that it is an agent, employee, subcontractor or Affiliate of EchoStar or any Echostar Affiliate. In furtherance of. (and without limiting) the foregoing, in no event shall Retailer use EchoStar’s name or the name of any EchoStar Affiliate in any manner which would- tend to imply that Retailer is an Affiliate of EchoStar or *843 that Retailer is an agent, subcontractor or employee of EchoStar or one of its Affiliates or that Retailer is acting or is authorized to act on behalf of EchoStar or one of its Affiliates. This Agreement does not constitute any joint venture or partnership. It is further understood and agreed that Retailer has no right or authority to make any representation, promise or agreement or take any action on behalf of EchoStar or an EchoS-tar Affiliate.,

Id. § 11(emphasis added).

Order Entry Retailers represented themselves to the public as Dish authorized Retailers. See T 622: 1821-22 (Mills). Order Entry Retailers could use the Dish Network logo with the added words “Dish Authorized Retailer.” T 625: 2226 (Neylon); T 620: 1215-16 (Musso). Some Order Entry Retailers improperly represented themselves to the public to be Dish. See e.g., PX 120 Email Thread with Sweeney of Indiana Attorney General’s Office regarding Satellite Systems dated September 23-30, 2005 (Order Entry Retailer claims to be Dish); PX 1361, Email thread regarding calls to existing customers, at 8-10; PX 650, Email thread dated August 7, 2006 regarding consumer complaint; T 621: 1474-75 (DeFranco). 25

Order Entry Retailers set up their own facilities, purchased their own equipment, paid their own rents, hired and fired their own employees, secured their own leads and calling lists, wrote telemarketing .scripts, and prepared marketing materials. Some Order Entry Retailers also sold other products, including competing services such as DirecTV programming. See T 626: 2290-91, 2293 ,(Ahmed); T 619: 1088-94 (Werner); T 622: 1916-19 (Goodale); T 625: 2099-2100 (Neylon); T 622: 1793-94 (Mills); see DTX 737, Letter from JSR Enterprises to Musso, undated; T 620: 1357-58 (Castillo).

Contrary to § 10.4 of the Retailer Agreement, Order Entry Retailers were not automatically terminated when they violated the terms of the Retailer Agreement or applicable law. E.g., T 625: 2124-25 (Neylon); T 619: 1170-71 (Werner). Rather, Dish employed an array of disciplinary measures that included warnings, probation, fines, withholding access to the Order Entry Tool (known as putting on hold), and termination. See T 625: 2136 (Neylon); T1627 (Mills).

Dish’s Sales Department ran the Order Entry program. T 626: 2301-02 (Ahmed). The Sales Department was responsible for the indirect marketing channel. As discussed above, the indirect channel included Order Entry Retailers, TVRO Retailers, and national accounts such as Sears and AT & T (collectively Indirect Marketers). Dish Vice President of Sales Amir Ahmed developed the Order Entry program. T 626: 2358 (Ahmed). In 2005, Ahmed was promoted to Senior Vice President of Sales and Distribution. Ahmed left Dish on January 31, 2006 and went to work for a Dish Order Entry Retailer called Marketing Guru. T 626: 2283-85 (Ahmed). Dish Vice President for Sales and Distribution Brian Neylon took over direct responsibility for indirect sales, including the Order Entry program, after Ahmed left. T 625: 2075-76, 2112-13 (Neylon). 26

*844 The Sales Department looked for companies to become Order Entry Retailers that demonstrated the ability to generate large numbers of activations of new Dish subscribers. Ahmed solicited the first Order Entry Retailer, Dish TV Now, because its principal David Hagen operated a very large call center that produced thousands of activations for DirecTV. See T 626: 2304-05 (Ahmed); PX 61, Letter from Ahmed to Hagen dated October 7, 2003; PX 148, Dish TV Now proposal dated October 7, 2003 (Dish TV Proposal) (Hagen’s DirecTV Retailer Prime TV generated 27,-000 new DirecTV subscribers per month). Dish did not perform any background checks on these companies or their principals (such as checking Dunn & Bradstreet Reports or criminal background checks) before making them Order Entry Retailers. ⅛ T 626: 2311, 2361, 2477-78 (Ahmed); T 625: 2230-31 (Neylon). The goal was to find outside companies that could generate activations.

Dish Sales personnel knew that many Order Entry Retailers used outbound telemarketing to generate high volumes of activations. T 622: 1677-78 (Mills). Dish Sales personnel assumed that Retailers selling more than 150 activations per month were using outbound telemarketing. PX 620, Email Thread dated August 17,-2007 regarding Retailers. Dish Sales personnel regularly learned that Order Entry Retailers used telemarketing. See DTX 223, Email Thread between Ahmed and Hagen dated September 16, 2004 (Ahmed informed that the first Order Entry Retailer Dish TV Now was using outbound'telemarketing); PX80, Email thread between Nick Meyers and Neylon and Ahmed, dated March 10-11, 2002 (Dish knew in 2002 that then TVRO Retailer Satellite System used Prerecorded Calls); T 626: 2410-11, 2417 (Ahmed); PX 190, Email thread between Ergen and Ahmed dated June 28, 2004, and PX 656, Email thread regarding Satellite Systems dated September 14-15, 2004; T 627; 2475-76 (Ahmed knew Satellite Systems used Prerecorded Calls to generate sales for DirecTV, and Ahmed made Satellite Systems an Order Entry Retailer); PX 265, Email from Mills to Neylon dated December 21, 2006 (Order Entry Retailer JSR Enterprises principal Richard Goodale told Mills that JSR planned on using outbound telemarketing when JSR became an Order Entry Retailer); PX 129, Email thread between Mills and Werner dated May 17, 2007 (Order Entry Retailer outbound telemarketing accounted for 12,000 activations per month); PX 598, Email to Van Ernst re Secret Shopping dated April 8, 2008 (lists several Order Entry Retailers using outbound telemarketing); PX 1347, TCPA Tracker Report dated September 16, 2008 (identified consumer complaints resulted from Order Entry Retailer Prerecorded Calls); see also Deposition of Shawn Pórtela, at 81-82 (Dish was actively prospecting for call centers to sell Dish Network programming); T 711: 339-40 (Mills) (Mills knew that 9 of 17 current Order Entry Retailers used outbound telemarketing); T 710: 231 (De-Franco) (about half of Order Entry Retailers in October 2016 used outbound telemarketing). The testimony of various Dish witnesses that Dish did hot know whether particular Order Entry Retailers used outbound telemarketing was not credible.

The Sales Department was divided into two parts, Retail Sales and Retail Services. Retail Sales worked with Indirect Marketers to facilitate sales. Michael Mills was Vice President in charge of Retail Sales. Retail Servicés handled the payments to Indirect Marketers. Blake Van Ernst was Vice President in charge of Retail Ser *845 vices. Rob Origer was Director of Retail Services.

Retail Sales employed Regional Sales Managers and Area Sales Managers (collectively Sales Managers), Account Managers or Account Representatives (Account Managers), and Field Sales Development Representatives (“Field Representatives” or “FSDRs”), all of whom visited locations that sold Dish through the indirect channel. See T 711: 284-86 (Van Ernst). Account Managers and Field Representatives reported to Sales Managers who reported up the chain to Mills in Retail Sales. Initially, Account Managers handled Order Entry Retailers, and Field Representatives handled TVRO Retailers and national accounts. By 2006, Account Managers and Field Representatives both worked with Order Entry Retailers. T 620: 1320-21 (Castillo).

Account Managers and Field Representatives provided training and marketing materials on Dish products and services at Order Entry Retailer facilities. T 621: 1627, 1632 (Mills); T 620: 1302 (Castillo); T621: 1632-34 and T 622: 1703 (Mills); Deposition of Michael Oberbillig, at 68, 83. Account Managers and Field Representatives pitched marketing ideas to Order Entry Retailers. See Oberbillig Deposition, at 81. Dish Sales personnel, on occasion, provided sales scripts to Order Entry Retailers and revised Order Entry Retailers’ sales scripts. T 621: 1636 and T 622: 1707 (Mills). Mills made comments on scripts regularly. T 621: 1637 (Mills) (quoting deposition testimony).

Dish shared lead lists with Retailers on a few occasions. T 622: 1767-72 (Mills); PX 704, Email thread between Dish Legal Department and Marketing dated May 31-June 7, 2007; PX 58, Email from Davis to Pastorius dated June 6, 2008; PX 621, Email from Erik Carlson to DeFranco and others , dated March 20, 2006; T 621: 1519-20, 1560 (DeFranco); PX 621, Email from DeFranco to Carlson, dated March 20, 2006; PX 1220, Email thread from Defender to Eric Carlson dated June 22-July 18, 2007. 27

Retail Sales employees’ compensation, from Field Representatives and Account Managers up to Vice President Mills, was tied to the number of new activations generated by Indirect Marketers, including Order Entry Retailers, See e.g., T 622: 1798 (Mills) (part of annual bonus based on number of new activations); T 620: 1299-1303-04, 13-7-09 (Castillo) (Field Representatives and Account Managers’ compensation tied to regional activation goals); Oberbillig Deposition, at 38-39; see also T 626: 2368 (Ahmed) (“[LJove to see the activation numbers.”).

The Retail Services division of the Sales Department included a Risk and Audit unit. T 618: 926 (Werner). Bruce Werner was in charge of Risk and Audit. Risk and Audit audited Indirect Marketers to look for attempts to defraud Dish. Risk and Audit also kept information on “churn.” The term “churn” meant the rate at which new customers solicited by a particular marketer terminated .their Dish subscriptions. A high churn rate meant that a large percentage of the new customers solicited by particular marketer (either in the direct *846 or indirect channel) terminated their subscriptions after only a brief period of time. See T 618: 915 (Werner); Oberbillig Deposition, at 47-48. High churn rates cost Dish money. Dish incurred significant upfront costs with each activation in the form of equipment costs, installation costs, and promotional- discounts. Dish recouped the initial investment over two to three years. Dish could not recoup these upfront costs if the customer cancelled after only a short period of time. As a result, Dish lost money on activations from Order Entry Retailers with high churn rates. See e.g., T 626: 2325-28 (Ahmed); T 621: 1692 (Mills); T 621: 1486-86 (DeFranco). Risk and Audit could compare Order Entry Retailer churn rates to the churn rate of Dish’s direct marketing. See e.g.-, PX 1144, Retailer Audit Notification & Summary dated December 20, 2005 (comparing Dish TV Now churn rate with Dish direct marketing churn rate).

For the first several years of the Order Entry program, Dish made little or nó effort to monitor or supervise Order Entry Retailers’ sales methods. Risk and Audit audited Order Entry Retailers to detect fraud on Dish, and' Dish terminated Order Entry Retailers for fraud. T 618: 919 and T 619: 1072 (Werner); PX 1355, Email from Werner dated January 26, 2010. T 618: 916-19 and T 619: 1116 (Werner). Risk and Audit also responded to consumer complaints, but did not otherwise monitor Order Entry Retailers’ marketing practices. Sales Managers, Field Representatives, and Account Managers visited Order Entry Retailer facilities to assist in marketing, but they did not closely monitor marketing practices.

Some of the Order Entry Retailers took advantage of the situation to engage in corrupt practices. The corrupt practices generated problems in at least six areas: fraud on Dish; deceptive, incomplete, or inaccurate representations made to consumers during telephone solicitations; Do-Not-Call Law violations; unauthorized use of third-party affiliates; high' churn; and increasing consumer complaints.

Some Order Entry Retailers used various means to defraud Dish. Order Entry Retailers sometimes opened duplicate accounts for existing Dish customers to secure additional commissions. Order Entry Retailers sometimes closed current accounts and opened new accounts for existing customers to secure additional commissions. Order Entry Retailers sometimes submitted false information oh the Order Entry Tool to secure Dish approval of customers who'would not otherwise be approved for a Dish subscription. Order Entry Retailers sometimes submitted fake Social Security numbers. At least one Order Entry Retailer,' American Satellite, Inc. (American Satellite or Am Sat), sometimes put $1.00 on prepaid debit cards and then falsely submitted numbers from the prepaid cards as the credit card numbers of new customers who did not have credit cards. See T 618: 902-14 (Werner); T 621: 1511-12, 1515-17 (DeFranco); PX220, Email Thread dated January 7, 2009 regarding Order Entry Retailers Allegro and American Satellite; see also PX 1306 Email dated September 5, 2008 from Steve McElroy to Bruce-Werner and others regarding More Cactus’Follow-up.

In addition to defrauding Dish, some Order Entry Retailers made false or misleading statements to consumers during sales presentations. See e.g., T 621:1511-12, 1515-17, 1589 (DeFranco); DTX 746, Collective Exhibit of Five Press Releases dated October 8, 2008 through March 5, 2009, Announcing Terminations of 40 Retailers. Some Order Entry Retailers did not provide required disclosures. Dish incorporated into the Order Entry Tool a set of disclosures that were supposed to *847 be read to purchasers as part of completing the sale. Some disclosures were required by statute or regulation. Some were required by settlements that Dish made with state attorneys general. See e.g., PX 1202, Risk Summary — TCPA/Dis-closures for week ending September 12, 2006 (2006 Risk Summary); PX 1044, Letter from Mike Oberbillig to Jerry Grider dated August 10, 2006 (required disclosures enclosed); T 626: 2259 (Neylon). Some Order Entry Retailers did not give the disclosures. See e.g., PX 1202, 2006 Risk Summary.

Order Entry Retailers also violated the Do-Not-Call Laws. Dish Retail Sales Vice President Mills knew that Order Entry Retailers could be a source of serious Do-' Not-Call Law violations. T 621: 1678-79 (Mills). Several Order Entry Retailers initiated Prerecorded Calls in violation of the TSR and the TCPA. These included, among others, Dish TV Now, Satellite Systems, Star Satellite, JSR, American Satellite, United Satellite, Vision Satellite, LA Activations, Dish Nation, and Atlas Assets. See T 625: 2110, 2117, 2170-71 (Neylon); T 620: 2110 (Musso); T 621:1693-95 and T 622: 1728-29 (Mills); T 622: 1883 (Goo-dale); PX205, Email thread between Ban-gert and Dish Retailer Escalations, dated May 25-27 2005; PX 120, Email thread between Oberbillig, Ahmed and Novak dated September 26-30, 2005 regarding Dish Network autodialer calls, at PX 120-001, 003-004; PX 168, Letter from Consumer Ryan Swanberg, dated July 26, 2004; PX 1299, Letter from attorney Chad Austin to Dish Senior Corporate Counsel Dana Steele dated March 27, 2007; PX 1298, Letter from North Dakota Assistant Attorney General James Thomas to EchoS-tar and Dish Nation LLC dated June 25, 2007, with enclosed North Dakota ex rel. Stenehjem v. Creative Concepts Group, Inc., N.D. Dist. Ct., South Central Judicial Dist., Civ. No. 07C1307, Assurance of Voluntary Compliance Order entered June 21, 2007. Many of these .companies used a type of prerecorded call known as a “press 1” or “p-1” call. The prerecorded message asked the call recipient to press the number 1 on the telephone number pad if the recipient was interested in the product. The call recipient who pressed 1 was connected to a live sales person. See e.g„ T 622: 1871-72 (Goodale).

Order Entry Retailers also made Registry Calls and Internal List Calls. Some Order Entry Retailers did not maintain Internal Do-Not-Call Lists, in direct violation of the TCPA. Some companies hung up on individuals who asked to be put on an Internal Do-Not-Call List and then called the individuals back in direct contravention to the call recipients’ requests. See T 622: 1873 (Goodale); PX 250, Email from Musso dated December 20, 2006 Regarding E-Mail Notice of TCPA Violation.

. Some Order Entry Retailers hid their identities through a process called spoofing. Spoofing means falsifying identifying information. Telephone spoofing is a process by which the caller causes false identifying information to appear on the call recipient’s Caller ID display and phone records. See T 620; 1221-22 (Musso). As a result, the call recipient cannot readily determine the source of the illegal call.

Many Order Entry Retailers engaged third-party affiliates without authorization from Dish. The Retailer Agreement provided that Order Entry Retailers could not use third-party affiliates without prior approval from Dish. Many Order Entry Retailers disregarded this requirement. Many provided their Order Entry Tool Logins to individuals and call centers in this country as well as call centers in the Philippines or other countries. Thesé third parties often made Do-Not-Call Law violations and used misrepresentations to sell Dish Net *848 work programming. See DTX 947, Dish Facts Blast, dated October 10, 2007 (warning Order Entry Retailers about the use of unauthorized affiliates); T 620: 1314 (Castillo) (Order Entry Retailers shared logins with other Retailers); T 622: 1875-76 (Goodale) (worked under other Order Entry Retailer Logins). 28 Dish Sales personnel were aware of the use of affiliates by at least some Order Entry Retailers. See e.g., PX 239, Email from Steven Keller dated September 8, 2006, attached Spread Sheet (September 2006 Spread Sheet); PX 1045, Email from Mills dated October 10, 2006, regarding Affiliate Calls (October 2006 Affiliate Calls Email).

Customers who purchased Dish Network Programming .from these unscrupulous Order Entry Retailers often canceled their services. As a result, many of these Order Entry Retailers had high churn rates. Dish lost money on activations from Order Entry Retailers with high churn rates because Dish could not recoup over time its initial investment in equipment costs, installation costs, and promotional discounts. See e.g., T 626: 2325-28 (Ahmed); T 621: 1692 (Mills); T 621; 1486-86 (DeFranco).

The unscrupulous practices of largely unsupervised Order Entry Retailers also generated customer complaints. Dish had a long-term problem with consumer complaints about Order Entry Retailers. T' 621: 1685 (Mills). Retail Sales, Retail Services, and Dish’s Legal Department worked with Dish’s Escalations Department to respond to consumer complaints. See T 620: 1220 (Werner); Deposition of Marciedes Metzger, at 31. The Escalations Department included the Executive Resolution Team (ERT). The Executive Resolution Team handled customer complaints that had been “escalated.” The term “escalated” meant that the customer’s complaint had not been resolved by the customer service representative who initially received the complaint and so was sent up, or escalated, to the Executive Resolution Team. Metzger Deposition, at 26-27. 29

Representatives of the Executive Resolution Team investigated complaints to ascertain the source of the call that sparked the complaint and whether the complaining consumer’s telephone number was on the Registry. The Executive Resolution Team put the complaining consumer’s telephone number on Dish’s Internal Do-Nofc-Call List. If Dish direct marketing did not make the call, the Executive Resolution Team attempted to identify the Order Entry Retailer that made the call. In such instances, the Executive Resolution Team told the complaining customer that Dish did not make the call and told the consumer the identity of the Order Entry Retailer that made the call, if known. The complaint was then filed and marked resolved. PX 1361, Email from July 11-19, 2006, regarding Calls to Existing Dish Network Customers, at 001-002.

Dish dealt with Order Entry Retailers that generated consumer complaints on an ad-hoc, case-by-case basis. T 619: 996 (Werner). If Dish identified the Order Entry Retailer that dealt with a complaining consumer, executives in Retail Sales and Retail Services discussed the complaint among themselves and with members- of Dish’s Legal Department. A person from either the Legal Department or Retail Sales contacted the Order Entry Retailer. See Oberbillig Deposition, at 79-80. The Order Entry Retailer generally gave some *849 explanation, denial, or apology, and the matter was closed.

Dish’s basic approach in matters not involving fraud on Dish was to accept the excuse the Order Entry Retailer gave. For example, Satellite Systems repeatedly violated the Do-Not-Call Laws from 2002 to 2005. Satellite System’s principal Alex Tehranchi repeatedly said he would stop the practice. Dish repeatedly accepted Tehranchi’s excuses even though Tehran-chi repeatedly demonstrated that he would not stop the practice. PX 120, Email thread, Email from Novak to Ahmed dated September 26, 2005.

In another example, Dish was told several times in the first eight months of 2005 that Order Entry Retailer Star Satellite was making illegal telemarketing calls. Dish did nothing. In October 2005, the office of a United States Congressman contacted Ahmed about Star Satellite making Registry Calls. In response, Ahmed yelled at Star Satellite’s principle Walter Eric Myers and told Myers not to do it again. Ahmed took no other action to stop the illegal calls or to discipline Star Satellite. T 626: 2323-24 (Ahmed); T 622: 1818 (Mills); Myers Deposition, at 138,184.

Dish witnesses testified that Dish could not discipline an Order Entry Retailer based on isolated consumer complaints. They testified that Dish had to build a case to terminate an Order Entry Retailer or put an Order Entry Retailer on hold. See e.g., T 619: 1125 (Werner); see also T 625: 2254 (Neylon) (placing Order Entry Retailer on hold was a last resort because a hold effectively put the Retailer out of business). Dish may have needed to investigate and verify Order Entry Retailers’ excuses and explanations to impose discipline. Dish, however, did not investigate complaints. In most cases, Dish uncritically accepted Order Entry Retailers’ explanations, told consumers that Dish was not responsible, marked the complaint resolved, and moved on. See PX 1361, Email from July 11-19, 2006, regarding Calls to existing Dish Network Customers, at 001-002. (Once the Executive Resolution Team gave the consumer the name of the Order Entry Retailer involved, if known, and told the consumer that Dish was not responsible, the matter was marked resolved).

By mid-2006, the number of consumer complaints generated by Order Entry Retailers increased dramatically. Werner testified that consumer complaints went “crazy.” T 619: 983 (Werner); see T 625: 2129 (Neylon); T 618: 978 (Werner) (the “car came off the wheels”). See also T 621: 1682-83 (Mills). The Sales Department decided that Dish needed a more systematic way to address the practices of Order Entry Retailers to try to reduce the number of consumer complaints.

In August 2006, Retail Services added a Compliance Department to deal with problems associated with Order Entry Retailers in a more systematic way. Reji Musso was hired as Dish’s Compliance Manager. Musso reported to Werner in Risk and Audit within Retail Services. 30 PX 130, Email dated August 21, 2006 announcing hiring of Compliance Manager Reji Musso. The Compliance Department sought to monitor Order Entry Retailers’ compliance with the standard Retailer Agreement, Dish’s rules, and applicable laws and regulations. T 620: 993-94 (Musso). The Compliance Department was tasked with ensuring that Order Entry Retailers accurately described the terms and conditions of Dish Network programming packages *850 and made all required disclosures during telephone sales presentations. T 619: 993-94 (Werner); T 620: 1194 (Musso). The Compliance Department also handled com sumer complaints about Order Entry Retailers. T 625: 2130 (Neylon); T 619: 983 (Werner.).

In September 2006 the Compliance Department started a- Quality Assurance (QA) Program. T 620: 1204 (Musso). The Quality Assurance Program was supposed to improve the quality of sales calls by insuring that Order Entry Retailers were making accurate representations and making all required disclosures in them sales presentations. T 621: 1638 (Mills); T 620: 1205 (Musso); PX 1202, Risk Summary — TCPA/DiscloSures for week ending September 12, 2006; PX 1044, Letter from Mike Oberbillig to Jerry Gri-der dated August 10, 2006 (required disclosures enclosed). Order Entry Retailed were required to participate in the Quality Assurance Program. T 619: 994 (Wer-ner).

The Quality Assurance. program required Order Entry Retailers to, allow Field Representatives and Account Managers to listen to. sales presentations, either live presentations at the Order Entry Retailer facility .or recorded presentations provided by the Order Entry Retailers, and to score the presentations. See T 620: 1310-11 (Castillo); T 620: 1209 (Musso); T 619: 992 (Werner); PX 486, Dish Quality Assurance Field Sales Development document issued on or about March 1, 2007 (2007 Quality Assurance Report), at 9, 17-23. 31 Field Representatives scored Order Entry sales personnel on whether they identified themselves, properly, asked customers about television usage, offered responsive packages of services and programming, made appropriate disclosures, secured necessary information to complete a sale, and made “a polite professional closing on all calls, regardless of if a sale is made.” PX 486, 2007 Quality Assurance Report, at 18,19, 23.

The Compliance Department also sent out updated disclosures that Retailers were required to give during sales presentations, See T 620:1242 (Musso); PX 744, Email from Musso dated October 22, 2006. One such update was entitled, “Agency T & Cs — Q1 2007 Release.” PXJL139. 32 The term “T & Cs” meant terms and conditions. T 621: 1652 (Mills).

Musso also worked with the Legal Department, the Executive Resolution Team, and Dish’s DNC Investigation Team to run a sting program. The sting program sought to identify Order Entry Retailers that generated consumer complaints, but hid their identities by spoofing or otherwise. Upon receiving a consumer complaint, Dish attempted to identify the "responsible Order Entry Retailer. If the participating Dish Departments could not identify the Retailer, Dish representatives asked the complaining consumer to participate in the sting program. If the offending telemarketer called again, the participating consumer agreed to purchase Dish Network programming using a credit card provided by Dish along with specified identifying information. When the order came through on the Order Entry Tool, Dish could identify the Order Entry Retailer involved in the participating consumer’s “sting” transaction. See PX 1362, Outline of Sting Process, undated; T 619: 989 *851 (Werner); T 620: 1246 (Werner). 33 Through the sting program, Dish identified several Order Entry Retailers that were violating the Do-Not-Call Laws. T 619: 919 (Werner). • PX 1082, Tracker spreadsheet on stings; T 620: 1234-36, 1386 (Musso).

Musso also established a systematic way to notify Order Entry Retailers about consumer complaints. The Compliance Department sent a letter explaining the complaint and requesting a response within seven days. The Compliance Department followed up every week. The Compliance Department placed the response in its files and forwarded copies to the Legal Department and executives within Retail Services and Retail Sales. See T 620: 1238-39 (Musso); T 619: 1022-27 (Werner). Musso kept a tracker spreadsheet of consumer complaints and the results of investigations, and issued weekly TCPA Tracker Reports. T 619: 1027-31 (Werner); PX 1347, TCPA Tracker Report dated September 16, 2008.

In 2007, the Compliance Department started the Partner Order Entry (POE) list, The POE list was a list of complaining consumers whose complaints had been unresolved after being escalated to the highest levels of Dish’s consumer complaint resolution system. Compliance sent the POE list, to Outbound Operations and all companies in the indirect channel, including all Order Entry Retailers. All Dish direct marketing and all entities in the indirect channel were to “suppress” telephone numbers on the POE list. Suppressing a telephone number meant that the number should not be called at all for any reason. T 619: 995-96, 1099 (Werner); T 620:' 1213-15 (Musso); see PX 1107, Email dated January 4, 2007 (example POE Notice).

The Compliance Department also began supervising the use of third-party affiliates by Order Entry Retailers. In October 2006, the Sales Department started collecting information from the top eleven Order Entry Retailers on the. use of affiliates. At least four of the top eleven admitted using third-parties to make telemarketing calls. PX 1045, Email thread betweén Mills and Neylon dated October 3-10, 2006 regarding Affiliate Calls. Thereafter, Dish began efforts to enforce the requirement in § 7.2 of the Retailer Agreement that all affiliates had to be approved by Dish. On October 10, 2007, Dish issued a Facts Blast notice to Order Entry Retailers warning against using affiliates without prior approval from Dish. DTX 947, Facts Blast dated October 10, 2007; see also PX 1051, Undated Facts Blast (also warning against .using unapproved affiliates). 34 Dish began performing background, checks on proposed affiliates and denied approval of some proposed affiliates. Musso tracked information on third-party affiliates used by Order Entry Retailers. Musso’s tracker included information on whether the affiliate had been approved'in the past. T 620: 1201-03 (Musso); e.g., PX 1271 and PX 1272, Affiliate Tracker Spreadsheets identifying affiliates in 2008-11. Pursuant to § 7.2 of the Retailer Agreement, Dish took the position that Order Entry Retailers were liable for the actions of their third-party affiliates. T 619: 1013-14 (Werner); see PX 724, April 15, 2011 Draft Script on Risk Management, Audit, and Compliance, at 1.

*852 The Compliance- Department, however, did not audit Order Entry Retailers with respect to Do-Not-Call compliance. The Compliance Department did not review Order Entry Retailer calling records or calling lists. T 625: 2252 (Neylon). The Compliance Department also did not incorporate into the Quality Assurance Program any monitoring for Do-Not-Call compliance. The Quality Assurance Program focused on the accuracy and completeness of statements made during telemarketing calls.

The Compliance Department had weekly meetings with Dish’s Legal Department. The meetings covered all areas of Order Entry Retailer compliance, including telemarketing. See; PX 548, Agenda for Legal TCPA Meeting dated October 2006; PX 536, Retail Services Audit and Risk Q4 2006 Report.

Even though Musso and the Compliance Department secured the information more systematically, Dish continued to respond to Order Entry Retailer misconduct through an ad hoc, case-by-case approach. T 620: 1239 (Musso); T 619: 1042 (Wer-ner). Musso and Werner could make recommendations to discipline Order Entry Retailers, but more senior executives in the Sales Department (or even higher level management in some cases) had to approve discipline. T 619: 1032-37 and 1104 (Werner); T 625: 2130-31 (Neylon); T 620: 1260 (Musso); PX 1083, Email thread between Musso, Neylon, and Origer dated February 8, 2007; PX 492, Email thread between Musso and Van Ernst dated September 2, 2008.

In November 2006, Musso suggested using more stings and imposing more fines on Order Entry Retailers. As she put it, “Anything to stop the madness ... so to speak.” PX 72, Email thread between Mus-so, Werner, Neylon, and Origer dated November 14, 2006. Between August 2006 and February 2007, Dish fined Order Entry Retailers Blu Kiwi, LLC and American Satellite $10,000.00 each, and fined Sterling Satellite $53,901.00. From February 2007 to July 2008, Dish did not impose any fines. In July 2008, Musso reported that the Compliance Department had made two recommendations for fines that were pending. PX 143, Email thread between Musso and Werner dated July 22, 2008. The Court cannot determine whether Dish imposed these two recommended fines.

Dish terminated some Order Entry Retailers after starting the Compliance Department. In February 2007, Dish announced that it had terminated three Order Entry Retailers for Do-Not-Call violations. PX 99, Gross Sales Update Report dated August 6, 2007, at 2 (stating that Dish terminated Order Entry Retailers JSR, United Satellite, and Atlas Assets for Do-Not-Call violations); see DTX 674, Press Release dated February 14, 2007 (announcing JSR’s termination). In early October 2007, two additional Order Entry Retailers were terminated for using unauthorized third party affiliates for lead generation. DTX 947, Facts Blast dated October 10, 2007. In July 2008, Musso identified two additional Order Entry Retailers that had been terminated since she started the Compliance Department and two more that were not renewed but would have been terminated. Musso did' not state the reasons for these terminations. PX 143, Email thread between Musso and Werner dated July 22, 2008.

As a result of the on-going problems with corrupt practices, the Order Entry program had a negative reputation within Dish. PX 658, Email from Ahmed to De-Franco, Thomas Cullen, and Neylon dated March 24, 2009. In 2007, Dish legal department paralegal Denise Hargen asked to be *853 kept informed about Do-Not-Call violations because the Order Entry Retailers or Dish marketing -personnel tried to get around the Do-Not-Call Laws: “It would really help to make sure I’m always in the loop on these matters based on my DNC involvement and knowledge base. Makes it harder for these folks to get around the ‘rules’ — which they try to do — especially marketing©.” PX 704 Email thread dated May 31-June 7, 2007 between Har-gen, Dish in-house counsel Emily Pastori-us, and Brian Pacini (emoji in the original). By 2009, the Legal Department complained that Order Entry Retailers were engaging in “shady/illegal activity.” Order Entry Retailers continued to make Prerecorded Calls in 2009. PX 730, 2009 Sales Partner Review, at 2, 3.

■ By 2008, Dish was'also-the subject of investigations for Do-Nob-Call Law violations by the FTC and state consumer protections officials. Dish was also a defendant in several lawsuits brought by both individual consumers and state officials. See e.g., PX 1131, FTC Civil Investigative Demand dated July 21, 2005 (FTC Demand); PX 54, Legal and RS Project Report dated October 7, 2004; T 618: 935-38 (Werner) (listing pending legal investigations and lawsuits); PX 1340, Vermont Attorney General Investigative Subpoena Regarding Order Entry Retailer Satellite Systems Now is sued October 2005; PX 538, Texas Notice of Violation of Texas Do-Not-Call Law dated January 3, 2006; PX 669, December 10, 2007 Email from Dish attorney Jeffrey Blum (referencing ongoing FTC and 31-state investigation). The FTC and multi-state investigations culminated in the commencement of this action on March 25, 2009, and the entry of a court approved Assurance of Voluntary Compliance (AVC) on July 16, 2009, between Dish and the forty-six states that are not Plaintiffs in this action. PX 55, Assurance of Voluntary Compliance dated July 16, 2009.

During this time frame in 2008 and 2009, Dish started to impose more control over the Order Entry program. Dish required Order Entry Retailers making fifty activations a month to send their Internal Do-Not-Call Lists to PossibleNOW for compilation into a combined Retailer Do-Nob-Call List. See T 619: 1018-21 (Werner). Dish also arranged for Order Entry Retailers to use PossibleNOW scrubbing services. Dish required some Order Entry Retailers to use PossibleNOW' scrubbing services. T 622: 1841^3 (Mills); see DTX 741, Email thread between Dish Vendor Inquiries and Satellite Systems dated April "8, 2009. Dish Sales Department maintained information on sales and money spent on advertising on a monthly basis, as well as monthly updates on each Order Entry Retailer. See PX 409, Monthly Update; T 626,2265-66 (Neylon). 35

From October 2008 until March 2009, Dish terminated 40 Retailers, some of which were Order Entry Retailers, for defrauding Dish or for making misrepresentations to consumers. DTX 746, Collective Exhibit of 5 Press Releases dated October 8, 2008 through March 5, 2009, Announcing Terminations of 40 Order Entry Retailers. In 2009, Dish reduced the number of Order Entry Retailers from to 76 to 32. Dish eliminated Order Entry Retailers for fraud and high churn. Dish representatives focused on eliminating fraud and reducing churn rates of the remaining Order Entry Retailers. The result was an increase in monthly activations from 71,000 to 100,000 and a significant reduction in churn rates. PX 730, 2009 Dish Sales Partner Review, at 13.

*854 In May 2009, Ahmed returned to Dish as Senior Vice President of Sales and Distribution. He again had responsibility for the Order Entry Program. Neylon was Vice President in charge of the Order Entry Program and Mills was Director of the Order Entry program. T 626: 2286-88 (Ahmed). 36

By 2009, Dish used the Quality Assurance program for both Dish direct telemarketing calls and Order Entry Retailer calls. Dish scored telemarketing calls on 45 criteria. The Quality Assurance criteria focused on accurately describing Dish products and- promotions (including. any limitations on promotional pricing), and providing complete, accurate disclosures during sales calls. The Quality Assurance criteria also covered “right sizing” customers. Right sizing involved asking questions about the household television watching patterns to accurately evaluate the potential customer’s needs in order to offer the appropriate Dish programming packages. The Quality Assurance program also sought to ensure that the sales agents interacted with the consumer in an appropriate, professional manner. T 625: 2137-38, 2175-77, 2182-84, 2226 (Neylon); T 621: 1642 (Mills); T 627: 2473-74 (Ahmed); PX 560, Email thread regarding Quality Assurance scores dated August 18, 2009; PX 1048, QA Action Plan, at 7.

A Dish Business Rule required Order Entry Retailers to participate in the Order Entry Program. T 620: 1213 (Musso). Order Entry Retailers were evaluated weekly on their Quality Assurance scores; Order Entry Retailers were required to modify their practices to conform to the Quality Assurance Program. T 621: 1639-40 and 622: 1701 (Mills); T 625: 2137-38, 2171-75 (Neylon); see T 620: 1210 (Musso); EX 559, Email thread between Neylon, Musso, and Ahmed dated August 13, 2009 (Ahmed wanted “no nonsense from my employees or my Retailers” regarding the Quality Assurance program); PX 616, Email thread' between Neylon and Mills dated August 13, 2011. Initially, Field Representatives and Account Managers scored calls. At some point, a separate national team within Dish scored all the recorded calls from both Order Entry Retailers and Dish direct marketing. T 620: 1211-12 (Musso).

-By August 2009, Ahmed and Neylon wanted the Sales Department to emphasize Order Entry Retailer compliance with Quality Assurance program. Neylon wanted Field Representatives and Account Managers to be “110%” involved in improving Quality Assurance scores. Ahmed also stated - that he ■ would hold Account Managers responsible. Ahmed stated that he would not tolerate high churn or misrepresentations. PX 559, E-mail thread between Neylon, Musso, and Ahmed dated August 12, 2009.

Thereafter, Dish Field Representatives, ■Account, Managers, and Sales Managers worked with Order Entry Retailers to get and keep Quality Assurance scores over 90 percent. Field Representatives and Account Managers visited with Order Entry facilities to ensure compliance. Field Representatives and . Account Managers coached Order Entry Retailers on how to improve Quality Assurance scores. T 625: 2179 (Neylon). Field Representatives and Account Managers met with Order.Entry Retailer salespersons to discuss sales presentations. On occasion,- Sales Managers required Order Entry sales staff who worked at home to come to the office once a week so that their calls could be monitored. T *855 625: 2210 (Neylon); PX 1048, QA Action Plan, at 4. On occasion, Order Entry Retailer personnel who had consistently had failing Quality Assurance scores were removed from the telephones and fined. PX 1048, QA Action Plan, at 6.

Sales Managers, Field Representatives, and Account Managers reviewed and rewrote scripts and ordered Order Entry Retailers to change sales procedures .to keep scores up. See T 625: 2177-79 (Ney-lon); T 6212: 1640 (Mills); PX 1048, QA Action Plan, at 3, 5. On .one occasion, a Dish Sales Manager wrote a call flow for an Order Entry Retailer who did not use a written sales script and required the Order Entry Retailer to follow the call flow. PX .1048, QA Action Plan, at 4.

Dish could discipline Order Entry Retailers who did not comply with the Quality Assurance Program. Dish Sales Managers, at least, could withhold promotional offers from non-compliant Order Entry Retailers. PX 1048, QA Action Plan, at 8. Mills opined that a Sales Manager’s statement in a QA Action Plan (PX 1048) about withholding programming was a flippant comment. T 621: 1641 (Mills). Mills’ opinion on this matter is not credible. The QA Action Plan contained a detailed plan of steps to improve an Order Retailer’s Quality Assurance score. The Court sees nothing flippant about anything in the document. - In addition to restricting available programming, Dish could disable Order Entiy Retailer logins to restrict access to the Order Entry Tool. T 625: 2208-09 (Neylon).

One Dish Sales Manager William (Brett) Mason asked Musso for contractual authority -for the Quality Assurance Program. Mason quoted Retailer Agreement § 7.3 as a possible source of authority in the email. Section 7.3 required Order Entry Retailers to “take all actions and refrain from taking any action, as.requested by [Dish] in connection with the marketing, advertisement, promotion and/or solicitation of orders for” Dish Network programming. Mason then stated that he could use the “absolute power” clause, but it was not his first choice. Musso confirmed- that § 7.3 of the Retailer Agreement authorized the Quality Assurance program. PX 553, Email thread between Musso and Mason dated October 25, 2011. See -also T 625: 2198-99 (Neylon) (Under Retailer Agreement, Dish personnel could ask Retailers to take any action, or to refrain from taking any action relating to marketing.).

The Plaintiffs suggest that the “absolute power” clause was § 7.3 of the Retailer Agreement. MuSso testified that the “absolute power clause” meant that Mason could tell the Retailer, “Because I said.so.” T. 620: 1289 (Musso). Musso’s testimony on this point is consistent with Mason’s email. Mason distinguished between Section 7.3 and the “absolute power” clause. Mason quoted 7.3 in the email, and then said, as an alternative, that he guessed he could invoke the absolute power clause. Musso’s testimony is also consistent with the statement of Dish employee Carlos Prado. Prado told Field Representative Manuel Castillo, “Dish, the way they do things is they have all the power, and then if they — if they want to, they can squash .you like a bug.” T 620: 1333 (Castillo). Prado was in charge of setting up new Order Entry Retailers at the time that he made the statement. Id. The Court finds that the “absolute power” clause meant that Dish Sales Managers could direct Order Entry Retailers to act by telling Order Entry Retailers, “Because I said so.”

Even with the purge of half of the Order Entry Retailers and the imposition of the revised Quality Assurance Program, Dish retained the ad hoc, case-by-case approach to Do-Nob-Call Law violations. In 2009, a class-action law suit was filed against Dish *856 for Registry Calls made by Order Entry Retailer Satellite Systems. See T 618: 868-69 (Kraukauer). By 2011, Dish had so many complaints about Satellite Systems that Dish’s Legal Department had developed a “standard go after Satellite Systems Network” letter to send complaining consumers. See PX 199, Email from Dish litigation paralegal Kimberly Berridge to Dish Corporate Counsel Brett Kitei dated August 18, 2011. No evidence cited by either party indicates that Dish disciplined Satellite Systems for these calls. Satellite Systems remained an Order Entry Retailer until 2013. T 625: 2149-50 (Neylon).

B. Dish’s Relationship with Specific Order Entry Retailers

This Court found at summary judgment under Counts I and III that Dish violated the TSR by causing the following illegal calls by Order Entry Retailers: causing Dish TV Now to make 6,637,196 Abandoned Prerecorded Calls; causing Satellite Systems to make 381,811 Registry Calls; causing Star Satellite to make 43,100,876 Abandoned Prerecorded Calls; causing JSR to make 2,349,031 Registry calls; and causing American Satellite to make one Abandoned Prerecorded Call. Opinion 445, 75 F.Supp.3d at 1032-33 . At trial, the Plaintiffs presented evidence about these Order Entry Retailers, as well as Order Entry Retailer Dish Nation. 37 The Court makes findings regarding Dish Nation along with the other five Order Entry Retailers.

1. Dish TV Now

In late 2003 or early 2004, Dish TV Now became Dish’s first Order Entry Retailer. T 626: 2304 (Ahmed). On October 7, 2003, Ahmed contacted the principal of Dish TV Now David Hagen to offer him the opportunity to become an Order Entry Retailer. PX 61, Letter from Ahmed to Hagen dated October 7, 2003. At the time, Hagen operated a company called Prime TV that sold DirecTV.

The same day, October 7, 2003, Hagen sent Ahmed a proposal in which he projected that within a year of operation, Dish TV Now would generate 27,000 Dish Network activations per month. Hagen represented in the proposal that Dish TV Now would use television advertising, direct mail, and online advertising to secure inbound telemarketing calls from interested customers. PX 148, Dish TV Now Proposal Letter; DTX 959, Retailer Application from Dish TV Now. Dish did not perform any background checks on Hagen or Dish TV Now. Ahmed did not learn that Hagen was a convicted felon who had been permanently enjoined from committing deceptive practices in actions brought by the FTC. See T 626:2359-62 (Ahmed); PX 145, FTC v. David DeFusco a/k/a David Hagen, C.D. Va. Case No 89-1046, Permanent Injunction Order, entered November 3,1989. In 2004, Hagen was also enjoined by North Carolina in a separate action. PX 150, North Carolina v. Prime TV, LLC, N.C. Wake County, North Carolina Superior Court Case No. 04CVS008148, Consent Judgment, entered June 14,2004.

Dish TV Now hired a company called Guardian Communications (Guardian) to make “press 1” Prerecorded Calls to market Dish Network programming. From May 2004 to August 10, 2004, Guardian made on behalf of Dish TV Now 6,637,196 Prerecorded Calls that were answered and *857 became Abandoned Prerecorded Calls for which Dish is liable in Count III. Opinion 445, 75 F.Supp.3d at 982-83 . Guardian stopped making these calls because Dish TV Now stopped payment on checks to Guardian. See Opinion 445, 75 F.Supp.3d at 983 .

On August 2, 2004, Dish received a consumer complaint about Dish TV Now’s prerecorded telemarketing calls, PX 168, Letter from Consumer Ryan Swanberg, dated July 26, 2004, and marked received August 2, 2004.

On September 16, 2004, Ahmed sent Dish TV Now’s principal Hagen an email which said,

David,

This is simple. Is Dish TV Now telemarketing customers over the phone, or are you guys using predictive dialers and leaving messages trying to sell the customers DISH Network. We’re not interested in this type of marketing. We’re receiving complaints on your department doing just this kind of marketing.

Hagen responded,

Amir,

Dish TV Now uses a predictive dialer to make outbound calls to consumers who have previously inquired with us about satellite TV service or are current Dish TV Now DISH Network customers. The intelligent dialer knows the difference between a No Answer, Busy, Answering Machine, or Live Connect. The dialer only connects live customers to a live Dish TV Now agent. We do not leave messages. We have a list of over 5 million past and current customers that we scrub against the do not call list. In addition, we maintain a Dish TV Now do not call list. Any customer who wishes to opt out on future solicitations is immediately added to the list. Dish TV fully complies with the TCPA.

DTX 223, Email thread between Ahmed and Hagen dated September 16, 2004.

Ahmed learned from the September 16, 2004, email that Dish TV Now engaged in outbound telemarketing. Ahmed further learned that Hagen misrepresented in the original marketing plan the methods that Dish TV Now would use to sell Dish Network programming. Dish, however, did not take any disciplinary actions against Dish TV Now. T 626: 2370-71 (Ahmed). Dish allowed Dish TV Now to continue operating as an Order Entry Retailer even though Ahmed knew that Hagen misrepresented his marketing methods.

Ahmed also did not check the accuracy of Hagen’s representations about Dish TV Now’s telemarketing practices, and so, did not learn that Hagen was lying about the use of Prerecorded Calls. Hagen told Ahmed that calls answered by a person were connected to a live sales agent. That was false. The calls were connected to a prerecorded press 1 message. Ahmed did nothing to check Hagen’s explanation. He just accepted it and went on.

Dish TV Now continued operating as an Order Entry Retailer until January 2006. On or about December 20, 2005, Dish put Dish TV Now on hold for failure to promote Dish Network programming. While on hold, Dish TV Now could not place orders through the Order Entry Tool. Dish TV Now also had a high churn rate, almost double the Dish direct marketing churn rate. In January 2006, Dish terminated Dish TV Now as an Order Entry Retailer for high churn and failure to promote Dish Network. Dish TV Now produced 485 activations in 2002; 2,765 activations in 2003; 78,339 activations in 2004; and 41,688 activations in 2005. T 626; 2376 (Ahmed); PX 1144, Retailer Audit Notification & Summary dated December 20, 2005; see PX *858 165, Email from Mills to Ahmed dated December 22, 2005.

2. Satellite Systems Network

In March 2002, Satellite Systems was a TVRO Retailer. Satellite Systems was making Prerecorded Calls. Dish’s regional sales director Nick Meyers stated in an email that Satellite Systems’ use of Prerecorded Calls “has caused a few concerning calls, but seems to be greatly outweighed by the results.” PX80, Email thread between Nick Meyers and Neylon and Ahmed, dated March 10-11, 2002; T 625: 2139 - (Neylon); T 626: 2332,- 2329 (Ahmed). Meyers made this statehiént when, the TCPA prohibited Prerecorded Calls but before the TSR prohibited abandoned calls. In June 2002, Dish sent Satellite System a notice to comply with telemarketing laws, but took no other action. PX 187, letter dated June 12,2002.

In June 28, 2004, Dish’s co-founder and Chief Executive Officer. .Charlie Ergen received a Prerecorded Call from Satellite Systems offering DirecTV programming. Ergen contacted Ahmed about the call. Ahmed told Ergen that Satellite System was also a Dish Retailer and that Satellite System used “message broadcasting with [DirecTV] as their priinary source to gem erate sales.” At trial, Ahmed denied knowing that Satellite Systems used Prerecorded Call's. T 626: 2337 (Ahmed). The Court finds that denial to not be credible. Ahmed’s statement in the email was. unequivocal.

Ergen asked why Dish could not copy Satellite Systems’ technique. Ahmed directed Dish Regional Sales Manager Mike Oberbillig to contact Satellite Systems to ask for the script. Satellite Systems’ principal Alex Tehranchi refused to give Dish the scripts and denied using Prerecorded Calls. Tehranchi stated that Satellite Systems was moving away from telemarketing. PX 190, Email Thread between Ergen, Ahmed, and a Dish West Coast Account Manager Mike Oberbillig, dated June 28-30, 2004.

In July 2004, Satellite System became an Order Entry Retailer. T 626: 2409-10 (Ahmed). Satellite System was selling Dish Network and DirecTV. By the end of July 2004, Ahmed began receiving complaints about Satellite Systems’ outbound telemarketing. PX 503-, Email from Ahmed dated July 29, 2004.

In September 2004, Satellite Systems was averaging 9,000 DirecTV activations a month, but only 350 Dish Network activations a month. Ahmed raised the commission paid to Satellite System to increase Dish Network activations. Ahmed stated that Dish needed activations from Satellite Systems. PX 656, Email thread between Ahmed, DeFranco, and Dish Regional Director for West Coast Jim Spritzer, dated September 14-15, 2004.

In November 2004, a Florida state court ordered Satellite Systems to pay $25,500 in civil penalties under its other name Vitana Financial Group, Inc. (Vitana) for violating Florida Do-Not-Call Laws. PX 191, Florida Department of Agriculture and Consumer Services Press Release dated November 4, 2004.

In March 2005, Tehranchi and Vitana agreed to pay $15,000 in civil penalties to North Carolina for violating state Do-Not-Call Laws. PX 186, North Carolina v. Vitana Financial Group and Tehranchi, et al., Wake County, North Carolina Superior Court, Case No. 04-8799, Consent Judgment entered March 21, 2005.

In October 2005, Dish again received notice that Satellite Systems was using Prerecorded Calls. PX 504, Email thread dated October 27, 2005. A month earlier in September 2005, Dish in-house attorney *859 Novak stated that Satellite Systems had been making Prerecorded Calls for years:

We know that SSN [Satellite Systems] is using autodialers and automessages. Terachi [sic] been warned time and again (by me, by you, by the region, by phone, in writing, in person) that these activities could violate the. law. Last time, Teranchi. [sic] blamed a “rogue employee,” who he claimed was terminated, but the activities continue. Charter knows he’s doing it, and. several state AG’s know he’s doing it as well..

In the past, we have successfully resisted the argument that we are responsible for the conduct of independent Retailers, however, SSN is a problem because we know what he is- doing and have cautioned him to stop. There is risk, in continuing to give warnings without a follow-through action. Eventually, someone will try to use that against us.

On the range of options, you could give . him another written warning, you .could put him on probation for a period of time, you could put him on hold and withhold money (presumably to cover “potential fines” running from SSN to us under some agency theory), or you could terminate him now.

I favor probation, provided that there is unanimous understanding that if EchoS-tar becomes aware of ANY ONE addition (sic) violation, he’s terminated.

PX 120, Email thread, Email from Novak to Ahmed dated September 26, 2005 at 1:24 p.m., at PX 120-003-004 (emphasis in original). Novak made this comment in September 2005 in connection with an initial investigation of a different Prerecorded Call. The September 2005 call was made by another Order Entry Retailer, United Satellite. PX 120, Email Thread with Indiana Attorney General’s Office dated September 23-30, 2005. However, a month later, in October 2005, Dish did not follow Novak’s recommendation when Satellite Systems was again caught making Prerecorded Calls, Oberbillig orally told Tehranchi to stop using Prerecorded Calls. Dish did not impose any. other conser quences. T 626: 2348-50 (Ahmed); see Oberbillig Deposition, at 78.

On or before September .21, 2006, Dish knew that Satellite Systems had been fined $25,500.00 :for Do-Npt-Call law violations. PX 1086, Email from Ron Dufault of Retail Services dated September 21, 2006 (at 023 of the collective exhibit). 38 Dish took no action against Satellite Systems.

In February 2007, two of Dish’s stings identified Satellite Systems as violating Do-Not-Call Laws. PX 1086, Email dated February 7-15, 2007, regarding stings involving consumers Jeffrey Mitchell and Gregory Fisher (at 016-018 of the collective exhibit). Dish took no disciplinary action against Satellite Systems.

In September 2009, Dish’s investigation of a consumer complaint showed Satellite Systems was making Registry Calls. PX 282, Email thread dated May 10-19, 2009. The complainant, Dr. Thomas Kraukauer, filed -a class action lawsuit against Dish as a result of these calls. T 618:865-66 (Krau-kauer).

In 2010 and 2011, Satellite Systems made -381,811 illegal Registry calls. Opinion 445, 75 F.Supp.3d' at 998, 1032. Satellite Systems also' made 22,946 Internal List Calls to telephone numbers on the Internal Do-Not-Call Lists of Dish and the Telemarketing Vendors. Satellite Systems also made 42,990 Internal List Calls to numbers on the Internal Do-Not-Call *860 Lists of other Order Entry Retailers compiled by PossibleNOW. PX 28, Taylor November 6, 2013 Report, at 13-14d Tables 5b and 5c.

By 2011, Dish had developed a standard letter to send out to consumers complaining about Satellite Systems’ violations of Do-Nob-Call Laws. The Dish legal department referred to the letter as the “standard go after SSN letter.” PX 199, Email from Dish litigation paralegal Kimberly Berridge to Dish Corporate Counsel Brett Kitei dated August 18, 2011. Dish terminated Satellite Systems Network in 2013. T 625: 2149-50 (Neylon).

3. Star Satellite

Star Satellite became a TVRO Retailer in March 2003. Walter Eric Myers (Myers) was in charge of Star Satellite. Myers previously ran TVRO Retailer called Tena-ya Marketing (Tenaya). Tenaya did door-to-door sales primarily. Dish began penalizing Tenaya for high churn rates, so Myers arranged for his brother to start Star Satellite. Deposition of Walter Eric Myers, at 38-40. Myers ran Star Satellite. Star Satellite stated in its application to Dish that it planned to use newspapers and direct mail advertising. Star Satellite did not indicate that it would engage in telemarketing. DTX 335, Retailer Business Questionnaire dated March 11, 2003.

At some point in time, Dish representatives learned that Star Satellite was engaged in telemarketing. Dish representatives sent Myers parts of a script to use in these sales. Dish representatives wanted Retailers to make all of the required disclosures to consumers. Myers Deposition, at 42-43. Myers testified that Star Satellite called telephone numbers from the phone book. Myers Deposition, at 124.

In May 2004, Star Satellite hired Guardian to make Prerecorded Calls on its behalf to sell Dish Network programming. Guardian started making prerecorded “press 1” telemarketing calls selling Dish products and services for Star Satellite. Myers used the name Tenaya in Star Satellite’s dealings with Guardian. Myers did not tell Dish that Star Satellite used Guardian’s services. Myers considered marketing methods to be trade secrets that he did not want to share with any competitor. Myers viewed Dish as a competitor because Dish had its own internal marketing department. Myers believed that he could choose the marketing methods because Star Satellite was a separate business from Dish. Myers Deposition, at 73, 76-77, 106, 141, 174-80, 182-83. 39

In 2004, Star Satellite applied to be an Order Entry Retailer. Myers testified that he basically begged to be approved for the Order Entry program. Dish personnel asked Myers questions about proposed marketing methods. Myers represented that Star Satellite would primarily use direct mail, with some phone sales. Myers believed telemarketing carried a stigma. He suspected that Dish did not like telephone sales. Myers did not want scrutiny from Dish about whether Myers was complying with Do-Nob-Call Laws. Myers Deposition, at 92-95. Guardian’s principal Kevin Baker stated that he told Myers a rumor that Dish did not allow Order Entry Retailers to make Prerecorded Calls. Deposition of Kevin Baker, at 70. 40 Myers, however, believed that Dish became aware *861 of the fact that Star Satellite was using telemarketing. Myers Deposition, at 181.

Star Satellite became an Order Entry Retailer in late 2004 or early 2005. Star Satellite set up an office and call center in Provo, Utah. Star Satellite still engaged in door-to-door sales in the Los Angeles, California area. T 622: 1815 (Mills); Myers Deposition, at 81, 88, 91. Star Satellite only sold Dish Network except for a brief period of up to three months in 2005 when Star Satellite also sold DirecTV programming and services. Even when Star Satellite sold DirecTV, its sales staff offered Dish Network programming first to customers, and then offered DirecTV if the person was not interested in Dish Network or for some reason could not purchase Dish Network. Myers Deposition, at 143-46.

Dish perspnnel trained Star Satellite staff on how to use the Order Entry Tool. Dish personnel provided a recommended script to use for telephone sales. Dish provided detailed disclosures to be .read to customers during telephone sales. Dish representatives visited Star Satellite’s call center in Provo, Utah, weekly. Michael Mills went to Star Satellite’s offices a few times. Myers Deposition, at 87-90, 93-94. Mills worked on Star Satellite scripts to include disclosures required by Dish. PX 207, Email thread between Mills and Walter Eric Myers dated November 2-3, 2005.

Star Satellite had Guardian make 400,-000 to 600,000 “press-1” Prerecorded Calls a day. Myers Deposition, at 103-05, 129-30. Baker testified that Guardian called published numbers “off a CD-Rom you could buy down at Office Max.” Baker Deposition, at 50.

Star Satellite greatly increased its sales as a result of the Prerecorded Calls. Myers told Dish personnel, “We’re just doing a lot of phone sales and we’re having a lot of success.” Myers told Dish personnel that Star Satellite’s calling lists were scrubbed for the Registry, but did not give any details on Star Satellite’s telemarketing. Myers relied on Guardian to scrub the calling lists. Myers Deposition, at 103-05, 129-30,

Dish personnel learned in the first half of 2005 that Star Satellite was using Prerecorded Calls. On January 25, 2005, Dish received a consumer letter complaining that Star Satellite was using Prerecorded Calls. PX 203, Letter from Dennis Caplan, dated January 25, 2007. On February 18, 2005, Dish received another consumer complaint about Star Satellite Prerecorded Calls. PX 204, Email from David Hyde to DeFranco and others dated February 18, 2005. The parties presented no evidence that Dish took any action on either complaint.

In May 2005, Dish Outbound Manager Bangert told Dish employee Mark Duffy that an Or4er Entry Retailer in Provo, Utah, was using “automated messaging.” Bangert asked Duffy to pass the information on to Retail Services. PX 205, Email thread between Bangert,and Dish Retail Escalations, dated May 25-27 2005. Ban-gert testified that, when he wrote the email, he did not know that Star Satellite was using Prerecorded Calls. Bangert’s testimony ip this regard was not credible. T 628: 2722-23 (Bangert). The email is unequivocal. Bangert. knew an Order Entry Retailer in Provo, Utah, was making Prerecorded Calls. Star Satellite was Dish’s Order Entry Retailer in Provo, Utah.

Duffy forwarded Bangert’s email to Jeff Medina in Dish’s Retail Escalations Department. Medina forwarded the email to Margot Williams in Retail Escalations. Medina wrote in his email, “Are these your boys again?” Williams responded to Medina,

*862 Jeff,

I forwarded this information to Regina Thomas for further investigation. We have received a few complaints for other issues on this Retailer that have also been sent to her for review and assistance.

PX 205, Email thread between Bangert and Dish Retailer Escalations dated May 25-27 2005. Dish took no disciplinary action against Star Satellite.

In August 2005, an individual consumer sued Dish and Star Satellite for Star Satellite’s use of Prerecorded Calls to sell Dish Network programming. Dish knew of the suit on August 12, 2005. PX 208, Letter from Dish Counsel Dana Steele to Star Satellite dated August 12, 2005. Dish took no disciplinary action against Star Satellite.

From July 30, 2005, to November 22, 2005, Star Satellite made 43^100,876 completed Abandoned Prerecorded Calls through Guardian selling Dish Network programming. The Court found at summary judgment that these calls violated the TSR. Opinion 445, 75 F.Supp.3d at 987 .

In October 2005, Ahmed received a complaint from Congressman Fred Upton of Michigan about Star Satellite calling numbers on the Registry. Ahmed had a conference call with Star Satellite’s principal Myers about this complaint. Ahmed was very upset about receiving a complaint from a Congressman. Ahmed told Myers not to violate the Do-Not-Call Laws. Ahmed used foul language and raised his voice at the meeting. According to Myers, Ahmed told Myers that he would shut Star Satellite down if he received another complaint like this. T 626: 2323-24 (Ahmed); T 622: 1818 (Mills); Myers Deposition, at 138. Ahmed followed up with a letter to Myers. PX 212 (DTX 237), Letter dated October 26, 2005. Dish took no other disciplinary action- against Star Satellite. Myers, however, took Ahmed’s threat seriously. Myers Deposition, at 184.

Star Satellite stopped using Guardian on November 22, 2005. Myers Deposition, at 76. Star Satellite stopped because Guardian’s principal Kevin Baker received a Civil Investigative Demand from the FTC for telemarketing call records. Myers Deposition, at 148-49.

On January 20, 2006, Star Satellite was terminated as Order Entry Retailer, but remained a TVRO Retailer. ,T 622: 1820-21 (Mills). However, in September 8, 2Q06, Dish was notified by another Order Entry Retailer that Star Satellite was still using Prerecorded Calls. PX 386, Email thread dated September 8, 2006; see T 622: 1742 (Mills). Star Satellite remained a TVRO Retailer at least through February 24, 2014, the date of Myer’s deposition. Myers Deposition, at 160.

4. JSR Enterprises

In 2006, Jerry Grider, Shaun “Blaze” Gazzara, and Richard Goodale formed JSR Enterprises to sell Dish Network programming. The name JSR came from the initial from each man’s first name. T 622: 12877 (Goodale). Goodale had previously worked-for ten days at Dish Order Entry Retailer United Satellite in southern California. Gazzara had also worked at United Satellite. T 622: 1874-75 (Goodale). United Satellite used “press 1” Prerecorded Calls. T 625: 2117 (Neylon); see PX 120, Email Thread with Indiana Attorney -General’s Office dated September 23-30, 2005. Goo-dale testified that Dish Representative Doug Tchang knew that United Satellite used illegal Prerecorded Calls. T 622: 1870-74 (Goodale). 41 Dish terminated Unit *863 ed Satellite as an Order Entry Retailer on August 20, 2006, for mailing Prerecorded Galls. T 625:2117 (Neylon); see PX 239, Email thread between Neylon and Steven Keller dated September 8, 2006 .regarding United Satellite Closed Doors.

Goodale asked Tchang how he could start his own company. Tchang referred Goodale to Shawn Pórtela. Pórtela formerly worked for Dish. Pórtela operated two Order Entry Retailers, Dish Nation and Cactus Concepts. 42 Tchang told Goodale to set up a call center and work through one of Portela’s companies, Goodale and his partners, set up JSR and started working through Portela’s company Dish Nation. T 622: 1870-76 (Goodale); PX 239, September 2006 Spreadsheet.

On August 10, 2006, Dish authorized JSR to be an Order Entry Retailer. PX 1Q44, Letter from Mike Oberbillig to Jerry Grider dated August 10, 2006. JSR’s written application stated that JSR would use print, telemarketing, and direct mail. PX 235, JSR Business Plan dated February 9, 2006. Goodale, however, told Mills that JSR was going to engage in outbound telemarketing. T 622: 1746 (Mills); PX 265, Email from Mills to Neylon dated December 21, 2006; T 622: 1881 (Goo-dale).

Mills, Oberbillig, Pórtela, and Tchang came to JSR’s offices when it became an Order Entry Retailer. Goodale testified that Mills, Oberbillig, and Tchang all knew that JSR was going to use “press 1” Prerecorded Calls. Goodale testified that Mills and Oberbillig told him not to use the name of Dish Network in the prerecorded message. T 622: 1883 (Goodale). Mills admitted that Goodale told him JSR used outbound telemarketing. T 622: 12746 (Mills).

Once JSR became an Order Entry Retailer, JSR purchased fifteen more auto-dialers. JSR had over 1,500 phone lines making prerecorded “press 1” telemarketing calls fifteen hours a day. T 622:1882 (Goodale). By September 2006, Dish knew JSR was using automatic dialers to produce 1,000,000 connected calls per month, and knew that JSR “brought along an ex-employee of United Satellite who has great experience in OE Tool program.” Dish also knew that JSR worked “under Dish Nation’s umbrella” before it became an Order Entry Retailer. T 622: 1748-50 (Mills); PX 239, September 2006 Spreadsheet; JSR was making somewhere between 2,500,000 to 10,000,000 calls per month to get 1,000,-000 connected calls. See T 622: 1892 (Goo-dale) (Goodale estimated four out of ten calls were answered by a-live person.); T 633: 3342 (Taylor) (Dish’s expert Taylor opined that in his experience one in ten telemarketing calls are answered).

Based on all the evidence, the Court finds that Dish Representatives Tchang, Mills, and Oberbillig knew that JSR was using automatic dialers to make “press 1" prerecorded telemarketing calls. Dish knew from the high volume of connected calls that JSR was using automatic dialers to make outbound telemarketing calls. Numerous Dish Order Entry Retailers in *864 Southern California used Prerecorded Calls, including United Satellite, Vision Satellite, LA Activations, Dish Nation, and Atlas Assets. T 625:2110, 2170-71 (Ney-lon); T 620:2110 (Musso);' T 621:1693-95 and T 622:1728-29 (Mills); PX 1299, Letter from attorney Chad Austin to Dish Senior Corporate Counsel Dana Steele dated March 27, 2007; PX 1298, Letter from North Dakota Assistant Attorney General James Thomas to Echostar and Dish Nation LLC dated June 25, 2007, with enclosed North 'Dakota ex rel. Ste-nehjem v. Creative Concepts Group, Inc., N.D. Dist. Ct., South Central Judicial Dist., Civ. No. 07C1307, Assurance of Voluntary Compliance Order entered June 21, 2007. Tchang was a Dish sales representative in the area, and Oberbillig was the Regional Sales Manager. Tchang was responsible for knowing what was going on in their region. Tchang also had an incentive to allow- the practice because his compensation was tied to the activations that these Order Entry Retailers produced. Goodale testified that Tchang knew what was going on at United Satellite. Tchang told Goodale how to start his own shop. Goodale testified that Tchang, Mills, and Oberbillig knew JSR was making “press 1” Prerecorded Calls. The Court finds this aspect of Goodale’s testimony to be credible. These Dish representatives knew from the start that JSR planned to violate the Do-Not-Call Laws by using “press 1” Prerecorded Calls. Further, their knowledge of JSR’s telemarketing practices was gained within the scope of their employment with Dish. Further, Mills and Ober-billig at least had managerial authority for Dish when they knew and allowed JSR to engage in illegal Prerecorded Calls. Testimony to the contrary by Mills and Oberbil-lig was not credible.

JSR’s calling lists consisted of all published residential numbers in a selected geographical region. JSR secured copies of white pages in electronic format. JSR used call centers in the Philippines (“off-shore calling”) and an automatic dialing facility in Texas to make “press 1” Prerecorded Calls. Goodale at one point testified that he knew JSR was calling numbers on the Registry. T 622: 1879-gQ, 1887 (Goodale). Goodale later stated that he scrubbed the lists for numbers on the Registry, but his business partners may not have done so. T 622:1906, 1907-08 (Goodale). The Court finds that JSR did not scrub at least some calling lists, and so, made Registry Calls. Goodale further knew that JSR was making Registry Calls and that Registry Calls were illegal.

From September through December 2006, Dish received several consumer complaints that JSR made Prerecorded Calls and Registry Calls. Dish also caught JSR five to seven times in stings violating Do-Noi^Call Laws, including Registry Calls. Each time, the Dish Compliance Department or Legal Department notified JSR of the complaint. T 619: 991(Werner); PX 510, Letter to Jerry Grider dated October 6, 2006; PX 247, Memorandum from Wallace to Dish demanding payment for TCPA violations dated October 19, 2006; PX 513 Letter dated October 31, 2006, from Ori-ger to JSR; PX 248 Email to Metzger dated November 15, 2006; PX 420 Musso letter to JSR about consumer complaint, dated December 11, 2006; PX 250 Email from Musso to Goodale requesting information on the complaint dated December 20, 2006; PX 420, Letter to JSR dated December 11, 2006.

Goodale, on behalf of JSR, provided an explanation for each complaint to Dish’s Compliance Department or Legal Department. PX 420, Email from Goodale to Dana Steele dated September 28, 2006; DTX 737, Letter from Goodale to Musso, undated; DTX 750, Email from JSR to Musso dated November 6, 2011; DTX 753, *865 Letter from Goodale to Musso, undated. Dish generally did not investígate further after receiving JSR’s explanations. T 625: 2117 (Neylon); see e.g., T 620: 1388 (Mus-so) (JSR explanation was plausible so Dish accepted it on face value).

Goodale testified that he told Musso in the Compliance Department what she wanted to hear without regard to its accuracy. He did not consider her to be of any importance at Dish. T 622: 1906-07 (Goo-dale). Goodale later said that he gave accurate explanations to Musso. T 622: 1912-13 (Goodale). Regardless, Tchang, Mills, and Oberbillig knew that JSR was violating the Do-Not-Call Laws through the use of Prerecorded Calls.

Goodale’s explanations to Musso sometimes admitted violations of the Do-Not-Call laws. Goodale sometimes blamed an off-shore affiliate, and sometimes admitted that JSR made an illegal call by mistake. Musso knew that using unauthorized affiliates violated the Retailer Agreement, and also knew that some of Goodale’s explanations effectively admitted Do-Not-Call Law violations. On December 21, 2006 Neylon, Mills, and Musso exchanged a series of emails discussing JSR’s unauthorized use of off-sho

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