FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,041
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The Joint Petition. On February 22, 2011, a joint petition was filed by DISH Network, LLC
(DISH), the United States, and the States of California, Illinois, North Carolina, and Ohio (the States)'
requesting expedited clarification of and declaratory ruling on the TCPA and the Commission's related
rules. Both DISH and the States present questions related to TCPA liability for companies when third-
party retailers make unlawful telemarketing calls.' The parties filed the Joint Petition in response to an
order of the federal district court in which their litigation under the TCPA is pending.4
The Charvat and DISH Petitions. On March 2, 2011, Philip J. Charvat (Charvat) filed a petition
requesting a declaratory ruling involving issues similar to those raised by the Joint Petition. On March
10, 201 1, DISH filed a petition seeking similar clarification.6 The parties filed these petitions in response
to an order of the United States Court of Appeals for the Sixth Circuit referring to the FCC issues arising
from their federal court litigation under the TCPA.7 Specifically, the parties request that the Commission
interpret the do-not-call and prerecorded voice call provisions of the TCPA and the Commission's
implementing regulations to determine whether they create liability for a person or entity by virtue of
telephone calls made by a third-party retailer.
Issues presented by the petitions. The TCPA, in relevant part, provides that it is unlawful "to
initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to
deliver a message without the prior express consent of the called party, unless the call is initiated for
emergency purposes or is exempted [by FCC rule or order]... ."' In addition, pursuant to the TCPA, the
FCC's rules provide for both a national Do-Not-Call Registry and company-specific do-not-call lists that
protect consumers from unwanted telephone solicitations.'
The TCPA provides a private right of action to remedy violations of these provisions of the
TCPA or the FCC's related rules.'o The TCPA also provides that a state can bring suit on behalf of its
residents concerning such violations."
DISH, in its portion of the Joint Petition and later in its independent filing, asks the Commission
to declare that the TCPA does not impose liability on a company for telemarketing calls made by third-
2 Petition for Declaratory Ruling, filed by DISH Network, LLC, the United States. and the States of California,
Illinois, North Carolina, and Ohio, February 22, 2011 (Joint Petition).
3 Joint Petition at 10-18, 20-26.
4See United States et al. v. DISH Networ;k, LLC, Case No. 09 cv 3073-MPM-BGC, Order (E.D.11. February 4,
2011) (directing the parties to seek FCC guidance under the doctrine of primary jurisdiction).
s Petition for Declaratory Ruling, filed by Philip J. Charvat, March 2, 2011 (Charvat Petition).
6 Petition for Declaratory Ruling, filed by DISH Network, LLC, March 10, 2011 (DISH Petition).
7 See Charvat v. EchoStar Satellite L.L.C., C.A. No. 09-4525, Order, 2010 U.S. App. LEXIS 26404 (6th Cir. Dec. 28,
A 47 U.S.C. 227(b)(1)(B); see also 47 C.F.R. 64.1200(a)(2).
9 47 U.S.C. 227(c): see also 47 C.F.R. 64.1200(c).
'o See 47 U.S.C. 227(b)(3), (cX5).
" See 47 U.S.C. 227(f).
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United States. Federal Communications Commission. FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011, book, April 2011; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc52169/m1/213/: accessed August 19, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.