telemarketers your honor but by no means is it x is it exclusively telemarketers and in fact the section that we are proceeding under the statutory section is the one that pertains to calls to wireless phones that's actually a different applies to both telemarketing and that collection and other calls the federal communication commission that has a regulatory authority over the matter has said so in its two thousand and eight ruling and other wear and other places across the way so while there are i agree there while there are provisions that apply to telemarketers and there are there are provisions that don't cover debt collectors they are not the ones that cover wireless a t t s calls to cell phones has its own section and own set of restrictions that the f c c has said applies across the board regardless of the content of the coal according to the commission's two thousand and eight the ruling so you know the clients complaint is only about a dialing to her yes in fact in the two thousand and eight application the a c l u which used to stand for the american collectors association asked for a ruling that their coals were not going to be covered and the commission declined to do that and said that while there are certain prescriptions that deal with telemarketers that will not cover that collection a t t s automatic i would cost a cell phones are still a cover and they are still restricted hundreds and thousands of calls in the space of minutes the call will ring consumer will pick up the phone there's no one there it's probably happened all of us at some point hello hello in there software that collector will see when the light goes on  voice and then after two or three or four seconds you'll get a voice well congress and i'm not if you get yes then you know unless it's from there is there's others that use that technology political parties and charitable you hang up on so so i think because of the fact that the technology has the capability to for such widespread calling and particularly because of the fact that in the case of wireless cause in a period of three weeks or made on her homeland mind you had to say i would but i think the state the regulatory framework wouldn't be as clear the f c c and the and the x folks speak so clearly there's a separate dialers and cellphones and that's what i was going for a minute ago why it's so crucial here that it was calls to cell phones is number one there in the commission has found their inherently more invasive you carry on with the everywhere it's not said you were calling me i myself yes that is true she provided the only number that she had like so many and that with my gray hair i can say so many young people they only had a cell phone i think i think the commission has found that for answer that in two ways or the first is that in the two thousand and three ruling the f c c declined to adopt a a called a good faith a defense it's strict liability if you call a cell phone and it's forbidden you violated the act in the reason for that is that there is software readily available in the marketplace where the caller can find out instantly if it's a cell phone number the example we make in the breeze is what's called porting if you a lot of people are getting away from  there's there is they can find out readily if it's wireless service and within the fifteen day window they have to determine for themselves if it's a wireless number so with regard to what she told dell or what they'll subjectively knew about the calls i would say that at most that's an issue   well according to the commission when you provide your telephone number on an application that is deemed prior express consent and the commission uses terms like it effectively gives her prior go with it be on the record she paid the bill for over two years and the evidence would show that you know she had a problem pregnancy lost her job as an had to quit her job for three months as a nurse and wasn't unable to make ongoing payments and that happens to an awful lot of americans but i agree  prior express consent but i don't think you can divorce it from what actually happened there was no disclosure on the agreement that you may be called x number of times that will use an auto dialer that we will not stop that it's for life that you're going to be called for life they'll never said any of that so while she did give expressed consent in law i think that the facts of this case really are are are in the consumer's favor because dell should have but did not prior expressed and yes the content it with respect to that and we never said that she didn't give quote prior express consent close quote i'm simply saying that it's consent implied in law and when you look at the the circumstances of what is the consent of what did she consent to she consented to be called the real issue here today the case was thrown out because the judge mary any below in the first decision of its kind held that that sir respectfully that's really why we're here it's when can you revoke consent and how right well the court cases and if i can answer that in two ways serves the court decisions and there's the f c c the court decisions that have addressed it there's been half a dozen of them or more have all held that you can revoke consent the issue has been need to be oral or must it be written or maybe oral or must it be written before this case there was never a court had held that the consumer couldn't revoke supposing on the day that she got the contract she signed her kids the next day she gets the computer she's very happy here two days later according to your theory she can send a letter in credit report we're only dealing with this because the act and the commission has put this auto dial caused a cell phone because of the expense and the multiplicity of calls as an extremely inconvenient means your honest good morning and may it please the court my name is anthony valiant and i represent the apple in this case dell financial services your honour's the court hit the nail on the head with its first question to mr flitter and that was this isn't a telemarketing case is it the answer to that question is no an answer is therefore dispositive because the telephone consumer protection act was enacted for the exact reason of preventing unwanted telemarketing solicitations for example when the phone is in your jacket hanging on the back of a stall it however did not example or was meant to preempt in any way legitimate business contacts with customers insisted legitimate business contact with customers though when they all financial services places forty ca try to collect on the debt they can have a person court they can have a bill collector color as your worthy opponents that there are a whole slew of different ways to collect on the debt so why is having this auto dial possibility so important to you particularly since i think most people hang up when they realize what the call is that's possibly one option your honor but the reason that is so important is because that's the way this particular business and many businesses like it conduct business in these instances but it's the way they want to but it's not the only way they should well that's correct your honor but and but that pervasiveness in the invasiveness of these automated made  this is such that and it's not limited to telemarketing i led congress to enact this law which says that you can't do it with a cellphone and if if she has expression he consented to it is she down for that forever never that that is what i find very hard to believe because consent is something which which is easily removed in a is no it goes on so long as the business relationship with the entity exists for example miss gager applied for credit on the credit application she provided her cell phone number in spite of the fact that the application itself said do not list a cell phone and then this gave you spent thousands of dollars which for one reason or another those facts are not in the record she did not pay had she simply paid off her account she could consent is revoked and another time your honor and by the way the f c c specifically speaks to this she could have provided instructions to the contrary at the initiation of the relationship and what use it would have made to the loan what but that's the whole point your honor they may have or they may not have but it's so important and that's what the f c c is saying in the business context not in the telemarketing context but in the business context if you do not want to be called you should say about my help so does that give a debt collector a reason to call i don't know they might be here under the fair debt collection practices act had she said you are contact me about my count which she did and then a deck like a contract what mr flitter he cited to the two thousand and eight f c c ruling and he cited it many times but respectfully what he was saying to this court is simply wrong because what the f don't make a distinction between telemarketing and other legitimate business purposes and the f c c was mindful of that they said we know that many commentators expressed concern about obtaining written consent for certain types of to answer that question we're not bringing in the common law into the interpretation of this is that i should about the common law your honor i don't know the answer to that question because it's hasn't been an issue in this case and we aren't arguing as it's an issue in this case we're dealing consent we're dealing with consent under statute but is as judges we can't simply look at the language of that you've got to look at the context in which it's place and one of the things we consider in our deliberations is the common on how the common law deal law context consent can be revoked in the telemarketing context when you deal with business relations not talking about telemarketing we're calling about that collection and common law yet your honor i'm and i'm trying to speak that what  common law notions of contract say is if i extend something to you and offer and you extend something to me consideration we have a contract so as it points to this case  the offer is we will give you credit we'll give you a a computer and the consideration is if you will pay us for that computer it'll be questions about consent and there has to be informed consent cracked or not according to how then how could it be expressed consent if it's not informed your honor the f c c has said prior express consent means in the business context if you provide your cell phone number you are providing consent to be contacted with the person who provides that said that was acceptable in the debtor contract indeed in the two thousand and twelve report an order they specifically don't rule on the issue because they don't have enough in the record in front of them on this very point that's why isn't it fair to construe from all the other rulings of the f to calls from debt collectors do not come near the level of frustration as the calls now they set the record in supporting is what they say in two thousand and twelve and so they weren't ruling on that well but let's go back to the questions its informed consent your position you're talking about breach of contract principle not answering the questions about consent not just i was trying to finish the point with regard to the breach of contract what miss gager is trying to do your honor of speaking to the common law notions of contract formation is post contract formation she's trying to revoke the consideration i don't want to pay and i don't want you to hope he's not one means of reminding her of her obligation under the contract part of the consideration of your honor post contract formation revocation and that's what judge maryanne is saying he can't do and although mr flitter said it's the first case of we just found this morning your honor ok well what do you provide copies we certainly well your honor just for the record it's the western district of new york decided may first twenty thirteen relying on sanders relying on mary any saying and gator that is saying we are not telling what you're saying is you could never withdraw you can say that's never revoke your nose or that's not what i'm saying what i'm saying is there are ways in which the consent that you provided could be revoked but not in this particular context not under these facts not under what we skater did what are the ways as i mentioned to judge roth your honor the account could be finalized and it could be paid off and at some point you say is just like any credit card i can sling my credit card so that's what the statute says that's what the f c c interpreting statute says and if you go back your honor from the two thousand and twelve i'm sorry from soundbite ruling and then you go back to the twenty twelve ruling where the f c c has is this is a quote from paragraph nine telemarketing calls are subject to the c p a that collection calls are different animals and then what the what the f c c also said in her graph twenty eight of the twenty five ruling is we maintain the existing consent rules for non telemarketing informational calls including that collection calls that do not contain telemarketing messages the f c c has been consistent since the inaction of the t c p a a that says that collection calls are outside of the automate or prerecorded telemarketing calls but that doesn't mean that the f c c wouldn't by reasonable inference on a proper record reach an identical conclusion on that call kraftwerk i don't buy your honor very respectfully i don't believe that's the case and here's why from the one nine hundred ninety two rolling through the two thousand and twelve ruling that collection and revocation have always been at issue and the f c c has consistently that debt collection calls are exempted from here and what the f c c has also said in the twenty twelve ruling is or i'm sorry in the south my decision it's specifically noted that they weren't there in no time in the past nor now are they dealing with it's crazy i'm sure you're very excited to know that i've learned that i am very well your honor the ass instructions to the contrary language your argument is that if the applicant doesn't say don't call me at the time of th in but will go back to your client and your client interacting with that and suggesting that let's have a credit arrangement if she said look don't call me there would have been no deal crack if i don't know that you're on it but that's what's so important because it gives the party who is going through or may extend that the option of saying yes we'll do it so the risk but didn't you just answer one of the other questions that was part of the consideration we thought you know they form the contract that's correct but if the person says listen give you instructions not the so call me at this number there would have been no contract correct so doesn't it only make sense that these instructions given at any time know you are going i said was it was part of the consideration so the other part of course is paying it so what i'm saying is if you give instructions that through the country at the beginning the delegate for in this instance can say ok we're not going to enter into this country we never get paid but dell may also say ok we're willing to take the chance we'll give you twenty five  ld it be more helpful to to do all that if there could be a actual conversation not just in writing of a number and put differently later in the interim the business relationship actually call through a by a person who a manual dial regard to what are they said about revocation is this a big well as as the sound bite decision makes clear your honor they really haven't discussed revocation in this context they've discussed it in terms of opt out in the telemarketing sense and they've discussed it in other senses but your honor i think that's quite telling because the f c c certainly could have been any number of these ninety two zero five zero eight twenty twelve sound byte revocation can happen at any point in future but at no time and again i believe is by telling your honor that all the times you have to see has had to deal with this it's never that mother maybe it didn't have the facts and circumstances that occur in a case like this it didn't have the number of phone calls that are made it may be considered abusive patients of privacy and border on badgery what it but take for example would it in the telemarketer and take for example the sound bite your honor which was a class action involving you know as you say many many calls and again the the f c c in dealing with sound bite has said not that you can revoke consent in all circumstances it's certainly talked about opt out in the telemarketing sense referring to its own weight order where it said what's what can be opt out from and that collection is not among that and then went on to say you can opt out telemarketing sense but  it it didn't speak to as as your are suggesting what's harassing what's too many is is five enough is five hundred too many so you are at this point the f c c which is a judge ross said you know allow deference we don't have that in front of us ok good thank you would first like to address the comment that i somehow misquoted the two thousand and eight ruling or gave an impression contrary to what it since i don't like the quote so i'll just point to without prior express consent we note that this prohibition applies regardless of the content of the call and is not limited to calls that only constitute telephone solicitations so that is precisely what it says and i believe not disclose that she had suffered yes your honor and that is because the f c c has spoken to the issue and we talked about a little bit earlier that is to say that a sort of a there is no good faith defense if you will to violation of the act that the callers are expected to check commercially available software periodically i think it's every fifteen days to assure themselves that it's not a wireless number and the f c c in a two thousand and three rulin because there's a five hundred dollars damage we're we're fifteen hundred dollars if it's willful and i should think they could make a factual argument that it was a willful because they didn't know it was a wireless line where that will go i don't know but that's what we say to claim that's a separate issue from whether we stayed a in the that collection setting while i would agree with that i think that may well be it hasn't presented itself because it's in my mind it's so obvious in virtually every area of law and this is deemed to be a agree with that your honor i would but i would answer in two ways first off the contracts in this record in the contract is silent they'll never said a word about autodialer they never said a word about wireless phones so there's no contractual provision year regarding the calls that m gauger breached other than that i think the commission will speak to whether you can still revoke it as a matter of statutory right or regulatory right even if there is a contractual obligation but in sound like the court the commission held that consent is revocable and that it may be that and that once the consumer expresses revocation of consent thereafter all the caller can do is send a single text morning your hours made please the court my name's ronald krauss some in the system federal public defender with the middle district of pennsylvania murder represent the defendant willie tyler i'd like to reserve three minutes for rebuttal yes i'd like to start with the most what i think is the most difficult spot of issue in this case which is the weighing of the sufficiency of the evidence concerning the investigation related offenses under the found standard i think my brief did a disservice to the court because i don't think it fully analyzed the fowler standard properly as it applies to this case i would like to expand on that analysis morning in the courtroom mission although i chambers three seventy eight the court says the federal prosecution fowler arose after charles fowler shot a police officer who caught him and his associates suiting up to rob a bank it was clear that fowler had shot the officer with the intent to prevent him from speaking to other law enforcement officers but that he did not have any specific law enforcement officer or set of officers in mind in time to satisfy the federal nexus requirement  such as in such a situation the court held the government must demonstrate a reasonably likelihood and you know the rest of communicating with a federal law enforcement officer the problem in my brief second part this is actually the second since i read the states that first part and it's that first part it's a threshold part of the fallacy entered that's critical in this case not the reasonable likelihood test now again shot the officer intended to prevent communications to federal officers first the relevant question concerns the defendant's intent the government will already have shown beyond a reasonable doubt th defendant possessed the relevant broad indefinite intent namely the intent to prevent the victim from communication with unspecified law enforcement officers insular of the second trial and  standard so you just said that we should look at the very first part of valor and the court's examination of the trial record come with that here no no the court in in tyler use the bell standard th spirit is proof that the officers whom the defendant believed the victim might communicate with in fact the federal officers so the this is in under the bell standard is who the victim might communicate with ice was local sheriff came up to the car and they were sitting in the in cemetary around the car preparing to rob a national bank that they were shooting this officer with the intent of preventing him from communicating with other law enforcement officers because that's obviously what another law enforcement officer would do but that's really distinguishes the facts if our from this case and also the the new emphasis in fower those two elements first that the government prove beyond a reasonable doubt that the defendant tyler possessed of broad indefinite intent to prevent the victim from communicating with law enforcement officers in general and then sure the reasonable in this case at any time or was it  certainly is a jury question whether or not is a part of the instructions to the jury it is where there is a reasonable likelihood that the person who was was assaulted or hack would have there were it would be a federal officer well there were instructions the communication would have been made to it to an officer shooting the word instructions that didn't use the phrasing reasonable communications  i mean reasonable reasonable likelihood reasonable likely place because that wasn't that the standard at the time was somewhat similar i did not really go into that because i think at this point in the litigation are twenty two forty one i don't think the jury instructions are something i could attack it's really a matter of establishing a life of criminal conduct at this point it is in the a jury has not decided that you know there's not not an issue that standard but i would submit that this case really doesn't even get to the reasonable likelihood standard because it doesn't pass the fresh hold of  an inference of a reasonable doubt that tyler intended stop proctor from testifying from a communicating with a law enforcement officer let's go back to the jury instructions i understand you can't attack th but one of the instructions the district court gave to the jury was that there was that the x you know that the this is all force of the killing was motivated by a desire to prevent the victim from communicating with law so the jury was already told that had to be the motivation for the action and therefore this jury happened to have been instructed on that very point that you say was the first part of the fowler analysis right so that really isn't anything we need to be concerned about star talked with this such first the rope in question could concerns the defendant's intent and then talks about how the government has to show beyond a reasonable doubt that the defendant possessed a relevant broad indefinite intent to prevent the victim for speaking to law enforcement officers if you go immediately to the reasonable likelihood it's so i think i put this in my read you putting the rabbit in the had already what fowler did was take the supports the inference that tyler acted with an intent to stop proctor from testifying state trial but says nothing about whether or not he had an intent to prevent her from speaking to law enforcement in general during that wanted to prevent proctor from testifying at trial but it says nothing about preventing her from testifying from communicating with a law enforcement officer then a few days later after the death listening again inference that he intended to kill prevent proctor from testifying at state court trial but says nothing about preventing him her from speaking to law enforcement officers but right had it but them but the entire record demonstrates that there was and that apparently these folks knew that she had begun to cooperate with law enforcement circuit has already found that there was sufficient evidence that there was communication with law enforcement that within federal had she survived to communicate so you know i mean i think well that's already been found and in any on twenty three forty one we have to find no reasonable juror would have concluded the way that you say it should not begin i think when you read that closely what they were looking at was the reasonable likelihood standard they didn't break out the threshold question of broad indefinite intent to look at a law enforcement officer this is this is a case where tyler saw proctor talking to a detective on the street and said i got to stop her from talking to law enforcement it was a case where she went into this are going to police headquarters and they said we've got to stop her from talking about fortunately it was a case where someone told them she's not cheating on you and you have to then decide when we have to stop her from talking law enforcement they had no idea she was talking law enforcement she had all because everybody let me ask you another question about the procedure we're in right now if we should happen to agree with you then the issue remains an adequate showing of actual innocence and should we remain and to this court to determine whether there was an actual showing where there is a sufficient so here in determine the facts and dispose of of the matters long justice requires so i think you have the discretion to decide that here if you wanted to remand it to the district court ruling right should we then send it back to the district court to make a factual determination that there is actual innocence and if we do what is the standard i'm sorry it's there is a standard which we have used in related habeas petition is to determine if there is actual innocence well should we should we refer to that in  and the facts of the case really haven't come before us as to what what was the intention what could the jury have decided so it would appear to me and i'm not saying that it would appear to my colleagues but that there are some factual determinations that still need to be made under the arthur andersen and the power standards to determine if there is actual innocence because the law has been changing and what we've shown did guidance would be to follow the standards under arthur andersen light and valor and i don't disagree with to address the point but i'm wondering if if this is a jury issue or if this is a state what i think is the core issue that disposes of this matter i would suggest to the court that we begin with the fact that this court has already found that the facts of this case were sufficient under law to establish  nexus for a law enforcement connection under the law in for communication to a law enforcement officer pong in the bell case the court said that the facts most are even more was that before file or yes it was before fell or but it said it met the factual requirements and session tory requirements for it to establish the federal nexus if you find that the law enforcement prong has been satisfied since this was a general verdict under the united states versus griffin case the supreme court case that means that if one object of the statute that is being charged if they charge multiple objects if there's a general verdict then if one focusing on proctor's testimony at hodges trial in january nine hundred ninety two issues unwilling to cooperate any more the text of phones is fons is testimony on multiple occasions that there were no plans at hearing in the district in the state court and you look at fund his testimony at the federal court what proctor was saying was i'm not doing any undercover work anymore i'm no longer working and but it was clear from detective phones testimony that it wasn't his call where it went from there he was part of the federal joint task force a best testimony is that there were no plans at all to use or to testify well if you said the next step would have been to evaluate the information that proctor had provided in order to see if further investigation was warranted it was the duty of the task force coordinator agent diller to make that determination up from that i would communicated to the federal officials because detective i mean agent diller was the representative and the advisor and counselor of the federal government and he had interviewed her prior to her being murdered and he had said that she had told him about multi genre stick tional involvement of this drug organization and that he had arranged that he was going to have her to and he was going to meet with her and de for phones when he was asked what information did she tell you about multi drug station like to vittie he said they traveled to new york and traveled to jamaica to set of drug transactions so you have not only motor of you your multi state and multinational detective dealers agent killer said i would have communicated that our after my interview following up on it on my follow up interview i would have communicated that the d the sand and said we have sloot we're taking this case and she would have been a witness and we are taken on this investigation so you're saying based upon that proffer set of facts from this trial record the trial record not only substantiated the conviction as that's very strong likelihood yes and remember i do judge shorts but remember that the fowler said that when you talk about reasonable likelihood it's not beyond a reasonable doubt it's not even more likely than not it is more then remote or hypothetical and when you have as they found in the bell case they said she was already communicating with law enforcement officials in a partially federal drug task force it was reasonable to assume based upon the testimony that she's going to continue communicating with law enforcement officials the federal law enforcement official said he had already set up to meet with her and it said that a jury could have reasonably infer that at least one of those communications would have been to a federal i'm sorry do i see are you conceding well i would have to say judge that the the the official proceeding prong of the indictment is our weaker argument but the arthur andersen case does not apply to time or it doesn't apply first because it referred to official proceedings were going on of the law enforcement problem as the district court found citing cases from the six eleven circuit that arthur andersen could never apply does not apply to law enforcement process but even more importantly arthur andersen arthur andersen never apply to tampering with the witness by murder because arthur andersen was con conf cern how does the defendant know that what he's doing is wrong under arthur andersen proceeding it has to be a federal official right under arthur andersen it has to be income to the if it's per been part of our investigation we would have used her as a witness then a matter that she said to just one cooperate in morgues and so it's hard sure she said in the hans trial that she was not she had been burned as a as an informant she was no longer to be working as an informant and frankly it's not her call but she was understood i am not going to cooperate anymore well we don't we don't judge the presence of a potential communication with a law enforcement official by the seeds it is was the evidence was it whitely that there was sufficient evidence shown that she was going to be communicati communication problem and that's that's where we stand and i would emphasize to the court as well that we're looking at this under the twenty to forty one standard one of three things has to be established by the defense to carry the day in this one actual innocence to the statute was decriminalised of the conduct was decriminalised on the law enforcement center it wasn't because as the defense conceded before  reasonable juror not a single reasonable juror could if ound the evidence was sufficient to convict beyond a reasonable doubt none of those things have been shown in this case the reasonable likelihood when you look at all of the evidence and there are i think nine nine key points cited by the court when you look at all of the evidence there was a reasonable likelihood that she would have communicated at as well here's this here's what the statute says the term law enforcement officer means an officer employee of the federal government or a person authorized to act for or on behalf of the federal government or serving the federal government as an adviser or consultant both the head of the pennsylvania grosvenor conics investigation for the pennsylvania attorney general's office and the representative the v a testif this was our advisor this was our consultant he decided what cases went federally and as matter of fact diller testified that he was the case agent in in the federal trials i tried cases with mr delivery for retired he was a federal agent under the statute as the advisor consultant and da when for instance he makes a decision as to whether or not we take the case for federal prosecution so the answer is yes and dealer said i interviewed her beforehand and she told of multiple jurisdictions involvement and i intended in the end phones confirms that i intended to interview her after her testimony when they had finished the state case the the global case to discuss with her the other relevant your honor when we come to actual innocence though remember that the court is not to consider jury instructions or anything else it is actual innocence and that when they when the all of the evidence there was a reasonable likelihood that at least one communication with a federal law enforcement officer would have occurred had she not been murdered and one of the reasons he said that in the bell case they pointed out and the court followed up on bell when you these people were well aware that their involvement went far beyond carlisle where the prosecution was taking place for sales that took place within cumberland county they were well aware that it went far beyond that it went beyond the bounds of the jurisdiction it went beyond the bounds of the state went beyond the bounds of the united states they were aware that if she continued to cooperate or communicate with law enforcement that would come out and the court said that there was plenty of evidence in there in bell that there was going that it was a partially federal law enforcement task force that it was that was involved and if she had done any more communication with them the reasonable likelihood is that at least one of those communications would be with with a federal law enforcement officer and phone said if you already even plan that i was going to turn the case over to detective diller and he would continue the interview and d already begun the interview before she had been killed that's you you have to find that no reasonable juror could have found that evidence was sufficient beyond a reasonable doubt on those facts and we submit that the evidence is there and that that there is no clear error in terms of that there's a reasonable inferences from hearing and therefore since none of the times it was only in the last trial where all of a sudden mr diller decides that he is an advisor and consultant with the federal government and when asked where he got that phrase i believe he says something like well i think you got it off of yano says there was no federal involvement in it basically what it was was mr biller who it's this really nice on with the e p a and other federal agencies he had the phone number on the on his rolodex that was basically his connection to the federal government and when occasionally case that he thought might introduce the federal government would come up call them up and then and then they would think about it but one of the things that significant in this case is  state court proceedings to end does that make any sense when the if the federal got if there was some matter that the federal government would be interested the federal government would step in the state would not cross of prosecution rudd would step in and he'd take over and he would have gotten the convictions the the idea that this was any really federal interest doesn't come up and it never came up until after bell was it seems to me that we have to have guilt on each element of the of the charge