we're going to hear simmons versus charter communication afternoon your honour's my name is aaron lawson i'm here on behalf of michael simmons i'd like to with the court's remission put to one side the purely legal issues presented by this appeal and focus just on the more factual issues that are presented by the record the court below charter moved for summary judgment on the basis of an affirmative defense so its burden at that point was to come forth with evidence that if an rebutted would compel a reasonable fact finder to conclude that they had established and implemented with due care reasonable practices and procedures that would prevent telephone calls in violation of the do not call rights created by the f c c under the t c p and this they didn't do sort of the crux of their defense here is that they have a strong degree of confidence in the numbers they receive from their vendors strong degree of confidence high degree of confidence this is sort of a mantra they repeat and these sort of this assertion turns on testimony that begins around page forty eight of our pentax this is their thirty six opponent mr lincoln he's at this point he said that they retrieve numbers through a process centrally known as skip tracing and also admitted that they have no way of double checking these numbers so the confidence that charter expresses in the numbers that they have comes from sort of the next portion of the testimony when he says that we only ask for certain confidence intervals or confidence levels right he says higher or lower he doesn't know what they are can't say what they are conclusively isn't really sure what they ask for he says that quote we restrict them he doesn't say how and then the next few pages he says no or i don't know to some more questions about what kind of checks are put on this process so this is really where because and it matters here because one of the other things that sort of points out right is that they they scrub or check their calling lists against the do not call registry but in this case even though this this number mr simmons number was scrubbed that scru so my best guess is that they're not they weren't she was not that you know yes i mean she could be there i have i mean it's not in the record but they don't live at the same address and i believe that it's not her number you know they don't they number so we have we have these checks that are ignored and we have this skip tracing and there's possibly sort of safeguards placed on what's happening there and we don't know what they are and so our point is that this is not evidence that w compel a reasonable factfinder conclude the charter had established by a preponderance of the evidence that it has reasonable practices and procedures to prevent and this is this would actually just be on our theory under the national do not call regulation four hundred  c sorry nerves and so so we have this problem and i would also point out that that there's some evidence in the record to suggest that perhaps the way that the lists are put together might ultimately bear on this question as well the district court and charter still on appeal we keep referring to sophie simmons as a current customer and she is current within the meaning really of the do not call regulation because they have the established business relationship designation stretches beyond the time when she would have turned off her charter services but she wasn't current in the colloquial sense when she had been called and i think this is important because this is a calling campaign the one that sort of swept up michael simmons was a call in campaign of current sort of in the colloquial sense customers who had some charter service and charter was hoping to sell them an additional service so we have this number that was obtained through a process about which we know very little and it was called as part of a campaign that the evidence suggests it should not have been part of and so our position is that under twelve hundred c this is just insufficient a asking is is it if you hire a skip trees from that that does this is it reasonable to believe that you will with a reasonable degree of accuracy were sufficient degree of accuracy which the person you want to get to if there are any dish of that accuracy yeah i'm not going to stand here and say that skip tracing there's no reason or no circumstance under which started could ever not law be right there's there's going to be a universe of instances we don't really have any evidence that would suggest that this is one of those instances because there's no we don't know what these confidence intervals or confidence levels are we don't know why or how the risk of trace are relevant here comes comes to those conclusions you know and i think all of this kind of goes into determining whether or not this is the kind of instance in which it would have been ok to rely on that representation and you know this this this evidence raises a lot of questions right confidence interval also sort of suggests that perhaps relevant has provided them with multiple numbers and they say we are let's say eighty percent sure that it's one of these three and i think that that would be a real problem that of course we don't know any of this for sure because the record is so so brief which is why we contend it was error to grant summary judgment move to the twelve hundred d claim and or theory i suppose because you couldn't recover from more than once for a single call but moving to that theory there is of course the threshold question who bears the burden to prove the reasonable practices and procedures and their careful implementation under this regulatory subsection i think the briefs do a very good job of laying out sort of the two sides of that i would say that it had been sort of a theme of both parties briefing in the district court in ours an appeal that really you have to interpret the regulation in light of the statute because the regulation is implementing the statute and because of that there is no reason to say that the statute requires the procedures as in from a defense and then the regulation turns around and makes the element of the prime official case but that to one side i think the this sort of the same we have a lot of the same problems here they're not evidentiary in the same but we have a process that it appears there's been there's been there was some error in that area but some some problem recording this this do not call request and that as the district court recognizes bears on outside yes and it was eleven days later that your client said don't call again and then it was four days after that that he was finally yes so the first request seems to have been ignored and he was finally put on a couple weeks afterwards we know from the evidence that this particular telemarketing firm had the ability not only to immediately record that request for their own internal purposes but that they would upload that request to charter's databases so that it's other telemarketers would have access to that information within the week and that didn't happen and the f c c has told us that that is problematic under twelve hundred d in addition to the fact that it bears to make sure people don't wait thirty days in the meantime i'll keep calling them as many times as i should i would i would hope that that is that is true because that would clearly not be in keeping with the statute but even then i think we're looking at a set of facts that a fact finder could come to to sort of conclusions about when either they're doing it with reasonable care because they get it fairly quickly or they're not because it took repeated requests  to stop calling for that request to be entered and it happened more slowly than we know this telemarketer has the capability of doing that i think that rests with charter because that's an element of the procedures under twelve hundred thirty and so under the statute that is part of their formative defense if there they would have to get the information from him perry which actually made the call short so there's going to be it's not like charter not happen within the week and you see this it one sixty two of our of our appendix the page one sixty two saying we can record this and put it into practice immediately and we private use the words propagate that up to charter on a weekly basis so it if all had gone according to plan it should have happened more quickly there should not have then for cause there might have been at most two but really it should have been one and because we have that sort of delay we have facts from which really competing they place a call of somebody on the do not call list despite having made reasonable efforts to avoid doing so we have availed ourselves of this defense since the outset of the case it was your well antoine section c it is our avoid doing this and it's possible that one of these got through and that's what happened here but that's again the purpose of the safe harbor is to protect if you have reasonable procedures in place and employ them and it protects you if you accidentally make a phone call to somebody who should never see in the reasonable us of a perceived measurable by the level of confidence you can drive from the from implementing it so i and that gets you to have a serious argument we don't mortgage case the second dynasty mortgage case was quote the safe harbor in our rules that recognizes that a telemarketers intent to avoid unlawful calls is best evidence by detailed complaints procedures and here in to cross to say you have written policies do you train your personnel do you access on a regular basis the do not call list and all of those were presented by charter as part of some original record some of those were undisputed many of those were disputed below and the district court found their favor on all of them and most of those have been abandoned people and so when you talk about the procedures i think one needs to look at them as a whole  begin with and they don't take issue with the vast majority of charter having satisfied all these you know that all these i's and crossed all these t's the one issue they take is with a spec to the conference level first keep tracing and as you are mentioned there's nothing about it would impact some of the phone calls remember it only applies to people who for whom charge is missing a phone number and for people who are on the do not call registry so it is not all population comes comes down to a very small number to begin with but the premise of the argument that and this is the point your honor was referencing when a company like charter hires companies in the business of providing this kind of service right will be one thing if they hired me some guy was googling saying oh i'm like looking for a phone number for judge jacobs let's see if i can way i found a mr jacobs in new york that would be that would be pretty unreliable but charter hires companies that are in the business of providing the service and then even on top of that and the record is clear on this is well even question when you get that information back from elevate that's the skip tracing vendor is there any sort of confidence level or score or flood or anything of that nature associated with it answer yes there is more confidence intervals that vendors will perform on the matching and we specify what conference intervals we will only accept in a forty nine answer i know we only ask for the top one or two levels of confidence in the match or three so a maximum of three from any of our the following question asked by mr simmons counsel was asking what are we talking about here he said something along the lines of certain almost certain highly likely something of that sort and charters corp representative said yes that's a fair way to describe it and so it's a scale clearly starting from certain hundred percent almost certain highly likely and lesser in charters representatives and under but it evidence the record says it's one of those top levels of confidence and this was the same argument that was raised below where mr simmons counsel said that the or the regulation required companies to put somebody on as soon as practicable and the district judge correctly called them out on the and said that's not what the wouldn't or the regulation says it says that within a reasonable time not to exceed thirty days and under any version of the facts in this case there's or hours it happen within fifty days one half of the outer amount of time the outer bound eleven days from still half the amount of time that the regulation says is the outer bound of reasonable us and so that the suggestion that that there is something that could go to the jury on that is something that the district judge correctly rejected in saying look even  not a material dispute and the last thing i'd like to mention your honor unless you have questions is there's been some suggestion both in the briefing and then here again today that mr simmons was deprived of an opportunity to really develop his record in a way that would allow him to defeat summary judgment and that simply isn't so there was a discovery schedule that was entered the discovery schedule that entered said you can take your discovery on the  necessary to oppose this motion mr simmons is counsel said quote i think we have the discovery necessary to oppose the motion and he said repeatedly throughout the course of the record so the notion that somehow the district judge and prejudiced them from being you i think that the arguments of many of these points have been free well ventilated at this point i do want to pick up on one point that my friend raised you asked really how much do we know how many confidence levels relevant has or how do we this top three confidence intervals remark and in fact this question was asked of mr link's deposition do you have any idea how many levels there are in total for elevate and he answered i do not i do not know so i mean this gets back to our final point he knew you could have twenty of them and they could end with you know you know poor run and abysmal sure and and so the fact that it's three is less important than the fact that the third one as serious said if the third one is highly likely but i'm likely to be matched in this testimony that it has to meet one two or three and three is highly likely i think actually one would have been highly likely the way this i would also point out that mr link counts two couched his statement that they asked for the top three by saying i shouldn't say that conclusively i mean that is the sum total of the evidence that this is where we're restricted and i think you greatly noted that this is important for this defense because really the rest of these procedures this check against the registry it didn't happen in this case so it all comes down to this and i don't so point out there is in this in looking at  defense it doesn't matter really in this case whether whether the the script worked because in fact they knew that it was not that it was on the list right but the fact that there are two layers of scrubbing possible now i guess and and then period doesn't that matter now and in this case because they do have these procedures in place it was not a failure of those procedures result in the phone call to your client but they have these procedures in place doesn't it count in their favor it does i don't think it gets them as far as they need to go no interest and yes yeah i would agree that that's a point in their favor i personally i think that it would be better to have a more fulsome record on what exactly is happening when it gets scrubbed and how accurate how effective that is at the moment right we know that they scrubbed we didn't really run that down because as i said that the whole process was ignored checking in sless sure sure i would imagine there's a few different ways of doing that and  it might be worth knowing exactly how they do that if i could get back to you know one of the other points and then i'll wrap up unless there are other questions the point my friend made about energy is in the business of skip