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In May $2009,$ Satellite Systems Network $($SSN$)$ repeatedly called Dr$.$ Thomas Krakauer, asking him to purchase television services

through Dish Network, L$.$L$.$C$.($Dish$).$ SSN$$s sole business was direct marketing calls to consumers on behalf of television service providers. During the relevant time in $2009,$ SSN was only working for Dish.

Krakauer had registered his phone number on the national Do$-$Not$-$Call registry in $2003.$ The national registry was established by

the Telephone Consumer Protection Act $($TCPA$)$ to prevent abusive telephone marketing practices. The TCPA prohibited calls to numbers on the national Do$-$Not$-$Call registry; thus, SSN$$s calls to Dr$.$ Krakauer violated the TCPA.

Krakauer sued Dish for violating the TCPA by having SSN call on its behalf, and he sought to certify his lawsuit as a class action

on behalf of all persons who, like him, had received similar calls to numbers listed on the Do$-$Not$-$Call registry.

The district court certified the class and the case proceeded to trial, which Dish Network lost.

Dish Network appealed on a number of bases, including that the district court improperly instructed the jury regarding agency law.

Dish Network argued that SSN was not its agent, and, therefore, it should not be responsible for SSN$$s acts in violation of the TCPA.

Wilkinson, Circuit Judge

Dish does not contest that widespread violations of the TCPA occurred, nor does it dispute that these violations were made for the

sole purpose of selling Dish services. Dish does not even seriously

contest that it knew of the violative conduct. $...$

We first consider whether Dish was properly held liable for

the calls that SSN made to members of the class. The jury concluded that it was because SSN was acting as Dish$$s agent when

the calls were made. By its plain language, the TCPA$$s private

right of action contemplates that a company can be held liable for calls made on its behalf, even if not placed by the company

directly. $...$ While we have no clear definition of $$on behalf of$$

in the TCPA, we may, at a minimum, assume that federal statutes

are written with familiar common law agency principles in mind.

Under traditional agency law, an agency relationship exists

when a principal $$manifests assent$$ to an agent $$that the agent

shall act on the principal$$s behalf and subject to the principal$$s

control, and the agent manifests assent or otherwise consents so

to act.$$ See Restatement $($Third$)$ of Agency, $1\mathrm{.}01....$

The jury was asked to find whether or not SSN was Dish$$s

agent at the time it made the calls relevant to this case. If the

jury had answered that question in the negative, that would have

ended the matter. The court carefully explained that Krakauer

had the burden of showing such a relationship, and that the relationship required mutual assent and control by Dish. The court

also instructed the jury on the scope of authority. Specifically,

the court instructed the jury how to assess a situation, as we have

here, wherein the principal$$s guidance to the agent may not be

explicit, but instead arises from the principal$$s acquiescence to

a course of conduct. As the district court explained, $$to decide

whether the principal acquiesced or consented, you must find

that the principal knew of prior similar activities and consented

or did not object to them.$$

In sum, the district court interpreted the statute to apply standard legal principles. The question was then presented to the jury,

which ultimately held Dish liable. Despite Dish$$s assertions that the

district court somehow engaged in legal errors on this point, its challenges bottom out on no more than a disagreement about the facts.

The evidence supporting an agency relationship between Dish

and SSN is considerable. First, there are the many provisions of

the contract between Dish and SSN affording Dish broad authority over SSN$$s business, including what technology it used

and what records it retained. Second, SSN was authorized to

use Dish$$s name and logo in carrying out its operation. Third,

the jury had before it the Voluntary Compliance Agreement that

Dish entered into with $46$ state attorneys general, wherein Dish

clearly stated its authority over SSN with regard to TCPA compliance. And on the issue of whether SSN was acting within the

scope of its authority, an array of witnesses testified that Dish

was aware of SSN$$s legal violations, took no meaningful action to

ensure compliance, and profited from SSN$$s actions. Faced with

this evidence, it was entirely reasonable for the jury to conclude

both that SSN was acting as Dish$$s agent, and that SSN was acting pursuant to its authority when making the calls at issue in

this case.

Dish $...$ contends that its contract with SSN$,$ which expressly

defined the relationship between the parties, ought to outweigh the

evidence on the ground. It is a familiar rule of agency, however,

that parties cannot avoid the legal obligations of agency by simply

contracting out of them. See Restatement $($Third$)$ of Agency, $$