Dish Network Continues to Attempt to Spam My Blog

[TV-Tastic]

I have an interesting situation here and I'm wondering if anyone has any attorneys have any particular insight into it. I have a TV-centric blog and over the past year, Dish Network has been having their employees act as proxies to attempt to SPAM my blog to advertise their products and services. I know it's approved by Dish Network because every comment left on my blog has to be approved by me unless it's a regular poster or subscriberand I'm provided with the IP Address of whoever is spamming me and it leads directly back to Dish Network's Corporate Servers in Inglewood, Colorado.

Here are the last two comments that they tried to post:

That was a good review, although from what I saw of Lilyhammer (about 2 episodes was all I could stomach), you’re being pretty kind in your assessment. Frankly, I’m shocked this is what Netflix decided to present as their first exclusive show. Definitely won’t be luring me back. But then, I’ve been way happier with the Blockbuster @Home service than I ever was with Netflix, even before they changed their pricing and everything. For one thing, Blockbuster @Home rents video games as well as movies, many of the movies are released 28 days earlier, and I get streaming and a bunch of movie channels included. All for less money. I had high hopes for it when my employer, DISH, began offering it, and I haven’t been disappointed.

^^^ I did some research on this guy and found him doing this on 18,000 different blogs.

I’m happy to hear Unforgettable will be coming back for another season. I’ve enjoyed the show and now I can continue to do so, I think Poppy Montgomery is great. Now I can watch my primetime show commercials free using my Auto Hop feature. This feature happens to be one of the best features available. I know most of us already fast forward commercials, but now this feature does it for you. The day after my primetime shows air I can use this option to watch or to skip commercials with the touch of a button. I work for Dish and I’m glad my coworker told me about this awesome new feature. I'm going to be able to save some money on batteries since I no longer need to use the fast forward button every ten minutes.

I did a little research on the Internet and this has become a very common practice for Dish Network and this was their response from their PR dept. when confronted by another blogger:

http://www.gizmolovers.com/2011/11/2...pamming-blogs/

“We require our employees who post about DISH products to identify themselves as a DISH Network employee,” Lumpkin told me via email. “This appears to be an informative posting describing the options consumers have for getting entertainment and is posted in a discussion of a similar topic.”

Really? I asked. You sure you want me to print that?

“It looks informative to me and appropriate for those Web site discussions. I’m fine with the response.”

Of course, that response seems absolutely ludicrous to me and anyone else who reads it and like something that a typical Judge Judy defendant would say. They obviously are directing their employees to SPAM and if this was presented to a judge or jury, I think it's fair to say that Dish Network would be laughed at.

My issue is that my blog is a professional blog. I don't make a lot of money off of it, but I do have advertising on it and I have accepted paid advertising in the past from other companies (most recently and ironically, DirecTV) and I sure as sh*t don't appreciate a multi-billion dollar company trying to screw me and get free advertising because they're too cheap to pay for it. This is really about principle for me so I'm looking for an honest assessment of what my options are.

1.) To get this out of the way, is Dish Network violating the CAN SPAM Act of 2003 (15 U.S.C. §§ 7701-7713 and 18 U.S.C. § 1037) with these practices?

2.) I'm a paralegal and I have a whole C & D letter prepared for them based on CAN SPAM that basically says that I know what you're doing, here's the proof, you're in violation of federal law, I consider your company and proxies nothing more than common thieves by engaging in these practices, so knock it off or I'll pursue other legal remedies (I also say that if they want to advertise they need to pay me like their competitor does.). Then I say that this is their final warning and the next contact will be made by my attorney and I provide his name and bar number. I have it addressed to the two spammers and the General Counsel of Dish Network whose email was easy to find believe it or not.

Am I barking up the wrong tree with this approach? I haven't sent it, yet, and would appreciate any suggestions on what to say if this is an appropriate course of action.

3.) Even if they are attempting to violate the CAN SPAM Act, they haven't actually been able to do it because I have control of what gets posted and what doesn't so I haven't been damaged. That being said, what their doing is akin to attempting to steal merchandise from a store but instead, they get busted by store security before leaving. So, my point is, all things considered, I haven't been damaged despite their attempts to damage me/deprive me of income/use my property without permission. Do I have a civil claim, here, despite the lack of damages?

4.) If this is a violation of the CAN SPAM act, should this reported to a Federal Agency (FTC, FCC). Is this a class-action case?

Please be gentile as I come into this not really knowing anything about this particular area of law and need guidance. And for the record, I'd appreciate it if ONLY Attorneys reply.

Thanks in advance.

[Mr. Knowitall]

If you can identify them by IP and are hosting your own software on your own real or dedicated server, you can block them by IP. You can also check any control panels offered by the webhost or for your blogging software to see if they offer a "block by IP" function. If you are dependent upon a third party for your software and support, you can inquire with them about IP blocking.

1.) To get this out of the way, is Dish Network violating the CAN SPAM Act of 2003 (15 U.S.C. §§ 7701-7713 and 18 U.S.C. § 1037) with these practices?

The CAN-SPAM Act of 2003 relates to commercial email. Similarly, 18 USC § 1037 relates to intrusions and fraud relating to email. Comments on a blog are not email.

Am I barking up the wrong tree with this approach?

Given that lawyers aren't impressed with paralegal credentials, and they aren't actually sending email such that the laws you mention are implicated, yes, I think you're barking up the wrong tree.

Even if they are attempting to violate the CAN SPAM Act, they haven't actually been able to do it because I have control of what gets posted and what doesn't so I haven't been damaged.

So you can and have blocked them by IP? Then I would stop worrying about them, and focus on swatting down the spammers from Asia, the Pacific Rim, Central America, and even around the U.S., who are likely hitting your site right now.

Do I have a civil claim, here, despite the lack of damages?

I'm not going to argue that spammers aren't annoying. I'm not going to argue that there's no cost in removing spam. But if you leave your comments open and people post comments, you will have spam. You have not actually identified any unlawful activity.

There are ways to limit spam - moderation, registration, automated screening of comments (Mollom, etc.), using an identity system instead of your own registration system or open comments (e.g., 'comment using your Facebook / Google account) and the like.

4.) If this is a violation of the CAN SPAM act, should this reported to a Federal Agency (FTC, FCC). Is this a class-action case?

You would need to identify actual tortious activity before you would have grounds for any type of legal action.

I don't know of any government agency that cares about spam comments in blogs and forums.

[STATcom]

Unfortunately TV-tastic, there's not much you can do about this in terms of the CAN SPAM Act or any other legal recourse. The Dish Network employees have identified themselves properly and you have actually suffered any compensable injury. If you want to limit what they can say, it's better to just turn off comments or keep your old system and just filter the comments out.