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Filing Was ‘Premature’

FCC: Lack of 11th Circuit Jurisdiction Requires IMC Petition's Dismissal

The FCC seeks to dismiss the petition for review filed Dec. 21 by the Insurance Marketing Coalition (see 2312220059) because it is “premature,” and the 11th U.S. Court of Appeals therefore lacks appellate jurisdiction to consider it, said the commission’s motion Friday (docket 23-14125).

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The IMC petition seeks to vacate the FCC’s Dec. 18 order implementing rules under the Telephone Consumer Protection Act that target and eliminate illegal robotexts. The IMC contends the order exceeds the FCC’s statutory authority and was adopted “without observance of procedure required by law.”

The IMC said its petition was filed as a "protective" measure "out of an abundance of caution" but that it would introduce a second petition for review when the order is published in the Federal Register. The FCC’s motion said the order results from a rulemaking proceeding, and so a summary of the order and the text of the amended rules will be, but haven’t yet been, “filed for public inspection and published in the Federal Register.”

Courts have found that entry of an FCC order occurs on the date the commission gives public notice of the order under its own rules, said the motion. FCC Rule 1.4(b)(1) defines public notice to mean the date of publication in the FR, it said. The D.C. Circuit has found that rulemaking orders are reviewable only when published in the FR, and any petition filed before publication is “incurably premature” and must be dismissed for lack of jurisdiction, the motion said.

Because the IMC filed its petition before the challenged order was published in the FR, the petition “must be dismissed,” said the FCC’s motion. The IMC acknowledges that traditional interpretation but expresses concern that recent D.C. Circuit decisions have created uncertainty about when a rule is entered, it said.

That concern is “unfounded,” said the FCC’s motion. Neither of the cases the IMC cites interprets the Hobbs Act or the FCC’s regulations governing public notice of a rulemaking order, it said. “They deal with the narrow issue of the status of a rule in the window after an agency has filed it for public inspection” with the office of the Federal Register but before actual publication, it said.

That issue “is very different” from the question of when entry of an FCC order occurs for purposes of the Hobbs Act, said the FCC’s motion. Whatever “conceivable relevance” those cases might have in other circumstances, “they are irrelevant here” because the IMC’s petition was filed both before FR publication and before the agency filed a summary for public inspection with the FR office, it said.

Even after publication occurs, the IMC petition “must still be dismissed,” said the FCC’s motion. That’s because the timeliness of a petition, and the 11th Circuit’s jurisdiction, “must be judged at the time of filing,” it said.

Dismissing the case won’t prejudice the IMC, which may file a timely petition once the rule is published in the FR, and it has stated that it intends to do so, said the FCC’s motion. Its members suffer no prejudice in the interim because the rule isn’t effective until 30 days after FR publication, it said.

By contrast, parties that intend to challenge the rule in other circuits, and are awaiting FR publication to do so, as the law requires, “may be prejudiced unless this case is dismissed,” said the FCC’s motion. Allowing this case to proceed, or even holding it in abeyance, “would subvert the statutorily prescribed process for a judicial lottery,” it said. The judicial lottery statute “sets out procedures to select a forum when two or more qualifying petitions challenging the same order are filed in different circuits,” it said.