FCC Robotext Order Could Face Tough Sledding in 11th Circuit

get in its rulemaking authority,” Henson said, noting the case (24-10277) examines agency authority under the Hobbs Act. “The Hobbs Act is having a moment and especially in the Eleventh Circuit,” he said. Approved 3-1 a year ago, the order adopted a one-to-one robotext consent policy (see 2312130019). Commissioner Nathan Simington dissented, citing the FCC's “factually thin record.” Henson noted the three judges hearing the case were appointed by President-elect Donald Trump during his first term -- Elizabeth Branch, Britt Grant and Robert Luck. They seem aligned with 11th Circuit precedent on limiting the reach of regulatory agencies, Henson said. “It would not stretch the limits of reason to think that the FCC’s 1:1 consent order was not properly enacted,” he said: “If that’s the case, then the Eleventh Circuit, might once again have an opportunity to strike a blow against Hobbs deference.” This term the U.S. Supreme Court will hear McLaughlin Chiropractic Associates v. McKesson, a Telephone Consumer Protection Act case from the 9th Circuit, examining the extent to which lower courts must defer to FCC decisions, which also has Hobbs Act implications (see 2410170015). The Hobbs Act gives the appeals courts exclusive jurisdiction to enjoin, set aside, suspend or determine the validity of some agency orders, including most FCC orders.