FCC TCPA Actions Reviewable Only at Appeals Court Level, Government Tells SCOTUS
The U.S. government, in an amicus brief filed Monday, asked the U.S. Supreme Court to reject arguments that a lower court can parse an FCC decision in a Telephone Consumer Protection Act case and isn’t barred from doing so under the Hobbs Act. SCOTUS will hear McLaughlin Chiropractic Associates v. McKesson Jan. 21, a case from the 9th U.S. Circuit Court of Appeals.
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The case involves a class-action lawsuit over unsolicited faxes but could have broader implications for the FCC and other agencies (see 2410170015).
“The Hobbs Act vests courts of appeals with ‘exclusive jurisdiction’ to ‘determine the validity’ of covered agency actions,” the government said: “The plain language” of Hobbs “encompasses the situation in which a party to private litigation asks the court to adopt an interpretation of a statute that a covered agency order rejects.” If the court agrees with plaintiffs, then it would go against precedent and lead to greater uncertainty in the courts, the government said.
The Hobbs Act “is designed to achieve certainty and finality by providing a centralized forum for judicial review of covered agency actions, in which the presence of the United States as a party is ensured,” the brief said.
The government also noted that the FCC action, targeted in the lawsuit, isn’t final. It “was issued by a bureau of the FCC on delegated authority, and an application for Commission review of the order remains pending.” Enacted in 1950, the Hobbs Act gives appeals courts exclusive jurisdiction to enjoin, set aside, suspend or determine the validity of some agency orders, including most FCC orders.
The government brief noted that Congress enacted Hobbs following a request by then-Chief Justice Harlan Stone “to reform the judicial review procedures that had previously applied” under a 1913 law. “Under the prior scheme, litigants could seek review in a three-judge district court under specialized procedures, with a right of appeal to this Court,” the brief said: “The Hobbs Act replaced that scheme with a system of exclusive circuit-court review under which the Attorney General can ‘represent the interest of the Government whenever an order of one of the specified agencies is reviewed.’”
The U.S. District Court for Northern California didn’t err in granting summary judgment to TCPA plaintiffs True Health Chiropractic and McLaughin Chiropractic Associates for collectively receiving 13 unsolicited fax ads from McKesson promoting medical software products, the 9th Circuit held last year (see 2310260002).
The court correctly found that it was bound by the FCC’s December 2019 declaratory ruling on an Amerifactors Financial petition, the 9th Circuit said. That ruling determined that the TCPA doesn’t apply to faxes received through an online fax service. The FCC’s Consumer and Governmental Affairs Bureau, rather than the full commission, issued the Amerifactors ruling.