Industry Groups: Hobbs Act's Certainty Vital for Communications Deployments
Four major trade associations urged that the U.S. Supreme Court reject arguments that a lower court can review an FCC decision in a Telephone Consumer Protection Act case and isn’t barred from doing so under the Hobbs Act. That view largely supports U.S. government arguments on the important role the act plays (see 2412240022). SCOTUS is scheduled to hear McLaughlin Chiropractic Associates v. McKesson Jan. 21, a case from the 9th U.S. Circuit Court of Appeals.
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
CTIA, NCTA, USTelecom and the Wireless Infrastructure Association made their views known in an amicus brief filed Thursday. SCOTUS must understand why industry finds it important that Hobbs Act certainty is preserved, they said. 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.
The case concerns a class-action lawsuit about junk faxes but could have broader implications for the FCC and other agencies (see 2410170015). The lead lawyer on the industry brief is former FCC General Counsel Tom Johnson, now a partner at Wiley.
“While the communications industry does not agree with every rule the FCC adopts, it depends on the adjudicative finality afforded to those rules by the Hobbs Act -- a statute of venue and repose that governs appeals of FCC orders,” the associations' amicus brief said. Under Hobbs, “once a federal court of appeals upholds a challenged FCC order, or the period for bringing such a challenge has passed, the industry can be confident that the order is legally valid.”
Industry needs certainty so that “FCC-regulated entities [can] plan for their operations and keep pace with rapidly changing technologies,” the brief said. The Hobbs Act also promotes “uniformity in communications policy -- an inherently national endeavor.”
The plaintiffs' aim is to impose new liability on civil defendants in TCPA cases, the brief said: “A holding for Petitioner could undermine a wide range of long-settled FCC interpretations, regulations, and policies, create balkanized communications law across jurisdictions, and deprive FCC-regulated entities of critical certainty about the meaning and requirements of the Communications Act.”
The certainty that comes with Hobbs is especially important to the communications industry as companies make decisions about deploying broadband, cable and telephone networks “based on a complex web of federal, state, and local regulation,” the brief said. The Hobbs Act provides certainty “on the validity of FCC rules concerning the extent to which state and local governments, or cable franchising authorities, can permissibly charge fees or direct placement of network infrastructure.”
If federal rules were never settled, “state and municipal governments could contest the validity of FCC orders during every dispute over siting approvals, aesthetics requirements, right-of-way access fees, or hosts of other issues.”
In a brief filed last week, McKesson told SCOTUS that petitioners' arguments “misread the Hobbs Act, virtually ignore the [Administrative Procedure Act], and rely on inapposite constitutional and policy concerns.” Where a party couldn’t have timely challenged an order under the Hobbs Act, “or where enforcing Hobbs Act exclusivity would violate a defendant’s due process right to defend itself, the APA would allow review,” the brief said.