Hobbs Act Challenger Urges Narrow View of Restrictions in TCPA Case
The company challenging Hobbs Act limits on lower court review of an FCC decision in a Telephone Consumer Protection Act case told the U.S. Supreme Court the government and its supporters are seeking “a strikingly broad reading” of the act. SCOTUS is scheduled to hear McLaughlin Chiropractic Associates v. McKesson Jan. 21, a case from the 9th U.S. Circuit Court of Appeals.
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“If Congress really wanted to deprive courts of jurisdiction to question agencies’ reading of statutes in such cases, it knew how to do so,” McLaughlin said in a brief posted Friday at SCOTUS. The Hobbs Act’s grant of “exclusive jurisdiction” was designed “to funnel facial, pre-enforcement challenges to agency actions into the courts of appeals,” it said: McKesson’s proposed construction of the act “would extend that exclusive jurisdiction to include garden-variety civil litigation between private parties in district court.”
The case focuses on a class-action lawsuit about junk faxes but could have broader implications for the FCC and other agencies (see 2410170015). CTIA, NCTA, USTelecom and the Wireless Infrastructure Association support the government’s argument that the Hobbs Act limits review of agency decisions in such cases (see 2412260037).
Even if Hobbs forecloses a district court’s review of an agency’s “legislative rules (which have the force of law), the Ninth Circuit was still wrong to apply that limit to the FCC’s interpretive (and thus non-binding) order here,” McLaughlin said. The court’s decision was based on the FCC’s December 2019 declaratory ruling on an Amerifactors Financial petition. That ruling found 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 ruling.
The Amerifactors order is “interpretive because, rather than creating new rules or standards of conduct, it serves primarily to advise the public about the agency’s construction of the statute it administers,” McLaughlin asserted. Because that type of interpretive rule “lacks the force of law, it can never bind parties and courts.”
McLaughlin quotes liberally from concurring opinions in a 2019 case, PDR Network v. Carlton & Harris Chiropractic, by Justices Clarence Thomas and Brett Kavanaugh. That case was expected to answer questions about FCC authority to implement the TCPA but instead struck a more middle-of-the-road position (see 2410170015).
The concurring opinions said the PDR decision was too narrow. Thomas and Justices Samuel Alito and Neil Gorsuch joined the Kavanaugh concurrence, which was one vote short of a SCOTUS majority. “Although McKesson barely acknowledges it, four justices have already squarely rejected its far-reaching position,” McLaughlin said. “This Court should read the Hobbs Act as what it is: a commonplace jurisdictional statute designed to allow parties to obtain declaratory and injunctive relief against agencies in the courts of appeals; not a mandate for judicial ‘abdication’ to federal agencies,” the brief said.