Key Hobbs Act Case Depends on Views of Two SCOTUS Justices

SCOTUS is considering whether the Hobbs Act requires a district court to follow the FCC’s interpretation that the Telephone Consumer Protection Act doesn't prohibit faxes received through an online fax service (see 2501210056). The case revisits a question left unresolved in SCOTUS' 2019 decision in PDR Network v. Carlton & Harris Chiropractic on the binding nature of FCC orders in TCPA litigation.

In PDR, four justices, led by Brett Kavanaugh, filed a concurring opinion saying the decision was too narrow. Roberts didn’t join the Kavanaugh concurrence, and Barrett wasn’t yet on the court. If either of them now agrees with Kavanaugh, that would potentially mean a new majority. Justice Ketanji Brown Jackson also wasn’t on the court when PDR was decided.

Wiley’s Tom Johnson, who opened the FCBA discussion, said there are several ways the case could play out, with implications for the FCC, including enforcement actions. SCOTUS is considering whether the Hobbs Act is “merely a channeling statute for these pre-enforcement facial challenges” or whether it bars “collateral challenges to FCC orders when those arise in different contexts,” Johnson said.

Wiley filed an amicus brief on behalf of communications industry associations urging the view that the Hobbs Act limits challenges at the district court level (see 2412260037), noted Johnson, a former FCC general counsel. Regulated companies “rely upon the finality of FCC orders,” he said. They’re deploying nationwide networks and “need to understand what the rules of the road are.”

“What really matters is … having a clear view of what this language in the Hobbs Act actually means, and [that] has been unsettled, certainly since PDR,” Wessler said. “We think we’re right about the meaning” of the Hobbs Act and at least four justices agree with us, he said. “Having the benefit of a clear rule, one way or the other, is going to be useful to everyone going forward.”

Neither Roberts nor Barrett said anything during oral argument, Wessler said. “We really have no data or insight into where they are,” he said. “It’s still quite an open question.” Wessler added that his focus was on how to persuade one additional justice that McLaughlin was right.

McKesson urged SCOTUS to deny cert, Palmore said. “We tried to keep this case out of the court, recognizing that there were already four justices on record against our position.” He hasn’t argued a case under similar circumstances, where he knows going in that four justices opposed his client’s position.

“Just as a matter of math, four is not five, and … justices sometimes change their minds -- it doesn’t happen very often,” Palmore said. “It’s challenging going into a case presumptively down four justices when you need five to win."

The current SCOTUS “is very interested in enforcing what they view as proper limits on agency authority and also making sure they vindicate the authority of courts … to say what the law is,” Palmore said. Those are “the waters in which this case swims, and I recognize the current is moving in a certain direction.”

But McLaughlin doesn’t pit a federal agency against a court, Palmore said: “It’s court versus court. It’s a matter of which court and when.” Courts will still be able to review agency actions with an eye on Loper Bright Enterprises v. Raimondo, which limited judicial deference to agency decisions, he said. “Congress does have express constitutional authority to establish the jurisdiction of the lower federal courts.”