11th Circuit Panel in TCPA Case Misinterprets Loper, Intervenors Say
The National Consumer Law Center and Public Justice made their case Monday with the 11th U.S. Circuit Court of Appeals for an en banc hearing of the court’s decision on a 2023 FCC robocall and robotext order (see 2501240068). Intervenors sought permission to intervene when it became clear the U.S. government wouldn't defend the order (see 2502200004). A key issue before judges was the one-to-one robotext consent provisions in the 2023 order.
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Intervenors said in a Monday brief that the three-judge panel erred in how it interpreted the law and the FCC’s authority to interpret the Telephone Consumer Protection Act (docket 24-10277). The panel’s decision is at odds with the U.S. Supreme Court’s ruling last summer in Loper Bright Enterprises v. Raimondo, which overruled the Chevron doctrine on judicial deference to agency actions, the brief said.
“In determining that the FCC exceeded its authority in issuing the Rule, the panel exclusively focused on whether the Rule parrots the ordinary meaning of ‘prior express consent’ in the TCPA,” intervenors said. “That narrow focus conflicts with the approach outlined by the Supreme Court in Loper and with this and other courts’ post-Loper decisions,” they said. “While Loper overturned the requirement that courts must defer to agencies’ interpretations of ambiguous statutes, the Supreme Court did not -- as the panel did here -- hold that a court’s analysis is limited to interpreting the statutory text in isolation. Rather, Loper endorsed Skidmore deference, under which a court considers an expert agency’s view of the statute, particularly when the agency analysis is thorough.”
The decision was also at odds with others in the 11th Circuit, the brief argued. “Unlike the panel here, other post-Loper decisions from this Circuit follow the Supreme Court’s endorsement of Skidmore deference.”