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PDR Network Kicks Off Supreme Court Briefing in Critical TCPA Case

As previously mentioned, the Supreme Court recently agreed to hear a case that will examine the extent to which courts must defer to the FCC’s interpretation of the Telephone Consumer Protection Act. 

Earlier this week, the defendant in that case (the petitioner at the Supreme Court) filed its opening merits brief, which is available here

The case centers on an unsolicited fax sent by PDR Network announcing the availability, for free, of a new e-book version of its popular Physicians’ Desk Reference, a compilation of prescription drug information widely used by medical professionals.  One recipient of the fax, Carlton & Harris Chiropractic, Inc., sued PDR Network under the TCPA.  In the district court, both sides argued that the FCC’s 2006 Order, interpreting the TCPA’s application to unsolicited faxes, supported its case.  Ultimately the court dismissed the complaint because PDR Network’s fax did not have a commercial aim and therefore fell outside the reach of the TCPA.  The district court noted that its interpretation was consistent with both the plain text of the TCPA and the FCC’s 2006 order relating to unsolicited faxes. 

In reversing, the Fourth Circuit Court of Appeals held that the lower court erred by analyzing the text of the statute when instead it should have given full effect to the FCC’s 2006 Order (which, the circuit court held, applied broadly to all unsolicited faxes intended to promote a good or service regardless of its commercial character). 

At issue before the Supreme Court is the scope and meaning of the Hobbs Act, invoked by the circuit court in demanding deference to the FCC’s interpretation of the TCPA.  The Hobbs Act, 28 U.S.C. § 2342, grants exclusive jurisdiction to the courts of appeals “to enjoin, set aside, suspend (in whole or in part), or to determine the validity of” the FCC’s orders interpreting the TCPA.  According to the Fourth Circuit Court of Appeals, the Hobbs Act serves to “strip[] jurisdiction from the district courts” in cases that turn on an interpretation of the FCC’s TCPA orders. 

In its brief, PDR Network argues that (1) the Hobbs Act applies only to direct challenges of FCC orders seeking injunctive relief; and, alternatively, (2) the FCC’s 2006 order at issue in this case was merely an interpretive rule and not an “order” subject to the Hobbs Act. 

The case is an important one to watch in 2019 not just for its potential to affect TCPA litigation but for its broader implications relating to the judiciary’s power to “say what the law is.”  Stay tuned for further updates on the briefing process and oral argument (which has not yet been scheduled). UPDATE: oral argument is now scheduled for March 25.  

Mark RooneyTCPA, Hobbs Act