The full ramifications of the opinion are uncertain, however, because the Court raised several questions but resolved none. Specifically, the Court expressly declined to answer the question it had agreed to review: whether the Hobbs Act (28 U.S.C. § 2342) requires a district court to accept the FCC’s legal interpretation of the Telephone Consumer Protection Act (TCPA) in a private enforcement action.Instead, the Court remanded the case to the Fourth Circuit to consider two “preliminary issues”: (1) whether the FCC interpretation at issue is an interpretive, rather than legislative, rule and, if so, whether it is therefore not binding in the district court; and (2) whether PDR had a “prior” and “adequate” opportunity to seek judicial review of the FCC’s interpretation under the Hobbs Act and, if not, whether it can therefore argue, in defending against an enforcement suit, that the court should not apply the FCC’s interpretation. These questions raise the possibility that parties will be able to challenge agency orders covered by the Hobbs Act outside the 60-day review window provided by the Act, at least when those orders form the basis of an enforcement action initiated by a private plaintiff, just as prevailing case law has long per

359. See 28 U.S.C. §§ 2342(1), 2343 (2012) (committing “exclusive jurisdiction to enjoin, set aside, suspend . . . , or to determine the validity of all final orders” of the FCC to the circuit courts, except the Federal Circuit and that venue is proper “in the judicial circuit in which the petitioner resides or has its principal office, or the . . . District of Columbia Circuit”); see also 47 U.S.C. § 402(b) (2012) (stating that the District of Columbia Circuit has exclusive jurisdiction over certain FCC final decisions). 360. 28 U.S.C. § 2349(a) (2012).

urth Circuit’s ruling may also short-circuit many of TCPA plaintiffs’ arguments against applying the FCC Ruling and potentially streamline TCPA fax litigations involving faxes received through online fax services and traditional fax machines.Importantly, the ruling does not change the definition of “telephone facsimile machine, computer, or other device” for purposes of sending a fax. Defendants cannot escape liability for TCPA violations by using an online fax service to send a fax. Before sending marketing faxes, a business should consult with its TCPA counsel to ensure it has obtained the proper consent, uses compliant opt-out language, and has satisfied the other requirements of the statute.Footnotes[1] 34 F.C.C.R. 11950, (2019)[2] 47 U.S.C. § 227(b)(1)(C).[3] Online fax services send and receive digital information over telecommunications facilities and allow users to access faxes through an Internet server or as attachments to emails. FCC Ruling at ¶ 2.[4] FCC Ruling at ¶ 11.[5] 28 U.S.C. § 2342(1).[6] The trial court did, however, grant summary judgment to Career Counseling on its individual claim.[7] Career Counseling, Inc. v. AmeriFactors Financial Group, Case No. 22-1119, Doc. 40 at 11 (4th Cir. Jan. 22, 2024).[8] Id. at 12.[9] “Equipment which has the capacity (A) to transcribe text or images, or both, from paper into an electronic signal and to transmit that signal over a regular telephone line, or (B) to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper.” 47 U.S.C. § 227(a)(3).[10] Career Counseling, Case No. 22-1119, Doc. 40 at 12-13.[11] Id. at 14-15.[12] Id. at 16-18.[13] AmeriFactors’s was unable to overturn the summary judgment on the individual claim, as the Court affirmed there was not sufficient evidence the fax broadcaster that sent the fax engaged in deception or fraud against AmeriFactors, conduct which would have excused AmeriFactors from liability under the FCC’s declaratory ruling in Akin Gump Str

The Fourth Circuit determined that the FCC Rule was interpretive, not legislative, and, therefore, the courts were not required to apply it under the Hobbs Act. 28 U.S.C.A. § 2342(1). Further, the District Court should not have conducted a Chevron deference analysis because that level of deference only applies to a rule carrying the force of law—a legislative regulation.

In True Health Chiropractic Inc., et al. v. McKesson Corp., et al., the Northern District of California held that it was divested of jurisdiction by the Hobbs Act, 28 U.S.C. §2342, and thus could not reconsider the validity of a declaratory ruling rendered by the Consumer and Government Affairs Bureau of the Federal Communications Commission (“FCC”), reaching a contrary result to the Fourth Circuit’s holding on a similar question in Carlton & Harris Chiropractic Inc. v. PDR Network, LLC, et al.The District Court considered this question pursuant to a Motion to Decertify Class, which was the most recent activity in litigation that started in 2013 when True Health Chiropractic, Inc. filed a putative class action alleging that McKesson Corporation sent unsolicited advertisements by facsimile (“fax”) in violation of the Telephone Consumer Protection Act (“TCPA”).At this stage in the litigation, the Defendants had identified three groups of plaintiffs that they alleged had given express permission to receive faxes. The Ninth Circuit previously found that one of these groups met the predominance requirements of Rule 23(b)(3) of the Federal Rules of Civil Procedure an

While notable for defining ATDS more narrowly than the FCC’s 2015 order, the Bureau made clear it did not resolve the ongoing ATDS proceeding, affirming “[t]he details of the [FCC’s] interpretation of the autodialer definition remain pending in the wake of a 2018 decision of the U.S. Court of Appeals for the D.C. Circuit.” The Administrative Orders Review Act a/k/a the Hobbs Act, 28 U.S.C. § 2342 et seq., gives federal appellate courts exclusive jurisdiction to set aside or determine the validity of specified FCC final orders. Challenges are due in the D.C. Circuit or the federal circuit in which the petitioner resides within 60 days of the order’s entry.

The Bureau found that online fax services, by contrast, hold inbound faxes in digital form on a cloud-based service where the user has the option to view, delete, or print the document as desired.This decision of the Bureau has broad implications to all TCPA-fax class actions. First, pursuant to the Hobbs Act, 28 U.S.C. § 2342, federal district courts are bound to follow the FCC’s rules, regulations, and orders relating to the TCPA. Thus, this declaratory ruling is now the law of the land when it comes to this issue in all district courts in the country.

At the end of the Supreme Court’s most recent term, the Court released its long-awaited ruling in PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., 139 S. Ct. 2051 (June 20, 2019)—a case that could have carried far-reaching ramifications for Telephone Consumer Protection Act (“TCPA”) litigation nationwide. The Supreme Court granted review to consider whether the Administrative Orders Review Act (also known as the Hobbs Act), 28 U.S.C. § 2342(1), requires district courts to accept the FCC’s legal interpretation of the statutory term “unsolicited advertisement” under the TCPA.A unanimous Supreme Court vacated the decision of the Fourth Circuit that district courts must defer to agency interpretation of statutes they administer, but dodged the merits by remanding the case to consider two “preliminary issues.” However, concurring in the judgment only, four Justices opined that district courts are not strictly bound by the FCC’s interpretations of the TCPA.PDR Network involved a single fax sent by defendant PDR Network to a West Virginia chiropractic clinic that invited the recipient to go to its website to reserve a “FREE 2014 Physicians’ Desk Reference eBook” (“PDR”).

At the end of the Supreme Court’s most recent term, the Court released its long-awaited ruling in PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., 139 S. Ct. 2051 (June 20, 2019)—a case that could have carried far-reaching ramifications for Telephone Consumer Protection Act (“TCPA”) litigation nationwide. The Supreme Court granted review to consider whether the Administrative Orders Review Act (also known as the Hobbs Act), 28 U.S.C. § 2342(1), requires district courts to accept the FCC’s legal interpretation of the statutory term “unsolicited advertisement” under the TCPA.A unanimous Supreme Court vacated the decision of the Fourth Circuit that district courts must defer to agency interpretation of statutes they administer, but dodged the merits by remanding the case to consider two “preliminary issues.” However, concurring in the judgment only, four Justices opined that district courts are not strictly bound by the FCC’s interpretations of the TCPA.PDR Network involved a single fax sent by defendant PDR Network to a West Virginia chiropractic clinic that invited the recipient to go to its website to reserve a “FREE 2014 Physicians’ Desk Reference eBook” (“PDR”).

These attempts at avoiding unambiguous consent can make class certification impossible.Gorss also presents two interesting points of appellate practice:In a quirk of appellate opinion writing, Judge William Pryor also authored a concurrence to his unanimous panel opinion, and both of the other judges on the panel joined it, too. The concurrence addresses an issue raised in the appeal but not necessary to the result —namely, the meaning of the Hobbs Act’s grant of “exclusive jurisdiction” to the circuit courts to adjudicate the validity of certain agency orders (28 U.S.C. §2342). The concurrence takes the position that the Hobbs Act narrowly forbids parties from directly challenging the validity of agency orders, but does not require that district courts treat such orders as binding precedent.