The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0307p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
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MARK LEYSE,
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Plaintiff-Appellant,
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No. 10-3739
v.
,
>
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CLEAR CHANNEL BROADCASTING INC.;
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CLEAR CHANNEL COMMUNICATIONS, INC.;
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CRITICAL MASS MEDIA, INC.,
Defendants-Appellees. N
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 09-00237—Sandra S. Beckwith, District Judge.
Argued: October 5, 2011
Decided and Filed: September 6, 2012
Before: KEITH, GRIFFIN, and STRANCH, Circuit Judges.
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COUNSEL
ARGUED: Stephen R. Felson, Cincinnati, Ohio, for Appellant. Judith A. Archer,
FULBRIGHT & JAWORSKI L.L.P., New York, New York, for Appellees.
ON BRIEF: Stephen R. Felson, Cincinnati, Ohio, for Appellant. Judith A. Archer,
FULBRIGHT & JAWORSKI L.L.P., New York, New York, Richard M. Goehler,
FROST BROWN TODD LLC, Cincinnati, Ohio, for Appellees.
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OPINION
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JANE B. STRANCH, Circuit Judge. Mark Leyse received a prerecorded
telemarketing call from a Clear Channel radio station. He sued Clear Channel for
violating the Telephone Consumer Protection Act of 1991 (TCPA), Pub. L. No. 102-243,
105 Stat. 2394 (1991), which prohibits certain prerecorded telemarketing calls. The
1
No. 10-3739 Leyse v. Clear Channel, et al. Page 2
district court dismissed the action, finding that the Federal Communications Commission
(FCC) had issued regulations exempting the type of call at issue from the TCPA’s
prohibitions; that the FCC was authorized by Congress to do so; that the court should
defer to the resulting regulation under Chevron U.S.A. v. Natural Res. Def. Council,
467 U.S. 837 (1984); and that the regulation passed muster under Chevron.
On appeal, in addition to arguing over what deference the resulting regulation is
due and whether the regulation binds the court under that level of deference, Clear
Channel argues that the Hobbs Act deprives this court of subject-matter jurisdiction.
Because we conclude that Chevron deference applies to the regulation, that the
regulation is valid under Chevron, and that jurisdiction exists, we AFFIRM the
judgment of the district court.
I. BACKGROUND
In June 2005, a radio station owned by Clear Channel called Leyse’s residential
telephone number and delivered the following prerecorded message:
Hi, this is Al “Bernie” Bernstein from 106.7 Lite FM. In case your
favorite station went away, I want to take just a minute to remind you
about the best variety of yesterday and today at 106.7. Motown, classic
70s from James Taylor, Elton, and Carole King; it’s all here. Each
weekday, we kick off the workday with an hour of continuous,
commercial-free music. This week, when the music stops at 9:20, be the
tenth caller at 1-800-222-1067. Tell us the name of the Motown song we
played during that hour, and you’ll win one thousand dollars. Easy
money. And the best variety from 106.7 Lite FM.
Leyse filed a class-action complaint that same month against the defendants
(collectively, “Clear Channel”) in the United States District Court for the Southern
District of New York, alleging that the prerecorded telephone call violated the TCPA,
47 U.S.C. § 227(b)(1)(B), and the corresponding regulation 47 C.F.R. § 64.1200(a)(2).
The New York district court granted Clear Channel’s motion to dismiss for failure to
state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure because the
court concluded that the FCC had exempted the type of call at issue from the TCPA’s
prohibitions against prerecorded calls. Leyse v. Clear Channel Broad., Inc., No. 05 CV
No. 10-3739 Leyse v. Clear Channel, et al. Page 3
6031 HB, 2006 WL 23480 (S.D.N.Y. Jan. 5, 2006). And the court held that the FCC’s
determination was entitled to deference under Chevron because Congress expressly
authorized the FCC to “implement and create exemptions to § 227” and because the
exemptions created under this authority were promulgated after notice-and-comment
rulemaking. Id. at *3.
Leyse appealed to the Second Circuit. During the appeal, the FCC submitted a
letter responding to questions posed by the Second Circuit in which the FCC confirmed
that the call at issue did not violate § 227 because the FCC had exempted such calls. But
the Second Circuit did not consider the merits because it dismissed the action without
prejudice for lack of subject-matter jurisdiction. Leyse v. Clear Channel Broad., Inc.,
301 F. App’x 20, 21-22 (2d Cir. 2008).
In April 2009, Leyse filed the present action in Ohio. This action is materially
identical to the New York action. In May 2009, Clear Channel filed a motion to dismiss
for failure to state a claim and the district court granted that motion in June 2010. The
court concluded that the FCC had exempted the type of call at issue here, a “hybrid call”
that both announces a contest and promotes the station generally. And the court
accorded Chevron deference to the FCC’s decision to exempt the call, reasoning that
Congress expressly delegated to the FCC the power to decide what calls to exempt, that
the FCC exercised this power through “notice-and-comment rulemaking procedures in
the 2003 and 2005 Orders,” and that the FCC had consistently articulated its position.1
Leyse timely appealed the district court’s decision.
II. ANALYSIS
A. Standard of review
We review the district court’s decision to grant a motion to dismiss de novo.
Pedreira v. Ky. Baptist Homes for Children, Inc., 579 F.3d 722, 727 (6th Cir. 2009).
1
The court also correctly held that the jurisdictional defect seized on by the Second Circuit no
longer existed because of a rule set forth in an intervening Supreme Court opinion. This holding is not
challenged on appeal.
No. 10-3739 Leyse v. Clear Channel, et al. Page 4
B. Scope of the FCC’s rule
Leyse argues that the prerecorded call he received lies outside the category of
calls the FCC exempted from the TCPA’s prohibitions. We disagree.
The TCPA (codified in relevant part at 47 U.S.C. § 227) regulates telemarketing.
Congress found that telemarketing was pervasive and that “[u]nrestricted telemarketing
. . . can be an invasion of privacy.” TCPA §§ 2(1), 2(5). Federal law was therefore
needed to balance “[i]ndividuals’ privacy rights, public safety interests, and commercial
freedoms of speech and trade . . . in a way that protects the privacy of individuals and
permits legitimate telemarketing practices.” Id. § 2(9). And Congress explicitly found
that the “Federal Communications Commission should have the flexibility to design
different rules for those types of automated or prerecorded calls that it finds are not
considered a nuisance to privacy, or for noncommercial calls, consistent with the free
speech protections embodied in the First Amendment.” Id. § 2(13).
The TCPA’s provisions prohibiting prerecorded calls—which also exempt
certain prerecorded calls from that prohibition—provide, in relevant part, as follows:
(b) Restrictions on the use of automated telephone equipment
(1) Prohibitions
It shall be unlawful for any person within the United States . . .
....
(B) to initiate any telephone call to any residential telephone line using
an artificial or prerecorded voice to deliver a message without the prior
express consent of the called party, unless the call is . . . exempted by
rule or order by the Commission under paragraph (2)(B);
....
(2) Regulations; exemptions and other provisions
The Commission shall prescribe regulations to implement the
requirements of this subsection. In implementing the requirements of
this subsection, the Commission--
No. 10-3739 Leyse v. Clear Channel, et al. Page 5
....
(B) may, by rule or order, exempt from the requirements of paragraph
(1)(B) of this subsection, subject to such conditions as the Commission
may prescribe--
....
(ii) such classes or categories of calls made for commercial
purposes as the Commission determines--
(I) will not adversely affect the privacy rights that this
section is intended to protect; and
(II) do not include the transmission of any unsolicited
advertisement.[2]
47 U.S.C. § 227(b)(1), (b)(2) (emphasis added). So in § 227(b)(2), Congress expressly
(1) mandates that the FCC prescribe regulations to implement the subsection, and
(2) gives the FCC the power to exempt prerecorded, commercial calls from the general
prohibition on prerecorded calls to a residential phone line.
In 1992, the FCC began and completed the notice-and-comment “rulemaking
mandated by the statute,” in which it, among other things, “define[d] the contours of
statutorily permissible exemptions to the prohibitions of the statute.” Notice of Proposed
Rulemaking, 7 FCC Rcd. 2736, ¶ 1 (Apr. 17, 1992) (hereinafter 1992 NPRM); accord
in re Rules and Regulations Implementing the Telephone Consumer Protection Act of
1991, 7 FCC Rcd. 8752,¶¶ 2-5 (Oct. 16, 1992) (hereinafter 1992 Report and Order). The
FCC exempted prerecorded calls “that [are] made for a commercial purpose but do[] not
include the transmission of any unsolicited advertisement.”3 47 C.F.R. § 64.1200(c)(2)
(1992); accord 1992 Report and Order ¶ 5, Appendix B. In formulating this rule, the
2
An unsolicited advertisement is defined as “any material advertising the commercial availability
or quality of any property, goods, or services which is transmitted to any person without that person’s prior
express invitation or permission, in writing or otherwise.” 47 U.S.C. § 227(a)(5).
3
The FCC’s definition of unsolicited advertisement is materially identical to Congress’s definition
in § 227. Compare 47 U.S.C. § 227, with 47 C.F.R. § 64.1200(f)(5) (1992).
No. 10-3739 Leyse v. Clear Channel, et al. Page 6
FCC reasoned that “[s]ome messages, albeit commercial in nature, do not seek to sell a
product or service and do not tread heavily upon privacy concerns.” 1992 NPRM ¶ 11.
In April 2000, a member of the public, Robert Biggerstaff, asked the FCC to
clarify its exemption decision in several respects, including how it applied to
prerecorded calls from television and radio stations. Biggerstaff noted that television
and radio stations use recorded messages to solicit consumers to tune into their
broadcasts. He argued that these prerecorded calls should not be exempt from § 227(b)’s
prohibitions, reasoning that radio and TV stations are commercial entertainment
“services” and make money from the viewers even if the consumer is not paying the
station directly for the “service,” and the viewers receive advertising when they tune in.
The FCC addressed Biggerstaff’s request along with many other matters in its
new notice-and-comment rulemaking that began in 2002 and was completed in 2003.
Notice of Proposed Rulemaking, 17 FCC Rcd. 17459, ¶¶ 1, 13, n.122 (Sept. 18, 2002)
(hereinafter 2002 NPRM); In re Rules and Regulations Implementing the Telephone
Consumer Protection Act of 1991, 18 FCC Rcd. 14014 (July 3, 2003) (hereinafter 2003
Report and Order). The FCC’s decision to reevaluate these rules, which entails public
input, was related to heightened privacy concerns prompted by advances in technology,
changes in telemarketing practices, and increases in the amount of telemarketing. 2002
NPRM ¶¶ 1, 7, 11.
The FCC specifically sought comment on issues surrounding “prerecorded
messages sent by radio stations or television broadcasters that encourage telephone
subscribers to tune in at a particular time for a chance to win a prize or some similar
opportunity.” Id. at ¶ 13. The footnote following this sentence referenced Biggerstaff’s
request for clarification. Id. at ¶ 13 n.122. More broadly, the FCC asked whether these
kinds of prerecorded calls needed to be specifically addressed and what kinds of rules
would strike the appropriate balance between “consumers’ interest in restricting
unsolicited advertising with commercial freedoms of speech?” Id. at ¶ 13.
Commenters addressing this question divided into two camps that both framed
the issue broadly.
No. 10-3739 Leyse v. Clear Channel, et al. Page 7
A number of commenters, including litigants and attorneys for litigants
in TCPA cases, expressed the views that calls from broadcasters are
inherently commercial because such calls are intended to increase the
station’s audience to become more attractive to advertisers. For example,
one commenter argued that calls “need not offer something for sale to
nonetheless still have advertised the commercial availability or quality
of a product or service[.]”
Broadcasters took the opposite tack. The National Association
of Broadcasters (NAB) argued that “free over-the-air radio and television
broadcasts are not consumer products or services that are bought and sold
in commercial transactions. Instead, over-the-air radio and television
broadcasts are sources of news, information and entertainment
programming that are by federal mandate available for free to every
person within a station’s listening or viewing area.” Thus, according to
the NAB, broadcast programming is “not ‘commercially’ available to
listeners and viewers,” and therefore “concepts of ‘commercial’
availability or quality simply have no applicability to the programming
that broadcasters transmit over the public airwaves.” [The NAB
therefore concluded that] “broadcast audience invitation calls, which do
not seek to sell a product or service, are not advertisements.”
(FCC Letter at 3-4, Leyse v. Clear Channel Broad., Inc., No. 1:09-CV-237 (S.D. Ohio
June 2, 2010), ECF No. 8-6 (citations omitted).)
The FCC sided with the NAB in the resulting 2003 Report and Order, stating that
[t]he Commission sought comment on prerecorded messages sent by
radio stations or television broadcasters that encourage telephone
subscribers to tune in at a particular time for a chance to win a prize or
similar opportunity. . . . Few commenters in this proceeding described
either receiving such messages or that they were particularly problematic.
The few commenters who addressed the issue were split on whether such
messages fall within the TCPA’s definition of “unsolicited
advertisement” and are thus subject to the restrictions on their delivery.
We conclude that if the purpose of the message is merely to invite a
consumer to listen to or view a broadcast, such message is permitted
under the current rules as a commercial call that “does not include the
transmission of any unsolicited advertisement” and under the amended
rules as “a commercial call that does not include or introduce an
unsolicited advertisement or constitute a telephone solicitation.” The
Commission reiterates, however, that messages that are part of an overall
marketing campaign to encourage the purchase of goods or services or
No. 10-3739 Leyse v. Clear Channel, et al. Page 8
that describe the commercial availability or quality of any goods or
services, are “advertisements” as defined by the TCPA.
2003 Report and Order ¶ 145 (footnotes omitted). The FCC did distinguish between
messages that invite a consumer to listen to or view a free broadcast and “messages that
encourage consumers to listen to or watch programming . . . for which the consumer
must pay (e.g. cable, digital satellite, etc.), [which] would be considered advertisements
for purposes of our rules.” Id. at ¶ 145 n.499.
In April 2005, the FCC issued its final rule, reaffirming its position exempting
prerecorded calls that invited a “consumer to listen to and or view a broadcast” from
§ 227(b)’s prohibition. Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991, 70 Fed. Reg. 19, 330-01, 19, 335 (Apr. 13, 2005) (hereinafter
2005 Final Rule). This final rule was promulgated through notice-and-comment
rulemaking in which the FCC considered comments, applications for reconsideration,
oppositions, and replies. Id. at 19, 330-32. In fact, the FCC denied a petition for
reconsideration from Biggerstaff that challenged—for essentially the same reasons
advanced in his request for clarification in 2000—the FCC decision to exempt
broadcaster prerecorded calls. Id. at 19, 336.
The FCC has even opined that the exact call at issue in this case—which it
characterizes as a “hybrid call that both announces a contest and contains a general
promotion for the station”—is exempt and therefore permissible under the TCPA. (FCC
Letter at 6-9.) The FCC argues that the “2003 TCPA Order makes clear that neither
telephone messages containing general promotional announcements for broadcast
stations nor messages inviting the recipient to listen to specific broadcasts are
‘unsolicited advertisements.’ Both are thus permitted under the rules.” (Id. at 7.) The
key principle underlying the FCC’s conclusion is “the idea that over-the-air broadcasts
inherently are not commercial.” (Id. at 8.) That principle underlies the distinction the
FCC drew between an “over-the-air broadcast and a paid-for service” because that
principle is the
No. 10-3739 Leyse v. Clear Channel, et al. Page 9
only rationale that explains why the Commission treated differently two
telephone messages concerning the same programming: a telemarketing
message that promotes a free broadcast show is deemed not to address
the commercial availability or quality of the programming (and is within
the Commission’s statutory discretion to exempt it from TCPA
restrictions), but a promotion for programming—even the very same
programming—provided by a paid-for service is deemed a commercial
advertisement that is barred under the statute. . . . In light of that
rationale, it follows directly that the exemption covers both specific and
general promotions for broadcast programming provided without charge
to the listener.
(Id.)
In the face of the three consistent positions taken by the FCC—the 2003 Report
and Order, the 2005 Final Rule, and the FCC Letter—Leyse argues that the FCC
exemption decision does not extend to the call he received because that call promoted
a broadcast and the radio station generally, but the exemption in his view covers calls
promoting only a broadcast. Although a promotion for a broadcast is distinguishable
from a promotion for a station, this distinction is trivial. Broadcasts appear on stations
and by promoting a broadcast, the promoters are also impliedly promoting the station on
which that broadcast appears. But even if the distinction Leyse draws were meaningful,
the key principle underlying the exemption extends to calls promoting specific
broadcasts or a radio station generally or both. Leyse’s argument therefore fails. The
FCC has decided to exempt this type of phone call from § 227(b)’s prohibitions.
C. The role of Chevron deference
The next step in the analysis is to decide whether the FCC’s decision to exempt
this phone call should be given deference under Chevron. For the reasons that follow,
we conclude that the FCC’s decision is entitled to Chevron deference.
An “administrative implementation of a particular statutory provision qualifies
for Chevron deference when it appears that Congress delegated authority to the agency
generally to make rules carrying the force of law, and that the agency interpretation
claiming deference was promulgated in the exercise of that authority.” United States v.
No. 10-3739 Leyse v. Clear Channel, et al. Page 10
Mead Corp., 533 U.S. 218, 226-27 (2001). “[A] very good indicat[ion]” that Congress
delegated authority to the agency is express congressional authorization to engage in
notice-and-comment rulemaking. Id. at 229-30. “Thus, the overwhelming number of
our cases applying Chevron deference have reviewed the fruits of notice-and-comment
rulemaking . . . .” Id. at 230. Put another way, if Congress explicitly leaves gaps in the
statutory scheme for the agency to fill, then Congress has expressly delegated “‘authority
to the agency to elucidate a specific provision of the statute by regulation.’” Id. at 227
(quoting Chevron, 467 U.S. at 844). “[A]nd any ensuing regulation is binding in the
courts unless procedurally defective, arbitrary or capricious in substance, or manifestly
contrary to the statute.” Id.
The present case possesses the factors that the Supreme Court finds significant
in granting Chevron deference. Section 227(b)(2)—which, among other things, sets
forth the types of prerecorded calls that regulation could exempt from the TCPA’s
prohibitions—authorizes and requires the FCC to promulgate implementing regulations:
“The Commission shall prescribe regulations to implement the requirements of this
subsection.” And § 227(b)(2)(B) authorizes the FCC, “by rule or order, [to] exempt
from the [prohibition regarding prerecorded calls] . . . such classes or categories of calls
made for commercial purposes as the Commission determines (I) will not adversely
affect . . . privacy rights . . . ; and (II) do not include the transmission of any unsolicited
advertisement.” Therefore, the statute both explicitly leaves gaps for the FCC to fill and
authorizes and requires the FCC to engage in notice-and-comment rulemaking.
Congress also made clear through its statutory findings that it envisioned a large role for
the FCC in crafting rules that strike the appropriate balance between protecting
consumers’ privacy and permitting legitimate telemarketing:
While the evidence presented to the Congress indicates that automated
or prerecorded calls are a nuisance and an invasion of privacy, regardless
of the type of call, the Federal Communications Commission should have
the flexibility to design different rules for those types of automated or
prerecorded calls that it finds are not considered a nuisance or invasion
of privacy, or for noncommercial calls, consistent with the free speech
protections embodied in the First Amendment of the Constitution.
No. 10-3739 Leyse v. Clear Channel, et al. Page 11
TCPA § 2(13); accord TCPA § 2(9). In sum, the statute is replete with evidence that
Congress intended the FCC to promulgate rules carrying the force of law that determine
what kinds of prerecorded calls are permissible and what kinds are not.
And the FCC was similarly clear that it was exercising that authority in
promulgating rules through notice-and-comment rulemaking. The FCC issued Notices
of Proposed Rulemaking in 1992 and 2002; received and considered comments, requests
for clarification, and petitions for reconsideration; and completed its rulemaking in
Orders and a Final Rule that set forth the basis for its determination. See 5 U.S.C.
§ 553(b)-(e) (setting forth the requirements for notice-and-comment rulemaking, among
other things). Because Congress intended the FCC to set forth legally binding rules
governing which prerecorded calls are permissible, and because the FCC’s exemption
decision was promulgated in the exercise of that authority, that decision qualifies for
Chevron deference. See Mead, 533 U.S. 226-27.
The Supreme Court’s decision in AT & T Corp. v. Iowa Utilities Board, 525 U.S.
366 (1999), supports this conclusion. There, the Court extended Chevron deference to
an analogous FCC determination involving the Telecommunications Act of 1996 (1996
Act), which fundamentally restructured local telephone markets to foster competition.
Id. at 371, 387. One method used was to require sharing of networks by, for example,
requiring a local exchange carrier (LEC) to provide unbundled access to the elements
of its network for lease by competitors. Id. at 371, 375. The FCC was authorized—but
not required—to promulgate rules implementing the local-competition provisions and
did so by issuing a notice of proposed rulemaking followed by a Report and Order. In
re Implementation of the Local Competition Provisions in the Telecommunications Act
of 1996, 11 FCC Rcd. 15499, ¶¶ 6, 9, 10 (1996) (hereinafter First Report & Order); Iowa
Util. Bd., 525 U.S. at 373-74, 377.
The primary rule implementing the 1996 Act’s requirement of unbundled access
to network elements was Rule 319, codified at 47 C.F.R. § 51.319 (1997).4 Iowa Util.
4
The 1997 version of this rule is attached to the First Report & Order and can be seen at 11 FCC
Rcd. 16209-13.
No. 10-3739 Leyse v. Clear Channel, et al. Page 12
Bd., 525 U.S. at 375. Among other things, Rule 319 “sets forth a minimum number of
network elements that [LECs] must make available to [competitors].” Id. Several LECs
argued that Rule 319 was inconsistent with the statute because it included “items that do
not (as they must) meet the statutory definition of ‘network element’—namely, operator
services and directory assistance, operational support systems (OSS), and vertical
switching functions such as caller I.D., call forwarding, and call waiting.” Id. at 386
(citing 47 C.F.R. §§ 51.319(f)-(g) (1997); First Report & Order ¶ 413). But the Court
granted the FCC’s interpretation of the statutory definition Chevron deference and
upheld the entire interpretation—including the interpretation relating to vertical
switching functions— as “eminently reasonable.” Id. at 387.
In so holding, the Court granted Chevron deference to an FCC determination that
appeared only in the Report and Order. Rule 319 contained the FCC’s determination
that operator services, directory assistance, and OSS fell within the meaning of network
element in the statute. 47 C.F.R. § 51.319(f)-(g) (1997). But the FCC’s similar
determination that vertical switching functions fell within that same term appeared in
only ¶ 413 of the First Report & Order. Compare First Report & Order ¶ 413, with
47 C.F.R. § 51.319 (1997). This explains why the Court cited both 47 C.F.R.
§ 51.319(f)-(g) and First Report & Order ¶ 413 when discussing the items (i.e., operators
services, OSS, vertical switching functions) in dispute. See Iowa Util. Bd., 525 U.S. at
386.
While the similarities between Iowa Utilities Board and the present case strongly
support applying Chevron deference to the FCC’s exemption decision, the small
differences between the cases compel applying Chevron deference to that decision. In
other words, the present case is an even better candidate for Chevron deference than
Iowa Utilities Board is. First, the similarities. Statutes in both cases authorized the FCC
to promulgate implementing regulations. Compare id. at 377-78 (reasoning that section
201(b), an amendment to the Communications Act of 1934, authorized the FCC to
promulgate necessary rules), with 47 U.S.C. § 227(b)(2). The FCC in both cases
exercised this statutory authority through notice-and-comment rulemaking. And the
No. 10-3739 Leyse v. Clear Channel, et al. Page 13
respective FCC determinations at issue—i.e., the determination that vertical switching
functions fell within the meaning of network element in Iowa Utilities Board, and the
determination in the present case that the challenged prerecorded call was
exempted—were contained in a Report and Order.
Now, the differences. The FCC in the present case is required—not just
authorized—to promulgate regulations governing exemptions: “The Commission shall
prescribe regulations to implement the requirements of this subsection.” 47 U.S.C.
§ 227(b)(2) (emphasis added). And § 227(b)(2) is both specifically tailored to the issue
at hand (exemptions) and is contained in the very statute that is being interpreted (the
TCPA). In contrast, the statute authorizing regulations in Iowa Utilities Board is not
tailored to any specific issue in the 1996 Act—let alone the relevant issue of unbundled
access. Iowa Util. Bd., 525 U.S. at 377-78. The statute instead is a general one passed
in 1938 that authorizes the FCC to promulgate regulations “as may be necessary in the
public interest.” Id. at 377. Another difference is that the TCPA explicitly leaves gaps
for the agency to fill, and one gap relates to the specific exemption at issue:
§ 227(b)(2)(B) authorizes the FCC, “by rule or order, [to] exempt from the [prohibition
regarding prerecorded calls] . . . such classes or categories of calls made for commercial
purposes as the Commission determines (I) will not adversely affect . . . privacy rights
. . . ; and (II) do not include the transmission of any unsolicited advertisement.” The
statute in the present case, therefore, expressly delegates to the FCC the authority to
determine the critical issue to an even greater extent than the statute in Iowa Utilities
Board. Because the Supreme Court extended Chevron deference to the FCC’s
determination in that case, it follows by even stronger force of logic that Chevron
deference applies to the FCC’s determination here.
Leyse argues that Chevron deference does not apply because the FCC’s
exemption decision is an interpretive rule instead of a legislative rule.5 A fundamental
5
One prominent difference between legislative and interpretive rules is that only the former
requires agencies to use notice-and-comment rulemaking to adopt them. 1 Richard J. Pierce,
Administrative Law Treatise § 6.4, 433 (5th ed. 2010); see 5 U.S.C. § 553(b)-(d).
No. 10-3739 Leyse v. Clear Channel, et al. Page 14
flaw with this argument is that even if Leyse is correct that the FCC’s decision was an
interpretive rule, Chevron deference would still apply. Mead held that an
administrative implementation of a particular statutory provision
qualifies for Chevron deference when it appears that Congress delegated
authority to the agency generally to make rules carrying the force of law,
and that the agency interpretation claiming deference was promulgated
in the exercise of that authority. Delegation of such authority may be
shown in a variety of ways, as by an agency’s power to engage in
adjudication or notice-and-comment rulemaking, or by some other
indication of a comparable congressional intent.
533 U.S. at 226-27. So the key inquiry is whether Congress delegated the necessary
authority, not whether the rule is termed interpretive or legislative. The necessary
authority was unquestionably delegated here. As discussed above, Congress expressly
delegated authority to the FCC to make exemption decisions carrying the force of the
law. 47 U.S.C. § 227(b)(2) (requiring rulemaking and explicitly leaving gaps for the
FCC to fill in § 227(b)(2)(B)). And the FCC exercised that authority by crafting the
exemption decision through notice-and-comment rulemaking. 2002 NPRM;
2003 Report and Order; 2005 Final Rule. The FCC’s decision is therefore entitled to
Chevron deference under Mead.6
Leyse attempts to escape this conclusion by arguing that the FCC’s exemption
decision was not a logical outgrowth of the 2002 NPRM. Final rules adopted through
notice-and-comment rulemaking “must be a logical outgrowth of the rule proposed.”
Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 174 (2007) (internal quotation
marks omitted). That principle stems from 5 U.S.C. § 553(b)(3), which requires an
agency engaged in “notice-and-comment rulemaking to publish in its notice of proposed
6
Other language in Mead is not to the contrary. First, the remark in Mead that “interpretive rules
. . . enjoy no Chevron status as a class” simply relates the truism that not all interpretive rules qualify for
Chevron status. Mead, 533 U.S. at 232 (emphasis added). That remark does not foreclose the possibility
that an interpretive rule could receive Chevron deference. Indeed, this circuit has applied Chevron
deference to an interpretive rule. Your Home Visiting Nurse Servs., Inc. v. Sec’y of Health & Human
Servs., 132 F.3d 1135, 1138-39 (6th Cir. 1997). And Mead reasoned that even nonlegislative rules such
as interpretive rules that are not adopted through notice-and-comment rulemaking can receive Chevron
deference: “[A]s significant as notice-and-comment is in pointing to Chevron authority, the want of that
procedure here does not decide the case, for we have sometimes found reasons for Chevron deference even
when no such administrative formality was required and none was afforded.” Mead, 533 U.S. at 230-31.
The present case, of course, involves rules promulgated through notice and comment.
No. 10-3739 Leyse v. Clear Channel, et al. Page 15
rulemaking ‘either the terms or substance of the proposed rule or a description of the
subjects and issues involved.’” Id. (quoting 5 U.S.C. § 553(b)(3)). The logical-
outgrowth rule is used to ensure that § 553(b)(3)’s object—fair notice—is satisfied. Id.
The 2002 NPRM stated, among other things, the following:
[W]e also seek comment on prerecorded messages sent by radio stations
or television broadcasters that encourage telephone subscribers to tune
in at a particular time for a chance to win a prize or some similar
opportunity. Does the Commission need to specifically address these
kinds of telemarketing calls, and, if so, what rules might we adopt to
appropriately balance consumers’ interest in restricting unsolicited
advertising with commercial freedoms of speech?
2002 NPRM ¶ 32. Prerecorded calls from broadcasters that encourage consumers to
tune in at a particular time for a chance to win a prize obviously invite the consumer to
tune into the broadcast occurring at that time. The FCC was providing notice that it was
considering calls that promoted broadcasts, and more generally, stations themselves,
since calls promoting broadcasts also promote the stations those broadcasts appear on.
In the 2005 Final Rule, the FCC “concluded that if the purpose of the message is merely
to invite a consumer to listen to or view a broadcast, such message is permitted under
the rules as a commercial call that does not include or introduce an unsolicited
advertisement or constitute a telephone solicitation.” 2005 Final Rule at 19, 335
(internal quotation marks omitted). This final rule flows logically from the 2002 NPRM.
Moreover, several commenters—including at least three and possibly four
individuals who, like Leyse, believed that prerecorded calls promoting a station violated
the TCPA—responded to the broader issue of whether calls inviting consumers to tune
into broadcasts or stations are prohibited under the TCPA. 2003 Report and Order ¶ 145
n.498 (summarizing comments). And comments that address the issue resolved in the
Final Rule provide evidence that the notice was adequate. See Ne. Md. Waste Disposal
Auth. v. Envtl. Prot. Agency, 358 F.3d 936, 952 (D.C. Cir. 2004). Because fair notice
was provided, the FCC’s exemption decision was a logical outgrowth of the proposed
rule. The notice-and-comment rulemaking, therefore, was valid and the FCC decision
resulting from that rulemaking is entitled to Chevron deference.
No. 10-3739 Leyse v. Clear Channel, et al. Page 16
D. Applying Chevron deference
Having determined that the FCC’s rule that permits the call is entitled to Chevron
deference, we now must apply Chevron to decide whether that rule binds this court. We
conclude that it does.
Applying Chevron, we must first determine “whether Congress has directly
spoken to the precise question at hand.” Chevron, 467 U.S. at 843. Congress has not.
Rather than address the type of prerecorded call at issue in this case, § 227(b)(2)(B)
explicitly leaves it to the FCC to determine which, if any, of those types of calls will be
permissible.
The second and final step under Chevron requires that we defer to the agency’s
interpretation unless it is “arbitrary, capricious, or manifestly contrary to the statute.”
Id. at 844. As discussed above, the FCC’s exemption decision lies comfortably within
the statutory scheme and is thus not manifestly contrary to the statute. An agency’s
interpretation is “arbitrary and capricious” when
the agency has relied on factors which Congress has not intended it to
consider, entirely failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.
City of Cleveland v. Ohio, 508 F.3d 827, 838 (6th Cir. 2007) (quoting Motor Vehicles
Mfrs. Assoc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
Despite Leyse’s many attempts to show that the FCC’s decision is arbitrary and
capricious, the record here does not support that finding. In reaching its exemption
decision, the FCC considered the impact on privacy rights. See 2003 Report and Order
¶¶ 1, 136; 2002 NPRM ¶ 30. For example, the FCC noted that “[f]ew commenters in
this proceeding described either receiving such messages or that they were particularly
problematic.” 2003 Report and Order ¶ 145. And the fact that Leyse and other
commenters disagree with the result the FCC reached does not detract from the
deference accorded to the agency because the FCC considered and rejected these
No. 10-3739 Leyse v. Clear Channel, et al. Page 17
perspectives during its rulemaking. 2003 Report and Order ¶ 145 n.497-99; (FCC Letter
at 3-5).
E. The Hobbs Act
Clear Channel contends that the Hobbs Act7 and 47 U.S.C. § 402(a) operate
together to deprive the district court below and this court on appeal of jurisdiction to
consider Leyse’s lawsuit under the TCPA. In Clear Channel’s view, Leyse’s lawsuit is
an impermissible collateral attack on the FCC’s decision to permit the challenged call
and others like it. The FCC agreed with this position in its letter to the Second Circuit.
Since this issue turns on statutory interpretation, the “starting point . . . is the
language of the statute itself.” Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S.
827, 835 (1990) (citation and internal quotation marks omitted). If the statutory
language is unambiguous, the “plain meaning of legislation should be conclusive,
except in the rare cases in which the literal application of a statute will produce a result
demonstrably at odds with the intentions of its drafters.” United States v. Ron Pair
Enters., 489 U.S. 235, 242 (1989) (citation, internal quotation marks, and brackets
omitted).
The Hobbs Act provides in part that “[t]he court of appeals . . . has exclusive
jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity
of all final orders of the Federal Communications Commission made reviewable by
section 402(a) of title 47.” 28 U.S.C. § 2342(1) (emphasis added). Section 402(a)
provides that “[a]ny proceeding to enjoin, set aside, annul, or suspend any order of the
Commission under this chapter . . . shall be brought as provided by and in the manner
prescribed in chapter 158 of Title 28 [i.e., the Hobbs Act].”8 47 U.S.C. § 402(a).
7
Chapter 158 of title 28, codified at 28 U.S.C. §§ 2341 to 2351.
8
The parties dispute whether the FCC’s exemption decision is an order within the meaning of
these statutes. We resolve the jurisdictional issue on an alternative basis, obviating the need to resolve this
dispute.
No. 10-3739 Leyse v. Clear Channel, et al. Page 18
The key phrase of § 2342 in the present case—made reviewable by section
402(a) of title 47—limits the grant of exclusive jurisdiction to FCC orders that are
reviewable under § 402(a). And to be reviewable under § 402(a), the case must be a
“proceeding to enjoin, set aside, annul, or suspend” an order of the FCC (hereafter, “a
proceeding to enjoin or annul an FCC order”). A case that is not a proceeding to enjoin
or annul an FCC order lies outside the ambit of § 2342(1).
This court has consistently interpreted § 2342(1) as reaching an action only if the
action’s central object is to either enforce or undercut an FCC order. The most
analogous case is United States v. Any & All Radio Station Transmission Equip.,
204 F.3d 658 (6th Cir. 2000) (“Maquina Musical”).9 Maquina Musical involved a
government action in district court that sought the forfeiture of broadcasting equipment
used by the unlicensed microbroadcaster Maquina Musical. Id. at 663, 666-68. Under
applicable law, the government could seize broadcasting equipment that was knowingly
used to broadcast without a license. Id. at 666. Maquina Musical argued in defense that
47 C.F.R. § 73.512(c)—an FCC regulation that effectively barred new
microbroadcasting licenses from being issued—“was an unconstitutional prior restraint
on speech.” Id. at 662, 666-67. But the district court held “that it lacked jurisdiction to
entertain Maquina Musical’s constitutional defenses because 28 U.S.C. § 2342 provides
that the courts of appeals have exclusive jurisdiction ‘to enjoin, set aside, suspend . . . or
to determine the validity of . . . all final orders of the [FCC].’” Id. at 667.
This court disagreed with that holding “for the simple reason that no FCC order
is being challenged.” Id. In addition, the court expressed concern with a statutory
scheme that would allow the government to seize Maquina Musical’s property while
simultaneously denying Maquina Musical the ability to contest the “legal basis of the
government’s forfeiture case.” Id. As this court explained in a later case, “[i]n
[Maquina Musical], no FCC order was issued against the unlicensed microbroadcaster.
9
Our precedent refers to this as the Strawcutter case after Strawcutter, a party in the case. But
the analysis in that case most relevant to the present case occurs in the section involving the situation of
Maquina Musical, another party to that case. Moreover, the parties refer to the case as Maquina Musical.
We therefore do the same.
No. 10-3739 Leyse v. Clear Channel, et al. Page 19
Instead, the FCC went directly to the district court and instituted an in rem forfeiture
action against the broadcaster. The broadcaster had no other forum in which to present
his constitutional defenses.” United States v. Szoka, 260 F.3d 516, 528 (6th Cir. 2001).
Maquina Musical demonstrates that § 2342(1) reaches an action and therefore
mandates exclusive jurisdiction in the court of appeals only if the action’s central object
is to either enforce or undercut an FCC order. The statement that “no FCC order is being
challenged” makes little sense at first blush because Maquina Musical challenged the
constitutionality of 47 C.F.R. § 73.512(c), Maquina Musical, 204 F.3d at 666-67, and
courts have held that agency regulations constitute orders for purposes of § 402(a) and
§ 2342, Columbia Broad. Sys., Inc. v. United States, 316 U.S. 407, 416-21 (1942);
Citizens Awareness Network, Inc. v. United States, 391 F.3d 338, 345-47 (1st Cir. 2004).
But the FCC’s forfeiture action was not based on this—or any—order. See Maquina
Musical, 204 F.3d at 663, 666-67; La Voz Radio De La Communidad v. FCC, 223 F.3d
313, 319-20 (6th Cir. 2000); Szoka, 260 F.3d at 527-28. Consequently, the action’s
central object was not to enforce or undercut an FCC order; rather, the central object was
to seize Maquina Musical’s property. Just because Maquina Musical argued in defense
that an FCC regulation was unconstitutional does not change the purpose of the action.
The understanding that § 2342(1) reaches an action only if the action’s central
object is to either enforce or undercut an FCC order was furthered by the next Sixth
Circuit case to address this question, La Voz. La Voz also involved an unlicensed
microbroadcaster, but this time, the microbroadcaster (La Voz) applied for a license and
the FCC returned the application because it was “grossly deficient.” La Voz, 223 F.3d
at 316. A few months later, La Voz filed a complaint against the FCC District Director,
seeking to enjoin the government from preventing La Voz from broadcasting its message
and from sanctioning La Voz either criminally or civilly. Id. at 317. La Voz also argued
that the FCC’s regulation barring the issuance of broadcast licenses to microbroadcasters
was unconstitutional. Id. at 315-16, 318. The government moved to dismiss for lack of
jurisdiction and the district court agreed. Id.
No. 10-3739 Leyse v. Clear Channel, et al. Page 20
We upheld that determination on appeal, distinguishing the case from Maquina
Musical and reasoning that the case involved an FCC order because the FCC had denied
La Voz’s license application. Id. at 318-20. When La Voz filed its complaint, which
was “essentially a claim for prospective relief against the FCC,” the action’s central
object was to undercut an FCC order (the license denial), thereby “disregard[ing]
Congress’s directive that review of the FCC’s administrative actions should occur in the
courts of appeals (and, in many cases, specifically in the District of Columbia Circuit).”
Id. at 320. In Maquina Musical, the forfeiture action itself involved no FCC order
because the letters the FCC sent Maquina Musical “demanding that they stop
broadcasting . . . were not orders to cease and desist” and because “the
microbroadcasters in [Maquina Musical] had never applied for broadcasting licenses.”
Id. at 319-20 (emphasis added). In both La Voz and Maquina Musical, the
microbroadcasters argued that the FCC regulations barring the issuance of broadcast
licenses to microbroadcasters were unconstitutional, but the district court had
jurisdiction to consider that argument only in Maquina Musical. This is so because the
action’s central object in La Voz was to undercut the FCC’s denial of La Voz’s license
by enjoining the FCC’s attempts to prevent La Voz from broadcasting, while the action’s
central object in Maquina Musical was to seize property, not to attack or enforce an FCC
order.
Szoka reinforces the same principle. The FCC in that case obtained a valid cease-
and-desist order against an unlicensed broadcaster. Szoka, 260 F.3d at 520. In
unsuccessfully resisting that order, Szoka argued that the “FCC regulations prohibiting
the licensing of low-power radio stations violated the First Amendment.” Id. Szoka
then appealed that order to the District of Columbia Circuit as required by 47 U.S.C.
§ 402(b)(7). Id. But because he refused to stop broadcasting even after the FCC
obtained the cease-and-desist order, the FCC filed an action in district court, successfully
obtaining an injunction preventing him from broadcasting. Id. at 521. During that
proceeding, the district court expressed skepticism about the FCC’s ban on low-power
broadcasting, but concluded that it lacked jurisdiction to consider these claims because
No. 10-3739 Leyse v. Clear Channel, et al. Page 21
the D.C. Circuit had exclusive jurisdiction to hear them in Szoka’s appeal of the cease-
and-desist order itself. Id.
On appeal of the district court’s injunction, Szoka argued that the
district court erred when it refused to consider Szoka’s constitutional
defenses to the government’s motion for an injunction. Szoka argued to
the district court and continues to argue on appeal that the FCC’s former
ban on microradio broadcasters is unconstitutional because it violates the
First Amendment. As a result, he claims that the FCC cannot seek an
injunction enforcing its cease and desist order.
Id. at 525. We affirmed the judgment of the district court, holding that there was no
jurisdiction in the injunction proceeding or the resulting appeal to consider Szoka’s
constitutionality arguments. Id. at 526-28.
The court’s analysis—which again is explained by the principle that § 2342(1)
reaches an action only if the action’s central object is to either enforce or undercut an
FCC order—is the most thorough and clear of the three Sixth Circuit cases on point and
is worth quoting at length:
While the circumstances of this case differ from those of La Voz,
the controlling legal principles do not. La Voz emphasized that when . . .
the FCC institutes an in rem forfeiture action—and not an administrative
action—against a microbroadcaster, the broadcaster can raise and the
district court can consider constitutional defenses. However, if the FCC
institutes administrative proceedings, such as the issuance of a cease and
desist order, against a microbroadcaster, the microbroadcaster must
pursue his constitutional claims through the means given by Congress,
which is the administrative process undertaken by the FCC and its review
in the D.C. Circuit. Just as the plaintiff in La Voz could not use a
constitutional claim as a sword to launch a preemptive strike against the
FCC, so too is Szoka unable to use his constitutional claim as a shield in
defense against the FCC’s motion for an injunction enforcing the cease
and desist order. . . .
This result allows Szoka to raise his constitutional defenses
within the scheme contemplated by the Communications Act. In
[Maquina Musical], no FCC order was issued against the unlicensed
microbroadcaster. Instead, the FCC went directly to the district court
and instituted an in rem forfeiture action against the broadcaster. The
broadcaster had no other forum in which to present his constitutional
No. 10-3739 Leyse v. Clear Channel, et al. Page 22
defenses. In this case, however, an FCC order was issued against Szoka,
mandating that he cease and desist from broadcasting without a license.
Szoka had the opportunity to raise his constitutional defenses in the
course of the administrative action undertaken by the FCC. The FCC
considered all of Szoka’s constitutional defenses and rejected them.
Szoka can raise his constitutional defenses once more in his appeal of the
cease and desist order to the D.C. Circuit. There was no need for the
district court to address Szoka’s constitutional arguments, because he
was able to raise them in other proceedings.
Id. at 527-28 (emphasis added). The italicized language makes it clear that although
Maquina Musical challenged the constitutionality of the FCC regulations—an order
under the Hobbs Act and § 402, Columbia Broad. Sys., 316 U.S. at 416-21; Citizens
Awareness Network, 391 F.3d at 345-47—that order preexisted the microbroadcaster-
FCC dispute and was not an order issued against that specific microbroadcaster. Szoka,
260 F.3d at 528. The action’s central object (forfeiture of Maquina Musical’s property)
was neither to enforce nor undercut an FCC order, so the microbroadcaster’s
constitutional objections could be considered. But the action’s central object in Szoka
was to enforce the FCC cease-and-desist order through an injunction, and the courts
addressing the injunction were therefore without jurisdiction to consider these same
constitutional arguments.
Applying the principles from these cases to the present case yields the conclusion
that we have jurisdiction to consider Leyse’s arguments that the FCC’s exemption
decision should be reversed for a litany of reasons (e.g., the decision is not entitled to
deference and is arbitrary and capricious). The central object of Leyse’s action is not to
enforce or undercut an FCC order; it is to seek damages and an injunction against Clear
Channel, a private party, for allegedly violating the TCPA. Clear Channel raised the
FCC exemption decision as a defense, and Leyse responded by arguing that the decision
is invalid. Leyse’s argument is akin to Maquina Musical’s constitutional arguments over
which we exercised jurisdiction. Moreover, the FCC is not a party to this proceeding,
as it was in all three prior cases, so the present case is an even stronger case than
Maquina Musical for concluding that jurisdiction exists. The presence of the FCC as a
No. 10-3739 Leyse v. Clear Channel, et al. Page 23
party in the case increases the likelihood that the action could be defined as a proceeding
to enjoin or annul an FCC order. See 47 U.S.C. § 402(a).
Were we to conclude that the Hobbs Act barred the constitutional defenses,
Leyse would be left with “no other forum in which to present his . . . defenses,” a
problem recognized in Maquina Musical. Szoka, 260 F.3d at 528. Jurisdiction to appeal
under the Hobbs Act “is invoked by filing a petition as provided by section 2344 of this
title.” 28 U.S.C. § 2342. And § 2344 allows “any party aggrieved by the final order”
to institute an appeal in a court of appeals if it meets certain criteria. (Emphasis added.)
“A ‘party aggrieved’ is one who participated in the agency proceeding. A nonparty to
the proceeding of the Commission must file a petition for reconsideration as a condition
precedent to judicial review of the Order.” Nat’l Ass’n of State Util. Consumer
Advocates v. FCC, 457 F.3d 1238, 1247 (11th Cir. 2006), modified on other grounds on
denial of reh’g, 468 F.3d 1272 (11th Cir. 2006). Leyse, like Maquina Musical, is not a
party aggrieved.
Clear Channel cites precedent in other circuits that have reached the opposite
result. But these cases are not controlling and none of them focus on the phrase made
reviewable by section 402(a) of title 47 that appears in § 2342. E.g., CE Design, Ltd. v.
Prism Bus. Media, Inc., 606 F.3d 443 (7th Cir. 2011). This language provides a specific
requirement that the action must be reviewable under § 402(a), which limits review to
“[a]ny proceeding to enjoin, set aside, annul, or suspend any order” of the FCC. This
lawsuit does not fit the mold of a proceeding to enjoin or annul an order of the FCC.
Rather, it is a lawsuit for damages and injunction against a large media company in
which an order of the FCC is raised as a defense by the media company.
In addition, the principle that harmonizes our three controlling cases is fully
consistent with the Supreme Court case on point, FCC v. ITT World Commc’ns, Inc.,
466 U.S. 463, 465 (1984). In that case, ITT and other companies involved in providing
overseas telecommunications filed a rulemaking petition seeking to prevent the FCC
from negotiating with foreign governments in a series of meetings called the
Consultative Process that sought to encourage competition in telecommunications
No. 10-3739 Leyse v. Clear Channel, et al. Page 24
services. The petition claimed that such negotiations were beyond the FCC’s authority.
Id. After the FCC denied the petition, the companies appealed to the District of
Columbia Circuit. Id. at 466. ITT then sued the FCC directly in federal district court,
arguing that the FCC had no authority to negotiate at the Consultative Process and
seeking to enjoin that practice. Id. at 466-67. The district court dismissed that count as
beyond its jurisdiction in accordance with the Hobbs Act, but the D.C. Circuit reversed.
Id.
On appeal, the Supreme Court held that
[e]xclusive jurisdiction for review of final FCC orders, such as the FCC’s
denial of respondents’ rulemaking petition, lies in the Court of Appeals.
28 U.S.C. § 2342(1); 47 U.S.C. § 402(a). Litigants may not evade these
provisions by requesting the District Court to enjoin action that is the
outcome of the agency’s order. . . . In substance, the complaint filed in
the District Court raised the same issues and sought to enforce the same
restrictions upon agency conduct as did the petition for rulemaking that
was denied by the FCC.
Id. at 468. The Court also reasoned that the “gravamen of both the judicial complaint
and the petition for rulemaking was to require the agency to conduct future sessions on
the terms that ITT proposed.” Id. at 468 n.5. So the Court held that § 2342(1) reached
an action (ITT’s lawsuit in federal court) when the action’s central object was to
undercut an FCC order (the FCC’s denial of the telecommunication companies’
rulemaking petition). Id. at 468-69. Other factors are present in ITT World that comport
with our analysis: the FCC itself was a party to the lawsuit—a factor favoring
application of the Hobbs Act; and, an FCC order had issued directly against the party
making the challenged arguments—a factor that Szoka noted placed the arguments
beyond the federal court’s jurisdiction to consider. Our interpretation of § 2342 and
§ 402(a) therefore fits comfortably within the parameters of ITT World. Moreover, ITT
World does not provide support for cases that have expanded the reach of § 2342(1)
beyond this interpretive principle. See CE Design, 606 F.3d at 448-50 (extending the
reach of § 2342(1) to an action in which the FCC was not a party, the action’s central
object was not to enforce or undercut an FCC order, and no FCC order had issued
No. 10-3739 Leyse v. Clear Channel, et al. Page 25
against the party making the arguments that the court concluded were beyond its
jurisdiction).10
Thus, based on our precedent and in accordance with the analysis of ITT World,
we find that the Hobbs Act does not deprive the district court below or this court on
appeal of jurisdiction over Leyse’s lawsuit.
III. CONCLUSION
For the above reasons, we AFFIRM the judgment of the district court.
10
Clear Channel’s observation that Maquina Musical relied on Eighth Circuit precedent that was
later reversed on rehearing does not undermine these conclusions. Szoka explicitly noted that Maquina
Musical relied on a case that was later reversed on rehearing. 260 F.3d at 529 n.11. But far from retreating
from the position staked out by Maquina Musical, the court in Szoka expanded on the principles first
articulated in this circuit in that case. Id. at 526-28.