Amicus Curiae Brief — PDR Network, LLC, et al., Petitioners v. Carlton & Harris Chiropractic, Inc.
Supreme Court briefFeb 14, 2019
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No. 17-1705
In the Supreme Court of the United States
PDR NETWORK, LLC, ET AL., PETITIONERS
v.
CARLTON & HARRIS CHIROPRACTIC, INC.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE IN SUPPORT OF RESPONDENT
THOMAS M. JOHNSON, JR.
General Counsel
JACOB M. LEWIS
Associate General Counsel
SCOTT M. NOVECK
Counsel
Federal Communications
Commission
Washington, D.C. 20554
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
JOSEPH H. HUNT
Assistant Attorney General
MALCOLM L. STEWART
Deputy Solicitor General
RACHEL P. KOVNER
Assistant to the Solicitor
General
MARK B. STERN
MICHAEL S. RAAB
LINDSEY POWELL
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Whether the Administrative Orders Review Act
(Hobbs Act), ch. 1189, 64 Stat. 1129, required the district court in this case to accept the FCC’s legal interpretation of the Telephone Consumer Protection Act of
1991, Pub. L. No. 102-243, 105 Stat. 2394.
(I)
TABLE OF CONTENTS
Page
Interest of the United States....................................................... 1
Statutory provisions involved................................................ 2
Statement ...................................................................................... 2
Summary of argument ................................................................. 7
Argument:
I. The Hobbs Act barred petitioners from collaterally
attacking the validity of the 2006 FCC order in
civil litigation outside the Hobbs Act’s channels ........ 11
A. The Hobbs Act provides the exclusive channel
for obtaining judicial review of covered agency
orders........................................................................ 11
B. Petitioners’ contrary arguments lack merit ......... 19
1. Petitioners’ arguments lack a basis in the
text ..................................................................... 19
2. The Administrative Procedure Act does
not support petitioners’ reading of the
Hobbs Act .......................................................... 24
3. Petitioners’ other statutory arguments also
lack merit ........................................................... 30
4. Principles of constitutional avoidance do
not support petitioners’ approach ................... 31
II. Petitioners’ argument that the 2006 FCC order
was not reviewable under the Hobbs Act is not
properly before this Court, and lacks merit in any
event ................................................................................ 33
Conclusion ................................................................................... 35
Appendix — Statutory provisions ........................................... 1a
TABLE OF AUTHORITIES
Cases:
B. F. Goodrich Co. v. Northwest Indus., Inc.,
424 F.2d 1349 (3d Cir.), cert. denied,
400 U.S. 822 (1970).............................................................. 17
(III)
IV
Cases—Continued:
Page
Biggerstaff v. FCC, 511 F.3d 178 (D.C. Cir. 2007) ............... 5
Bowen v. Michigan Academy of Family Physicians,
476 U.S. 667 (1986).............................................................. 31
Bowles v. Willingham, 321 U.S. 503 (1944) ........................ 25
CE Design, Ltd. v. Prism Bus. Media, Inc.,
606 F.3d 443 (7th Cir. 2010), cert. denied,
562 U.S. 1138 (2011)........................................................ 3, 13
Calderon v. Ashmus, 523 U.S. 740 (1998) ........................... 20
Central Texas Tel. Coop., Inc. v. FCC,
402 F.3d 205 (D.C. Cir. 2005) ............................................. 34
Chevron U.S.A. Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837 (1984) ....................................................... 6
City of Peoria v. General Elec. Cablevision Corp.,
690 F.2d 116 (7th Cir. 1982) ............................................... 13
Daniels v. Union Pac. R.R., 530 F.3d 936
(D.C. Cir. 2008) ................................................................... 13
Decker v. Northwest Envtl. Def. Ctr., 568 U.S. 597
(2013) .................................................................................... 28
Environmental Def. v. Duke Energy Corp.,
549 U.S. 561 (2007).............................................................. 28
FCC v. ITT World Commc’ns, Inc., 466 U.S. 463
(1984) ................................................................................ 8, 16
Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380
(1947) .............................................................................. 29, 32
Functional Music, Inc. v. FCC, 274 F.2d 543
(D.C. Cir. 1958), cert. denied, 361 U.S. 813 (1959) .......... 30
Jennings v. Rodriguez, 138 S. Ct. 830 (2018) ..................... 31
Jones v. Flowers, 547 U.S. 220 (2006).................................. 32
Lambert Run Coal Co. v. Baltimore & Ohio R.R.,
258 U.S. 377 (1922).............................................................. 18
Leyse v. Clear Channel Broad., Inc.,
545 Fed. Appx. 444 (6th Cir. 2013),
cert. denied, 135 S. Ct. 57 (2014) ................................. 13, 19
V
Cases—Continued:
Page
Mais v. Gulf Coast Collection Bureau, Inc.,
768 F.3d 1110 (11th Cir. 2014) ........................................... 12
Mims v. Arrow Fin. Servs., 565 U.S. 368 (2012) .................. 3
Nack v. Walburg, 715 F.3d 680 (8th Cir. 2013),
cert. denied, 572 U.S. 1028 (2014) ..................................... 13
Natural Res. Def. Council v. Nuclear Regulatory
Comm’n, 666 F.2d 595 (D.C. Cir. 1981) ............................ 28
Norton v. Southern Utah Wilderness Alliance,
542 U.S. 55 (2004) ............................................................... 25
Port of Boston Marine Terminal Ass’n v.
Rederiaktiebolaget Transatlantic,
400 U.S. 62 (1970) ...................................................... passim
Railway Mail Ass’n v. Corsi, 326 U.S. 88 (1945) ............... 20
Russell Motor Car Co. v. United States,
261 U.S. 514 (1923).............................................................. 20
SBC Inc. v. FCC, 414 F.3d 486 (3d Cir. 2005) ..................... 34
Sorenson Commc’ns, Inc. v. FCC, 567 F.3d 1215
(10th Cir. 2009) .................................................................... 34
Stokeling v. United States, 139 S. Ct. 544 (2019) ............... 14
Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994) ..... 31
US West Commc’ns, Inc. v. Hamilton, 224 F.3d 1049
(9th Cir. 2000) ...................................................................... 34
United States v. Any & All Radio Station Transmission Equip., 207 F.3d 458 (8th Cir. 2000),
cert. denied, 531 U.S. 1071 (2001) ..................................... 13
United States v. Dunifer, 219 F.3d 1004
(9th Cir. 2000) ...................................................................... 13
United States v. International Minerals & Chem.
Corp., 402 U.S. 558 (1971) ............................................ 29, 32
United States v. Jones, 565 U.S. 400 (2012) ........................ 33
United States v. Ruzicka, 329 U.S. 287 (1946) ................... 32
United States v. Stevens, 559 U.S. 460 (2010) .................... 20
VI
Cases—Continued:
Page
United States v. Szabo, 760 F.3d 997 (9th Cir. 2014) ......... 26
Venner v. Michigan Cent. R.R., 271 U.S. 127
(1926) ...............................................................9, 17, 21, 23, 30
WWHT, Inc. v. FCC, 656 F.2d 807 (D.C. Cir. 1981) .......... 28
Water Transp. Ass’n v. ICC, 819 F.2d 1189
(D.C. Cir. 1987) ................................................................... 26
Woods v. Hills, 334 U.S. 210 (1948) ................................. 8, 14
Yakus v. United States, 321 U.S. 414
(1944) ........................................................................... passim
Constitution, statutes, and regulations:
U.S. Const. Art. III ......................................................... 13, 25
Act of June 18, 1910, ch. 309, 36 Stat. 539-540 .................... 17
Act of Oct. 22, 1913, ch. 32, 38 Stat. 208 .............................. 17
39 Stat 219-220 ................................................................. 17
39 Stat 220 ........................................................................ 23
Administrative Orders Review Act,
ch. 1189, 64 Stat. 1129........................................................... 1
28 U.S.C. 2342 ....................................................passim, 1a
28 U.S.C. 2342(1) ............................................. 2, 11, 33, 1a
28 U.S.C. 2342(2)-(7) ................................................... 2, 1a
28 U.S.C. 2342(3) ....................................................... 34, 1a
28 U.S.C. 2342(5) ....................................................... 34, 1a
28 U.S.C. 2344 ........................................................ 2, 18, 2a
28 U.S.C. 2348 .............................................................. 2, 3a
28 U.S.C. 2349 ............................................................ 21, 22
28 U.S.C. 2349(a) ................................................. 21, 22, 3a
Administrative Procedure Act, 5 U.S.C. 701 et seq............ 10
5 U.S.C. 703 ......................................... 10, 24, 25, 26, 28, 4a
VII
Statutes and regulations—Continued:
Page
Communications Act of 1934 ch. 652, 48 Stat. 1064
(47 U.S.C. 151 et seq.):
§ 402(a), 48 Stat. 1093 ..................................................... 17
47 U.S.C. 402(a) ........................................2, 11, 22, 33, 11a
47 U.S.C. 402(b) ................................................................. 2
47 U.S.C. 405 .................................................................... 26
47 U.S.C. 501-503............................................................... 3
Emergency Price Control Act of 1942, ch. 26,
56 Stat. 23 .............................................................................. 8
§ 203(a), 56 Stat. 31 ......................................................... 13
§ 204, 56 Stat. 31-33 ......................................................... 13
§ 204(d), 56 Stat. 33 ..................................................... 8, 13
Telephone Consumer Protection Act of 1991,
Pub. L. No. 102-243, 105 Stat. 2394 .................................... 3
47 U.S.C. 227(a)(5)................................................... 3, 5, 4a
47 U.S.C. 227(b)(1)(C) ................................................. 3, 5a
47 U.S.C. 227(b)(2) (2012 & Supp. V 2017) ............... 3, 6a
47 U.S.C. 227(b)(3) ............................................................ 3
47 U.S.C. 227(c)(5) ............................................................. 3
8 U.S.C. 1252(a)(1) ................................................................... 2
28 U.S.C. 46 (1934)........................................................... 17, 22
28 U.S.C. 1507 ........................................................................ 29
28 U.S.C. 2112(a)(3) ................................................................. 2
33 U.S.C. 1369(b)(2) ............................................................... 23
42 U.S.C. 5841(f ) ...................................................................... 2
44 U.S.C. 1507 ........................................................................ 29
50 U.S.C. 167h(b) ..................................................................... 2
47 C.F.R.:
Section 1.429( j) ................................................................ 26
Section 1.429(l)(1) ............................................................ 26
VIII
Miscellaneous:
Page
Samuel A. Bleicher, Economic and Technical
Feasibility in Clean Air Act Enforcement Against
Stationary Sources, 89 Harv. L. Rev. 316 (1975) ............ 25
3 Bouvier’s Law Dictionary and Concise
Encyclopedia (3d ed. 1914) ................................................ 12
FCC:
Public Notice: Petitions for Reconsideration
and Clarification of Action in Rulemaking
Proceeding (Sept. 8, 2003), https://docs.fcc.
gov/public/attachments/DOC-238758A1.pdf ............. 5
Rules and Regulations Implementing the
Telephone Consumer Protection Act of 1991,
In re:
17 FCC Rcd 17,459 (2002) ..................................... 4
18 FCC Rcd 14,014 (2003) ..................................... 4
21 FCC Rcd 3787 (2006) ........................................ 5
68 Fed. Reg. 53,740 (Sept. 12, 2003) ...................................... 5
71 Fed. Reg. 25,967 (May 3, 2006) ......................................... 5
Felix Frankfurter, Some Reflections on the Reading
of Statutes, 47 Colum. L. Rev. 527 (1947)......................... 14
The Oxford English Dictionary (2d ed. 1989):
Vol. 4 ................................................................................. 12
Vol. 9 ................................................................................. 12
U.S. Dep’t of Justice, Attorney General’s Manual on
the Administrative Procedure Act (1947) .................. 25, 26
Paul R. Verkuil, Congressional Limitations on
Judicial Review of Rules, 57 Tulane L. Rev. 733
(1983) .................................................................................... 25
Webster’s New International Dictionary of the
English Language (2d ed. 1958) ............................. 8, 11, 12
16 Charles Alan Wright et al., Federal Practice and
Procedure (3d ed. 2012 & Supp. 2018) .............................. 27
In the Supreme Court of the United States
No. 17-1705
PDR NETWORK, LLC, ET AL., PETITIONERS
v.
CARLTON & HARRIS CHIROPRACTIC, INC.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE IN SUPPORT OF RESPONDENT
INTEREST OF THE UNITED STATES
The Administrative Orders Review Act (Hobbs Act),
ch. 1189, 64 Stat. 1129, vests courts of appeals with “exclusive jurisdiction * * * to determine the validity” of
certain federal agency actions. 28 U.S.C. 2342. This
case presents the question whether a litigant in a private district-court lawsuit may collaterally attack the
validity of a Federal Communications Commission (FCC
or Commission) order that could have been challenged
under the Hobbs Act when it was issued. Such collateral attacks would undermine the interests of the
United States and regulated parties in conclusively determining the validity of covered agency actions. The
United States therefore has a substantial interest in the
question presented.
(1)
2
STATUTORY PROVISIONS INVOLVED
The relevant statutes are reprinted in an appendix to
this brief. App., infra, 1a-11a.
STATEMENT
1. The Hobbs Act gives the courts of appeals, other
than the Federal Circuit, “exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of ” certain agency actions, including
“all final orders of the [FCC] made reviewable by section 402(a) of title 47.” 28 U.S.C. 2342(1); see 47 U.S.C.
402(a).1 The Act also applies to certain actions of the
Secretary of Agriculture, Secretary of Housing and Urban Development, Secretary of Interior, Secretary of
Transportation, Board of Immigration Appeals, Federal Maritime Commission, Nuclear Regulatory Commission, and Surface Transportation Board. See 8 U.S.C.
1252(a)(1); 28 U.S.C. 2342(2)-(7); 50 U.S.C. 167h(b); see
also 42 U.S.C. 5841(f ).
“Any party aggrieved by” a final agency action covered by the statute “may, within 60 days after its entry,
file a petition to review the order in the court of appeals
wherein venue lies.” 28 U.S.C. 2344. “The action shall
be against the United States,” ibid., and “the agency
* * * may appear as [a] part[y] thereto * * * as of
right,” 28 U.S.C. 2348. When more than one petition for
review is filed seeking review of a final agency order,
the petitions are consolidated in a single court of appeals. 28 U.S.C. 2112(a)(3).
These requirements “promote[] judicial efficiency,
vest[] an appellate panel rather than a single district
Review of additional FCC decisions is governed by 47 U.S.C.
402(b), which vests exclusive jurisdiction in the D.C. Circuit.
1
3
judge with the power of agency review, and allow[] uniform, nationwide interpretation of the federal statute
by the centralized expert agency created by Congress.”
CE Design, Ltd. v. Prism Bus. Media, Inc., 606 F.3d
443, 450 (7th Cir. 2010) (citations and internal quotation
marks omitted), cert. denied, 562 U.S. 1138 (2011).
They also “ensure that the Attorney General has an opportunity to represent the interest of the Government
whenever an order of one of the specified agencies is reviewed.” Port of Boston Marine Terminal Ass’n v.
Rederiaktiebolaget Transatlantic, 400 U.S. 62, 70
(1970) (Transatlantic).
2. The Telephone Consumer Protection Act of 1991
(TCPA), Pub. L. No. 102-243, 105 Stat. 2394, generally
prohibits the use of a fax machine to send an “unsolicited advertisement.” 47 U.S.C. 227(b)(1)(C). The statute defines “unsolicited advertisement” to include “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.” 47 U.S.C. 227(a)(5).
The government has authority to enforce the TCPA.
See 47 U.S.C. 501-503. The TCPA also creates private
rights of action to enforce certain provisions and regulations. See 47 U.S.C. 227(b)(3) and (c)(5). Federal and
state courts have concurrent jurisdiction over private
TCPA lawsuits. See Mims v. Arrow Fin. Servs.,
565 U.S. 368, 371-372 (2012).
Congress authorized the FCC to “prescribe regulations to implement the requirements” of the TCPA.
47 U.S.C. 227(b)(2) (2012 & Supp. V 2017). In 2002, the
FCC sought comment on the appropriate regulatory
treatment of calls offering “free” goods or services.
4
17 FCC Rcd 17,459, 17,478 ¶ 31. The Commission observed that, “while these calls do not purport to sell
something,” they “often * * * are intended to generate
future business” and are “motivated in part by the desire to ultimately sell additional goods or services.”
Ibid. The FCC also sought comment on issues relating
to unsolicited fax advertisements. Id. at 17,482-17,484
¶¶ 37-40.
In July 2003, following extensive public comment,
the FCC issued an order ruling that “[o]ffers for free
goods or services that are part of an overall marketing
campaign to sell property, goods, or services” constitute
“unsolicited advertisements” under the TCPA. 18 FCC
Rcd 14,014, 14,097-14,098 ¶ 140. The agency subsequently received numerous petitions for clarification or
reconsideration. One petition, filed by a healthcare
publishing company, asked the FCC to reconsider or
clarify its interpretation to exclude faxes offering free
information about pharmaceutical products to pharmacists or free medical seminars to physicians.2 Another
asked the FCC to clarify that faxes offering “specialized
trade or business publications provided at no charge”
are not “unsolicited advertisements.” 3 The FCC issued
2
CG 02-278 Pet. of Jobson Publ’g L.L.C. at 1 (Aug. 25, 2003),
https://www.fcc.gov/ecfs/filing/5509934940; see CG 02-278 Pet. of
Coal. for Healthcare Commc’n (Aug. 25, 2003), https://www.fcc.gov/
ecfs/filing/5509935015 (similar).
3
CG 02-278 Pet. of Proximity Mktg. at 3 (Aug. 6, 2003), https://
www.fcc.gov/ecfs/filing/5509535325; see CG 02-278 Pet. of Am. Bus.
Media (Aug. 25, 2003), https://www.fcc.gov/ecfs/filing/5509934906
(similar).
5
a public notice seeking comment on the various petitions, including the two petitions described above.4
In 2006, the FCC issued a further order to implement then-recent statutory changes and “to address
certain issues raised in petitions for reconsideration
of ” the 2003 order. 21 FCC Rcd 3787, 3788 ¶ 1. The
2006 order stated that “facsimile messages that promote goods or services even at no cost, such as free
magazine subscriptions, catalogues, or free consultations or seminars, are unsolicited advertisements under
the TCPA’s definition.” Id. at 3814 ¶ 52. The Commission explained that “ ‘free’ publications are often part of
an overall marketing campaign” because, “while the
publication itself may be offered at no cost to the facsimile recipient, the products promoted within the publication are often commercially available.” Ibid. The
FCC concluded that “such messages describe the ‘quality of any property, goods, or services’ ” under the
TCPA’s definition of “unsolicited advertisement.” Ibid.
(quoting 47 U.S.C. 227(a)(5)).
The FCC published a summary of this determination
in the Federal Register. 71 Fed. Reg. 25,967, 25,973
(May 3, 2006). Two parties petitioned for judicial review
of the order, but their challenge was dismissed on procedural grounds. Biggerstaff v. FCC, 511 F.3d 178
(D.C. Cir. 2007).
3. Petitioners publish the Physicians’ Desk Reference, a compendium of prescription-drug information.
Manufacturers pay to have their drugs included, Pet.
App. 3a, and petitioners make the reference available to
physicians and others free of charge, id. at 35a.
https://docs.fcc.gov/public/attachments/DOC-238758A1.pdf; see
68 Fed. Reg. 53,740 (Sept. 12, 2003).
4
6
According to the complaint, PDR Network sent respondent an unsolicited fax describing the benefits of
the Physicians’ Desk Reference and inviting respondent to request a free electronic version. Pet. App. 3a4a. Respondent filed suit, alleging that petitioners had
violated the TCPA by sending an unsolicited fax advertisement. Id. at 2a. Respondent sought to represent a
class consisting of itself and other entities that had received the same fax. Id. at 4a.
Petitioners moved to dismiss the complaint for failure to state a claim. They “argued that the fax offering
the free e-book could not be considered an unsolicited
advertisement as a matter of law because it did not
offer anything for sale.” Pet. App. 4a-5a. Respondent
opposed, citing the 2006 FCC order. Id. at 5a. Respondent further urged that, because the Hobbs Act
vests courts of appeals with exclusive jurisdiction to determine the validity of final FCC orders, the district
court could not reject or ignore the FCC’s interpretation.
The district court granted petitioners’ motion to dismiss. Pet. App. 32a-43a. The court analyzed the 2006
FCC order under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Pet.
App. 39a-40a. At step one of the Chevron analysis, the
court held that the term “unsolicited advertisement” in
the TCPA is unambiguously limited to faxes with a commercial aim. Id. at 40a-41a; see id. at 36a-37a. It concluded that the FCC’s interpretation in the 2006 order
therefore was not entitled to deference. Id. at 40a. The
court also viewed the text of the 2006 order as consistent with the court’s interpretation of the TCPA.
7
Id. at 40a-41a. Finally, the court concluded that respondent had not pleaded facts that would demonstrate
that the fax here had a commercial aim. Id. at 42a-43a.
4. The court of appeals reversed. Pet. App. 1a-31a.
The court observed that “[n]either party ha[d] disputed
that the 2006 FCC rule is the sort of ‘final order’ contemplated by the Hobbs Act.” Id. at 7a n.1. It then concluded that “[t]he district court erred when it eschewed
the Hobbs Act’s command in favor of Chevron analysis
to decide whether to adopt the 2006 FCC Rule.” Id. at
8a. The court rejected petitioners’ argument that the
Hobbs Act did not apply because “the district court did
not specifically invalidate” the FCC’s rule, but “merely
chose not to apply it.” Id. at 10a. It concluded that
“[i]nvalidation by any other name still runs afoul of the
Hobbs Act’s constraints.” Ibid. The court of appeals
also concluded that the 2006 order’s “meaning is plain,”
id. at 13a, and that the order articulates “this simple
rule: faxes that offer free goods and services are advertisements under the TCPA,” id. at 14a.
Judge Thacker dissented. Pet. App. 19a-31a. Applying Chevron, she concluded that the TCPA is ambiguous
as to whether an “advertisement” must have a commercial aim, and that the 2006 FCC order did require such
a purpose. Id. at 25a-26a.
5. This Court granted certiorari, limited to the question whether the Hobbs Act required the district court
in this case to accept the FCC’s interpretation of the
TCPA.
SUMMARY OF ARGUMENT
The Hobbs Act’s grant of exclusive jurisdiction to the
courts of appeals to determine the validity of particular
agency orders deprives district courts and state courts
8
of authority to determine those orders to be invalid outside of the Hobbs Act’s channels.
I. A. 1. The Hobbs Act’s language is clear. A court
“determines” the validity of an order when it “settle[s]
a question or controversy about” the order’s validity.
Webster’s New International Dictionary of the English
Language 711 (2d ed. 1958) (Webster’s Second). An order is “valid,” in turn, if it is “sound [or] good,” or “legally sufficient or efficacious; incapable of being rightfully overthrown or set aside.” Id. at 2813. Consistent
with that language, every court of appeals to consider
the issue has determined that the Hobbs Act provides
the exclusive procedure through which courts may decide whether a covered order is legally sound, and forecloses courts from making such determinations in civil
litigation between private parties.
2. History confirms the statute’s meaning. Congress borrowed the formulation here from the Emergency Price Control Act of 1942 (EPCA), ch. 26, 56 Stat.
23, which created “exclusive jurisdiction” in a particular
court to “determine the validity of ” certain price control
orders. EPCA § 204(d), 56 Stat. 33. This Court interpreted that language to foreclose challenges to covered
orders in enforcement proceedings, outside the prescribed statutory channels. Woods v. Hills, 334 U.S.
210, 213-214 (1948); Yakus v. United States, 321 U.S.
414, 429-430 (1944).
3. This Court’s cases, too, establish that the Hobbs
Act bars collateral attacks like those here. In Port of
Boston Marine Terminal Ass’n v. Rederiaktiebolaget
Transatlantic, 400 U.S. 62, 70 (1970), the Court found
a defense in a civil suit barred because it would amount
to a collateral attack on a determination of the Federal
Maritime Commission (FMC). In FCC v. ITT World
9
Communications, Inc., 466 U.S. 463, 468 (1984), the
Court similarly barred an attempt to enjoin certain FCC
consultations because the FCC had denied a rulemaking petition raising the same basic arguments. In applying a predecessor statute containing much of the
Hobbs Act’s operative language, this Court likewise focused on whether the effect of a litigant’s claim would
be to deem covered agency action invalid. Venner v.
Michigan Cent. R.R., 271 U.S. 127, 128-130 (1926).
4. Statutory text is reinforced by structure. The
Hobbs Act requires that suits to determine the validity
of covered orders be brought against the United States,
to “ensure that the Attorney General has an opportunity to represent the interest of the Government
whenever an order of one of the specified agencies is reviewed.” Transatlantic, 400 U.S. at 70. That design
would be “vitiate[d]” if courts could determine covered
orders to be invalid in civil suits between private parties, without the United States’ participation. Ibid.
Federal law also imposes stringent deadlines for Hobbs
Act challenges, and provides for consolidation of such
challenges in a single court of appeals, in order to provide swift, nationwide determinations of orders’ validity. That structure would be undermined if litigants
could obtain determinations that covered orders were
invalid outside of the statutory time limits and centralized channels.
B. 1. Petitioners urge that the Hobbs Act’s conferral
of exclusive jurisdiction to “determine the validity” of covered enactments refers only to declaratory-judgment
suits. But petitioners identify no definition, case, or
treatise that supports that limitation. Surrounding provisions do not do so, either.
10
2. Petitioners also invoke the Administrative Procedure Act (APA), 5 U.S.C. 701 et seq. But the APA makes
clear that agency actions are not subject to judicial review in enforcement proceedings when a statute creates
a “prior, adequate, and exclusive” opportunity for review. 5 U.S.C. 703. The Hobbs Act satisfies the concept
of adequacy developed in decisions of this Court and incorporated into the APA. Petitioners’ inadequacy arguments are untethered to that concept, and lack merit on
their own terms.
3. Petitioners invoke other statutes that permit
challenges to regulations during enforcement actions.
But those statutes lack the Hobbs Act’s broad language,
and do not share the relevant statutory history. Petitioners also invoke court of appeals decisions holding
that litigants in Hobbs Act suits may call into question
past orders that formed the basis for the agency action
under review. But those decisions simply address the
scope of timely Hobbs Act suits. The same circuit
courts uniformly hold that litigants may not circumvent
the Hobbs Act by challenging covered orders in civil
suits between private parties. And the presumption of
reviewability, on which petitioners also rely, has no application because the Hobbs Act provides a mechanism
for judicial review of the covered agency actions.
4. Petitioners raised no constitutional arguments
below, and constitutional avoidance has no role when
the statutory text is clear. Moreover, neither due process nor separation of powers bars Congress from establishing an exclusive channel for judicial review of
certain agency orders.
II. Petitioners’ belated contention that the FCC order in this case would not have been reviewable under
the Hobbs Act is forfeited. The court of appeals found
11
it undisputed that the order was covered by the Hobbs
Act. Petitioners did not challenge that determination in
seeking certiorari or raise any argument pertaining to
interpretive rules. In any event, the Hobbs Act covers
“all final orders” of the FCC, aside from certain licensing decisions. 28 U.S.C. 2342(1); 47 U.S.C. 402(a). It
draws no distinction between legislative and interpretive rules.
ARGUMENT
I. THE HOBBS ACT BARRED PETITIONERS FROM
COLLATERALLY ATTACKING THE VALIDITY OF THE
2006 FCC ORDER IN CIVIL LITIGATION OUTSIDE THE
HOBBS ACT’S CHANNELS
The Hobbs Act confers on the courts of appeals
“exclusive jurisdiction” to “determine the validity of ”
specified categories of agency actions, including certain
final orders of the FCC. 28 U.S.C. 2342; 47 U.S.C.
402(a). That exclusivity promotes finality, judicial
economy, and the uniform interpretation of agency
rules and orders, and it ensures that the United States
is a party to the proceeding. As every court of appeals
to address the question has determined, the Hobbs
Act’s jurisdiction-channeling provision precludes collateral attacks on covered agency orders in private stateor district-court litigation.
A. The Hobbs Act Provides The Exclusive Channel For
Obtaining Judicial Review Of Covered Agency Orders
1. By vesting the courts of appeals with exclusive jurisdiction to “determine the validity of ” specified agency actions, 28 U.S.C. 2342, the Hobbs Act establishes
the exclusive procedure and venue to “settle a question
or controversy about” such actions’ validity. Webster’s
12
Second 711; accord ibid. (defining “determine” as “decide by authoritative or judicial sentence”); 4 The Oxford English Dictionary 550 (2d ed. 1989) (“To settle or
decide (a dispute, question, matter in debate) as a judge
or arbiter.”). A court determines an order’s “validity”
when it decides whether the order is “sound [or] good,”
or “legally sufficient or efficacious; incapable of being
rightfully overthrown or set aside.” Webster’s Second
2813 (defining “valid”); accord 9 The Oxford English
Dictionary 410; 3 Bouvier’s Law Dictionary and Concise Encyclopedia 3387 (3d ed. 1914).
Petitioners contend (Br. 19) that the Hobbs Act’s exclusivity provision “speaks only to jurisdiction over a
specific type of proceeding: one for direct review of
agency action, in which the petitioner seeks declaratory
or injunctive relief against the government.” The text
of the statute does not support that reading. To be
sure, a court may “determine the validity of ” an agency
action in a suit brought against the government in
which the plaintiff seeks declaratory or injunctive relief.
But a court that holds an agency order to be invalid
in the course of adjudicating one private party’s liability
to another is likewise “determin[ing]” the order’s “validity.”
Every court of appeals to address the issue has accordingly construed the Hobbs Act to bar courts from
determining the validity of covered agency actions in
any proceeding outside the Hobbs Act’s channels,
whether or not the litigant who disputes the action’s
validity seeks declaratory or injunctive relief against
the government. They have applied the Hobbs Act to
preclude challenges to agency regulations in suits
between private parties, e.g., Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110, 1119-1121 (11th Cir.
13
2014); Leyse v. Clear Channel Broad., Inc., 545 Fed.
Appx. 444, 459 (6th Cir. 2013), cert. denied, 135 S. Ct. 57
(2014); Nack v. Walburg, 715 F.3d 680, 685-687 (8th Cir.
2013), cert. denied, 572 U.S. 1028 (2014); CE Design,
Ltd. v. Prism Bus. Media, Inc., 606 F.3d 443, 447-448
(7th Cir. 2010), cert. denied, 562 U.S. 1138 (2011); Daniels v. Union Pac. R.R., 530 F.3d 936, 940-941 (D.C. Cir.
2008); City of Peoria v. General Elec. Cablevision
Corp., 690 F.2d 116, 119-121 (7th Cir. 1982), and to preclude the assertion of such challenges as defenses to
civil enforcement actions brought by the government,
e.g., United States v. Dunifer, 219 F.3d 1004, 1007 (9th
Cir. 2000); United States v. Any & All Radio Station
Transmission Equip., 207 F.3d 458, 463 (8th Cir. 2000),
cert. denied, 531 U.S. 1071 (2001).
2. The Hobbs Act’s history confirms the clear import of the statutory text.
The Hobbs Act language vesting the courts of appeals with “exclusive jurisdiction” to “determine the validity of ” covered orders derives from the EPCA. Under the EPCA, a party wishing to challenge orders fixing maximum prices and rents was required to file a
protest with a federal administrator—and, when the
statute was enacted, to do so within sixty days. § 203(a),
56 Stat. 31. An aggrieved party could then appeal to a
special court comprised of Article III judges, which had
“exclusive jurisdiction to determine the validity of ” a
covered order, subject to review by this Court. § 204(d),
56 Stat. 33; see § 204, 56 Stat. 31-33.
This Court construed the EPCA’s jurisdictionchanneling provision to bar other courts from determining the validity of covered orders in all types of litigation, including enforcement suits. In Yakus v. United
14
States, 321 U.S. 414 (1944), the Court held that the statute deprived district courts of “power to consider the
validity of a price regulation as a defense to a criminal
prosecution for its violation.” Id. at 429; see id. at 430.
The Court similarly found “no doubt” that the EPCA
barred a district court “from determining the validity of
an individual rent order” in a civil enforcement suit
against a landlord to recover allegedly excessive rents,
“even though the defense to the action brought there
was based on the alleged invalidity of the order.” Woods
v. Hills, 334 U.S. 210, 213-214 (1948).
When language is “obviously transplanted from another source, whether the common law or other legislation, it brings the old soil with it.” Stokeling v. United
States, 139 S. Ct. 544, 551 (2019) (citation omitted)
(quoting Felix Frankfurter, Some Reflections on the
Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947)).
By incorporating EPCA language that this Court had
authoritatively construed, Congress signaled its intent
that the Hobbs Act’s grant of “exclusive jurisdiction” to
“determine the validity” of specified agency actions
should be understood in a like manner.
3. a. This Court has interpreted the Hobbs Act as
barring litigants from challenging the validity of covered agency orders during suits between private parties.
In Port of Boston Marine Terminal Ass’n v.
Rederiaktiebolaget Transatlantic, 400 U.S. 62 (1970),
vessel owners refused to pay certain cargo fees, asserting that the fees were invalid without pre-approval from
the FMC. Id. at 70. The port operator brought suit for
damages and declaratory relief against a vessel-owner
organization. Ibid. The district court stayed the proceedings to allow the parties to obtain a ruling from the
15
FMC, which concluded that the fees were largely valid
because they had not required pre-approval. Ibid. An
affected carrier then moved to intervene in the damages
action, on the ground that it would be liable
for part of any judgment. Id. at 67. The court granted
intervention, but refused to consider the carrier’s
argument—raised as a defense to potential civil liability
—that the FMC had erred in deeming the tariff revisions valid. Ibid.
This Court upheld the district court’s refusal to consider the carrier’s arguments because that court was
“without authority to review the merits of the Commission’s decision.” Transatlantic, 400 U.S. at 69. It relied
on the Hobbs Act’s “explicit” statement that “ ‘[t]he
court of appeals has exclusive jurisdiction to . . . determine the validity of ’ ” final orders of the FMC. Ibid.
(citation omitted). The Court explained that an exception for cases involving referrals to the FMC “would vitiate the scheme of the [Hobbs Act]—a scheme designed to ensure that the Attorney General has an opportunity to represent the interest of the Government
whenever an order of one of the specified agencies is reviewed.” Id. at 70.
This Court also rejected the carrier’s argument that,
because it had not been a party to the FMC proceedings, it was “not bound by the Commission’s action.”
Transatlantic, 400 U.S. at 71. The Court explained that
the carrier was in fact “represented before the Commission and ha[d] previously made numerous claims to
party status.” Ibid. The Court further held that,
“[e]ven if [the carrier] was not a formal party” in
the administrative proceeding, it was not entitled to
raise a collateral attack “in a different and inappropriate forum” because “[the carrier’s] interests were
16
clearly at stake” in the administrative proceeding, “it
had every opportunity to participate before the Commission and then to seek timely review in the Court of
Appeals,” and “[i]t chose not to do so.” Id. at 72. The
Court’s application of the Hobbs Act to preclude consideration of a legal question in a private damages suit confirms that the Act’s preclusive effect extends beyond
suits seeking declaratory or injunctive relief against the
government.
b. FCC v. ITT World Communications, Inc., 466 U.S.
463 (1984), similarly made clear that the Hobbs Act jurisdictional inquiry turns on whether a litigant’s claims
would require a court to engage in “review of final [covered] FCC orders.” Id. at 468. The plaintiffs had filed
a rulemaking petition asking the FCC to disclaim intent
to engage in certain consultations. Id. at 465. After the
agency denied that petition, the plaintiffs filed suit in
district court. Id. at 465-468. They did not seek judicial
relief with respect to the FCC order, but instead requested that the court enjoin the consultations themselves. Id. at 468. This Court held that the district
court could not entertain the suit because the Hobbs Act
establishes the exclusive avenue for “review of final
FCC orders,” and “[l]itigants may not evade” the Act’s
strictures “by requesting the District Court to enjoin
action that is the outcome of the agency’s order.” Ibid.
That decision confirms that the Hobbs Act inquiry turns
not on the form of relief requested, but on whether a
claim called upon the court to “determine the validity”
of a covered order. 28 U.S.C. 2342.
c. In construing closely related statutes, courts have
likewise focused on whether a suit is “in substance a collateral attack on [a covered] order” or whether the
“practical effect of a successful suit would contradict
17
or countermand” a covered order. B. F. Goodrich Co. v.
Northwest Indus., Inc., 424 F.2d 1349, 1352-1354 (3d
Cir.), cert. denied, 400 U.S. 822 (1970).
This Court prescribed that approach in construing
the Act of Oct. 22, 1913 (Urgent Deficiencies Act), ch. 32,
38 Stat. 208, which governed review of many final FCC
orders before the Hobbs Act’s enactment. See Communications Act of 1934, ch. 652 § 402(a), 48 Stat. 1093.
That statutory scheme provided the template for a substantial portion of the Hobbs Act’s language, by conferring on specially constituted courts “exclusive jurisdiction” over suits to “enjoin, set aside, annu[]l, or suspend[]” certain orders. 28 U.S.C. 46 (1934); see Act of
June 18, 1910, ch. 309, 36 Stat. 539-540 (establishing
“exclusive” jurisdiction in a commerce court over
“[c]ases brought to enjoin, set aside, annul, or suspend”
certain orders); Urgent Deficiencies Act, 38 Stat. 219220 (transferring jurisdiction of the commerce court to
district courts operating under special procedures).
In applying that exclusive-jurisdiction provision, this
Court focused on the practical effects of particular suits.
It explained in Venner v. Michigan Central Railroad,
271 U.S. 127 (1926), that a suit was subject to the exclusive-jurisdiction provision, even if it “does not expressly
pray that [a covered] order be annulled or set aside,” if
the suit “assail[s] the validity of the order and pray[s]
that the defendant company be enjoined from doing
what the order specifically authorizes, which is equivalent to asking that the order be adjudged invalid and set
aside.” Id. at 130. Accordingly, a shareholder in a railroad could not bring a suit against the railroad outside
the channels of Urgent Deficiencies Act review, when
the shareholder sought to enjoin the railroad from
carrying out an agreement that the ICC had approved.
18
Id. at 129. In Lambert Run Coal Co. v. Baltimore &
Ohio Railroad, 258 U.S. 377 (1922), the Court similarly
held that a mining company’s suit against a railroad to
enjoin it from distributing coal cars constituted a suit to
set aside an ICC order because an ICC order had sanctioned the relevant coal-car schedule. Id. at 381-382.
4. The Hobbs Act’s structure and objectives reinforce the understanding described above. Adherence to
the Hobbs Act’s jurisdictional scheme “ensure[s] that
the Attorney General has an opportunity to represent
the interest of the Government whenever an order
of the specified agencies is reviewed.” Transatlantic,
400 U.S. at 70; see 28 U.S.C. 2344. Here, as in Transatlantic, that aspect of the statutory design would be “vitiate[d],” 400 U.S. at 70, if petitioners could assert the
invalidity of the 2006 FCC order as a defense to respondent’s TCPA suit.
Permitting such collateral challenges would undermine other aspects of the statutory scheme as well.
Many provisions governing Hobbs Act review are designed to facilitate quick, nationwide resolution of the
validity of covered agency actions. These provisions establish a 60-day filing deadline, mandate direct courtof-appeals review, and provide for consolidation of multiple challenges in a single court of appeals. Taken together, they enable private entities, in structuring their
operations, to act in reliance on agency orders once the
time for review has expired. The Chamber of Commerce (Amicus Br. 6) describes this protection of reliance interests as “vital to the national economy,” noting
that “[o]nce rules are final, businesses build their operations, policies, and products around federal regulatory
expectations, often over many years.” See id. at 6-7 (examples).
19
In the TCPA context, the Hobbs Act ensures that
businesses engaged in telemarketing can avoid liability
in private TCPA suits by relying on safe harbors defined by the FCC. See, e.g., Leyse, 545 Fed. Appx. at
445 (Hobbs Act barred collateral challenge to FCC’s
safe harbors in TCPA suit). In the present case, the interpretation reflected in the 2006 FCC order tends to
support respondent’s claim that petitioners violated the
TCPA. Under petitioners’ narrow conception of the
Hobbs Act’s exclusive-jurisdiction provision, however, a
plaintiff in private TCPA litigation could likewise collaterally attack a prior FCC order that found the defendant’s conduct to be lawful, urging the court to find
the order invalid and to impose liability on the defendant. The Hobbs Act framework, and the reliance interests it serves, would be severely undermined if private
parties could challenge the validity of covered orders in
myriad courts, after the period for Hobbs Act challenge
had passed.
B. Petitioners’ Contrary Arguments Lack Merit
As noted above, petitioners contend (Br. 19) that the
Hobbs Act judicial-review mechanism is exclusive only
with respect to proceedings “for direct review of agency
action, in which the petitioner seeks declaratory or injunctive relief against the government.” Under that approach, litigants could assert the invalidity of covered
agency actions in private civil suits long after the period
for Hobbs Act review had expired. That interpretation
should be rejected.
1. Petitioners’ arguments lack a basis in the text
Petitioners identify no dictionary, treatise, or other
source that defines “determine,” “validity,” or any other
Hobbs Act term in a way that supports their truncated
20
conception of the Act’s exclusive-jurisdiction provision.
As explained above, when a court concludes that one
party is not liable to another because an agency order
reflects an impermissible interpretation of the governing statute or is otherwise unlawful, that court has “determin[ed] the validity of ” the pertinent order under
any natural understanding of that term.
Petitioners suggest (Br. 21) that several decisions of
this Court support their narrow construction of the key
statutory language. But those decisions simply describe declaratory-judgment actions as a way to determine the validity of a provision, without suggesting that
such suits are the only mechanism for accomplishing
that result. See Calderon v. Ashmus, 523 U.S. 740, 746
(1998) (describing prior decision as holding that a company “could bring a declaratory judgment action to determine the validity of insurance policies”); Railway
Mail Ass’n v. Corsi, 326 U.S. 88, 91 (1945) (describing a
suit “in a state court for a declaratory judgment to determine the validity” of a provision).
Petitioners also invoke (Br. 13-14) the interpretive
canon noscitur a sociis. They argue that the terms
“ ‘enjoin,’ ” “ ‘suspend,’ ” and “ ‘set aside’ ” all refer “to a
specific type of relief—injunctive,” and that the term
“ ‘determine the validity’ ” therefore should be construed as referring to another “specific type of relief—
declaratory.” Ibid. (citation omitted). But noscitur a
sociis has “no place, as this Court has many times held,
except in the domain of ambiguity.” Russell Motor Car
Co. v. United States, 261 U.S. 514, 519 (1923); see
United States v. Stevens, 559 U.S. 460, 474-475 (2010).
The term “determine the validity” unambiguously encompasses the situation presented here, where a court
21
is asked to decide the lawfulness of a prior FCC order
in resolving a dispute between private parties.
Moreover, as noted above, the Court in Venner held
that the Urgent Deficiencies Act should be construed by
reference to the practical effect of the suit in question,
rather than to the relief for which the litigant “expressly pray[s].” 271 U.S. at 130. The Court thus recognized that a suit may be one to “set aside” an agency
order even if it does not request injunctive relief against
the government. Ibid. Given that holding, the noscitur
a sociis canon cuts against petitioners’ understanding
of the term “determine the validity.”
Petitioners’ reliance on 28 U.S.C. 2349(a), entitled
“Jurisdiction of the proceeding,” is likewise misplaced.
That provision states that, upon filing of a Hobbs Act
suit, the court of appeals “has jurisdiction to vacate stay
orders or interlocutory injunctions” and “to make and
enter, on the petition, evidence, and proceedings set
forth in the record on review, a judgment determining
the validity of, and enjoining, setting aside, or suspending, in whole or in part, the order of the agency.” Ibid.
Petitioners contend (Br. 22) that, “[i]n tying the ‘determine the validity’ phrase to a ‘judgment,’ § 2349 makes
clear that the phrase refers to a remedy that the courts
of appeals may enter as part of the judgment.”
Petitioners’ argument conflates the judicial relief
that the Hobbs Act authorizes with the broader range
of collateral attacks that it forecloses. The Hobbs Act
authorizes courts of appeals to conduct direct review of
covered agency actions, in a proceeding where the
United States is named as respondent. Section 2349 delineates the court’s jurisdiction and powers in conducting that form of direct review. In authorizing a review-
22
ing court “to make and enter * * * a judgment determining the validity of, and enjoining, setting aside, or
suspending, in whole or in part, the order of the
agency,” Section 2349(a) specifies the types of relief
that a court may enter in a Hobbs Act proceeding
against the government. 28 U.S.C. 2349(a).
The Hobbs Act’s barrier to collateral attacks is set
forth not in Section 2349, which defines the jurisdiction
and powers of courts that conduct Hobbs Act review,
but in Section 2342, which states that the Hobbs Act
provides the “exclusive” means of obtaining specified
types of rulings. Section 2342 does not contain the word
“judgment” that petitioners highlight in Section
2349(a). Thus, rather than stating that courts of appeals
have exclusive jurisdiction to enter “a judgment determining the validity of ” a covered agency order (28 U.S.C.
2349(a)), Section 2342 states more broadly that those
courts have exclusive jurisdiction “to determine the validity of ” covered orders (28 U.S.C. 2342). Petitioners
disregard that textual difference.
Petitioners also rely on a Communications Act provision directing that “[a]ny proceeding to enjoin, set
aside, annul, or suspend any order of the Commission”
must “be brought as provided by and in the manner prescribed in” the Hobbs Act. Pet. Br. 23 (quoting
47 U.S.C. 402(a)). Petitioners contend (ibid.) that because this provision refers “only to proceedings ‘brought’
to obtain non-monetary relief against the FCC,” the
Hobbs Act should be read to embody the same limitation.
But the Communications Act provision is not plausibly
read to reach only “proceedings ‘brought’ to obtain nonmonetary relief against the FCC,” ibid., because the
Court in Venner construed virtually identical language
governing review under the Urgent Deficiencies Act to
23
lack such a limitation. 271 U.S. at 130; see Urgent Deficiencies Act, 38 Stat. 220 (provision governing “any
suit brought to suspend or set aside, in whole or in part,
any order of ” a covered agency); see also 28 U.S.C. 46
(1934); pp. 17-18, supra. In any event, because the
Hobbs Act defines the “exclusive jurisdiction” vested in
the courts of appeals in broader terms than those used
in the Communications Act, see 28 U.S.C. 2342, it would
be inappropriate to import any textual limitations in
Section 402(a) into the Hobbs Act’s exclusive-jurisdiction
provision.
Petitioners also suggest (Br. 34) that, if Congress
had intended to foreclose collateral attacks on the validity of agency orders in private civil lawsuits, it would
have stated that intent explicitly. As petitioners points
out, some more recent jurisdiction-channeling provisions state that covered agency actions “shall not be
subject to judicial review in any civil or criminal proceedings for enforcement.” See ibid. (quoting 33 U.S.C.
1369(b)(2)) (emphasis omitted). But Congress enacted
the Hobbs Act more than a decade before any of the provisions on which petitioners rely. Well before the Hobbs
Act was enacted, moreover, the Court in Venner had held
that the Urgent Deficiencies Act’s conferral of exclusive
jurisdiction foreclosed collateral challenges in litigation
between private parties. 271 U.S. at 130. The fact that
more recent Congresses have foreclosed collateral challenges through differently worded provisions—none of
which include the term “exclusive jurisdiction”—does
not cast doubt on the proper interpretation of the
Hobbs Act.
24
2.
The Administrative Procedure Act does not support
petitioners’ reading of the Hobbs Act
In arguing that the Hobbs Act’s exclusive-jurisdiction
provision is limited to suits for declaratory and injunctive relief against the government, petitioners rely in
part (Br. 24-31) on 5 U.S.C. 703, a provision of the earlier-enacted APA. Section 703 provides in pertinent
part that, “[e]xcept to the extent that prior, adequate,
and exclusive opportunity for judicial review is provided by law, agency action is subject to judicial review
in civil or criminal proceedings for judicial enforcement.” 5 U.S.C. 703 (emphasis added). Section 703 thus
establishes a general rule that, when a defendant’s liability depends in part on the propriety of an agency action, that action ordinarily can be challenged in a civil
or criminal enforcement suit. The italicized language
specifically contemplates, however, that judicial review
of a prior agency action will be unavailable during enforcement proceedings if an “adequate” opportunity to
obtain review was previously available and that avenue
has been designated as “exclusive.”
Petitioners suggest (Br. 24-31) that Section 703’s
prerequisites to preclusion of review are not satisfied
here because the Hobbs Act does not afford petitioners
an “adequate” opportunity to challenge the 2006 FCC
order. That argument lacks merit.
a. Section 703’s reference to an “adequate” opportunity for judicial review was drawn from this Court’s
pre-APA decisions addressing exclusive-jurisdiction
provisions. In Yakus—decided two years before the
APA was enacted—the Court held that foreclosure of
judicial review in later enforcement proceedings posed
no due process problem so long as litigants had previously received an “adequate” opportunity to challenge
25
the relevant agency order. 321 U.S. at 434, 436-437.
The Court declined to deem “inadequate” the prior opportunity in Yakus, which involved filing a claim before
the agency and then seeking review from a special Article III court. Id. at 436; see id. at 434-437; see also
Bowles v. Willingham, 321 U.S. 503, 516 (1944) (“Here,
as in the Yakus case, the standards prescribed by the
act are adequate for the judicial review which has been
accorded.”). The Court thus made clear that exclusivereview mechanisms are not “inadequate” simply because litigants must present their claims to the agency
and then seek judicial review within a particular time.
See Yakus, 321 U.S. at 433-435 & n.3.
Section 703 is most naturally understood to incorporate the concept of “adequacy” that the Court articulated in Yakus. Paul R. Verkuil, Congressional Limitations on Judicial Review of Rules, 57 Tulane L. Rev.
733, 741 n.34 (1983) (explaining that Section 703 “incorporates the ‘adequacy’ standard of Yakus”); see Samuel
A. Bleicher, Economic and Technical Feasibility in
Clean Air Act Enforcement Against Stationary
Sources, 89 Harv. L. Rev. 316, 353 n.205 (1975) (describing Section 703 as a “codification of [the] Yakus rule”).
That inference is confirmed by the Attorney General’s
Manual on the Administrative Procedure Act (1947)
(APA Manual), which this Court has repeatedly cited
as a persuasive authority. See Norton v. Southern
Utah Wilderness Alliance, 542 U.S. 55, 63-64 (2004)
(citing cases). The manual explains that the APA incorporates “the legal standard which courts * * * ha[d]
already developed” regarding “the adequacy of statutory review procedures,” APA Manual 98, and that
Section 703’s statement regarding a “ ‘prior, adequate,
26
and exclusive’ ” channel of review simply “restates existing law,” id. at 99 (citations omitted); see id. at 100.
b. Petitioners’ arguments for viewing Hobbs Act review as inadequate here are untethered to the concept
that the APA incorporated. They are also implausible
on their own terms.
Petitioners suggest (Br. 25-26) that Hobbs Act channels were not “adequate” within the meaning of Section
703 because petitioners could not have asserted a Hobbs
Act challenge to the 2006 FCC order when respondent
commenced the present suit in 2014. Petitioners are
correct that they could not have invoked the Hobbs Act
review mechanism at that time, both because they never
presented their claims to the agency in connection with
the 2006 order and because a Hobbs Act petition for review filed in 2014 would have been untimely.5 Contrary
to petitioners’ suggestion, however, a mode of judicial
review is not inadequate simply because a particular litigant fails to satisfy the statutory prerequisites for invoking it.
As one court explained in rejecting a similar argument, “ ‘[i]t is hard to believe’ ” that Congress would
have prescribed “a centralized forum [for] review,” but
“ ‘made the remedy optional and contemplated that the
regulation could also be challenged by defiance.’ ”
United States v. Szabo, 760 F.3d 997, 1006 (9th Cir.
An entity becomes a “party aggrieved” entitled to seek Hobbs
Act review of an agency determination by presenting its views to
the agency—typically through a comment or other written submission on a proposed rule. Water Transp. Ass’n v. ICC, 819 F.2d 1189,
1192-1993 (D.C. Cir. 1987) (citation omitted). Parties also commonly
become “part[ies] aggrieved” by seeking timely reconsideration of
an order. 47 U.S.C. 405; see 47 C.F.R. 1.429( j). Reconsideration
may be sought on grounds of “material error, omission, or [other]
reason warranting reconsideration.” 47 C.F.R. 1.429(l)(1).
5
27
2014) (citation omitted); see 16 Charles Alan Wright et
al., Federal Practice and Procedure § 3943 (2012 &
Supp. 2018). Petitioners’ theory is also inconsistent
with Transatlantic, in which the Court held that a litigant’s collateral attack was precluded even though the
passage of time had made Hobbs Act review unavailable. See 400 U.S. at 66-69. Petitioners are thus incorrect in suggesting that the Hobbs Act channel for review became inadequate simply because petitioners’
failure to comply with its timing and agency-exhaustion
requirements means that the channel is not now available to them.
Petitioners also suggest (Br. 26) that the Hobbs
Act’s review mechanism was inadequate because petitioners “had no basis to suspect” that the 2006 order
would be construed as establishing that faxes offering
free goods constitute “advertisements” under the
TCPA. Petitioners’ premise, however, is directly contrary to a holding below that this Court declined to review. The court of appeals found that the 2006 order
was “clear and unambiguous,” Pet. App. 13a, and articulated “this simple rule: faxes that offer free goods and
services are advertisements under the TCPA,” id. at
14a. Because this Court’s grant of certiorari was limited to the question whether the Hobbs Act required the
district court to accept the FCC’s interpretation of the
TCPA, 139 S. Ct. 478, petitioners’ contention that the
2006 FCC order was actually ambiguous is not properly
before the Court. 6
Courts that lack jurisdiction to determine the validity of particular agency orders remain free to resolve ambiguities in those orders, and to consider the broader statutory scheme in deciding how
an ambiguous agency pronouncement should be construed. Thus, a
6
28
Petitioners also posit (Br. 27-38, 33) other fact patterns under which the Hobbs Act review mechanism
could be inadequate. Petitioners suggest that the statutory time limitations would make Hobbs Act review
inadequate for “parties that first come into existence after the 60-day direct review window has closed,” id. at
28, or in a case where Congress has superseded a rule
by statute, id. at 33. That argument provides no sound
basis for declining to enforce the Hobbs Act’s exclusivity provision here.
Even in circumstances where a particular challenge
could not feasibly have been brought within the initial
60-day window for seeking Hobbs Act review, potential
challengers are not without recourse under the Hobbs
Act. See WWHT, Inc. v. FCC, 656 F.2d 807, 819 (D.C.
Cir. 1981) (“[A]n agency may be forced by a reviewing
court to institute rulemaking proceedings if a significant factual predicate of a prior decision on the subject
(either to promulgate or not to promulgate specific
rules) has been removed.”); see also Natural Res. Def.
Council v. Nuclear Regulatory Comm’n, 666 F.2d 595,
603-604 (D.C. Cir. 1981). In any event, the possibility
that the Hobbs Act review mechanism might be inadequate for other litigants with different claims does not
mean that petitioners themselves lacked a “prior, adequate, and exclusive opportunity for judicial review” of
the 2006 FCC order. 5 U.S.C. 703. Petitioners have
identified no basis for doubting that they could feasibly
court may choose, among “permissible reading[s]” of an agency regulation, the one that the court considers most in “harmony with the
[court’s] view of the statute.” Environmental Def. v. Duke Energy
Corp., 549 U.S. 561, 573 (2007). But it may not “determin[e] that the
regulation as written is invalid.” Ibid.; see Decker v. Northwest Envtl. Def. Ctr., 568 U.S. 597, 608-609 (2013).
29
have utilized the Hobbs Act procedure to challenge the
2006 order. See Yakus, 321 U.S. at 447 (defendants
could not collaterally attack regulation when they had
not used “the procedure which was open to them and it
does not appear that they have been deprived of the opportunity to do so”).
In discussing Transatlantic and ITT, petitioners
acknowledge that, when an order “settl[es] the rights or
duties of a specific party” (Br. 29), or when a party participated in or was “adequately represented[] in” agency
proceedings (Br. 31), the Hobbs Act’s time-limited channels provide that party an adequate opportunity for review. Petitioners suggest (Br. 28), however, that no
other regulated party can be expected to “stay[] abreast
of rule-makings” or to challenge an assertedly unlawful
agency rule before that rule is applied to its own activities. But the expectation that regulated parties will
keep abreast of agency actions that may affect their operations is a basic premise of federal law. Federal law
provides—and this Court’s decisions reflect—that “the
appearance of rules and regulations in the Federal Register gives legal notice of their contents.” Federal Crop
Ins. Corp. v. Merrill, 332 U.S. 380, 384-385 (1947); see
44 U.S.C. 1507 (“Unless otherwise specifically provided
by statute, filing of a document” in the Federal Register
“is sufficient to give notice of the contents of the document to a person subject to or affected by it”); see also
United States v. International Minerals & Chem.
Corp., 402 U.S. 558, 563 (1971). Petitioners are therefore mistaken in contending that the Hobbs Act provides an inadequate mechanism for challenges to agency
rules of general applicability.
30
3.
Petitioners’ other statutory arguments also lack
merit
Petitioners argue (Br. 31-33) that the Hobbs Act
should be construed to allow collateral challenges to the
validity of rules in civil litigation between private parties because certain other agency-review statutes channel declaratory-judgment challenges to appellate courts
while also permitting challenges to regulations during
enforcement actions. But the Hobbs Act—unlike the
statutes that petitioners invoke—vests the courts of appeals with “exclusive jurisdiction” to “determine the validity of ” the classes of agency actions specified in the
statute. 28 U.S.C. 2342. The clear import of that statutory language is reinforced by the fact that two statutes
from which critical Hobbs Act language was drawn had
previously been construed to foreclose collateral attacks in civil suits and enforcement actions. See Venner, 271 U.S. at 128-130; Yakus, 321 U.S. at 429-430.
Petitioners also invoke (Br. 27) court of appeals decisions holding that, when an agency applies an order in
a later proceeding that is itself subject to review under
the Hobbs Act, the new Hobbs Act proceeding may include review of the earlier order. See, e.g., Functional
Music, Inc. v. FCC, 274 F.2d 543, 546 (D.C. Cir. 1958),
cert. denied, 361 U.S. 813 (1959). But the decisions on
which petitioners rely reflect the conclusion that an
agency action that applies a past determination starts a
new sixty-day period for review under the Hobbs Act.
Even then, review must be obtained in the court of appeals under the Hobbs Act procedures. The courts of
appeals have uniformly rejected arguments that district
courts may entertain collateral attacks on covered orders that are brought outside the Hobbs Act’s channels.
See pp. 12-13, supra.
31
Petitioners’ reliance (Br. 35) on the presumption of
reviewability is similarly misplaced. Absent clear evidence of a contrary congressional intent, courts presume that “Congress intends judicial review of administrative action.” Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670 (1986). That presumption is implicated, however, only when one potential
reading of a statute would insulate particular agency action from all judicial review. In this case, the Fourth
Circuit did not dispute that the 2006 FCC order was
subject to judicial review; it simply held that the Hobbs
Act procedures were the sole means by which such review could be obtained. “Because court of appeals review is available, this case does not implicate ‘the strong
presumption that Congress did not mean to prohibit all
judicial review.’ ” Thunder Basin Coal Co. v. Reich,
510 U.S. 200, 207 n.8 (1994) (citations omitted).
4.
Principles of constitutional avoidance do not support
petitioners’ approach
Petitioners press (Br. 39-45) constitutional arguments that were neither raised nor addressed below.
They contend that, to avoid potential constitutional concerns, this Court should construe the Hobbs Act’s exclusive-jurisdiction provision as limited to suits seeking
declaratory or injunctive relief. The principle that constitutional difficulties should be avoided if possible,
however, “does not give the court the authority to rewrite a statute as it pleases,” but simply permits a court
to “ ‘choose between competing plausible interpretations of a statutory text.’ ” Jennings v. Rodriguez,
138 S. Ct. 830, 843 (2018) (brackets, citation, and emphasis omitted). Given its language, the history of its
operative terms, and this Court’s precedents, the Hobbs
32
Act cannot plausibly be read to contain the limitation
that petitioners advocate.
In any event, petitioners’ constitutional claims lack
merit. Due process does not require that litigants be
permitted to challenge an agency order at whatever
time, or in whatever forum, they prefer. It instead “requires the government to provide notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford
them an opportunity to present their objections.” Jones
v. Flowers, 547 U.S. 220, 226 (2006) (citation and internal
quotation marks omitted). Here, petitioners had adequate notice and a meaningful opportunity to obtain review of the 2006 order. See Merrill, 332 U.S. at 384-385;
International Minerals, 402 U.S. at 563; 44 U.S.C. 1507.
The availability of judicial review also refutes petitioners’ separation-of-powers argument (Br. 41-45).
The Hobbs Act does not deny the federal judiciary the
power to decide the legality of covered agency actions.
Rather, the Act simply specifies review procedures to
promote finality, uniformity, and judicial economy, and
to ensure that orders are reviewed with the participation of the government and on a developed administrative record. “There is no constitutional requirement
that [a challenge] be made in one tribunal rather than
in another, so long as there is an opportunity to be heard
and for judicial review which satisfies the demands of
due process.” Yakus, 321 U.S. at 444; see United States
v. Ruzicka, 329 U.S. 287, 292-294 (1946). Quoting Professor Hart, petitioners question whether, “in a civil enforcement proceeding, questions of law can be validly
withdrawn from the consideration of the enforcement
court where no adequate opportunity to have them determined by a court has been previously accorded.”
33
Pet. Br. 42 n.7 (emphasis added). Because petitioners
had an adequate opportunity to obtain Hobbs Act review of the 2006 FCC order, that question is not implicated here.
II. PETITIONERS’ ARGUMENT THAT THE 2006 FCC
ORDER WAS NOT REVIEWABLE UNDER THE HOBBS
ACT IS NOT PROPERLY BEFORE THIS COURT, AND
LACKS MERIT IN ANY EVENT
In their merits brief, petitioners argue for the first
time (Br. 45-50) that the 2006 FCC order was “not reviewable under 47 U.S.C. § 402(a) or the Hobbs Act” because the order constitutes an interpretive rule. Pet.
Br. 49. The argument is not properly before the Court.
It also lacks merit.
The court of appeals observed that “[n]either party
has disputed that the 2006 FCC Rule is the sort of ‘final
order’ contemplated by the Hobbs Act.” Pet. App. 7a
n.1. In seeking this Court’s review, petitioners did not
challenge that characterization of the arguments below,
nor did they dispute that the 2006 order was covered by
the Hobbs Act. Nor did petitioners raise any other argument based on the status of interpretive rules. Instead, they contended (Pet. 13-20) that the district court
had not “determine[d] the validity of ” the order within
the meaning of Section 2342. An “argument” that was
“not raise[d]” or “address[ed]” below is “forfeited.”
United States v. Jones, 565 U.S. 400, 413 (2012).
In any event, the statute’s “exclusive” review framework extends to “all final orders * * * made reviewable
by section 402(a) of title 47.” 28 U.S.C. 2342(1). Section
402(a), in turn, makes reviewable “any order of the
Commission,” 47 U.S.C. 402(a), except for certain licensing decisions. The availability of Hobbs Act review
therefore does not turn on whether the 2006 order sets
34
out a legislative rule or instead constitutes an interpretive rule. Surrounding subprovisions governing Hobbs
Act review of other agencies’ actions reinforce that conclusion. Several make reviewable “all rules [or] regulations” issued by particular agencies under specified
statutory provisions, see 28 U.S.C. 2342(3) and (5) (emphasis added)—language that likewise draws no distinction between legislative and interpretive rules.
Section 2342 thus “contains no exception for ‘interpretive’ rules.’ ” US West Commc’ns, Inc. v. Hamilton,
224 F.3d 1049, 1055 (9th Cir. 2000). Accordingly, courts
applying the Hobbs Act have consistently treated as reviewable even those FCC orders that set out interpretive rules. See, e.g., Sorenson Commc’ns, Inc. v. FCC,
567 F.3d 1215, 1223 (10th Cir. 2009); SBC Inc. v. FCC,
414 F.3d 486, 501 (3d Cir. 2005); Central Tex. Tel. Coop.,
Inc. v. FCC, 402 F.3d 205, 213 (D.C. Cir. 2005). Petitioners therefore identify no sound basis for doubting
that the 2006 FCC order could have been reviewed under the Hobbs Act when issued.
35
CONCLUSION
The judgment of the court of appeals should be
affirmed.
Respectfully submitted.
THOMAS M. JOHNSON, JR.
General Counsel
JACOB M. LEWIS
Associate General Counsel
SCOTT M. NOVECK
Counsel
Federal Communications
Commission
FEBRUARY 2019
NOEL J. FRANCISCO
Solicitor General
JOSEPH H. HUNT
Assistant Attorney General
MALCOLM L. STEWART
Deputy Solicitor General
RACHEL P. KOVNER
Assistant to the Solicitor
General
MARK B. STERN
MICHAEL S. RAAB
LINDSEY POWELL
Attorneys
APPENDIX
1.
28 U.S.C. 2342 provides:
Jurisdiction of the court of appeals
The court of appeals (other than the United States
Court of Appeals for the Federal Circuit) has exclusive
jurisdiction to enjoin, set aside, suspend (in whole or in
part), or to determine the validity of—
(1) all final orders of the Federal Communications Commission made reviewable by section 402(a)
of title 47;
(2) all final orders of the Secretary of Agriculture made under chapters 9 and 20A of title 7, except
orders issued under sections 210(e), 217a, and 499g(a)
of title 7;
(3)
all rules, regulations, or final orders of—
(A) the Secretary of Transportation issued
pursuant to section 50501, 50502, 56101-56104, or
57109 of title 46 or pursuant to part B or C of
subtitle IV, subchapter III of chapter 311, chapter
313, or chapter 315 of title 49; and
(B) the Federal Maritime Commission issued
pursuant to section 305, 41304, 41308, or 41309 or
chapter 421 or 441 of title 46;
(4) all final orders of the Atomic Energy Commission made reviewable by section 2239 of title 42;
(5) all rules, regulations, or final orders of the
Surface Transportation Board made reviewable by
section 2321 of this title;
(1a)
2a
(6) all final orders under section 812 of the Fair
Housing Act; and
(7) all final agency actions described in section
20114(c) of title 49.
Jurisdiction is invoked by filing a petition as provided
by section 2344 of this title.
2.
28 U.S.C. 2344 provides:
Review of orders; time; notice; contents of petition;
service
On the entry of a final order reviewable under this
chapter, the agency shall promptly give notice thereof
by service or publication in accordance with its rules.
Any party aggrieved by the final order may, within
60 days after its entry, file a petition to review the order
in the court of appeals wherein venue lies. The action
shall be against the United States. The petition shall
contain a concise statement of—
(1) the nature of the proceedings as to which
review is sought;
(2)
the facts on which venue is based;
(3)
the grounds on which relief is sought; and
(4)
the relief prayed.
The petitioner shall attach to the petition, as exhibits,
copies of the order, report, or decision of the agency.
The clerk shall serve a true copy of the petition on the
agency and on the Attorney General by registered mail,
with request for a return receipt.
3a
3.
28 U.S.C. 2348 provides:
Representation in proceeding; intervention
The Attorney General is responsible for and has
control of the interests of the Government in all court
proceedings under this chapter. The agency, and any
party in interest in the proceeding before the agency
whose interests will be affected if an order of the agency
is or is not enjoined, set aside, or suspended, may appear as parties thereto of their own motion and as of
right, and be represented by counsel in any proceeding
to review the order. Communities, associations, corporations, firms, and individuals, whose interests are affected by the order of the agency, may intervene in any
proceeding to review the order. The Attorney General may not dispose of or discontinue the proceeding
to review over the objection of any party or intervenor,
but any intervenor may prosecute, defend, or continue
the proceeding unaffected by the action or inaction of
the Attorney General.
4.
28 U.S.C. 2349(a) provides:
Jurisdiction of the proceeding
(a) The court of appeals has jurisdiction of the proceeding on the filing and service of a petition to review.
The court of appeals in which the record on review is
filed, on the filing, has jurisdiction to vacate stay orders or interlocutory injunctions previously granted by
any court, and has exclusive jurisdiction to make and
enter, on the petition, evidence, and proceedings set
forth in the record on review, a judgment determining
4a
the validity of, and enjoining, setting aside, or suspending, in whole or in part, the order of the agency.
5.
5 U.S.C. 703 provides:
Form and venue of proceeding
The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject
matter in a court specified by statute or, in the absence
or inadequacy thereof, any applicable form of legal action,
including actions for declaratory judgments or writs of
prohibitory or mandatory injunction or habeas corpus,
in a court of competent jurisdiction. If no special statutory review proceeding is applicable, the action for judicial review may be brought against the United States,
the agency by its official title, or the appropriate officer.
Except to the extent that prior, adequate, and exclusive
opportunity for judicial review is provided by law, agency
action is subject to judicial review in civil or criminal
proceedings for judicial enforcement.
6. 47 U.S.C. 227 (2012 & Supp. V 2017) provide in
pertinent part:
Restrictions on use of telephone equipment
(a)
Definitions
As used in this section—
*
*
*
*
*
(5) The term “unsolicited advertisement” means any
material advertising the commercial availability or qual-
5a
ity 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.
(b)
Restrictions on use of automated telephone equipment
(1) Prohibitions
It shall be unlawful for any person within the United
States, or any person outside the United States if the
recipient is within the United States—
* * * * *
(C) to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement, unless—
(i) the unsolicited advertisement is from a
sender with an established business relationship
with the recipient;
(ii) the sender obtained the number of the
telephone facsimile machine through—
(I)
the voluntary communication of such
number, within the context of such established
business relationship, from the recipient of the
unsolicited advertisement, or
(II) a directory, advertisement, or site on
the Internet to which the recipient voluntarily
agreed to make available its facsimile number
for public distribution,
6a
except that this clause shall not apply in the case
of an unsolicited advertisement that is sent based
on an established business relationship with the recipient that was in existence before July 9, 2005,
if the sender possessed the facsimile machine
number of the recipient before July 9, 2005; and
(iii) the unsolicited advertisement contains a
notice meeting the requirements under paragraph
(2)(D),
except that the exception under clauses (i) and (ii)
shall not apply with respect to an unsolicited advertisement sent to a telephone facsimile machine by a
sender to whom a request has been made not to send
future unsolicited advertisements to such telephone
facsimile machine that complies with the requirements under paragraph (2)(E); or
* * * * *
(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—
(A) shall consider prescribing regulations to
allow businesses to avoid receiving calls made using
an artificial or prerecorded voice to which they have
not given their prior express consent;
7a
(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—
(i) calls that are not made for a commercial
purpose; and
(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;
(C) may, by rule or order, exempt from the requirements of paragraph (1)(A)(iii) of this subsection
calls to a telephone number assigned to a cellular
telephone service that are not charged to the called
party, subject to such conditions as the Commission
may prescribe as necessary in the interest of the
privacy rights this section is intended to protect;
(D) shall provide that a notice contained in an
unsolicited advertisement complies with the requirements under this subparagraph only if—
(i) the notice is clear and conspicuous and on
the first page of the unsolicited advertisement;
(ii) the notice states that the recipient may
make a request to the sender of the unsolicited
advertisement not to send any future unsolicited
8a
advertisements to a telephone facsimile machine
or machines and that failure to comply, within the
shortest reasonable time, as determined by the
Commission, with such a request meeting the requirements under subparagraph (E) is unlawful;
(iii) the notice sets forth the requirements for
a request under subparagraph (E);
(iv) the notice includes—
(I) a domestic contact telephone and facsimile machine number for the recipient to
transmit such a request to the sender; and
(II) a cost-free mechanism for a recipient
to transmit a request pursuant to such notice
to the sender of the unsolicited advertisement;
the Commission shall by rule require the sender
to provide such a mechanism and may, in the
discretion of the Commission and subject to
such conditions as the Commission may prescribe, exempt certain classes of small business
senders, but only if the Commission determines
that the costs to such class are unduly burdensome given the revenues generated by such
small businesses;
(v) the telephone and facsimile machine numbers and the cost-free mechanism set forth pursuant to clause (iv) permit an individual or business to make such a request at any time on any
day of the week; and
(vi) the notice complies with the requirements of subsection (d) of this section;
9a
(E) shall provide, by rule, that a request not to
send future unsolicited advertisements to a telephone facsimile machine complies with the requirements under this subparagraph only if—
(i) the request identifies the telephone number or numbers of the telephone facsimile machine
or machines to which the request relates;
(ii) the request is made to the telephone or
facsimile number of the sender of such an unsolicited advertisement provided pursuant to subparagraph (D)(iv) or by any other method of communication as determined by the Commission;
and
(iii) the person making the request has not,
subsequent to such request, provided express invitation or permission to the sender, in writing or
otherwise, to send such advertisements to such
person at such telephone facsimile machine;
(F) may, in the discretion of the Commission
and subject to such conditions as the Commission
may prescribe, allow professional or trade associations that are tax-exempt nonprofit organizations to
send unsolicited advertisements to their members in
furtherance of the association’s tax-exempt purpose
that do not contain the notice required by paragraph
(1)(C)(iii), except that the Commission may take action under this subparagraph only—
(i) by regulation issued after public notice
and opportunity for public comment; and
10a
(ii) if the Commission determines that such
notice required by paragraph (1)(C)(iii) is not
necessary to protect the ability of the members of
such associations to stop such associations from
sending any future unsolicited advertisements;
and
(G)(i) may, consistent with clause (ii), limit the
duration of the existence of an established business
relationship, however, before establishing any such
limits, the Commission shall—
(I) determine whether the existence of
the exception under paragraph (1)(C) relating
to an established business relationship has
resulted in a significant number of complaints
to the Commission regarding the sending of
unsolicited advertisements to telephone facsimile machines;
(II) determine whether a significant number of any such complaints involve unsolicited
advertisements that were sent on the basis of
an established business relationship that was
longer in duration than the Commission believes is consistent with the reasonable expectations of consumers;
(III) evaluate the costs to senders of demonstrating the existence of an established business relationship within a specified period of
time and the benefits to recipients of establishing a limitation on such established business relationship; and
11a
(IV) determine whether with respect to
small businesses, the costs would not be unduly
burdensome; and
(ii) may not commence a proceeding to determine whether to limit the duration of the existence of an established business relationship before the expiration of the 3-month period that
begins on July 9, 2005; and
(H) may restrict or limit the number and duration of calls made to a telephone number assigned to
a cellular telephone service to collect a debt owed to
or guaranteed by the United States.
*
7.
*
*
*
*
47 U.S.C. 402(a) provides:
Judicial review of Commission’s orders and decisions
(a)
Procedure
Any proceeding to enjoin, set aside, annul, or suspend any order of the Commission under this chapter
(except those appealable under subsection (b) of this
section) shall be brought as provided by and in the
manner prescribed in chapter 158 of title 28.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.