Opposition Brief — Bais Yaakov of Spring Valley, et al., Petitioners v. Federal Communications Commission, et al.

No. 17-351

In the Supreme Court of the United States

BAIS YAAKOV OF SPRING VALLEY, ET AL., PETITIONERS

v.

FEDERAL COMMUNICATIONS COMMISSION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

THOMAS M. JOHNSON, JR.

General Counsel

DAVID M. GOSSETT

Deputy General Counsel

JACOB M. LEWIS

Associate General Counsel

MATTHEW J. DUNNE

Counsel

Federal Communications

Commission

Washington, D.C. 20554

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the Telephone Consumer Protection Act of

1991, Pub. L. No. 102-243, 105 Stat. 2394 (47 U.S.C.

227), authorizes the Federal Communications Commission to require that solicited fax advertisements include

the same opt-out notices that the statute requires for

unsolicited fax advertisements.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 1

Argument....................................................................................... 6

Conclusion ................................................................................... 14

TABLE OF AUTHORITIES

Cases:

Alexander v. Trustees of Boston Univ., 766 F.2d 630

(1st Cir. 1985) ................................................................ 10, 11

Alliance for Cmty. Media v. FCC, 529 F.3d 763

(6th Cir. 2008), cert. denied, 557 U.S. 904 (2009)............. 13

Bowman v. United States, 564 F.3d 765

(6th Cir. 2008), cert. denied, 558 U.S. 815 (2009)............. 11

Cheney R.R. Co. v. ICC, 902 F.2d 66 (D.C. Cir.),

cert. denied, 498 U.S. 985 (1990) ....................................... 13

Chevron U.S.A. Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837 (1984) ................................................... 7, 8

City of Arlington v. FCC, 569 U.S. 290 (2013) ...................... 9

Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208

(2009) ............................................................................ 8, 9, 12

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000).............................................................. 12

Graham Eng’g Corp. v. United States, 510 F.3d 1385

(Fed. Cir. 2007) ................................................................... 11

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) ...................... 8

Janik Paving & Constr., Inc. v. Brock, 828 F.2d 84

(2d Cir. 1987) ....................................................................... 11

Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368 (2012) ........ 2

NLRB v. SW Gen., Inc., 137 S. Ct. 929 (2017) .................... 12

(III)

IV

Cases—Continued:

Page

Nack v. Walburg, 715 F.3d 680 (8th Cir. 2013),

cert. denied, 134 S. Ct. 1539 (2014) ............................... 3, 10

National Ass’n of Broadcasters v. FCC, 569 F.3d 416

(D.C. Cir. 2009) ................................................................... 13

National Shooting Sports Found., Inc. v. Jones,

716 F.3d 200 (D.C. Cir. 2013) ............................................. 13

Oregon Rest. & Lodging Ass’n v. Perez, 843 F.3d 355

(9th Cir. 2016) ...................................................................... 11

Ron Peterson Firearms, LLC v. Jones, 760 F.3d

1147 (10th Cir. 2014) ........................................................... 13

Torres v. Lynch, 136 S. Ct. 1619 (2016) ................................. 8

Utility Air Regulatory Grp. v. EPA, 134 S. Ct. 2427

(2014) ...................................................................................... 5

Whitman v. American Trucking Ass’ns, 531 U.S. 457

(2001) .................................................................................. 8, 9

Statutes and regulation:

Administrative Orders Review Act, 28 U.S.C. 2341

et seq. .................................................................................... 10

Clean Air Act, 42 U.S.C. 7409(a) ............................................ 9

Clean Water Act, 33 U.S.C. 1326(b) ...................................... 9

Communications Act of 1934, 47 U.S.C. 151 et seq............. 13

47 U.S.C. 154(i) ................................................................ 13

Junk Fax Prevention Act of 2005, Pub. L. No. 109-21,

119 Stat. 359 (47 U.S.C. 227)................................................ 2

Telephone Consumer Protection Act of 1991,

Pub. L. No. 102-243, 105 Stat. 2394 (47 U.S.C. 227).......... 1

47 U.S.C. 227(a)(5)..................................................... 2, 4, 6

47 U.S.C. 227(b) ........................................................... 3, 13

47 U.S.C. 227(b)(1)(C) ................................................... 2, 4

47 U.S.C. 227(b)(1)(C)(i)-(iii) ............................................ 2

47 U.S.C. 227(b)(2) .................................................... 4, 5, 6

V

Statutes and regulation—Continued:

Page

47 U.S.C. 227(b)(2)(D) ....................................................... 2

47 U.S.C. 227(b)(3)(A) ....................................................... 3

47 C.F.R. 64.1200(a)(4)(iii)-(iv) ............................................... 3

Miscellaneous:

Rules & Regulations Implementing the Tel.

Consumer Prot. Act of 1991: Junk Fax

Prevention Act of 2005, 21 FCC Rcd. 3787 (2006) ........ 2, 3

In the Supreme Court of the United States

No. 17-351

BAIS YAAKOV OF SPRING VALLEY, ET AL., PETITIONERS

v.

FEDERAL COMMUNICATIONS COMMISSION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-19a)

is reported at 852 F.3d 1078. The order of the Federal

Communications Commission (Pet. App. 20a-83a) (2014

Order) is reported at 29 FCC Rcd. 13,998.

JURISDICTION

The judgment of the court of appeals was entered on

March 31, 2017. A petition for rehearing was denied on

June 6, 2017 (Pet. App. 84a-85a). The petition for a writ

of certiorari was filed on September 5, 2017 (the Tuesday following a Monday holiday). The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Congress enacted the Telephone Consumer Protection Act of 1991 (TCPA), Pub. L. No. 102-243, 105

(1)

2

Stat. 2394 (47 U.S.C. 227), to curb abusive telemarketing practices, including the transmission of unwanted

advertisements via fax. See Mims v. Arrow Fin. Servs.,

LLC, 565 U.S. 368, 370-373 (2012). The TCPA prohibits,

among other practices, the “use [of] any telephone facsimile machine, computer, or other device to send, to a

telephone facsimile machine, an unsolicited advertisement.” 47 U.S.C. 227(b)(1)(C). An “unsolicited advertisement” is one “transmitted to any person without

that person’s prior express invitation or permission.”

47 U.S.C. 227(a)(5).

In the Junk Fax Prevention Act of 2005 (JFPA), Pub.

L. No. 109-21, 119 Stat. 359 (47 U.S.C. 227), Congress

created an exception to the TCPA’s ban on unsolicited

fax advertisements. That exception applies when the

sender of an unsolicited fax advertisement has “an established business relationship with the recipient,” obtains the recipient’s fax number through certain specified means, and includes on the fax an opt-out “notice.”

47 U.S.C. 227(b)(1)(C)(i)-(iii). The notice must be “clear

and conspicuous,” appear “on the first page of the unsolicited advertisement,” inform the recipient of the right

to opt out of “any future unsolicited advertisements,”

and provide a contact number and cost-free mechanism

to opt out. 47 U.S.C. 227(b)(2)(D).

2. In 2006, the Federal Communications Commission (FCC or Commission) issued an order adopting

regulations to implement the JFPA. See Rules & Regulations Implementing the TCPA: JFPA, 21 FCC Rcd.

3787 (Junk Fax Order). The order clarified that a fax

is not “unsolicited” if its recipient has consented to receive faxes from the sender at least once and has not

“revoke[d] such permission by sending an opt-out request to the sender.” Id. ¶ 46. To make it easier for

3

recipients to revoke permission, the order and accompanying rules required senders of solicited fax advertisements to include the same opt-out notices that the

TCPA requires on unsolicited fax advertisements. Id.

¶ 48; see 47 C.F.R. 64.1200(a)(4)(iii)-(iv).

Although the regulations clearly required opt-out

notices on solicited fax advertisements, see 47 C.F.R.

64.1200(a)(4)(iii)-(iv), a footnote in the Junk Fax Order

stated that “the opt-out notice requirement only applies

to communications that constitute unsolicited advertisements,” ¶ 42 n.154. The order did not reconcile this

potentially “confusing and inconsistent assertion” with

“the plain language of the regulation.” Nack v. Walburg, 715 F.3d 680, 684 (8th Cir. 2013), cert. denied,

134 S. Ct. 1539 (2014).

3. After the FCC issued its 2006 rule, a number of

persons who had consented to receive fax advertisements brought private class-action lawsuits against the

senders of the faxes, seeking statutory damages for alleged failures to include opt-out notices. See, e.g., Nack,

715 F.3d at 682 (class action based on the receipt of one

solicited fax that lacked opt-out notice). Several defendants in such lawsuits petitioned the FCC for a declaratory ruling that (1) the Commission lacked statutory authority for its rule requiring opt-out notices on

solicited fax advertisements, or (2) private damages actions were not available for violations of the rule, because it was based on statutory authority other than

47 U.S.C. 227(b). 2014 Order ¶¶ 6-10; Pet. App. 27a-32a;

see 47 U.S.C. 227(b)(3)(A) (creating private right of action for “a violation of this subsection or the regulations

prescribed under this subsection”). Several defendants

also sought retroactive waivers of the rule. 2014 Order

¶ 11; Pet. App. 32a.

4

4. The FCC denied the requests in part and granted

them in part. 2014 Order ¶ 14; Pet. App. 37a.

a. By a divided vote, the Commission determined

that its rule was authorized by 47 U.S.C. 227(b)(2),

which directs the FCC “to prescribe regulations to implement the requirements of ” the TCPA’s fax-advertisement

provisions. 2014 Order ¶ 19; Pet. App. 41a-42a. The

Commission stated that requiring opt-out notices on solicited fax advertisements helps to ensure that the recipient’s “prior express permission”—without which the fax

would be “unsolicited,” 47 U.S.C. 227(a)(5)—“remains

in place,” 2014 Order ¶ 20; Pet. App. 42a. The Commission added that “giving consumers a cost-free, simple

way to withdraw previous consent is good policy.” 2014

Order ¶ 20; Pet. App. 44a-45a.

The Commission unanimously found good cause to

grant retroactive waivers from compliance with the

rule. 2014 Order ¶ 22; Pet. App. 47a. Inter alia, the

Commission cited potential confusion resulting from

footnote 154 of the Junk Fax Order, which may have

“caused businesses mistakenly to believe that the optout notice requirement did not apply” to solicited fax

advertisements. 2014 Order ¶ 27; Pet. App. 52a.

b. Commissioners Pai and O’Rielly dissented in

part. Pet. App. 62a-83a. Then-Commissioner (now

Chairman) Pai argued that the TCPA’s opt-out notice

requirement “unambiguous[ly]” applies “only” to unsolicited fax advertisements sent pursuant to 47 U.S.C.

227(b)(1)(C), not to solicited fax advertisements. Pet.

App. 69a. Commissioner O’Rielly likewise concluded

that the statutory opt-out notice requirement does “not

apply to solicited fax advertisements,” and that the

FCC “lacked authority” to impose such a requirement

5

by regulation. Id. at 78a-79a. Both Commissioners

agreed with the grant of waivers. See id. at 62a, 82a. 1

5. Two different groups petitioned for review of the

2014 Order. First, a group of defendants in TCPA class

actions challenged the FCC’s conclusion that its rule

was authorized by Section 227(b)(2). Second, a group of

plaintiffs in TCPA class actions (petitioners in this

Court) challenged the FCC’s grant of waivers for past

violations.

a. A divided panel of the court of appeals granted

the class-action defendants’ petition, holding that the

TCPA did not authorize the Commission to require optout notices on solicited fax advertisements. Pet. App.

1a-10a. The court found that the TCPA “provides a

clear answer to the question presented in this case” because “Congress drew a line in the text of the statute

between unsolicited fax advertisements and solicited

fax advertisements.” Id. at 8a. The court explained

that, under the TCPA, “[u]nsolicited fax advertisements

must include an opt-out notice. But the Act does not

require (or give the FCC authority to require) opt-out

notices on solicited fax advertisements.” Ibid.

The court of appeals rejected the suggestion that the

“agency may take an action—here, requiring opt-out

notices on solicited fax advertisements—so long as Congress has not prohibited the agency action in question.”

Pet. App. 8a-9a. That theory, the court stated, “has it

backwards as a matter of basic separation of powers and

administrative law. The FCC may only take action that

Congress has authorized.” Ibid. (citing Utility Air

Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2445 (2014)).

Since the adoption of the 2014 Order, Commissioner Pai has

been designated Chairman, former Chairman Wheeler has left the

agency, and Brendan Carr has been confirmed as a Commissioner.

1

6

The court of appeals also rejected the FCC’s contention that the need to define the statutory term “prior

express invitation or permission” justified the Commission’s issuance of the rule. Pet. App. 9a (quoting

47 U.S.C. 227(a)(5)). The court explained that this term

merely defines “what it may take for a fax to be considered solicited rather than unsolicited,” and does not

provide authority for imposing additional requirements

on solicited fax advertisements. Id. at 9a-10a. Even if

the rule was “good policy,” the court added, that “does

not change the statute’s text,” which “does not grant the

FCC authority to require opt-out notices on solicited

faxes.” Id. at 10a.

Because the court of appeals found the rule unlawful,

it dismissed as moot the petitions challenging the FCC’s

retroactive waivers of that rule. Pet. App. 3a, 10a n.2

b. Judge Pillard dissented. Pet. App. 11a-19a. She

would have held that the rule was authorized by the

TCPA’s conferral of authority for the FCC to “prescribe regulations to implement” the statutory prohibition on sending fax ads absent the recipients’ “prior express invitation or permission.” Id. at 12a (quoting

47 U.S.C. 227(a)(5), (b)(2)). She would also have found

that the agency’s waivers of past violations were not

supported by good cause. Id. at 16a-19a.

c. Petitioners sought rehearing en banc. The court

of appeals denied the petition, with no member asking

for a vote. Pet. App. 85a.

ARGUMENT

Petitioners contend (Pet. 10-29) that the decision below is incorrect and conflicts with decisions of this Court

and other courts of appeals about “the meaning of statutory silence in the agency context.” Pet. 20. Whatever

the merits of the court of appeals’ decision, that ruling

7

does not warrant this Court’s review. Contrary to petitioners’ contention, the courts of appeals agree that the

import of “statutory silence”—i.e., Congress’s failure

explicitly to grant or to withhold authority for an agency

to exercise a specific power—cannot be determined on

the basis of any per se rule, but rather depends on the

larger statutory context.

The decision below is the only one to address the significance of the TCPA’s distinction between solicited

and unsolicited fax advertisements in determining the

agency’s authority to impose an opt-out notice requirement. Although that decision forecloses one basis for

agency action under a specific statute in a highly limited

area, it leaves open the possibility that the FCC could

promulgate the same rule under a different font of statutory authority. And even if the Court granted review

and ruled in petitioners’ favor on the question presented, petitioners might not achieve the practical result they seek, because the FCC granted retroactive liability waivers to respondents who violated the Commission’s rule. The limited practical consequences of a

decision in petitioners’ favor underscore the absence of

any need for this Court’s review.

1. Neither the reasoning nor the result of the court

of appeals’ decision conflicts with any decision of this

Court or of any other court of appeals. Petitioners’ contrary arguments lack merit.

a. Petitioners assert (Pet. 11) that the TCPA “does

not say anything one way or the other regarding

whether opt-out notices must or must not appear on fax

ads sent with prior express permission,” and that the

court of appeals’ decision “effectively rewrites * * *

step one” of Chevron U.S.A. Inc. v. Natural Resources

8

Defense Council, Inc., 467 U.S. 837 (1984), by “interpreting statutory ‘silence’ as a prohibition.” That argument reflects a misunderstanding of the court of appeals’ analysis, and of this Court’s decisions concerning

the import of so-called “statutory silence.”

In Chevron itself, this Court emphasized that the

“question whether Congress has directly spoken to the

precise question at issue”—that is, the Chevron step

one inquiry—can be answered only after “employing

traditional tools of statutory construction.” 467 U.S. at

842, 843 n.9; see, e.g., INS v. Cardoza-Fonseca, 480 U.S.

421, 446 (1987). Contrary to petitioners’ suggestion, the

absence of an express statutory statement “one way or

the other” on a specific issue, Pet. 11, does not necessarily mean that the statute as a whole is “silent or ambiguous with respect to” that issue, Chevron, 467 U.S.

at 843. Rather, inferences from statutory silence necessarily depend on “context.” Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 223 (2009). In many instances, a statute taken as a whole will unambiguously

grant or deny authority for an agency to take a particular step, even though no provision is specifically directed at that question. That is simply one application

of the interpretive principle that, in construing a particular statutory provision, a court should be cognizant of

the provision’s place in the larger statutory scheme.

See, e.g., Torres v. Lynch, 136 S. Ct. 1619, 1625-1626

(2016).

In some cases, “statutory silence, when viewed in

context, is best interpreted as limiting agency discretion.” Entergy, 556 U.S. at 223. In others, “silence is

meant to convey nothing more than a refusal to tie the

agency’s hands.” Id. at 222. For example, in Whitman

v. American Trucking Ass’ns, 531 U.S. 457 (2001), this

9

Court found that a provision of the Clean Air Act,

42 U.S.C. 7409(a), “interpreted in its statutory and historical context and with appreciation for its importance

to the [Act] as a whole, unambiguously bars” the Environmental Protection Agency from considering costs in

setting air quality standards, even though the provision

contains no explicit ban on the agency’s consideration of

costs. 531 U.S. at 471. In Entergy, by contrast, the

Court found, after “extended consideration” of a provision of the Clean Water Act, 33 U.S.C. 1326(b), that was

also silent on cost considerations, that the agency could

conduct a cost-benefit analysis in setting standards.

556 U.S. at 223; see Pet. 12-16 (identifying other cases

in which statutory context led this Court to conclude

that Congress had permitted an agency to regulate).

Contrary to petitioners’ assertion (Pet. 20), those results do not reflect “confusion over the meaning of statutory silence in the agency context.” At step one of

Chevron, courts must analyze a statute’s “text, its context, the structure of the statutory scheme, and canons

of textual construction” to determine whether the statute as a whole clearly grants or withholds authority for

the implementing agency to take a particular step. City

of Arlington v. FCC, 569 U.S. 290, 309 (2013) (Breyer,

J., concurring in part and concurring in the judgment).

The fact that different judges may reach different conclusions regarding the import of a particular statutory

scheme, compare Pet. App. 8a-10a (majority opinion)

with id. at 11a-16a (Pillard, J., dissenting), does not

mean that the courts of appeals disagree as to the basic

interpretive framework.

b. Petitioners do not assert that there is a circuit

conflict on the FCC’s authority to promulgate the spe-

10

cific rule at issue here. Indeed, no other court of appeals has decided that question. 2 Petitioners instead

contend that there is a circuit conflict on the general

question of “how to apply Chevron” in cases involving

statutory silence. Pet. 17. As explained above, that

claim lacks merit. Although the courts of appeals have

reached divergent conclusions regarding the import of

statutory silence in various circumstances, they have

consistently recognized that the appropriate inference

depends on the specific statutory context rather than on

any categorical rule. The decisions cited by petitioners

(Pet. 17-20) confirm that understanding.

In Alexander v. Trustees of Boston University,

766 F.2d 630 (1st Cir. 1985), the court of appeals upheld

a Department of Education requirement that students

exempt from military service must state whether they

have registered for the Selective Service in order to receive federal financial aid. Id. at 631. The court relied

on a detailed examination of “the statutory and regulatory context,” from which the court concluded that the

regulation was “reasonably related to the purposes of

the enabling legislation and can be said to have been

within Congress’s contemplation.” Id. at 632, 637; cf. id.

The Eighth Circuit has stated that “it is questionable whether

the regulation [at issue here] * * * properly could have been promulgated under the statutory section that authorizes a private cause

of action [i.e., Section 227(b)].” Nack v. Walburg, 715 F.3d 680, 682

(2013), cert. denied, 134 S. Ct. 1539 (2014). That court held, however, that it lacked jurisdiction to reach that issue under the Administrative Orders Review Act, 28 U.S.C. 2341 et seq., which requires

a challenge to the validity of a FCC regulation to be brought

through a petition for review from agency proceedings, not in a private damages action. Nack, 715 F.3d at 682.

2

11

at 646 (Breyer, J., dissenting) (concluding that the objecting students had complied substantially with the

regulation).

Other court of appeals decisions cited by petitioners

(Pet. 19) similarly upheld agency actions based on “textual and contextual evidence of congressional intent,”

not on statutory silence alone. See Bowman v. United

States, 564 F.3d 765, 771 (6th Cir. 2008) (citation omitted), cert. denied, 558 U.S. 815 (2009); see Graham

Eng’g Corp. v. United States, 510 F.3d 1385, 1389 (Fed.

Cir. 2007) (finding regulation valid because rule was

“reasonably related to the purposes of the enabling legislation”) (citation omitted); Janik Paving & Constr.,

Inc. v. Brock, 828 F.2d 84, 91 (2d Cir. 1987) (finding regulation valid because it was not “inconsistent with the

language or structure of the statute or its legislative

history”). Indeed, petitioners acknowledge that there

are “different possible inferences that a court may draw

from statutory silence.” Pet. 20; see ibid. (“Sometimes

[statutory] silence is meant to convey nothing more

than a refusal to tie the agency’s hands * * * [b]ut

sometimes statutory silence, when viewed in context, is

best interpreted as limiting agency discretion.”) (brackets in original) (quoting Oregon Rest. & Lodging Ass’n

v. Perez, 843 F.3d 355, 360 (9th Cir. 2016) (O’Scannlain,

J., dissenting from the denial of rehearing en banc)).

Courts of appeals thus reach different results in cases

involving statutory silence, not because they disagree

about the “meaning of statutory silence,” but because

they agree that the appropriate inference from silence

depends on context, which necessarily varies from statute to statute and from case to case. Ibid.

c. Petitioners are likewise wrong in arguing (Pet.

21-25) that, by erroneously applying “expressio unius

12

est exclusio alterius reasoning,” the court below created a conflict “between the D.C. Circuit * * * and the

Sixth, Seventh, Eighth, and Tenth Circuits.”

As an initial matter, this case is not an appropriate

vehicle for considering the interplay between Chevron

deference and the expressio unius canon, because the

court of appeals did not invoke that canon. The court

reasoned that the “FCC may only take action that Congress has authorized,” and that “Congress has not authorized the FCC to require opt-out notices on solicited

fax advertisements.” Pet. App. 8a-9a; cf. FDA v. Brown

& Williamson Tobacco Corp., 529 U.S. 120, 161 (2000).

Based in part on the fact that the statute requires

“[u]nsolicited fax advertisements [to] include an opt-out

notice,” the court concluded that Congress had drawn

“a line in the text of the statute between unsolicited

and * * * solicited fax advertisements.” Pet. App. 8a.

That reasoning relies on inferences from the statutory

text and structure, but it does not depend “entirely on a

[false] negative implication,” as petitioners assert. Pet.

21 (emphasis omitted).

In any event, there is no circuit conflict on the role of

the expressio unius canon in administrative-law cases.

“The force of any negative implication” argument, like

other inferences from statutory silence, “depends on

context.” NLRB v. SW Gen., Inc., 137 S. Ct. 929, 940

(2017) (citation omitted); see Entergy, 556 U.S. at 223.

In the decisions cited by petitioners (Pet. 21-22), the

courts of appeals rejected negative-implication arguments based on the specific statutory contexts in which

the disputes arose. None of those decisions conflicts

with the court of appeals’ analysis of the specific statutory context at issue here. And, contrary to petitioners’

suggestion (Pet. 24), the D.C. Circuit does not apply a

13

different understanding of the negative-implication

canon than do other courts of appeals. Indeed, in some

of the decisions cited by petitioners, other courts of appeals relied in part on D.C. Circuit precedents applying

the negative-implication canon. See Alliance for Cmty.

Media v. FCC, 529 F.3d 763, 779 (6th Cir. 2008) (citing

Cheney R.R. Co. v. ICC, 902 F.2d 66, 69 (D.C. Cir.), cert.

denied, 498 U.S. 985 (1990)), cert. denied, 557 U.S. 904

(2009); Ron Peterson Firearms, LLC v. Jones, 760 F.3d

1147, 1158 (10th Cir. 2014) (citing National Shooting

Sports Found., Inc. v. Jones, 716 F.3d 200, 211 (D.C.

Cir. 2013)).

2. The specific interpretive question presented in

this case—“whether Section 227(b) authorizes the optout notice requirement for solicited fax advertisements,” Pet. App. 8a n.1—is of slight practical importance. The decision below does not foreclose the

Commission from adopting a rule requiring opt-out notices on solicited fax advertisements pursuant to “any

other provision of the” Communications Act of 1934,

47 U.S.C. 151 et seq., such as the grant of general rulemaking authority contained in 47 U.S.C. 154(i). Pet.

App. 8a n.1. It is also unclear whether petitioners would

derive a practical benefit from a decision upholding the

FCC’s rule as a proper exercise of the Commission’s

Section 227(b) authority, because the Commission

granted retroactive waivers of liability to respondents

that sought such relief. See id. at 47a-55a; National

Ass’n of Broadcasters v. FCC, 569 F.3d 416, 426 (D.C.

Cir. 2009) (“[T]he Commission has authority * * * to

waive requirements not mandated by statute where

strict compliance would not be in the public interest.”).

Because the court of appeals vacated the FCC order

that required opt-out notices on solicited faxes, the

14

court did not determine the validity of those waivers.

Pet. App. 10a n.2. If this Court granted certiorari and

vacated the judgment below, the court of appeals might

hold on remand that those waivers are valid. Such a

holding would prevent petitioners from achieving the

practical result that they seek—i.e., recovering damages from defendants who received waivers of the regulatory requirement at issue in this case. The limited

practical significance of the court of appeals’ decision

further counsels against this Court’s review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

THOMAS M. JOHNSON, JR.

General Counsel

DAVID M. GOSSETT

Deputy General Counsel

JACOB M. LEWIS

Associate General Counsel

MATTHEW J. DUNNE

Counsel

Federal Communications

Commission

JANUARY 2018

NOEL J. FRANCISCO

Solicitor General