Petitioners Brief — PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., 139 S. Ct. 1307 (2019) (No. 17-1705)

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No. 17-1706

IN THE

Supreme Court of the United States

PDR NETWORK, LLC, et ai.,

Petitioners,

CARLTON & HARRIS CHIROPRACTIC, INC.,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

BRIEF FOR PETITIONERS

JEFFREY N. ROSENTHAL CARTER G. PHILLIPS *

BLANK ROME LLP KWAKU A. AKOWUAH

130 N. 18th Street DANIEL J. FEITH

Philadelphia, PA 19103 Kurt A. JOHNSON

(215) 569-5553 SIDLEY AUSTIN LLP

1501 K Street, N.W.

ANA TAGVORYAN Washington, D.C. 20005

BLANK ROME LLP (202) 736-8000

2029 Century Park East cphillips@si .com

6th Floor

Los Angeles, CA 90067

(424) 239-3400

Counsel for Petitioners

January 8, 2019 * Counsel of Record

QUESTION PRESENTED

Whether the Hobbs Act required the district court in

this case to accept the FCC’s legal interpretation of the

Telephone Consumer Protection Act.

(i)

‘i

PARTIES TO THE PROCEEDING

AND CORPORATE DISCLOSURE STATEMENT

Petitioners are PDR Network, LLC, PDR Distribu-

tion, LLC, and PDR Equity, LLC. Each Petitioner be-

longs to a corporate family of entities dedicated to de-

livering health knowledge products and services that

support drug prescribing decisions and patient adher-

ence to medication regimes to improve health. PDR

Network, LLC, and PDR Distribution, LLC, are wholly

owned subsidiaries of PDR, LLC. PDR Equity, LLC, is

a wholly owned subsidiary of PSKW Holdings, LLC.

No publicly held corporation holds 10% or more of any

petitioner's stock.

Respondent Carlton & Harris Chiropractic, Inc., is a

chiropractic medical office located in West Virginia

that delivers healthcare services.

TABLE OF CONTENTS

QUESTION PRESENTED ...................ccccceceeeeeeees

PARTIES TO THE PROCEEDING AND COR-

PORATE DISCLOSURE STATEMENT...........

TABLE OF AUTHORITIES .......................-220-0000

BRIEF FOR PETITIONERS .........0...0........0.0--e00000

IUD ccckictctnuninncnteensstescimecpninsininan

Fe itertnescnitntetnatimnantictnniniimnnnenn

STATUTORY PROVISIONS INVOLVED...........

STATEMENT OF TI. CASE.........................---+.

A. Statutory And Regulatory Background ...

1. The Telephone Consumer Protection

8 eee

B. Factual Background And Proceedings Be-

I. THE HOBBS ACT DOES NOT PRECLUDE

A DISTRICT COURT FROM DECIDING

LEGAL QUESTIONS IN TCPA ENFORCE-

MENT SUITS BETWEEN PRIVATE PAR-

A. The Hobbs Act Solely Addresses Suits

Against The Government Seeking Equi-

table Or Declaratory Relief From Unlaw-

ee PTI TTI ccccecttccastnsersienertsininen

eS S| — << :

TABLE OF CONTENTS—continued

B. The Administrative Procedure Act Con-

firms That A Defendant Generally May

Challenge Agency Action In A Judicial

D. The Fourth Circuit’s Interpretation Of

The Hobbs Act Raises Grave Constitu-

tional Concerns That Can And Should Be

1. The Fourth Circuit’s Interpretation

Raises Grave Due Process Con-

\ Seen taceraee Ot Gemaes

Il. ALTERNATIVELY, THE DISTRICT

COURT WAS NOT REQUIRED TO AC-

CEPT THE FCC’S INTERPRETATION IN

THIS CASE BECAUSE THE AGENCY

STATEMENTS AT ISSUE ARE NOT BIND-

ING ON THE COURTS OR ANY PRIVATE

Page

TABLE OF AUTHORITIES

CASES Page

ACA Intl v. FCC, 885 F.3d 687 (D.C. Cir.

ETE SEC ne See ee ne Sn eee 38

Adamo Wrecking Co. v. United States, 434

Ee ee ee 28, 41

lan Power Co. v. EPA, 208 F.3d

EG 45

Ass'n of Flight Attendants-CWA v. Huerta,

785 F.3d 710 (D.C. Cir. 2015) .................... 48

AT&T Mobility LLC v. Concepcion, 563 U.S.

B&B Hardware, Inc. v. Hargis Indus., Inc.,

136 BS. Ce. 19BB CRBIG).......cccccccccccceseccscesseses 40

Bais Yaakov of Spring Valley v. FCC, 852

F.3d 1078 (D.C. Cir. 2017), cert. denied,

138 B. Ce. 1048 GRBIGD)......ccccccccecccccececeseoeees 37

Bank Markazi v. Peterson, 136 S. Ct. 1310

ASR See eee 42, 43

Batterton v. Francis, 432 U.S. 416 (1977) ..... 47

Blonder-Tongue Labs., Inc. v. Univ. of Ili.

Found., 402 U.S. 313 (1971) ...................... 41

Bowen v. Georgetown Univ. Hosp., 488 U.S

Re iintcerntceterrenntnteninceininmiancnintipniaiens 37

Bowen v. Mich. Acad. of Family Physicians,

476 U.S. G67 (1986) 2... cc cece eneeeeeeeeeees 35

Bridgeview Health Care Ctr., Ltd. v. Clark,

816 F.3d 935 (7th Cir. 2016)...................... 4, 38

Calderon v. Ashmus, 523 U.S. 740 (1998)... 21

CE Design, Lid. v. Prism Bus. Media, Inc.,

606 F.3d 443 (7th Cir. 2010)...................... 20

Chevron, U.S.A., Inc. v. Nat. Res. Def. Coun-

cil, Inc., 467 U.S. 837 (1984)...................... 47

Chrysler Corp. v. Brown, 441 U.S. 281

TABLE OF AUTHORITIES—continued

Page

GR Be iatreiterscensvsennisiannsnmtenseumesnnsmenesenes 41

Clark v. Martinez, 543 U.S. 371 (2005) ........ 45

Columbia Broad. Sys., Inc. v. United States,

ee iiinicnicnicnciiintinateneatinions 46

In re Core Commce’ns, Inc., 531 F.3d 849

ECC a ane 37

Council Tree Inv’rs, Inc. v. FCC, 739 F.3d

EE 25

Creative Montessori Learning Ctrs. v. Ash-

ford Gear LLC, 662 F.3d 913 (7th Cir.

Feit inccsuiecieianennicsenniasensicinistinlinni niin basrsestanes 4

Crowell v. Benson, 285 U.S. 22 (1932).......... 44

Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597

Edwards v. Oportun, Inc., 193 F. Supp. 3d

1096 (N.D. Cal. 2016)....................cccccceeeee- 37

EEE ae ec en 30, 31

Flockhart v. Synchrony Bank, 2017 WL

3276266 (N.D. lowa Aug. 1, 2017)............. 38

Freeman v. Quicken Loans, Inc., 566 U.S.

ee 27, 29

Gage v. U.S. Atomic Energy Comm'n, 479

F.2d 1214 (D.C. Cir. 1973)........................- 28

Gray v. N.M. Military Inst., 249 F.2d 28

eee 21

SR See itesctesinicttincnssiensntecesinennesnninnsmmisanneanes 8

vii

TABLE OF AUTHORITIES—continued

Page

Hall v. Merck, Sharp & Dohme, 774 F. Supp.

Sy SN, Ci ccterncternsemscssermpumpeipinniens 8

Hofer v. Synchrony Bank, 2015 WL2374696

(E.D. Mo. May 18, 2015) ............................ 38

ICC v. Bhd. of Locomotive Eng’rs, 482 U.S.

Tianna adincichensiesciitinaibeiasindtatensnuaiasicineniin 24, 36

Ill. Cent. Gulf R.R. v. ICC, 720 F.2d 958 (7th

RR Be ititatnstitisrrrnenesntremmnecanitanninieiinginies 26, 27

Kawaauhau v. Geiger, 523 U.S. 57 (1998).... 34

Lathrop v. Uber Techs., Inc., 2016 WL. 97511

8 Ge ee 38

Leyse v. Clear Channel Broad., Inc., 545 F.

App’x 444 (6th Cir. 2013) 0.00.00... ccccceceeee 35

McDonnell v. United States, 136 S. Ct. 2355

SALE CE ae 20, 35

Nat. Res. Def. Council v. Nuclear Regulatory

Comm'n, 666 F.2d 595 (D.C. Cir. 1981)... 25

Nat'l Ass'n of Mfrs. v. Dep't of Def., 138 S. Ct.

Nelson v. Sandoz Pharm. Corp., 288 F.3d

TABLE OF AUTHORITIES—continued

Page

N.J. Dep't of Envtl. Prot. & Energy v. Long

Island Power Auth., 30 F.3d 403 (3d. Cir.

Sill cénindctinhiidesnisiieneniciineiiidiinatiatiiatinaiadniidilaatiatiaian 26

PAK. Transp., Inc. v. United States, 613

F.2d 351 (let Cir. 1980) .....................00--222- 26

Parklane Hosiery Co. v. Shore, 439 U.S. 322

Pereira v. Sessions, 138 S. Ct. 2105 (2018).. 22

Perez v. Mortg. Bankers Ass'n, 135 S. Ct.

0 ESE nen 45, 46, 47

In re Pesticide Action Network N. Am., 798

F.3d 809 (9th Cir. 2015)........................2.. 37

Physicians Healthsource, Inc. v. Boehringer

Ingelheim Pharm., Inc., 847 F.3d 92 (2d

BT sci cestinsaistsicmrcinanianenenbiitansemmtanal 26, 27

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211

EE ee eee 43

Port of Bos. Marine Terminal Ass'n v.

Rederiaktiebolaget Transatlantic, 400 U.S.

ST isinnisthient tdinichinnieitenientinaiapilimngiinansisiin 29, 30

Richards v. Jefferson Cty., 517 U.S. 793

TTT iccensistiasanei ices thi caicilintadiciaiamiaaialaatinatine ts 41

Roberts v. Sea-Land Servs., Inc., 566 U.S. 93

0 Se oe 22

Ry. Mail Ass’n v. Corsi, 326 US. 88

i ilesirniaieniasetneeasititneiipiaiiateaiinbinieniamedeunats 21

Sandusky Wellness Ctr., LLC v. Medco

Health Sols., Inc., 788 F.3d 218 (6th Cir.

RSS eee ee esas 26, 47

Schenebeck v. Sterling Drug, Inc., 423 F.2d

919 (th Cir. 1970) ......................cccececeeeeeees 8

SEC v. Alpine Secs. Corp., 308 F. Supp. 3d

FM icetiecitnrsicdindpnnnsinesettnnnansien 32

Setser v. United States, 566 US. 231

TABLE OF AUTHORITIES—continued

Page

Shalala v. Guernsey Mem’ Hosp., 514 U.S.

SEF SEE crscesstentuiadinndegntmennnaebitntineinan 19

Simmons v. ICC, 716 F.2d 40 (D.C. Cir.

SS arene 15, 25

St. Joseph Stock Yards Co. v. United States,

298 U.S. 38 (1936)...............cccccecceeeeeeeeeeeeees 44

Taylor v. Sturgell, 553 U.S. 880 (2008) ........ 40

Telecomms. Research & Action Ctr. v. FCC,

750 F.2d 70 (D.C. Cir. 1984) ...................... 37

Tenn. Pub. Serv. Comm’n v. ICC, 921 F.2d

Be ey Be cctkeecsabccasdnccsesnsesccsesssesens 26

Texas v. United States, 749 F.2d 1144 (5th

EE eee 27

Thomas v. Union Carbide Agric. Prods. Co.,

473 U.S. 568 (1985) .................cccccccceeeeeeeeees 44

Tri-State Motor Transit Co. v. ICC, 739 F.2d

1373 (8th Cir. 1984) ...0..0........ccccccccccee ee eeeee 27

U.S. Natl Bank of Or. v. Indep. Ins. Agents

of Am., Inc., 508 U.S. 439 (1993) ............... 22

United States v. Azmat, 805 F.3d 1018 (11th

Ea ee ae een 8

United States v. Klein, 80 U.S. (13 Wall.) 128

STITT otstinrrseisniernentinhaaianilalataaincaipasnasatancaatnsinahiliniiasiiaites 43

United States v. O'Hagan, 521 U.S. 642

SER Se ee 32

United States v. Picciotto, 875 F.2d 345 (D.C.

EE ee a ee 48

United States v. Pitt-Des Moines, Inc., 970 F .

Supp. 1346 (N.D. IIL 1997)........................ 32

Viet. Veterans of Am. v. Sec’y of the Navy, 843

F.2d 528 (D.C. Cir. 1988)........................... 46

Weaver v. Fed. Motor Carrier Safety Admin.,

744 F.3d 142 (D.C. Cir. 2014).................... 27

TABLE OF AUTHORITIES—continued

Page

Whirlpool Corp. v. Marshall, 445 U.S. 1

SII nintsiiiinbiilgniadnenndtadiinipetiebnennsibdesinmrmenion 32

Wind River Mining Corp. v. United States,

946 F.2d 710 (9th Cir. 1991)...................... 27

Yakus v. United States, 321 U.S. 414

SITE sccodedndeteneudermncediapenbeanaebseresnseesetebersiets 43

STATUTES AND REGULATIONS

Administrative Orders Review Act, Pub. L.

No. 81-901, 64 Stat. 1129 (1950) ............... 6

Telephone Consumer Protection Act of 1991,

Pub. L. No. 102-243, 105 Stat. 2394.......... 3

Junk Fax Prevention Act of 2005, Pub. L.

No. 109-21, 119 Stat. 359...........00.....000...... A

Oe atiiedeniencciacinbcinstescanesecsetsocenses passim

iti intintitiirsiinpentianinarsntuesennientivis 32

I iaicacninclinatien tinea nienithneraieeete 32

EERE ee ee ee 32

SE eee sided 32

ee iitiininkanniinccsnenistricrnnnseemers 1

Ee eee 3

I alii ata ceeantliniceesiassatiiania 21

SS ee 1

Ee 7, 13, 23

Sab iiencendetiessubantieineipneiieseauianoniiniaide 6, 22

dai steahaacibclentadaientaiion 6, 14, 15, 23

EES Ne eae com AON 6

I iiccatiatitianinaiasnainipnsintannalianintds 14

ae 7, 14, 22

RB FS ea eo 31

TS ae eee 31

TABLE OF AUTHORITIES—continued

Page

TA nin scnccisncntncnaesniioninateatons 34

ee irtnktcnictcvstanntienninmnentsinenens 7

eee 34

titers i aaliteiiclameeinichnittin 34

Ge iiidtientesectiencnmeet 1, 4, 49

a asi sas ca cadncdnianpabaaiienh 4, 28

| Ee a 7, 23, 49

Ea nr 36

ke EE ee 36

§ 64.1200(f(8) (2006) .............0...... 49

71 Fed. Reg. 25,967 (May 3, 2006)................ 5

ADMINISTRATIVE DECISIONS

Rules & Regulations Implementing the Tel.

Consumer Prot. Act of 1991, 30 FCC Red.

7961 (2015), vacated in part, ACA Int'l v.

FCC, 885 F.3d 687 (D.C. Cir. 2018)........... 4

Rules & Regulations Implementing the Tel.

Consumer Prot. Act of 1991, 29 FCC Red.

13998 (2014), vacated sub nom. Bais Yaa-

kov of Spring Valley v. FCC, 852 F.3d 1078

(D.C. Cir. 2017), cert. denied, 138 S. Ct.

1043 CRBIG) GUAGE. )........00cccccccceccccccvcsccceceees 36

Rules & Regulations Implementing the Tel.

Consumer Prot. Act of 1991, 21 FCC Red.

ERPS ESS RS SES Cee 5, 6, 48, 49

SCHOLARLY AUTHORITY

Henry M. Hart, Jr., The Power of Congress

to Limit the Jurisdiction of Federal Courts:

An Exercise in Dialectic, 66 Harv. L. Rev.

PETTITTE icinnsenidntelindnddndaiianepentbinntiieicnbitiion 43

xii

TABLE OF AUTHORITIES—continued

OTHER AUTHORITIES Page

Fed. R. Civ. P. 23(f) advisory committee's

note to 1998 amendment ........................... 38

Frequently Asked Questions About Drugs,

U.S. Food & Drug Admin., https://www.

fda.gov/aboutfda/centersoffices/officeof

medicalproductsandtobacco/cder/ucm

082690.htm (last updated Nov. 27,

III crlicsieatinntenioinicsitininidusieatidliniiabiasieiinnangibennpedes 7

Set Aside, Black’s Law Dictionary (10th ed

| ERR IS TE SEAS i Rn Re 21

16 Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure (3d ed.

SI Aicinendictctlidechdnaniemadesnphadepincnethienindemetalstaiiietaate 6

BRIEF FOR PETITIONERS

Petitioners PDR Network, LLC, et al. (collectively,

“PDR”), respectfully request that this Court reverse

the judgment of the U.S. Court of Appeals for the

Fourth Circuit.

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la—

31a) is reported at 883 F.3d 459. The unpublished

opinion and order of the district court (Pet. App. 32a—

43a) are available at 2016 WL 5799301.

JURISDICTION

The judgment of the court of appeals was entered on

February 23, 2018. Petitioner timely sought rehearing

en banc, which was denied on March 23, 2018. The pe-

tition for a writ of certiorari was filed on June 21, 2018,

and granted on November 13, 2018. This Court has ju-

risdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The statutory provisions principally involved are the

Hobbs Act (28 U.S.C. §§ 2341-2351), Section 10(b) of

the Administrative Procedure Act (5 U.S.C. § 703), and

the provision of the Telephone Consumer Protection

Act that defines the term “unsolicited advertisement”

(47 U.S.C. § 227(a)(5)). The pertinent text of these pro-

visions is set out in the appendix to the brief.

STATEMENT OF THE CASE

PDR’s position in this case proceeds from a simple

and natural premise. When Congress vests an Article

III court with power to impose liability for an alleged

statutory violation, Congress ordinarily intends also to

vest that court with the power to decide the meaning

of the statute at issue.

The decision below proceeds from the opposite prem-

ise. It takes the Hobbs Act (the “Act”)}—an ordinary

agency review statute, which even the Fourth Circuit

recognized to be “nothing unique,” Pet. App. 8a (inter-

nal quotation marks omitted)—and reads it to “specif-

ically strip[] jurisdiction from the district courts” to

consider dispositive statutory questions because an

agency has previously weighed in on those questions.

Pet. App. 8a. The court of appeals thus treated the

Hobbs Act as though it gives agencies, rather than

courts, the final word as to what federal law means.

The Fourth Circuit was wrong to ascribe such revo-

lutionary meaning to a statute as ordinary as the

Hobbs Act. That statute is one of many that establish

what the Administrative Procedure Act (“APA”) calls

“special statutory review proceeding{s].” 5 U.S.C.

§ 703. There is variety across these provisions, but in

broad strokes they serve to route judicial actions seek -

ing equitable or declaratory relief from unlawful

agency action to specified courts. They do not go the

further step, however, of prohibiting all other courts

from considering whether to apply an agency’s inter-

pretation of a statute in cases that do not seek relief

against the government and that are properly before

those courts.

Correctly construed, the Hobbs Act has a limited and

sensible reach. Where applicable, it gives the courts of

appeals exclusive jurisdiction over just one kind of pro-

ceeding: suits against the United States brought to ob-

tain injunctive or declaratory relief from agency ac-

tion. No other kind of proceeding is mentioned in the

Hobbs Act. There is thus no reason to read the Act to

give the courts of appeals a monopoly over all judicial

review of agency orders, even where no relief is sought

against any federal agency, officer, or employee.

Moreover, a host of considerations strongly counsel

against the Fourth Circuit’s radical readins,. Under

that reading, the Hobbs Act would conflict with the

presumption in favor of the reviewability of agency ac-

tion, with a key provision of the APA embodying that

presumption, see 5 U.S.C. § 703, and with constitu-

tional avoidance principles, given the grave due pro-

cess and separation of powers questions raised by the

Fourth Circuit's construction. The better course, by

far, is to treat the Hobbs Act as the conventional

agency review statute that it is, and thus to hold that

the Act merely confers original jurisdiction over cer-

tain equitable or declaratory actions against the gov-

ernment on the courts of appeals. It says nothing about

other actions, like this one, properly brought in district

court, and therefore does not interfere with the district

court’s authority, pursuant to its own “original juris-

diction [over] all civil actions arising under the Consti-

tution, laws, or treaties of the United States,” 28 U.S.C

§ 1331, to decide the legal questions at the core of those

actions.

A. Statutory And Regulatory Background

1. The Telephone Consumer Protection

Act

The Telephone Consumer Protection Act of 1991

(“TCPA”) prohibits the use of “any telephone facsimile

machine” to “send an unsolicited advertisement” to an-

other “telephone facsimile machine.” Pub. L. No. 102-

243, sec. 3(a), § 227(b)(1)(C), 105 Stat. 2394, 2396 (cod-

ified as amended at 47 U.S.C. § 227(b)(1)(C)). The

TCPA defines an “unsolicited advertisement” as “any

material advertising the commercial availability or

quality of any property, goods, or services which is

transmitted to any person without that person’s prior

express invitation or permission, in writing or other-

wise.” 47 U.S.C. § 227(a)(5). The TCPA creates a pri-

vate right of action for “violation[s] of [the TCPA] or

the regulations prescribed [thereunder].” /d.

§ 227(b)(3). In these private enforcement suits, each

individual TCPA infraction may be punished by a $500

per violation penalty, which may be trebled if the vio-

lation was made “willfully or knowingly.” Jd. As many

courts have observed, this statutory damages provi-

sion has made the TCPA a magnet for litigation. Many

businesses that “have never heard of this obscure stat-

ute” face “very heavy penalties” for violations. Creative

Montessori Learning Ctrs. v. Ashford Gear LLC, 662

F.3d 913, 916 (7th Cir. 2011); see also Bridgeview

Health Care Ctr., Ltd. v. Clark, 816 F.3d 935, 941 (7th

Cir. 2016) “We doubt that Congress intended the

TCPA, which it crafted as a consumer-protection law,

to become the means of targeting small businesses. Yet

in practice, the TCPA is nailing the little guy ....”);

Rules & Regulations Implementing the Tel. Consumer

Prot. Act of 1991, 30 FCC Red. 7961, 8073 (2015) (Com-

missioner Pai, dissenting) (“[T]he TCPA has become

the poster child for lawsuit abuse, with the number of

TCPA cases filed each year skyrocketing from 14 in

2008 to 1,908 in the first nine months of 2014.”), va-

cated in part, ACA Intl v. FCC, 885 F.3d 687, 693 (D.C.

Cir. 2018).

The TCPA directs the Federal Communications

Commission (“FCC” or “Commission”) to “prescribe

regulations to implement the requirements” of the

statute. 47 U.S.C. § 227(b)(2). In 2006, pursuant to

this responsibility, the Commission issued the order at

the center of this case. For the most part, the order

amended certain rules in light of changes to the TCPA

made by the Junk Fax Prevention Act of 2005. See Pub.

L. No. 109-21, 119 Stat. 359 (codified as amended at

47 U.S.C. § 227). Those amendments are not relevant

here. What is relevant is that in issuing the order, the

Commission also “tlook] the opportunity to address

certain issues raised in petitions for reconsideration”

of a 2003 FCC order concerning the TCPA’s facsimile

advertising rules. See Report and Order and Third Or-

der on Reconsideration: Rules & Regulations Imple-

menting the Tel. Consumer Prot. Act of 1991, 21 FCC

Red. 3787, 3788 (2006) (“2006 Order”).' Those issues

included the proper application of the TCPA’s defini-

tion of “unsolicited advertisement” to “offers for free

goods and services and informational messages.”

With respect to that subject, the 2006 Order states

that unsolicited “facsimile messages that promote

goods or services even at no cost, such as free magazine

subscriptions, catalogs, or free consultations or semi-

nars, are unsolicited advertisements under the TCPA’s

definition.” Jd. at 3814. The order observes that, “[i}n

many instances, ‘free’ seminars serve as a pretext to

advertise commercial products and services,” and

“free” publications likewise “are often part of an over-

all marketing campaign to sell property, goods, or ser-

vices.” Id.

At the same time, the 2006 Order states that “fac-

simile communications that contain only information,

such as industry news articles, legislative updates, or

employee benefit information, would not be prohibited

by the TCPA rules,” and that “[a]n incidental adver-

' A “summary” of the 2006 Order was subsequently published

in the Federal Register. See Rules and Regulations Implementing

the Telephone Consumer Protection Act of 1991; Junk Fax Pre-

vention Act of 2005, 71 Fed. Reg. 25,967, 25,973 (May 3, 2006).

The Fourth Circuit referred to that summary as the “2006 FCC

Rule.” Pet. App. 5a.

tisement contained in such a newsletter does not con-

vert the entire communication into an advertisement.”

Id. The order then sets forth a number of factors the

Commission “will consider” in determining whether an

advertisement is incidental to an “informational com-

munication.” /d. at 3814 n.187. Importantly, the order

provides that the Commission “will review such news-

letters on a case-by-case basis” to determine if their

“primary purpose is informational, rather than to pro-

mote commercial products.” /d. at 3814-15 (emphasis

added).

2. The Hobbs Act

The Administrative Orders Review Act, better

known as the Hobbs Act, establishes a mechanism four

direct judicial review of certain final orders from sev-

eral agencies, including the FCC. Pub. L. No. 81-901,

64 Stat. 1129 (1950) (codified as amended at 28 U.S.C.

§§ 2341-2351); see generally 16 Charles Alan Wright

& Arthur R. Miller, Federal Practice and Procedure

§ 3941 (3d ed. 1998) (noting that the Hobbs Act is part

of “a startling array of specific statutory provisions”

that “establish court of appeals jurisdiction to review

actions of agencies”).

The Act outlines how a proceeding for direct review

must be brought and conducted, and specifies what re-

lief may be granted to a prevailing party. To obtain di-

rect review, a “party aggrieved” by an order must peti-

tion within 60 days of the order’s entry. 28 U.S.C.

§ 2344. “The action shall be against the United

States,” id., and must be brought in the “judicial cir-

cuit in which the petitioner resides or has its principal

office,” or in the D.C. Circuit, id. § 2343. The record

generally comprises any “proceedings before the

agency,” id. § 2347(a), and the court of appeals “has

exclusive jurisdiction to make and enter ... a judg-

ment determining the validity of, and enjoining, set-

ting aside, or suspending, in whole or in part, the order

of the agency,” id. § 2349(a).

Section 2342 of the Act explains which agency ac-

tions are subject to direct review. As to the FCC, it pro-

vides that “[t]he court of appeals . . . has exclusive ju-

risdiction to enjoin, set aside, suspend (in whole or in

part), or to determine the validity of. . . all final orders

of the Federal Communications Commission made re-

viewable by section 402(a) of title 47.”2 Id. § 2342. Sec-

tion 402(a), in turn, provides that, with certain excep-

tions not relevant here, “[a]ny proceeding to enjoin, set

aside, annul, or suspend any order of the Commission

. shall be brought as provided by and in the manner

prescribed in chapter 158 of Title 28,” i.e., the Hobbs

Act. 47 U.S.C. § 402(a).

B. Factual Background And Proceedings Be-

low

PDR is the publisher of the Physicians’ Desk Refer-

ence, the nation’s leading compendium of prescribing

information for prescription drugs. Pet. App. 3a. As the

Food and Drug Administration has observed, the Phy-

sician’s Desk Reference compiles and reprints the “drug

labeling, or package insert, that accompanies drug

products,” which the FDA regards as “the most com-

plete single source of information on the drug.”* The

2 The Hobbs Act also applies to certain actions of the Secretary

of Agriculture, Secretary of Transportation, Federal Maritime

Commission, Nuclear Regulatory Commission, and Secretary of

Housing and Urban Development, and to all final orders issued

by the Surface Transportation Board. See 28 U.S.C. § 2342(2)-{7);

42 U.S.C. § 5841(@ (transferring regulatory authority from

Atomic Energy Commission to Nuclear Regulatory Commission).

® See Frequently Asked Questions About Drugs, U.S. Food &

Drug Admin, https:/Awww. fda gov/aboutfda/centersoffices/office

Physicians’ Desk Reference has been aptly described as

“a publication generally available to all doctors and

utilized by drug companies to inform the medical pro-

fession of the characteristics, uses and side effects of

drugs.” Schenebeck v. Sterling Drug, Inc., 423 F.2d

919, 921 (8th Cir. 1970); see also, e.g., Mutual Pharm.

Co. v. Bartlett, 570 U.S. 472, 478 (2013) (citing Physi-

cians’ Desk Reference as a source describing a rare but

serious side effect of nonsteroidal anti-inflammatory

pain relievers); Nelson v. Sandoz Pharm. Corp., 288

F.3d 954, 959 (7th Cir. 2002) (Physicians’ Desk Refer-

ence “provides information concerning the uses and

side effects of numerous prescription drugs”). Publica-

tion of this information in the Physicians’ Desk Refer-

ence helps ensure that healthcare professionals are ad-

equately warned of possible side effects and can make

informed prescribing decisions for their patients. See,

e.g., Guevara v. Dorsey Labs., 845 F.2d 364, 366 (ist

Cir. 1988) (noting that inclusion of warning in Physi-

cians’ Desk Reference meant that defendant “unques-

tionably did warn of [a particular] hazard”); Hall v.

Merck, Sharp & Dohme, 774 F . Supp. 604, 606 (D. Kan.

1991) (holding that information in Physicians’ Desk

Reference was sufficient to warn physician of side ef-

fects for purposes of learned intermediary doctrine);

see also United States v. Azmat, 805 F.3d 1018, 1042

(11th Cir. 2015) (affirming denial of Daubert motion

where challenged medical expert based his opinions

regarding “the prescribing practices of other physi-

cians” on the Physicians’ Desk Reference).

PDR distributes the Physicians’ Desk Reference to

doctors and other healthcare professionals without

charge. Pet. App. 35a. It sells neither the book nor any

pharmaceutical products listed therein. Pet. App. 35a.

ofmedicalprod uctsandtobacco/cder/ucm082690 htm (last updated

Nov. 27, 2015).

PDR’s revenue comes from fees pharmaceutical com-

panies pay to include their drug labels in the compen-

dium. Pet. App. 3a.

In 2013, PDR launched a digital “eBook” version of

the Physicians’ Desk Reference. To announce the

eBook’s availability, PDR sent a fax to healthcare pro-

fessionals. One of the parties to receive the fax was re-

spondent Carlton & Harris Chiropractic, Inc., a West

page fax was addressed to the recipient's “Practice

Manager,” and the subject line read “FREE 2014 Phy-

sicians’ Desk Reference eBook — Reserve Now.” Pet.

App. 3a. The fax invited the recipient to visit PDR’s

website and reserve an eBook copy of the coming year’s

edition of the Physicians’ Desk Reference. Pet. App. 3a.

The fax noted that the eBook contained the “[sjame

trusted, FDA-approved full prescribing information”

as the physical version, but in a “convenient digital for-

mat.” Pet. App. 3a—4a (alteration in original). At the

cause you are a member of the PDR Network,” and pro-

vided instructions on how the recipient could “opt-out

of delivery.” Pet. App. 5la (reproduction of fax); see

Pet. App. 4a.

In November 2014, Carlton & Harris filed a putative

class action, claiming that PDR’s fax was an “unsolic-

ited advertisement” sent in violation of the TCPA. Pet.

App. 4a; Pet. App. 33a. PDR moved to dismiss, arguing

that its December 2013 fax was not an “unsolicited ad-

vertisement” under the TCPA. Pet. App. 36a. PDR fur-

ther contended that the FCC's interpretation of “unso-

licited advertisement” in the 2006 Order was con-

sistent with PDR’s understanding of the statute. Pet.

App. 39a.

The district court agreed with PDR and dismissed

the case. Examining principally the text of the TCPA,

the court explained that the TCPA defines “unsolicited

advertisement” as “any material advertising the com-

mercial availability or quality of any property, goods,

or services,” Pet. App. 36a—37a (quoting 47 U.S.C.

§ 227(b)(1)(C), (a)(5)), and that PDR’s fax did not fit

this definition because the Physicians’ Desk Reference

is not “bought or sold,” and thus is not “commercially

available,” Pet. App. 36a—37a (internal quotation

marks omitted). The district court also noted that

PDR’s fax did not have a “commercial aim” because it

only “offers, for free, a reference book” that PDR does

not sell, containing “information about prescription

drugs” that PDR also does not sell. Pet. App. 38a.

Thus, the court held, the “essential commercial ele-

ment of an advertisement [wa]s missing from the fax.”

Pet. App. 38a.

The district court then addressed Carlton & Harris's

argument that the Commission’s 2006 Order conclu-

sively resolved the dispute in its favor. First, the dis-

trict court held that the Hobbs Act did not require it to

adopt the 2006 Order because neither party had “chal-

lenged the validity” of the 2006 Order, Pet. App. 39a—

PDR, after all, argued that the 2006 Order, properly

construed, supported its contention that its conduct

complied with the TCPA, see Pet. App. 24a; see also

Defendants’ Memorandum of Law in Support of Mo-

tion to Dismiss at 10-12, Carlton & Harris Chiroprac-

tic, Inc. v. PDR Network, LLC, No. 3:15-cv-14887 (S.D.

W. Va. Feb. 5, 2016), ECF No. 19. Second, the district

court determined that the TCPA’s definition of “unso-

licited advertisement” was “unambiguous,” and that

the court accordingly was bound to apply that defini-

tion. Pet. App. 39a—40a. Finally, the court held that

the interpretation set forth in the 2006 Order did not

support Carlton & Harris's claim, but instead was

“harmonfious]” with the unambiguous meaning of the

TCPA. Pet. App. 41a. As the court explained, the 2006

Order, “carefulfly] read[],” encompasses only offers of

a “commercial nature,” Pet. App. 40a, such as offers for

free goods or services that are “part of an overall mar-

keting campaign to sell property, goods, or services” or

are a “pretext for a commercial transaction that will

inevitably follow the fax,” Pet. App. 41a (quoting 21!

FCC Red. at 3814). The court recognized that reading

“the FCC’s guidance as a blanket ban on any fax that

offers a free good or service without any commercial

aspects ... strips essential meaning from the TCPA.”

Pet. App. 42a—43a. Because PDR’s fax had no such

commercial aspects, the district court held that it was

not an “unsolicited advertisement” under the 2006 Or-

der, properly construed. Pet. App. 42a.

In a divided decision, the Fourth Circuit reversed. It

first held that the district court erred by relying on the

text of the TCPA to determine whether PDR’s fax was

an “unsolicited advertisement.” According to the

Fourth Circuit, the Hobbs Act “precluded the district

court” from taking this step—and likewise barred PDR

from raising any defense based on the language of the

statute—by conferring on the courts of appeal “exclu-

sive jurisdiction’ to ‘enjoin, set aside, suspend (in

whole or in part), or to determine the validity of the

orders to which it applies.” Pet. App. 7a (quoting 28

U.S.C. § 2342(1)). The Fourth Circuit read this lan-

guage to “strip[]” the district court of “jurisdiction” to

consider whether the interpretation of the TCPA of-

fered by the FCC in the 2006 Order was valid, and in-

stead to require the district court to “adopt the 2006

FCC Rule.” Pet. App. 8a. The Fourth Circuit held that

it made no difference that the “district court did not

specifically invalidate the 2006 FCC Rule.” Pet. App.

10a.

Turning to the proper interpretation of the 2006 Or-

der, the Fourth Circuit then rejected the district

court's view—as informed by the TCPA’s text, Pet.

App. 42a—that the order requires a fax to have a “com-

mercial aim” to qualify as an “unsolicited advertise-

ment.” Pet. App. 13a. Instead, the Fourth Circuit held

that the “plain meaning” of the 2006 Order is that all

faxes that “promote goods or services even at no

cost... are unsolicited advertisements under the

TCPA’s definition.” Pet App. 13a—14a (internal quota-

tion marks omitted). According to the Fourth Circuit,

once that plain meaning was ascertained, a court’s “in-

terpretive task [was] complete,” and there was “no

need” to ““harmonize’ the FCC’s rule with the underly-

ing statute, or probe the agency’s rationale.” Pet. App.

14a. The Fourth Circuit recognized that the categori-

cal rule it divined from the 2006 Order is “broad” and

“prophylactic,” and could reach “offers for truly free

goods and services unconnected to any commercial in-

terest.” Pet. App. 15a, 17a. But it concluded that the

reading was nonetheless a “reasonable one” because a

“per se rule” prohibiting “all unsolicited offers for free

goods or services” “advances the purpose of the under-

lying statute.” Pet. App. 15—16a. The court did not ex-

plain why it thought it appropriate to consult the

TCPA’s “purpose,” but not its text.

Judge Thacker dissented. She agreed with PDR that,

read as a whole, the 2006 Order interprets the TCPA

to mean that “a fax with a free offering must neces-

sarily include a commercial aim to qualify as an ‘ad-

vertisement’ under the TCPA.” Pet. App. 29a. Judge

Thacker concluded that Carlton & Harris’s complaint

failed to plausibly allege such an aim. Pet. App. 30a—

Sla.

PDR timely petitioned this Court for review, and the

Court granted the petition limited to the question of

whether the Hobbs Act required the district court in

this case to accept the FCC's interpretation of the

TCPA.

SUMMARY OF ARGUMENT

In the proceedings below, the district court held that

the TCPA does not prohibit PDR’s fax and that reading

the FCC’s 2006 Order to do so would violate the

TCPA’s terms. The Fourth Circuit reversed, not be-

cause it construed the TCPA differently—it expressly

declined to consider the statute’s language—but be-

cause it construed the Hobbs Act to require the district

court to enforce the FCC's interpretation of the TCPA,

regardless of whether that interpretation is consistent

with the text of the statute. That decision is wrong for

several independent reasons.

1.A. The Fourth Circuit misconstrued the Hobbs Act,

giving the Act a much broader preclusive sweep than

its text warrants. Properly read, the Hobbs Act vests

courts of appeals with exclusive jurisdiction only over

proceedings for direct review, in which a party seeks

injunctive or declaratory relief against the United

States from an allegedly unlawful agency action. The

Hobbs Act thus does not affect the authority of district

courts to fully adjudicate cases in which the United

States is not a party and no injunctive or declaratory

relief against it is sought.

The text and structure of the Hobbs Act make its

limited jurisdictional scope clear. Section 2342 pro-

vides that the courts of appeals have “exclusive juris-

diction to enjoin, set aside, suspend (in whole or in

part), or to determine the validity of” final orders cov-

ered by the Act. 28 U.S.C. § 2342. The terms “enjoin,”

“set aside,” and “suspend” all refer to a specific type of

relief—injunctive. The noscitur a sociis canon thus

counsels that the neighboring term, “determine the va-

lidity of,” likewise refers to a specific type of relief —

declaratory. Section 2349 confirms this understand-

ing. It defines the courts of appeals’ “exclusive jurisdic-

tion” as embracing the power to issue “a judgment de-

termining the validity of, and enjoining, setting aside,

or suspending, in whole or in part, the order of the

agency,” id. § 2349(a) (emphasis added). The statute

thus reserves certain kinds of “proceedings” and “judg-

ment|s]” to the courts of appeals.

The rest of the Act likewise outlines the procedures

for obtaining such relief. The Act specifies that the pro-

ceeding “shall be against the United States,” id.

§ 2344, limits the period for review to 60 days after an

order's entry, id., and restricts statutory standing to

parties who participated in the agency proceedings, id.

§§ 2344, 2348. The Hobbs Act thus gives the courts of

appeals “exclusive jurisdiction” limited to a specific

type of action for a specific type of relief (declaratory

or injunctive) against a specific party (the United

States). But it does not give the courts of appeals juris-

diction over the whole or part of any other kind of suit.

And in particular, it says nothing about the district

courts’ consideration of cases properly before them.

Nothing in the Hobbs Act, therefore, suggests any lim-

itation on the power of district courts to fully consider

a party’s defenses to private civil damages claims.

I.B. The Administrative Procedure Act confirms the

Fourth Circuit’s error. It provides that, generally

speaking, “agency action is subject to judicial review in

civil or criminal proceedings for judicial enforcement.”

5 U.S.C. § 703. Because Carlton & Harris sought to en-

force the FCC's interpretation of the TCPA, as re-

flected in the 2006 Order (or, more precisely stated,

sought to enforce Carlton & Harris’s interpretation of

the FCC's interpretation), the APA entitles PDR to ju-

dicial scrutiny of that “agency action” within the pri-

vate enforcement proceeding authorized by the TCPA.

Section 703, to be sure, provides that judicial review

within an enforcement proceeding is not required

when “prior, adequate, and exclusive opportunity for

judicial review is provided by law.” Jd. But, for at least

five reasons, the Hobbs Act did not give PDR such an

opportunity.

(1) PDR lacked statutory standing under the Hobbs

Act. Hobbs Act review is available only to a “party ag-

grieved” by an order. 28 U.S.C. § 2344. The courts of

appeals have unanimously read this language “to re-

quire as a general matter that petitioners be parties to

any proceedings before the agency preliminary to issu-

ance of its order.” Simmons v. ICC, 716 F.2d 40, 42

(D.C. Cir. 1983) (citing cases). Because PDR did not par-

ticipate in the FCC proceedings that gave rise to the

2006 Order, it could not have petitioned under the

Hobbs Act.

(2) PDR was out of time to petition for review under

the Hobbs Act. Hobbs Act review is available only

within 60 days of the agency's issuance of a covered

order. 28 U.S.C. § 2344. The courts of appeals have

unanimously read that limitations period as jurisdic-

tional. The window for anyone to seek Hobbs Act re-

view of the 2006 Order thus closed in mid-2006—seven

years before PDR sent its fax and nearly a decade be-

fore Carlton & Harris filed the complaint that initiated

this suit.

(3) PDR had no practical reason to seek review of the

2006 Order during the allotted 60 days. Recall that

PDR argued (and continues to believe) that the FCC's

interpretation, properly understood, is consistent with

the TCPA. The need for review arose only when Carl-

ton & Harris advanced an expansive reading of the

FCC's position that numerous courts had rejected. If

“prior, adequate” judicial review is provided by giving

a party just 60 days to identify and protest all poten-

tially adverse constructions of an agency interpreta-

tion that may hypothetically arise years later in litiga-

tion, the term “adequate” has lost all meaning.

(4) Such a construction would also empty the rele-

vant language of section 703 of all practical effect, at

least as concerns orders that announce agency inter-

pretations of general applicability. A generally appli-

cable interpretation, by its nature, applies to all man-

ner of parties who are not “aggrieved” and therefore

cannot obtain Hobbs Act review. Section 703 thus pro-

vides, appropriately, that judicial review ordinarily

will be available when the rule is enforced against a

particular party, except when “prior, adequate, and ex-

clusive” review was available. To read Hobbs Act re-

view as satisfying this requirement would be to allow

the exception to swallow the rule.

(5) That reading would be particularly unwarranted

because Congress knows how to expressly say «| wants

direct review to be the only avenue for chailenging

agency action in court. The Clean Water Act, for exam-

ple, provides for direct review of Environmental Pro-

tection Agency actions in the courts of appeals, and

separately specifies that orders that could have been

challenged via direct review are generally not subject

to judicial review in civil or criminal enforcement pro-

ceedings. Such statutes, however, are the exception

that proves the rule. General direct review statutes

such as the Hobbs Act do not implicitly preclude the

judicial review in enforcement actions that section 703

expressly preserves.

LC. Two additional interpretive canons counsel

against the Fourth Circuit’s interpretation of the

Hobbs Act. First, that interpretation violates the pre-

sumption of reviewability of agency action. As noted,

Hobbs Act review will often be unavailable to parties

affected by a generally applicable rule announced by

an agency. And the ersatz review pathways suggested

by some courts that have adopted the Fourth Circuit's

interpretation—petitioning the agency, and then ap-

pealing the agency’s ruling under the Hobbs Act—are

cumbersome at best and almost always illusory. The

only certain route to judicial review is to allow defend-

ants to raise their legal defenses in enforcement pro-

ceedings, before the court tasked with determining li-

ability and measuring any accompanying damages.

1.D. Second, if accepted, the Fourth Circuit's inter-

pretation of the Hobbs Act would raise grave constitu-

tional concerns. Under that interpretation, PDR would

be barred from litigating a statutory defense that it

never had a full and fair opportunity to present to any

court, on the theory that an agency has put the issue

to rest without any judicial determination whatsoever.

The Fourth Circuit’s interpretation thus announces a

new species of issue preclusion that attaches without

due process. And by requiring the district court to de-

termine PDR’s liability for violating the TCPA based

on an agency's effectively unreviewable interpretation

of what the TCPA means, the Fourth Circuit's inter-

pretation raises deep and troubling separation of pow-

ers questions. This Court can and should avoid these

constitutional issues by adopting a conventional con-

struction of the Hobbs Act.

Il. Alternatively, the Hobbs Act did not require the

district court in this case to accept the FCC's interpre-

tation of the TCPA because the agency's discussion in

the 2006 Order of offers for free goods and services rep-

resents a mere interpretive rule. Under general prin-

ciples of administrative law, interpretive rules do not

bind courts or private parties, and frequently are not

even reviewable by a court until applied by an ageacy

to a particular party.

The Hobbs Act reflects this principle: to qualify as an

FCC “order” reviewable under the Act, a rule must

have the force of law, which interpretive rules do not.

The Fourth Circuit overlooked this key distinction by

assuming, without analysis, that the 2006 Order in its

entirety was a binding legislative rule. But the Com-

mission’s discussion of “offers for free goods or services

and informational messages” bears all the hallmarks

of an interpretive rule. The district court therefore was

not bound, by the Hobbs Act or otherwise, to slavishly

follow it, and was instead free to interpret the TCPA

using appropriate tools of statutory construction. The

district court did exactly that, and correctly concluded

that Carlton & Harris’s complaint fails to plausibly al-

lege that PDR violated the TCPA. That determination

should be upheld.

ARGUMENT

|. THE HOBBS ACT DOES NOT PRECLUDE A

DISTRICT COURT FROM DECIDING LEGAL

QUESTIONS IN TCPA ENFORCEMENT

SUITS BETWEEN PRIVATE PARTIES.

A. The Hobbs Act Solely Addresses Suits

Against The Government Seeking Equita-

ble Or Declaratory Relief From Unlawful

Agency Action.

The Fourth Circuit’s cursory statutory analysis fo-

cused almost exclusively on a single phrase of the

Hobbs Act: the language in § 2342 giving the courts of

appeals “exclusive jurisdiction to enjoin, set aside,

suspend (in whole or in part), or to determine the va-

lidity of” certain agency orders. Pet. App. 7a (quoting

28 U.S.C. § 2342). Without explaining the textual basis

for its conclusion, the Fourth Circuit read this lan-

guage as “specifically stripp[ing] jurisdiction from the

district courts” to review “FCC interpretations of the

TCPA.” Pet. App. 7a, 8a. The Fourth Circuit then went

on to say, remarkably, that it was improper for the dis-

trict court to attempt to “harmonize” the agency’s in-

terpretation of the TCPA with the statutory text itself

because, when “the plain meaning of the regulation is

clear, our interpretive task is complete.” Pet. App.

13a—14a; contra Shalala v. Guernsey Mem’ Hosp., 514

U.S. 87, 95 (1995) (upholding agency's “reading of

[Medicare] regulations” because it was “consistent

with the Medicare statute”); Ernst & Ernst v. Hoch-

felder, 425 U.S. 185, 214 (1976) (rejecting SEC's read-

ing of Rule 10b-5 because it departed from “the lan-

guage and history of s[ection] 10(b) [of the Exchange

Act] and related sections of [other] Acts”).

The Fourth Circuit's radical reading of the Hobbs

Act finds no support in its text. The Act, rather, speaks

only to jurisdiction over a specific type of proceeding:

one for direct review of agency action, in which the pe-

titioner seeks declaratory or injunctive relief against

the government.

The limited scope of the Hobbs Act is evident in

§ 2342 itself. That provision gives the courts of appeals

“exclusive jurisdiction” attached to a particular set of

remedies. What is made “exclusive” to the courts of ap-

peals is the “jurisdiction to enjoin, set aside, suspend

(in whole or in part), or to determine the validity of”

certain agency actions, including, as relevant here, “all

final orders of the Federal Communications Commis-

sion made reviewable by section 402(a) of title 47.” The

Fourth Circuit thus erred in reading the Hobbs Act to

speak to jurisdiction over “certain issue/s/.” Pet. App.

8a (emphasis added). The statute is much narrower

than that. Rather than encompass ail judicial review

of particular issues, such as “FCC interpretations of

the TCPA,” Pet. App. 7a, § 2342 defines the courts of

appeals’ “exclusive jurisdiction” in terms of specific

types of relief that a court of appeals alone may grant.

Only a court of appeals may enjoin an agency order

covered by the Hobbs Act. And only a court of appeals

may vacate the order, stay it, or enter declaratory re-

lief against it. That is all § 2342 says about the exclu-

sive scope of court of appeals review, and that is there-

fore all that the Hobbs Act precludes a district court

from doing.

Some of the courts that have reached the same basic

conclusion as the Fourth Circuit have sought to justify

a broader preclusive sweep by relying in isolation on

the phrase “determine the validity of” in § 2342. They

have reasoned that a court decides the “validity” of an

agency interpretation anytime it considers whether

the agency’s interpretation is consistent with the gov-

erning statute. E.g., Nack v. Walburg, 715 F.3d 680,

685-86 (8th Cir. 2013); CE Design, Lid. v. Prism Bus.

Media, Inc., 606 F.3d 443, 445 (7th Cir. 2010). This in-

terpretation, however, fails to consider the statutory

context in which the phrase “determine the validity of”

sits.

In particular, it ignores the “commonsense canon of

noscitur a sociis,” which “counsels that a [term] is

given more precise content by the neighboring words

with which it is associated,” Freeman v. Quicken

Loans, Inc., 566 U.S. 624, 634—35 (2012), and which “is

often wisely applied where a word is capable of many

meanings in order to avoid the giving of unintended

breadth to the Acts of Congress,” McDonnell v. United

States, 136 S. Ct. 2355, 2368 (2016). Here, the terms

that surround the phrase “determine the validity of —

enjoin, vacate, and set, aside—all plainly refer to forms

of relief. See Black’s Law Dictionary (10th ed. 2014)

(defining “set aside” as “to annul or vacate (a judg-

ment, order, etc.)”). The canon thus counsels that “de-

termine the validity of’ refers simply to another form

of relief—declaratory relief.

Indeed, this Court has repeatedly used the phrase

“determine the validity” in precisely this sense. For ex-

ample, this Court explained that the Declaratory

Judgment Act, 28 U.S.C. § 2201, permits “an insur-

ance company [to] bring a declaratory judgment action

to determine the validity of insurance policies.” Calde-

ron v. Ashmus, 523 U.S. 740, 746 (1998). Likewise, just

five years before the Hobbs Act’s enactment, in Rail-

way Mail Ass’n v. Corsi, the Court noted that the ap-

pellant had initiated the litigation by “fil[ing] suit”

against a state agency “in a state court for a deciara-

tory judgment to determine the validity of [a state stat-

ute], and related provisions, and for an injunction re-

straining its enforcement.” 326 U.S. 88, 91 (1945) (em-

phasis added). The courts of appeals of that era used

similar language to connote declaratory relief. See,

e.g., Gray v. N.M. Military Inst., 249 F.2d 28, 30-31

(10th Cir. 1957) (‘The declaratory judgment remedy

may not be invoked merely to try issues or determine

the validity of defenses in pending cases.”).

Thus, in context, the natural reading of § 2342's “ex-

clusive jurisdiction” phrase is that it concerns “exclu-

sive jurisdiction” over a grant of injunctive or declara-

tory relief against the government. Therefore, when no

such relief is sought—as in a private TCPA class action

suit for monetary damages—the Hobbs Act has no

bearing on the power of the district court to decide the

case.

A holistic look at the Hobbs Act’s text and structure

confirms this reading. “It is a fundamental canon of

statutory construction that the words of a statute must

be read in their context and with a view to their place

in the overall statutory scheme,” and “cannot be con-

strued in a vacuum.” Roberts v. Sea-Land Servs., Inc.,

566 U.S. 93, 101 (2012); see also U.S. Nat'l Bank of Or.

v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 455

(1993) C[I}n expounding a statute, we must not be

guided by a single sentence or member of a sentence,

but look to the provisions of the whole law, and to its

object and policy.”). The Fourth Circuit, however, fo-

cused narrowly on the “exclusive jurisdiction” phrase

in § 2342, and failed to ask what clues about its mean-

ing should be drawn from neighboring provisions.

Perhaps the single most telling clue comes from

§ 2349, entitled “Jurisdiction of the proceeding.” Sec-

tion 2349(a), which parallels § 2342, expressly defines

the court of appeals’ “exclusive jurisdiction” with ref-

erence to the specific types of relief the court may

award. It provides that the court of appeals has “exclu-

sive jurisdiction to make and enter . . . a judgment de-

termining the validity of, and enjoining, setting aside,

or suspending, in whole or in part, the order of the

agency.” 28 U.S.C. § 2349(a) (emphasis added). This

provision resolves any doubts about the meaning of the

phrase “determine the validity of.” See Pereira v. Ses-

sions, 138 S. Ct. 2105, 2115 (2018) (“[I]t is a normal

rule of statutory construction that identical words

used in different parts of the same act are intended to

have the same meaning.”). In 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.

Other provisions of the Hobbs Act point in the same

direction by defining the rules and procedures fer ac-

tions to obtain such judgments. The Act defines where

such actions may be brought, 28 U.S.C. § 2343 (“in the

judicial circuit in which the petitioner resides or has

its principal office, or in the United States Court of Ap-

peals for the District of Columbia Circuit”); how, id.

§ 2344 (by “filfing] a petition to review” the final or-

der); when, id. (‘within 60 days” of entry of the final

order); by whom, id. (“[aJny party aggrieved by the fi-

nal order”); and against whom, id. (“against the United

States”). The Act as a whole thus spells out the metes

and bounds of the particular specialized “proceedings”

over which the courts of appeals’ jurisdiction is “exclu-

sive.” And, just as importantly, it does not say a word

about any other type of judicial action in any other

court.

Further textual support appears in Section 402(a) of

the Communications Act, which the Hobbs Act incor-

porates by reference. See 28 U.S.C. § 2342(1). Mirror-

ing § 2342, section 402(a) provides that, with certain

exceptions not applicable here, “[a]ny proceeding to en-

join, set aside, annul, or suspend any order of the Com-

mission . . . shall be brought as provided by and in the

manner prescribed in chapter 158 of Title 28 [i.e., the

Hobbs Act].” 47 U.S.C. § 402(a). Like the Hobbs Act,

Section 402(a) speaks only to proceedings “brought” to

obtain non-monetary relief against the FCC: it does

not address judicial proceedings of other kinds,

brought against other parties in other courts.

The text of the Hobbs Act thus resolves the question

presented in this case. The Act establishes and regu-

lates “proceedings” in which a party aims to obtain eq-

uitable or declaratory relief against the government

from allegedly unlawful agency action. A TCPA dam-

ages suit between two private parties plainly is not

such a “proceeding”—a point well illustrated by the

district court's judgment in this case, which directs

that Carlton & Harris’s damages claim “be dismissed

and stricken from the docket of [the district] [c]ourt.”

Pet. App. 44a. That judgment—which no court of ap-

peals could grant in a Hobbs Act proceeding—does not

affect the rights or duties of the FCC or any other part

of the government. It simply says that the plaintiff

shall take nothing from the defendant. Nothing in the

Hobbs Act precludes a defendant in a private damages

case from making the legal arguments necessary to

win that relief from a district court with jurisdiction

over the case under § 1331. The Fourth Circuit erred

in concluding otherwise.

B. The Administrative Procedure Act Con-

firms That A Defendant Generally May

Challenge Agency Action In A Judicial

Enforcement Proceeding.

The APA, which was enacted a few years before the

Hobbs Act, but long after Congress began to provide

regularized judicial supervision over agency actions

through “special statutory review proceeding|s],” 5

U.S.C. § 703, also compels reversal of the decision be-

low. See ICC v. Bhd. of Locomotive Eng’rs, 482 U.S.

270, 282 (1987) (recognizing that the APA “codifies the

nature and attributes of judicial review” under the

Hobbs Act).

Section 703 of the APA speaks directly to the ques-

tion presented here. It first addresses how parties can

obtain direct review of agency action, providing that

they generally must avail themselves of any “special

statutory review proceeding,” such as that created by

the Hobbs Act, but can proceed under the APA itself

where no such proceeding is available. 5 U.S.C. § 703.

It then provides that, notwithstanding these pathways

to direct review, “agency action is subject to judicial

review in civil or criminal proceedings for judicial en-

forcement,” “le]xcept to the extent that prior, ade-

quate, and exclusive opportunity for judicial review is

provided by law.” Jd. Thus, section 703 confirms that

agency action is reviewable in judicial enforcement

proceedings, except where another statute provides an

opportunity for judicial review that is (1) prior, (2) ad-

equate, and (3) exclusive. Because PDR had no such

opportunity, section 703 confirms that PDR is entitled

to judicial review of the 2006 Order in this TCPA en-

forcement proceeding.

1. The Hobbs Act did not give PDR any prior or ade-

quate opportunity for review of the 2006 Order be-

cause it denied PDR standing to seek such review. As

noted, § 2344 states that Hobbs Act review is available

only to a “party aggrieved” by agency action, and the

long established construction is that this phrase ex-

tends statutory standing under the Hobbs Act only to

those parties who participated in the agency proceed-

ing; no others may petition for review under the Act.

Simmons, 716 F.2d at 42 (citing cases). PDR did not

participate in the proceedings that gave rise to the

2006 Order, and thus could not have petitioned under

the Hobbs Act.

2. If PDR had attempted to seek Hobbs Act review

after Carlton & Harris sued, it would have encown-

tered a second problem— its petition would have been

hopelessly out of time. Section 2344 permits suit only

within 60 days after the agency issues a covered order,

and every court of appeals to consider the issue has

held that the time limit is jurisdictional and “may not

be enlarged or altered by the courts.” Nat. Res. Def.

Council v. Nuclear Regulatory Comm'n, 666 F.2d 595,

602 & n.43 (D.C. Cir. 1981) (citing cases from the Sec-

ond, Fifth, and Eighth Circuits); see Council Tree

Inv’rs, Inc. v. FCC, 739 F.3d 544, 551 (10th Cir. 2014);

N.J. Dep't of Envtl. Prot. & Energy v. Long Island

Power Auth., 30 F.3d 403, 414 (3d Cir. 1994); Tenn.

Pub. Serv. Comm'n v. ICC, 921 F.2d 277 (6th Cir. 1990)

(citing cases from Fifth and Ninth Circuits); Jl. Cent.

Gulf R.R. v. ICC, 720 F.2d 958, 960 (7th Cir. 1983);

P_A.K. Transp., Inc. v. United States, 613 F.2d 351, 353

n.1 (ist Cir. 1980). The time in which to seek Hobbs

Act review thus expired long before the current TCPA

suit began.

<. PDR had no practical reason to eeek review of the

2006 Order during the allotted 60 days because the in-

terpretive issue at the heart of this suit was not joined

until after the litigation began. Before then, readers of

the 2006 Order had no basis to suspect the FCC had

announced a “per se” rule barring faxed offers of free

goods and services, as Carlton & Harris argued below.‘

That point is borne out by the fact that multiple courts

have rejected the construction of the 2006 Order's lan-

guage that the Fourth Circuit adopted below. See Phy-

sicians Healthsource, Inc. v. Boehringer Ingelheim

Pharm., Inc., 847 F.3d 92, 96 & n.1 (2d Cir. 2017).

Those courts have recognized that “not every” unsolic-

ited fax promoting a free good or service satisfies the

rule announced in the 2006 Order. Id. at 96 (emphasis

added). Rather, for such a fax to fall under the 2006

Order, “[t]here must be a commercial nexus to a firm’s

business, ie., its property, products, or services.” /d;

see also Sandusky Wellness Ctr., LLC v. Medco Health

Sols., 788 F.3d 218, 223-24 (6th Cir. 2015) (“To be an

ad, the fax must promote goods or services that are for

sale, and the sender must have profit as an aim.”).

This “comports with the statutory language, which de-

fines offending advertisements as those promoting ‘the

4 Indeed, as demonstrated in Part I1, infra, all indications were

that the FCC had articulated a non-binding interpretation, rather

than a binding legislat.ve rule.

commercial availability or quality of {the firm’s] prop-

erty, goods, or services.” Physicians Healthsource, 847

F.3d at 95 (alteration in original) (emphasis added)

(quoting 47 U.S.C. § 227(a)(5)). Thus, to say that PDR

should have sued in 2006 is essentially to contend that

it should have anticipated Carlton & Harris’s argu-

ment and initiated preemptive litigation against the

FCC to protect itself against such hypothetical, over-

broad constructions of the 2006 Order that conflict

with the statute.

Even assuming that any court of appeals could or

would have entertained such an abstract dispute,

there is certainly no reason to view that kind of prem-

ature litigation as supplying an “adequate” oppor-

tunity for judicial review of the Commission’s legal in-

terpretation. And the courts of appeals have not em-

braced that approach. Instead, they recognize that

with respect to generally applicable rules, the Hobbs

Act’s “time limit restricting judicial review of [agency]

action is applicable only to cut off review directly from

the order promulgating a rule,” not from subsequent

actions by an agency to enforce it. Functional Music,

Inc. v. FCC, 274 F.2d 543, 546 (D.C. Cir. 1958); see

Weaver v. Fed. Motor Carrier Safety Admin., 744 F.3d

142, 145 (D.C. Cir. 2014); Wind River Mining Corp. v.

United States, 946 F.2d 710, 714-15 (9th Cir. 1991);

Texas v. United States, 749 F.2d 1144, 1146 (5th Cir.

1985); Tri-State Motor Transit Co. v. ICC, 739 F.2d

1373, 1375 (8th Cir. 1984); Ill. Cent. Gulf R.R., 720

F.2d at 961.

That approach makes perfect sense. Because “ad-

ministrative rules and regulations are capable of con-

tinuing application[,| limiting the right of review of the

underlying rule would effectively deny many parties

ultimately affected by a rule an opportunity to ques-

tion its validity.” Functional Music, 274 F.2d at 546.

That would include parties that first come into exist-

ence after the 60-day direct review window has closed,

as well as parties for whom “the ultimate impact, or

even the likelihood of enforcement, of proposed rules

may be far from clear.” Gage v. U.S. Atomic Energy

Comm'n, 479 F.2d 1214, 1218 (D.C. Cir. 1973).

These concerns are particularly acute in the context

of the TCPA, which regulates literally every business

using auto-dialed or recorded calls, faxes, or text mes-

sages in the United States. See 47 U.S.C. § 227(b). In

the context of a more highly regulated industry, this

Court recognized the unreasonableness of expecting

“innumerable small businesses” to protect themselves

against agency overreach by staying abreast of rule-

makings and bringing litigation against invalid rules.

Adamo Wrecking Co. v. United States, 434 U.S. 275,

283 n.2 (1978). It is all the more unrealistic to expect

businesses of every size in every field to protect them-

selves from unlawful TCPA regulations by scrutiniz-

ing the FCC docket and bringing pre-enforcement

challenges under the Hobbs Act—especially given that

the interval between the unlawful regulation and the

fax at issue might be years, as it was here.

4. The only other way to read section 703 would be

to say that the Hobbs Act’s 60-day window in 2006

somehow counts, for PDR, as the “prior, adequate, and

exclusive” review opportunity contemplated by the

APA. But that cannot be right, or else the exception

(no further review if the defendant already had a full,

fair and final opportunity) would swallow the rule

(‘agency action is subject to judicial review in civil or

criminal proceedings for judicial enforcement”) where

agency rules of general applicability are concerned.

Such rules, by their nature, apply to all manner of par-

ties who are not “aggrieved” under the Hobbs Act and

thus cannot personally obtain Hobbs Act review. See

Functional Music, 274 F.2d at 546. If the Act’s 60-day

window were the sole opportunity for all parties to

challenge a generally applicable regulation for all

time, the Hobbs Act would become a trap for the un-

wary, which never has been and cannot be the law.

This is not to say that the Hobbs Act never provides

a “prior, adequate, and exclusive” opportunity for judi-

cial review. When an agency issues an order settling

the rights or duties of a specific party, that party is

undoubtedly “aggrieved” within the meaning of § 2344

and can challenge the order under the Hobbs Act. In

that circumstance, the distinction between direct and

enforcement review frequently collapses, and the

Hobbs Act furnishes a “prior, adequate, and exclusive”

mechanism for challenging the order, both facially and

as-applied. But this logic is limited to party-specific or-

ders; for orders promulgating rules of general applica-

bility, a party may not be “aggrieved” in any legal or

practical sense until it faces a judicial enforcement ac-

tion. In that circumstance, section 703 preserves the

right to judicial review.

Two decisions of this Court illustrate the point. In

Port of Boston Marine Terminal Ass’n v. Rederiaktie-

bolaget Transatlantic, a defendant in a suit for dam-

ages owed under a port agreement approved by the

Federal Maritime Commission sought to assert as a

defense that the agreement was invalid. See 400 U.S.

62, 64, 67 (1970). This Court held that the Hobbs Act

precluded that challenge because the defendant,

through an agent, had been party to a prior proceeding

before the Federal Maritime Commission seeking re-

view of the agreement, and, after the commission up-

held the agreement, both the defendant and its agent

had failed to seek timely judicial review. See id. at 69,

71-72. Thus, in every practical sense, the defendant

had a “prior, adequate, and exclusive” opportunity for

review of the agency order. As the Court emphasized,

although the defeadant “was not named as a party [to

the agency proceedings], it was in fact represented be-

fore the Commission,” had “previously made numerous

claims to party status,” and had “interests [that] were

clearly at stake.” Id. at 71-72. Because the defendant

had both every motive and “every opportunity to par-

ticipate before the Commission and then seek timely

review in the Court of Appeals,” id. at 72, this Court

refused to allow the defendant to challenge the order

in a district court proceeding.

FCC v. ITT World Communications, Inc., 466 U.S.

463 (1984), is to similar effect. There, ITT petitioned

the FCC for rulemaking regarding what sorts of agree-

ments the FCC could enter into when negotiating with

foreign governments. See id. at 465-66. When the FCC

denied the petition, ITT sought review in the D.C. Cir-

cuit and concurrently filed suit in district court to en-

join the FCC from engaging in negotiations in the

manner ITT opposed. See id. at 466-67. This Court

held that the Hobbs Act precluded ITT from asking the

district court “to enjoin action that is the outcome of

jan FCC] order” where, “[i]n substance, the complaint

filed in the District Court raised the same issues and

sought to enforce the same restrictions upon agency

conduct as did the petition for rulemaking that was de-

nied by the FCC.” Jd. at 468. Thus, like Port of Boston,

ITT prohibited a collateral attack on an agency order

by a party that had a full and fair opportunity for ju-

dicial review under the Hobbs Act—.e., the “prior, ad-

equate, and exclusive” review envisioned by section

703.

Together, Port of Boston and ITT exemplify when it

may be appropriate to say that direct review of an

agency order qualifies as a “prior, adequate, and exclu-

sive” opportunity for review. In those cases, the parties

who sought district court review had also been parties

(or had been adequately represented) in an agency pro-

ceeding that directly settled their legal rights and ob-

ligations. In that kind of setting, it generally can be

said that the party has had a full and fair opportunity

for review, and should not be permitted to evade the

“special statutory review proceeding” established by

Congress. See ITT, 466 U.S. at 468.

The same cannot be said where, as here, the agency

first acts by announcing a rule of general applicability,

and the defendant only later—much later—becomes

subject to an enforcement action. In that circumstance,

as the Functional Music line of cases recognizes, it

would be both unfair and impractical to treat the

Hobbs Act as having preclusive effect—and would also

flatly violate section 703’s command.

5. The Fourth Circuit’s holding is also at odds with

how courts have long interpreted other statutes that

commit direct review of agency orders to a court of ap-

peals. Consistent with section 703, courts have not un-

derstood such statutes to preclude judicial review of

regulations when they are enforced in district court.

By casting doubt on that understanding, the Fourth

Circuit's interpretation of the Hobbs Act would open

the door to a range of unjust and absurd consequences.

Examples of comparable statutory schemes are

found across the U.S. Code. For instance, orders prom-

ulgating occupational safety and health standards are

directly reviewable in the courts of appeals, see 29

U.S.C. § 655(f), but enforceable through civil and crim-

inal proceedings in district court, see id. §§ 662(a),

666(e). Under the Fourth Circuit’s logic, the former

provision would preclude review in enforcement ac-

tions brought under the latter ones. Yet when the Sec-

retary of Labor (or Department of Justice, in criminal

cases) has brought such enforcement actions, the

courts —including this one—have considered defend-

ants’ arguments that the orders at issue are substan-

tively invalid. See, e.g., Whirlpool Corp. v. Marshall,

445 U.S. 1, 4, 7—9 (1980) (in civil action to enjoin viola-

tion of a regulation promulgated under the Occupa-

tional Safety and Health Act, examining “whether this

regulation is consistent with the Act”); see also United

States v. Pitt-Des Moines, Inc., 970 F. Supp. 1346, 1354

(N.D. ILL 1997) (in criminal prosecution for violation of

occupational safety regulation, considering argument

that regulation was procedurally invalid).

The same is true in the securities context. Under the

Exchange Act, courts of appeals have “exclusive” juris-

diction to directly review final orders and certain reg-

ulations issued by the Securities and Exchange Com-

mission, see 15 U.S.C. § 78y(a)(1), (3); id. § 78y(b)(1),

(3), while the government may bring civil and criminal

actions to enforce those orders and regulations in dis-

trict court, see id. §§ 78ff(a), 78u(d), 78u-1(a)(1). Again,

the Fourth Circuit’s logic would suggest that the pro-

visions for direct review preclude judicial review in the

enforcement context. And, again, the practice has been

precisely the opposite. In enforcement proceedings,

this Court and others have routinely considered de-

fendants’ arguments that the SEC’s interpretations of

the law, as reflected in orders and regulations, are sub-

stantively invalid, or must be narrowed to cohere with

the statute’s text. See, e.g., United States v. O'Hagan,

521 U.S. 642, 666—76 (1997) (SEC did not exceed its

statutory authority under § 14(e) of the Exchange Act

in adopting Rule 14e—3(a)); Ernst & Ernst, 425 U.S. at

212-14 (rejecting SEC interpretation of Rule 10b-5 as

inconsistent with text of the Exchange Act); SEC v. Al-

pine Sec. Corp., 308 F. Supp. 3d 775, 795—96 (S.D.N_Y.

2018) (considering defendant's argument that Rule

17a—8 “is not a reasonable interpretation of the Ex-

change Act, and is therefore invalid”).

In short, if applied to the many materially indistin-

guishable judicial review statutes currently in effect,

the Fourth Circuit’s interpretation of the Hobbs Act

would curtail the defenses available to a large number

of parties in a wide range of contexts—including many

where defendants’ fortunes, livelihoods, and even lib-

erty are directly at stake. This outcome is frankly un-

imaginable.

Worse, by broadly precluding judicial review in en-

forcement settings, the Fourth Circuit's interpretation

of the Hobbs Act (and, by extension, other common-

place judicial review provisions) would produce all

manner of unfair and absurd results. For example, it

would allow agencies to effectively insulate their inter-

pretations from review by enforcing them in district

court rather than in administrative proceedings sub-

ject to direct court of appeals review. It would also

mean that if Congress decided to supersede an agency

interpretation by enacting a new statute, the statute

could not be given effect in an enforcement suit until

the agency itself revised its preexisting regulations.

That is so because, under the Fourth Circuit's rule, a

district court would have no power to consider whether

the agency’s old interpretation was consistent with the

new law. And if the agency announced that its inter-

pretation of the new law was identical to its interpre-

tation of the old one, a district court would likewise be

powerless to protect defendants.

It is improbable, to say the least, that Congress in-

tended to subordinate both its own powers and those

of the courts to administrative agencies in these ways.

And if Congress really did intend such consequences,

at a minimum it would have to speak more explicitly

than it did in the Hobbs Act.

6. Indeed, it bears emphasis that in the unusual cir-

cumstance where Congress has in fact intended to pre-

clude judicial review of agency interpretations even in

enforcement proceedings, it has expressed that inten-

tion in no uncertain terms. The Clean Water Act pro-

vides one example. Section 1369(b)(1) “enumerates

seven categories of EPA actions for which review lies

directly and exclusively in the federal courts of ap-

peals.” Natl Ass'n of Mfrs. v. Dep't of Def., 138 S. Ct.

617, 624 (2018); see 33 U.S.C. § 1369(b)(1). Paragraph

(b)(2) then states: “Action of the Administrator with

respect to which review could have been obtained un-

der paragraph (1) of this subsection shall not be subject

to judicial review in any civil or criminal proceeding

for enforcement.” 33 U.S.C. § 1369(b)(2) (emphasis

added). Provisions of the Clean Air Act and of CER-

CLA—both of which commit direct review of covered

orders exclusively to a court of appeals—are similar.

See 42 U.S.C. § 7607(b)(2); id. § 9613(a).

That Congress felt the need in these statutes to spec-

ify that review is unavailable in “civil or criminal pro-

ceeding|[s] for enforcement” is significant. Under the

Fourth Circuit's view, the fact that these statutes con-

tain direct review provisions that route “exclusive” ju-

risdiction to the courts of appeals would alone suffice

to preclude district courts from reviewing orders in en-

forcement proceedings— in other words, the provisions

expressly precluding such review would be unneces-

sary. This Court, however, is “hesitant to adopt an in-

terpretation of a congressional enactment which ren-

ders superfluous another portion of that same law.”

Kawaauhau v. Geiger, 523 U.S. 57, 62 (1998). The bet-

ter interpretation, which “give[s] effect ... to every

clause and word” of the environmental statutes, is that

the provisions constraining judicial review in enforce-

ment proceedings are meaningful because the direct

review provisions, standing alone, say nothing about

that issue. Setser v. United States, 566 U.S. 231, 239

(2012) (ellipsis in original). Section 703 of the APA con-

firms that interpretation by providing that even when

direct review of agency orders lies exclusively in courts

of appeals, the default rule is that district courts may

review such orders in enforcement proceedings. Be-

cause the Hobbs Act leaves that default rule intact, the

Fourth Circuit’s view that it bars judicial review in a

private enforcement action is wrong.

C. The Presumption Of Reviewability Of

Agency Action Supports Construing The

Hobbs Act Narrowly.

To the extent the Hobbs Act and APA leave any am-

biguity, the “strong presumption that Congress in-

tends judicial review of administrative action” coun-

sels against construing the Act to preclude a defendant

from obtaining review of the FCC's interpretation of

the TCPA in an enforcement action. Bowen v. Mich.

Acad. of Family Physicians, 476 U.S. 667, 670 (1986).

Without that ability, many defendants will have no op-

portunity for judicial review of the orders being en-

forced against them because, in most cases, the 60-day

have long since closed.

To address this problem, some courts that have read

the Hobbs Act as the Fourth Circuit did here have sug-

gested that TCPA defendants may pursue judicial re-

view by (1) filing a petition for reconsideration or rule-

making with the FCC and then (2) appealing any ad-

verse decision by the FCC to a court of appeals. See,

e.g., Leyse v. Clear Channel Broad., Inc., 545 F. App’x

444, 459 (6th Cir. 2013); Nack, 715 F.3d at 682. This

suggestion, however, ignores that section 703 pre-

serves the right to review in enforcement actions un-

less another route is “prior, adequate and exclusive,”

and that the option of filing a petition with the agency

after a suit commences is none of the above. Neither

the petitions nor the eventual court of appeals proceed-

ing would be prior to the enforcement suit. Moreover,

the court of appeals proceeding would not actually re-

view the “agency action” at issue in the TCPA suit; ra-

ther, it would review the distinct agency action result-

ing from the new petition. Cf Bhd. of Locomotive

Eng’rs, 482 U.S. at 278-80 (distinguishing a decision

respecting a petition to reopen a proceeding from the

decision in the underlying proceeding itself).

There are also serious practical problems with these

alternatives that will prevent them, in most if not all

instances, from providing pathways to judicial review

of an underlying rule. For reconsideration and declar-

atory ruling petitions, the main problem is one of tim-

ing. A petition for reconsideration must be filed within

30 days of an order's promulgation. See 47 U.S.C.

§ 405(a); 47 C_F_R. § 1.104(b). In almost every conceiv-

able enforcement setting, that deadline will have long

passed before a plaintiff's complaint alerts a defendant

to the problem. Petitions for declaratory rulings are

generally useless in this setting for a similar reason.

The FCC has opined that “[t]o allow ... parties to chal-

lenge the validity of [a] rule via a request for declara-

tory ruling years after a rule has been promulgated

would effectively circumvent the statutory channels

for review of Commission rules.” Rules & Regulations

Implementing the Tel. Consumer Prot. Act of 1991, 29

FCC Red. 13998, 14006 (2014), vacated sub nom. Bais

Yaakov of Spring Valley v. FCC, 852 F.3d 1078 (D.C.

Cir. 2017), cert. denied, 138 S. Ct. 1043 (2018). In other

words, the FCC generally rejects the premise that a

declaratory ruling may be used as a substitute for the

direct review available under the Hobbs Act.

Petitions for new rulemakings pose a different but

equally fundamental problem. “|A] statutory grant of

legislative rulemaking authority will not, as a general

matter, be understood to encompass the power to

promulgate retroactive rules unless that power is con-

veyed by Congress in express terms.” Bowen v.

Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). No

such language appears in the TCPA. Thus, any new

rules would be prospective, and a new prospective rule

will not do anything to protect a defendant from liabil-

ity for past conduct. Relief can come only from an ad-

judication of what the law was at the time of the de-

fendant’s relevant acts. That adjudication is naturally

provided by a court—the court that has jurisdiction

over the claims lodged against the defendant.

Another practical problem is that petitions for rule-

making and declaratory orders frequently drag on for

years. See, e.g., Bais Yaakov, 852 F.3d at 1081 (hold-

ing, in 2017, that the FCC lacked authority to issue

TCPA regulation concerning solicited faxes and vacat-

ing a 2014 FCC order denying a petition for a declara-

tory ruling filed in 2010); cf. In re Pesticide Action Net-

work N. Am., 798 F.3d 809, 814 (9th Cir. 2015) (grant-

ing mandamus following eight-year delay in resolving

petition); In re Core Commce’ns, Inc., 531 F.3d 849, 857

(D.C. Cir. 2008) (describing six-year delay in respond-

ing to judicial remand); Telecomms. Research & Action

Ctr. v. FCC, 750 F.2d 70, 80-81 (D.C. Cir. 1984) (de-

scribing FCC delays of two, four, and five years in re-

solving petitions).

The district court presiding over the TCPA suit can,

of course, grant a discretionary stay of the action while

the defendant pursues matters with the agency. But

courts in TCPA suits have denied requests for such

stays, viewing the route to Hobbs Act review as long

and the outcome, uncertain. See, e.g., Edwards v.

Oportun, Inc., 193 F. Supp. 3d 1096, 1101 (N.D. Cal.

2016) (denying stay pending issuance of D.C. Circuit

decision on validity of TCPA regulation because there

was “no certain way to determine when a ruling will

be forthcoming”); Lathrop v. Uber Techs., Inc., 2016

WL 97511, at *5 (N.D. Cal. Jan. 8, 2016) (similar); Ho-

fer v. Synchrony Bank, 2015 WL.2374696, at *2—3 (E_D.

Mo. May 18, 2015) (similar).5 For defendants in such

cases, the Hobbs Act pathway will often be too slow to

make any difference in the TCPA suit.

Further, even if a stay of the TCPA action were cer-

tain, the length and expense of litigating an entirely

separate action through multiple levels of agency and

judicial review would be prohibitive for many defend-

ants. Cf. Bridgeview Health, 816 F.3d at 941 (noting

that the TCPA has “become the means of targeting

small businesses”). This problem is especially severe

because TCPA suits, including this one, are commonly

brought as class actions seeking uncapped statutory

damages. Faced with the risks inherent in such ac-

tions, many defendants will settle early on, “rather

than incur the costs of defending a class action and run

the risk of potentially ruinous liability.” Fed. R. Civ. P

23(f) advisory committee’s note to 1998 amendment;

see AT&T Mobility LLC v. Concepcion, 563 U.S. 333,

350 (2011) (recognizing “the risk of ‘in terrorem’ settle-

ments that class actions entail”); ACA Intl, 885 F.3d

®° To be sure, some courts have granted stays in such circum-

stances. See Flockhart v. Synchrony Bank, 2017 WL 3276266, at

*3 (N.D. lowa Aug. 1, 2017) (granting stay, noting that “[flederal

courts have split decisions in motions to stay TCPA violation

cases” pending Hobbs Act review of underlying FCC rules, and

citing cases). But the fact remains that in cases that are not

stayed, defendants risk losing the opportunity for any meaningful

judicial review.

at 693 (noting a “surge in TCPA lawsuits (including

class actions) in recent years”).

D. The Fourth Circuit’s Interpretation Of

The Hobbs Act Raises Grave Constitu-

tional Concerns That Can And Should Be

Avoided.

The canon of constitutional avoidance further sup-

ports PDR’s narrower construction of the Hobbs Act.

If, as PDR contends, the Hobbs Act simply routes

claims against the government for injunctive and de-

claratory relief from certain agency actions to the

courts of appeals rather than the district courts, then

the Act does not raise any constitutional concerns— it

is uncontroversial that Congress may distribute juris-

diction over such causes of action among Article III

courts.

But if, as the Fourth Circuit held, the Hobbs Act’s

grant of “exclusive jurisdiction” over proceedings for

injunctive and declaratory relief also operates, implic-

itly, to bar district courts from considering statutory

defenses raised by defendants in damages suits be-

tween private parties, then the Hobbs Act poses at

least two grave constitutional questions.

The first, based on fundamental notions of due pro-

cess, concerns whether Congress may bind defendants

to the results of agency proceedings that are not chal-

lenged within a 60-day period, or are challenged only

by other parties. The second, arising under Article III,

concerns whether Congress may require the courts, in

deciding cases properly before them, to slavishly apply

an agency’s interpretation of a statute. Long estab-

lished principles of constitutional avoidance counsel

against adopting the construction “that raises serious

constitutional doubts,” and in favor of “adopt{ing] an

alternative” construction like PDR’s, which is con-

sistent with the statute’s text and "avoids those prob-

lems.” Jennings v. Rodriguez, 138 S. Ct. 830, 836

(2018).

1. The Fourth Cir cuit’s Interpretation

Raises Grave Due Process Concerns.

Under the Fourth Circuit's interpretation, the Hobbs

Act imposes what is in essence a severe form of issue

preclusion, barring TCPA defendants from litigating

issues in a TCPA suit that could have been decided in

a proceeding for direct review under the Hobbs Act,

even if they never actually were. This approach jetti-

sons several limits on issue preclusion essential to re-

specting due process.

The traditional rule of issue preclusion is that

“[wl]hen an issue of fact or law is actually litigated and

determined by a valid and final judgment, and the de-

termination is essential to the judgment, the determi-

nation is conclusive in a subsequent action between

the parties, whether on the same or a different claim.”

B&B Hardware, Inc. v. Hargis Indus., Inc., 135 S. Ct.

1293, 1303 (2015) (alteration in original) (quoting RE-

STATEMENT (SECOND) OF JUDGMENTS § 27, at 250

(1980)). Critically, preclusion requires the estopped

party to have had “a full and fair opportunity to liti-

gate” the issue in the prior proceeding. Taylor v.

Sturgell, 553 U.S. 880, 892 (2008).

These requirements are part of a “deep-rooted his-

toric tradition that everyone should have his own day

in court.” Jd. at 892—93. They represent constitutional

boundaries that neither courts nor Congress may

transgress. As this Court has repeatedly recognized,

“i]t is a violation of due process for a judgment to be

binding on a litigant who was not a party or a privy

and therefore has never had an opportunity to be

heard.” Parklane Hosiery Co. v. Shore, 439 U.S. 322,

327 n.7 (1979). Litigants “who never appeared in a

prior action [] may not be collaterally estopped without

litigating the issue.” Blonder-Tongue Labs., Inc. v.

Univ. of Ill. Found., 402 U.S. 313, 329 (1971); accord

Richards v. Jefferson Cty., 517 U.S. 793, 797 n.4

(1996).

The Fourth Circuit’s decision applied the Hobbs Act

in precisely the manner these decisions prohibit. PDR

was not a party to the agency proceedings that under-

lie the 2006 Order, let alone to a prior relevant litiga-

tion. Thus, the Fourth Circuit's conclusion that PDR is

effectively estopped from raising any argument bear-

ing on the consistency between the 2006 Order and the

TCPA itself raises grave due process concerns.®

2. The Fourth Circuit's Interpretation

Raises Severe Separation of Powers

Concerns.

As interpreted by the Fourth Circuit, the Hobbs Act

would also raise a serious question about whether

® This Court has not considered the constitutionality of provi-

sions in the Clean Air Act and other statutes expressly precluding

judicial review of agency actions in enforcement proceedings. See

Harrison v. PPG Indus., Inc., 446 U.S. 578, 592 n.9 (1980); supra

at 37 (describing such provisions). Its decision in Adamo Wreck-

ing Co. v. United States, however, recognized that the “severity”

of such provisions warrants narrowly construing the range of ac-

tions to which they apply. 434 U.S. at 282-84 & n.2. Furthermore,

Justice Powell, who provided the fifth vote in Adamo Wrecking,

stressed in a concurring opinion in that case that the “constitu-

tional validity” of such provisions “merited serious consideration.”

Id. at 289 (Powell, J. concurring); see also Harrison, 446 U.S. at

594 (Powell, J., concurring) (‘I continue to have reservations

about the constitutionality of the notice and review preclusion

provisions of [the Clean Air Act].”). The D.C. Circuit has likewise

recognized the “substantial due process question” such provisions

pose. Chrysler Corp. v. EPA, 600 F.2d 904, 913 (D.C. Cir. 1979).

Congress has improperly intruded upon the defining

attribute of Article III judicial power—the Judiciary’s

authority “to say what the law is’ in particular cases

and controversies.” Bank Markazi v. Peterson, 136 S.

Ct. 1310, 1322 (2016) (quoting Marbury v. Madison, 5

U.S. (1 Cranch) 137, 177 (1803)); see also Japan Whal

ing Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230

(1986) (‘under the Constitution, one of the Judiciary’s

characteristic roles is to interpret statutes”).

According to the Fourth Circuit, the Hobbs Act “spe-

cifically stripped jurisdiction from the district court{}”

to determine the meaning of the TCPA in this case.

Pet. App. 8a. In truth, the Fourth Circuit's characteri-

zation of this supposed statutory command as “juris-

diction-stripping” is inapt. The district court clearly

had subject-matter jurisdiction over the suit. See Mims

v. Arrow Fin. Servs., LLC, 565 U.S. 368, 376 (2012)

(federal and state courts have concurrent jurisdiction

over private suits arising under the TCPA). But under

the Fourth Circuit’s view of the Hobbs Act, the district

court nonetheless lacked authority to consider the dis-

positive legal question at the heart of that suit—the

meaning of the statute that Carlton & Harris seeks to

punish PDR for (supposedly) violating.

On that view, the Hobbs Act raises one of the deepest

questions in the federal courts canon: the extent of

Congress’s power to strip Article III courts of the

power to decide legal questions central to the “Cases

or Controversies” pending before them.’ Outside the

? The question runs so deep in the canon that a variation upon

it features in Professor Hart's famous dialectic: “Name me a sin-

gle Supreme Court case that has squarely held that, in a civil en-

forcement proceeding, questions of law can be validly withdrawn

from the consideration of the enforcement court where no ade-

quate opportunity to have them determined by a court has been

previously accorded. When you do, ['m going back to re-think

context of a “war-time emergency measure,” Yakus v.

United States, 321 U.S. 414, 431 (1944), this Court has

never directly addressed this question, but its deci-

sions bearing on related questions concerning the in-

tersection between the Legislative and Judicial pow-

ers, running back to at least United States v. Klein, 80

U.S. (13 Wall) 128 (1872), cast serious doubt on

whether Congress may do so. In recently summing up

those decisions in Bank Markazi, this Court treated it

as beyond dispute that Congress “may not usurp a

court’s power to interpret and apply the law to the [cir-

cumstances] before it,” and quoted Marbury v. Madi-

son for the proposition that “[t]hose who apply [a] rule

to particular cases, must of necessity expound and in-

terpret that rule.” 136 S. Ct. at 1323 (quoting 5 U.S. (1

Cranch) at 177) (alterations in original). In City of Ar-

lington v. FCC, this Court declared that while “Con-

gress has the power (within limits) to tell the courts

what classes of cases they may decide,” it may not “pre-

scribe or superintend how they decide those cases.”

569 U.S. 290, 297 (2013). And in Plaut v. Spendthrift

Farm, Inc., this Court read the “record of history” to

demonstrate that the Founders crafted Article ILI!

“with an expressed understanding that it gives the

Federal Judiciary the power, not merely to rule on

cases, but to decide them.” 514 U.S. 211, 218~-19

(1995). These statements cast profound doubt on

whether the Hobbs Act is constitutionally valid if in-

terpreted to prevent courts presiding over private

damages disputes, such as cases arising under the

TCPA, from considering what that statute means.

That the Hobbs Act, as construed by the Fourth Cir-

cuit, does not just remove from the Judiciary the power

Marbury v. Madison.” Henry M. Hart, Jr., The Power of Congress

to Limit the Jurisdiction of Federal Courts: An Exercise in Dialec-

tic, 66 Harv. L. Rev. 1362, 1378~-79 (1953) (footnotes omitted).

to interpret the law, but takes the further step of vest-

ing that power in a mix of Executive and independent

agencies, only worsens the separation-of-powers prob-

lem. This Court has carefully reserved to Article III

courts the right to review the legal conclusions reached

by agencies. Most notably, in Crowell v. Benson, the

Court turned aside an Article III objection to a statute

that insulated an agency’s findings of fact from judicial!

review, reasoning in part that this insulation was

“deemed to relate only to determinations of fact,” not

of law. 285 U.S. 22, 49 (1932); see also St. Joseph Stock

Yards Co. v. United States, 298 U.S. 38, 84 (1936)

(Brandeis, J., concurring) (“The supremacy of law de-

mands that there shall be opportunity to have some

court decide whether an erroneous rule of law was ap-

plied and whether the proceeding in which facts were

adjudicated was conducted regularly.”). Crowell has

since been read for the proposition “that the judicial

review afforded by the statute, including review of

matters of law, ‘provides for the appropriate exercise

of the judicial function in this class of cases,” i.e., those

“concernfing] obligations among private parties.”

Thomas v. Union Carbide Agric. Prods. Co., 473 U.S.

568, 587 (1985) (quoting Crowell, 285 U.S. at 293). By

reading the Hobbs Act to strip away judicial review of

a critical legal dispute between private litigants, the

Fourth Circuit’s decision does serious violence to foun-

dational safeguards of the administrative state.

As explained above, there are plenty of reasons for

the Court to reject the Fourth Circuit’s interpretation,

even before reaching constitutional avoidance. But

there is certainly no reason for this Court to read this

commonplace agency review statute in the sweeping

manner the Fourth Circuit did when the more than

plausible construction offered by PDR avoids these

fundamental difficulties. See Jennings, 138 S. Ct. at

836; Clark v. Martinez, 543 U.S. 371, 381 (2005)

(grounding the avoidance canon in the “reasonable

presumption” that when a statute has two plausible

interpretations, “Congress did not intend the alterna-

tive which raises serious constitutional doubts”).

Il. ALTERNATIVELY, THE DISTRICT COURT

WAS NOT REQUIRED TO ACCEPT THE

FCC’S INTERPRETATION IN THIS CASE

BECAUSE THE AGENCY STATEMENTS AT

ISSUE ARE NOT BINDING ON THE COURTS

OR ANY PRIVATE PARTY.

The Fourth Circuit's decision is also wrong for a rea-

son entirely independent of its misconstruction of the

Hobbs Act. The Fourth Circuit assumed, without anal-

ysis, that the FCC’s discussion of offers for free goods

and services in the 2006 Order was a legislative rule,

which binds courts and private parties, rather than an

interpretive rule, which does not. That discussion in

the 2006 Order, however, bears all the hallmarks of an

interpretive rule. Therefore, under both general prin-

ciples of administrative law and the text of the Hobbs

Act, the district court was neither bound by the FCC’s

interpretation nor required to defer to it. It was free to

construe the TCPA for itself and determine that PDR

had not violated the statute.

The distinction between legislative and interpretive

rules is central to administrative law. A legislative

rule has the “force and effect of law,” Chrysler Corp. v.

Brown, 441 U.S. 281, 295 (1979), and thus binds

courts, private parties, and the agency itself to its

terms. E.g., Appalachian Power Co. v. EPA, 208 F.3d

1015, 1021 (D.C. Cir. 2000). Interpretive rules, in con-

trast, “do not have the force and effect of law and are

not accorded that weight in the adjudicatory process.”

Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1204

(2015). Rather, their “critical feature” is that they are

issued by an agency to advise the public of the agency’s

construction of the statutes and rules which it admin-

isters.” Jd. Put another way, “interpretive rules or pol-

icy statements will not [bind agency discretion or pri-

vate party conduct], regardless of their validity.” Viet.

Veterans of Am. v. Sec’y of the Navy, 843 F.2d 528, 537

(D.C. Cir. 1988).

The Fourth Circuit did not expressly consider

whether the discussion of offers for free goods and ser-

vices in the 2006 Order is a legislative rule, but that is

the only reading that makes sense of the Fourth Cir-

cuit’s assertion that it would be nonsensical “[t]o hold

that a district court cannot enjoin or set aside a rule

but is nevertheless free to ignore it (or decline[] to de-

fer to it).” Pet. App. 10a—1 1a (internal quotation marks

and citation omitted). That reading likewise finds sup-

port in the Fourth Circuit's repeated references to the

FCC's interpretation as a “regulation,” the “plain

meaning” of which controlled the rights and obliga-

tions of the parties. Pet. App. 13a—l14a. The Fourth

Circuit plainly assumed that the FCC’s interpretation

constitutes a “legislative rule.”

That assumption was too simplistic because the dis-

tinction between interpretive and legislative rules is

critical in this case. First, the Hobbs Act does not apply

at all to interpretive rules. An FCC rule is an “order”

reviewable under 47 U.S.C. § 402(a), and hence subject

to the Hobbs Act’s provisions, only if it has the “force

of law” in the sense that it “sets a standard of conduct

for all to whom its terms apply.” Columbia Broad. Sys.,

Inc. v. United States, 316 U.S. 407, 418 (1942). Inter-

pretive rules do not have that effect.

Second, the distinction between interpretive and leg-

islative rules goes directly to the Fourth Circuit’s per-

ception that there was something untoward about the

district court’s refusal to automatically apply the in-

terpretation set forth in the 2006 Order. In the Fourth

Circuit’s view, the Hobbs Act barred the district court

from declining to treat that interpretation as estab-

lishing the rule of decision. But there is no such dis-

connect if the FCC’s interpretation is properly re-

garded as an interpretive rule or general policy state-

ment because “a court is not required to give effect to

an interpretative regulation.”* Batterton v. Francis,

432 U.S. 416, 425 n.9 (1977).

The FCC's discussion of “offers for free goods and

services and informational messages” bears all of the

hallmarks of a non-binding interpretive rule or policy

statement because it serves to clarify the agency’s in-

terpretation of the TCPA and expectations for its own

enforcement practices. It does not impose new com-

mands upon private parties or courts.

As noted, the “critical feature of interpretive rules is

that they are issued by an agency to advise the public

of the agency’s construction of the statutes and rules

which it administers.” Perez, 135 S. Ct. at 1204. The

Commission’s discussion concerning “offers for free

goods and services and informational messages” does

8 Of course, even if the district court were bound by the FCC's

rule, PDR’s position remains that the district court's interpreta-

tion of that rule was correct, in light of the text of the TCPA and

the plain language of the 2006 Order itself. See Chevron, U.S.A.,

Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984);

Sandusky, 788 F.3d at 223 (holding that the “unambiguous

terms” of the TCPA apply only to faxes with “commercial compo-

nents” (internal quotation marks omitted)); cf. Decker v. Nw. En-

vtl. Def. Ctr., 568 U.S. 597, 609 (2013) (holding that advocating

for a “purposeful but permissible reading of the regulation to

bring it into harmony with the statute” is not tantamount to

“seek[ing] an implicit declaration that the ... regulations were in-

valid as written” (internal quotation marks and ellipses omitted)).

just that, and nothing more. It explains the Commis-

sion’s general understanding that the TCPA regulates

commercial fax messages while leaving “noncommer-

cial speech” unregulated. 21 FCC Red. at 3810 n.156.

It outlines the Commission’s view that fax messages

that “promote goods or services” qualify as “unsolicited

advertisements,” even if the commercial “promot{ion]”

takes on nominally “no cost” features. Id. at 3814. It

introduces the Commission’s understanding that “in-

formational messages” are an aspect of the “noncom-

mercial speech” that the TCPA leaves unregulated. /d.

at 3814 & n.156. And, critically, it lays out a non-ex-

haustive lists of factors the Commission expects to

“consider” on a “case-by-case basis” in distinguishing

between “informational messages,” on the one hand,

and “commercial” messages that “promote goods or

services,” on the other. Jd. at 3814-15 & n.187. The

FCC's interpretation thus advises the regulated com-

munity on how the Commission “will exercise its broad

enforcement discretion ... under some extant statute or

rule.” Ass'n of Flight Attendants-CWA v. Huerta, 785

F.3d 710, 716 (D.C. Cir. 2015) (quoting Natl Mining

Ass'n v. McCarthy, 758 F.3d 243, 252 (D.C. Cir. 2014)).

Furthermore, unlike a “legislative rule,” nothing in

the relevant paragraphs of the FCC’s order purports to

create new, binding obligations for private parties or

to alter anything in a prior Commission regulation.

See United States v. Picciotto, 875 F.2d 345, 347-48

(D.C. Cir. 1989) (explaining that interpretive rules

“merely restate existing duties, rather than creatle]

new duties”). This is in sharp contrast to many other

sections of the 2006 Order, which made amendments

to the Commission’s prior legislative rules and thus

were presaged by a notice of proposed rulemaking and

reflected in amendments to codified regulations. For

example, just a few pages prior to the “offers for free

goods and services and informational messages” dis-

cussion, the Commission noted that it had “sought

comment in the [Junk Fax Prevention Act] NPRM” on

how to allocate responsibility for transmission of unso-

licited faxes between third party agents or broadcast-

ers, on the one hand, and the requesting entity, on the

other. 21 FCC Red. at 3807. The Commission then an-

swered that question by concluding that “the sender is

the person or entity on whose behalf the advertisement

is sent,” id. at 3808; “adoptied] a definition of sender

for purposes of the facsimile advertising rules,” id_;

and codified just such a definition in its rules, see 47

C.F.R. § 64. 1200(f)(8) (2006) (“The term sender for pur-

poses of paragraph (a)(3) of this section means the per-

son or entity on whose behalf a facsimile unsolicited

advertisement is sent or whose goods or services are

advertised or promoted in the unsolicited advertise-

ment”). The Commission did nothing like this with re-

spect to “offers for free goods and services and infor-

mational messages.” It said only that it was respond-

ing to petitions for clarification and reconsideration

that had been filed in response to the 2003 order, 21

FCC Red. at 3814 nn.185 & 187, 3815 n.188, and of-

fered views of the law that bore on the issues raised by

the petitioners. The Commission did not codify its

views in its TCPA regulations.

For all these reasons, the Commission’s interpreta-

tion of 47 U.S.C. § 227(a)(5), as applied to “offers for

free goods and services and informational messages,”

is properly categorized as a non-binding interpretive

rule or policy statement. Accordingly, the Commis-

sion’s interpretation was not reviewable under 47

U.S.C. § 402(a) or the Hobbs Act, and the district

court's review of the Commission’s interpretation

raised no jurisdictional questions respecting the Hobbs

Act. Because the Commission’s interpretation is not

binding, the district court was not obliged to apply it,

and was instead free to interpret the TCPA in light of

its text and context and—correctly—to grant PDR’s

motion to dismiss Carlton & Harris's statutory dam-

ages claims.

CONCLUSION

For the foregoing reasons, the judgment of the court

of appeals should be reversed.

Respectfully submitted,

JEFFREY N. ROSENTHAL CARTER G. PHILLIPS *

BLANK ROME LLP KWAKU A. AKOWUAH

130 N. 18th Street DANIEL J. FEITH

Philadelphia, PA 19103 Kurt A. JOHNSON

(215) 569-5553 SIDLEY AUSTIN LLP

1501 K Street, N.W.

ANA TAGVORYAN Washington, D.C. 20005

BLANK ROME LLP (202) 736-8000

2029 Century Park East cphillips@sidley.com

Counsel for Petitioners

January 8, 2019 * Counsel of Record

APPENDIX

STATUTORY APPENDIX

28 U.S.C. § 2341. Definitions

As used in this chapter—

(1) “clerk” means the clerk of the court in which

the petition for the review of an order, reviewable

under this chapter, is filed;

(2) “petitioner” means the party or parties by

whom a petition to review an order, reviewable under

this chapter, is filed; and

(3) “agency” means—

(A) the Commission, when the order sought to be

reviewed was entered by the Federal Communica-

tions Commission, the Federal Maritime Commis-

sion, or the Atomic Energy Commission, as the case

may be;

(B) the Secretary, when the order was entered by

the Secretary of Agriculture or the Secretary of

Transportation;

tered by the Maritime Administration;

(D) the Secretary, when the order is under section

812 of the Fair Housing Act; and

(E) the Board, when the order was entered by the

Surface Transportation Board.

28 U.S.C. § 2342. Jurisdiction of court of appeals

The court of appeals (other than the United States

Court of Appeals for the Federal Circuit) has exclu-

sive 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 ti-

tle 47;

(2) all final orders of the Secretary of Agriculture

made under chapters 9 and 20A of title 7, except or-

ders issued under sections 210(e), 217a, and 499¢(a)

of title 7;

(3) all rules, regulations, or final orders of —

(A) the Secretary of Transportation issued pursu-

ant to section 50501, 50502, 56101-56104, or 57109 of

title 46 or pursuant to part B or C of subtitle [V, sub-

chapter [II of chapter 311, chapter 313, or chapter

315 of title 49; and

(B) the Federal Maritime Commission issued pur-

suant to section 305, 41304, 41308, or 41309 or chap-

ter 421 or 441 of title 46;

(4) all final orders of the Atomic Energy Commis-

sion made reviewable by section 2239 of title 42;

(5) all rules, regulations, or final orders of the Sur-

face Transportation Board made reviewable by sec-

tion 2321 of this title;

(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.

28 U.S.C. § 2343. Venue

The venue of a proceeding under this chapter is in the

judicial circuit in which the petitioner resides or has

its principal office, or in the United States Court of

Appeals for the District of Columbia Circuit.

28 U.S.C. § 2344. 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 re-

view 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 exhib-

its, copies of the order, report, or decision of the agen-

cy. 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.

28 U.S.C. § 2345. Prehearing conference

The court of appeals may hold a prehearing confer-

ence or direct a judge of the court to hold a prehear-

ing conference.

28 U.S.C. § 2346. Certification of record on re-

view

Unless the proceeding has been terminated on a mo-

tion to dismiss the petition, the agency shall file in

the office of the clerk the record on review as provid-

ed by section 2112 of this title.

28 U.S.C. § 2347. Petitions to review; proceed-

ings

(a) Unless determined on a motion to dismiss, peti-

tions to review orders reviewable under this chapter

are heard in the court of appeals on the record of the

pleadings, evidence adduced, and proceedings before

the agency, when the agency has held a hearing

whether or not required to do so by law.

(b) When the agency has not held a hearing before

taking the action of which review is sought by the pe-

tition, the court of appeals shall determine whether a

hearing is required by law. After that determination,

the court shall—

(1) remand the proceedings to the agency to hold a

hearing, when a hearing is required by law;

(2) pass on the issues presented, when a hearing is

not required by law and it appears from the pleadings

and affidavits filed by the parties that no genuine is-

sue of material fact is presented; or

(3) transfer the proceedings to a district court for

the district in which the petitioner resides or has its

principal office for a hearing and determination as if

the proceedings were originally initiated in the dis-

trict court, when a hearing is not required by law and

a genuine issue of material fact is presented. The

procedure in these cases in the district court is gov-

erned by the Federal Rules of Civil Procedure.

the court of appeals in which the proceeding is pend-

ing for leave to adduce additional evidence and shows

to the satisfaction of the court that—

(1) the additional evidence is material; and

(2) there were reasonable grounds for failure to

adduce the evidence before the agency;

the court may order the additional evidence and any

counterevidence the opposite party desires to offer to

be taken by the agency. The agency may modify its

findings of fact, or make new findings, by reason of

the additional evidence so taken, and may modify or

set aside its order, and shall file in the court the addi-

tional evidence, the modified findings or new find-

ings, and the modified order or the order setting aside

the original order.

28 U.S.C. § 2348. Representation in proceeding;

intervention

The Attorney General is responsible for and has con-

trol 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, associ-

ations, 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 prose-

cute, defend, or continue the proceeding unaffected by

the action or inaction of the Attorney General.

28 U.S.C. § 2349. Jurisdiction of the proceeding

(a) The court of appeals has jurisdiction of the pro-

ceeding on the filing and service of a petition to re-

view. The court of appeals in which the record on re-

view 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 pro-

ceedings 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.

(b) The filing of the petition to review does not of

itself stay or suspend the operation of the order of the

agency, but the court of appeals in its discretion may

restrain or suspend, in whole or in part, the operation

of the order pending the final hearing and determina-

tion of the petition. When the petitioner makes appli-

cation for an interlocutory injunction restraining or

suspending the enforcement, operation, or execution

of, or setting aside, in whole or in part, any order re-

viewable under this chapter, at least 5 days’ notice of

the hearing thereon shall be given to the agency and

to the Attorney General. In a case in which irrepara-

ble damage would otherwise result to the petitioner,

the court of appeals may, on hearing, after reasonable

notice to the agency and to the Attorney General, or-

der a temporary stay or suspension, in whole or in

part, of the operation of the order of the agency for

not more than 60 days from the date of the order

pending the hearing on the application for the inter-

locutory injunction, in which case the order of the

court of appeals shall contain a specific finding, based

on evidence submitted to the court of appeals, and

identified by reference thereto, that irreparable dam-

age would result to the petitioner and specifying the

nature of the damage. The court of appeals, at the

time of hearing the application for an interlocutory

injunction, on a like finding, may continue the tempo-

rary stay or suspension, in whole or in part, until de-

cision on the application.

28 U.S.C. § 2350. Review in Supreme Court on

certiorari or certification

(a) An order granting or denying an interlocutory

injunction under section 2349(b) of this title and a fi-

nal judgment of the court of appeals in a proceeding

to review under this chapter are subject to review by

the Supreme Court on a writ of certiorari as provided

by section 1254(1) of this title. Application for the

writ shall be made within 45 days after entry of the

order and within 90 days after entry of the judgment,

as the case may be. The United States, the agency, or

an aggrieved party may file a petition for a writ of

certiorari.

(b) The provisions of section 1254(2) of this title,

regarding certification, and of section 2101(f) of this

title, regarding stays, also apply to proceedings under

this chapter.

28 U.S.C. § 2351. Enforcement of orders by dis-

trict courts

The several district courts have jurisdiction specifi-

cally to enforce, and to enjoin and restrain any person

from violating any order issued under section 193 of

title 7.

47 U.S.C. § 402. Judicial review of Commission’s

orders and decisions

(a) Procedure

Any proceeding to enjoin, set aside, annul, or sus-

pend 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.

* = =

5 U.S.C. § 703. Form and venue of proceeding

The form of proceeding for judicial review is the spe-

cial statutory review proceeding relevant to the sub-

ject matter in a court specified by statute or, in the

absence or inadequacy thereof, any applicable form of

legal action, including actions for declaratory judg-

ments or writs of prohibitory or mandatory injunction

or habeas corpus, in a court of competent jurisdiction.

If no special statutory review proceeding is applica-

ble, 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 proceed-

ings for judicial enforcement.

47 U.S.C. § 227. 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 quality of any property, goods, or services which is

transmitted to any person without that person’s prior

express invitation or permission, in writing or other-

wise.

* a =

REGULATORY APPENDIX

Federal Communications Commission (F.C.C.)

Report and Order and Third Order

on Reconsideration

IN THE MATTER OF RULES AND REGULATIONS

IMPLEMENTING THE TELEPHONE CONSUMER

PROTECTION ACT OF 1991

CG Docket No. 02-278

FCC 15-24

JUNK FAX PREVENTION ACT OF 2005

CG Docket No. 05-338

FCC 06-42

Adopted: April 5, 2006

Released: April 6, 2006

By the Commission:

* oe a

4. Offers for Free Goods and Services and In-

formational Messages

52. We conclude that facsimile messages that pro-

mote goods or services even at no cost, such as free

magazine subscriptions, catalogs, or free consulta-

tions or seminars, are unsolicited advertisements un-

10a

der the TCPA’s definition." In many instances,

“free” seminars serve as a pretext to advertise com-

mercial products and services. Similarly, “free” publi-

cations are often part of an overall marketing cam-

paign to sell property, goods, or services. For in-

stance, while the publication itself may be offered at

no cost to the fascimile recipient, the products pro-

moted within the publication are often commercially

available. Based on this, it is reasonable to presume

that such messages describe the “quality of any prop-

erty, goods, or services.”!® Therefore, facsimile com-

munications regarding such free goods and services,

if not purely “transactional,” would require the send-

er to obtain the recipient’s permission beforehand, in

the absence of an EBR.

53. By contrast, facsimile communications that con-

tain only information, such as industry news articles,

legislative updates, or employee benefit information,

would not be prohibited by the TCPA rules. An inci-

dental advertisement contained in a newsletter does

not convert the entire communication into an adver-

tisement.'*7 Thus, a trade organization’s newsletter

1856 * . *

186 * * *

187 See Air Conditioning Contractors Petition for Reconsidera-

tion at 2-3, filed August 12, 2003. In determining whether an

advertisement is incidental to an informational communication,

advertisement is to a bona fide “informational communication.”

In determining whether the advertisement is to a bona fide “in-

formational communication,” the Commission will consider

whether the communication is issued on a regular schedule;

whether the text of the communication changes from issue to

issue; and whether the communication is directed to specific

regular recipients, i.e., to paid subscribers or to recipients who

have initiated membership in the organization that sends the

lla

sent via facsimile would not constitute an unsolicited

advertisement, so long as the newsletters primary

purpose is informational, rather than to promote

commercial products. We emphasize that a newslet-

oe ee

not protect a sender from liability for delivery of an

unsolicited advertisement under the TCPA and the

Commission’s rules. We will review such newsletters

on a case-by-case basis should they be brought to our

attention.

54. Finally, we conclude that any surveys that serve

as a pretext to an advertisement are subject to the

TCPA’s facsimile advertising rules.'** The TCPA’s

definition of “unsolicited advertisement” applies to

any communication that advertises the commercial

availability or quality of property, goods or services,

even if the message purports to be conducting a sur-

vey. 189

= = .

communication. We may also consider the amount of space de-

voted to advertising versus the amount of space used for infor-

mation or “transactional” messages and whether the advertising

on behalf of the «ouder of the communication, such as an an-

nouncement in a membership organization's monthly newsletter

about an upcoming conference, or whether the advertising space

is sold to and transmitted on behalf of entities other than the

sender.

= * « .

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.